10-03-2016 ECF 710 USA V Ryan Payne - Motion To Dismiss Re Counts 3, 6, 9, and 15

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 1 of 31
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RENE L. VALLADARES
Federal Public Defender
State Bar No. 11479
WILLIAM CARRICO
State Bar No. 003042
Assistant Federal Public Defender
BRENDA WEKSLER
State Bar No. 8124
RYAN NORWOOD
411 E. Bonneville Avenue, Suite 250
Las Vegas, Nevada 89101
(702) 388-6577/Phone
(702) 388-6261/Fax
Ryan_Norwood@fd.org
Attorneys for Ryan W. Payne
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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA
-oOo-
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UNITED STATES OF AMERICA,
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Plaintiff,
vs.
RYAN W. PAYNE,
Defendant.
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Case No. 2:16-cr-046-GMN-PAL

DEFENDANT RYAN PAYNES
MOTION TO DISMISS
COUNTS 3, 6, 9, AND 15
FOR FAILURE TO ALLEGE A
CRIME OF VIOLENCE
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Certification: This Motion is timely filed.
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Defendant RYAN W. PAYNE, through his counsel, WILLIAM CARRICO, RYAN
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NORWOOD, and BRENDA WEKSLER, Assistant Federal Public Defenders, respectfully moves
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the Court to Dismiss Counts 3, 6, 9, and 15 in the superseding indictment (ECF No. 27) on the
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grounds that these counts fail to allege a crime of violence as required by 18 U.S.C. 924(c).
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This Motion is based on the points and authorities set forth below.
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DATED this 3rd day of October, 2016.
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RENE VALLADARES
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By: /s/ William Carrico

WILLIAM CARRICO
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By: /s/ Ryan Norwood

RYAN NORWOOD
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By: /s/ Brenda Weksler

BRENDA WEKSLER
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MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Defendant Ryan Payne is charged with 16 Counts in the superseding indictment. Four of
these counts are offenses under 18 U.S.C. 924(c), in which he is accused of using, carrying, and
brandishing a firearm during and in relation to a purported crime of violence alleged elsewhere
in the indictment.
Count 3 alleges using, carrying, and brandishing a firearm during and in relation to the
offense of conspiracy to impede and injure an officer, in violation of Title 18, United States
Code, Section 372, as charged in Count Two.
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offense of assault on a federal officer in violation of Title 18, United States Code, Section
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111(a)(1) and (b), as charged in Count Five.
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offense of threatening a federal law enforcement officer, in violation of Title 18, United States
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Code, Section 115(a)(1)(B), as charged in Count Eight.
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offense of interference with interstate commerce by extortion, in violation of Title 18, United
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States Code, Section 1951, as charged in Count Fourteen.
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As a matter of law, however, none of the four underlying offenses alleged in Counts 3, 6,
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9, and 15 are categorically crimes of violence 1 These Counts thus fail to allege a crime under
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924(c) and must be dismissed. The Court should also strike the language in Count 1, subsection
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This motion is based solely on the superseding indictments failure to allege a crime of violence
under 18 U.S.C. 924(c). Payne reserves the right to bring other legal challenges and defenses
with respect to the 924(c) counts, via motion or at trial.
(c) that cites these alleged 924(c) violations as predicate offenses for the conspiracy alleged in
Count 1. See ECF 27, p. 38.
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ARGUMENT
A. Section 924(c) requires the government to allege an underlying offense based on a
statute that categorically states a crime of violence.
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Title 18, section 924(c)(1)(a) of the United States Code criminalizes the use or carry
of a firearm in relation to a drug trafficking offense or, as relevant here, a crime of violence. A
defendant convicted of a 924(c) count receives a mandatory minimum sentence of at least five
years, in addition to the punishment he receives for the underlying offense.
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Section 924(c)(3) defines a crime of violence as a felony that:

(A) Has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) That by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course
of committing the offense
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The term crime of violence appears throughout the federal criminal law, including the
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Armed Career Criminal Act (the ACCA), in various provisions of the federal Sentencing
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Guidelines, and in immigration statutes. The definition is similar in all these provisions. The
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first clause, 924(c)(3)(A), is generally known as the physical force clause. The second clause,
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924(c)(3)(B), is generally known as the residual clause.
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The Supreme Court has long recognized that courts must typically apply a categorical
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approach to determine whether an offense is a crime of violence. Taylor v. United States, 495
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U.S. 575 (1990). The categorical approach looks to the elements of the offense rather than the
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particular facts underlying the defendants conviction. United States v. Dominguez-Maroyoqui,
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748 F.3d 918, 920 (9th Cir. 2014) (citing Descamps v. United States, 133 S. Ct. 2276, 2283
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(2013)). A court must determine as a matter of law whether the elements of the underlying felony
criminalize a broader swath of conduct than the definition of crime of violence. Id. (citing
Descamps, 133 S. Ct. at 2281). If that is the case, the felony cant qualify as a crime of violence,
even if the facts underlying [the defendants] own conviction might satisfy the definition.
Dominguez-Maroyoqui, 748 F.3d at 920 (Descamps, 133 S. Ct. at 2283). Under the categorical
approach, the crime of violence determination thus function[s] as an on-off switch: an offense
qualifies as a crime of violence in all cases or in none. Dominguez-Maroyoqui, 748 F.3d at 920
(citing Descamps, 133 S. Ct. at 2287).
The only exception to the categorical approach is a narrow range of cases where a court
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applies a modified categorical approach. Descamps, 133 S. Ct. at 2283-84 (citing Taylor, 495
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U.S. at 602). The modified categorical approach is undertaken only when the statute at issue is
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divisible. Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014). A statute is not divisible
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when it lists alternative means of committing an offense, even when those means are
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disjunctive. Mathis v. United States, 136 S. Ct. 2243, 2253 (2016). Rather, a statute is only
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divisible when it contains alternative elements. Id. If a statute contains alternative elements
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the government must prove, the modified categorical approach allows a court to examine a
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limited class of documents to determine which of a statutes alternative elements formed the
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basis of the defendants conviction. Descamps, 133 S. Ct. at 2284. But even then, the modified
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categorical approach servesand serves solelyas a tool to identify the elements of the crime
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of conviction when a statutes disjunctive phrasing renders one (or more) of them opaque.
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Mathis, 136 S. Ct. at 2254. Under no circumstances does a court look to the underlying facts
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of the offense or the means by which the defendant purportedly committed that offense to
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determine whether an offense is a crime of violence under either the categorical or modified
categorical approaches. Id.
Many crime of violence cases arise with respect to the ACCA and the federal Sentencing
Guidelines, where the defendant had previously been convicted of the predicate offense and the
court must determine whether that prior conviction counts as a crime of violence for purpose
of enhancing a separate federal conviction. The rules, however, are no different in the context of
a 924(c) prosecution where the defendants are concurrently charged with the predicate offense.
The question of whether a predicate offense for a 924(c) count constitutes a crime of violence
is a matter of law governed by a categorical inquiry. United States v. Amparo, 68 F.3d 1222,
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1226 (9th Cir. 1995); see also United States v. Piccolo, 441 F.3d 1084 at 1086 (9th Cir. 2006)
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(applying categorical approach in determining whether the defendants instant offense of
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conviction is a felony that is . . . a crime of violence).
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The categorical approach is applied without regard to whether the given offense is a prior
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offense or the offense of conviction. Piccolo, 441 F.3d at 1086. As such, whatever facts the
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government may produce at trial to support the predicate offenses is irrelevantwhat matters are
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the fact of conviction and the statutory definition of the prior offense. Id. If the relevant
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statute would support a conviction not defined as a crime of violence, that conviction cannot
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qualify as a predicate offense. Id.
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This Court has accordingly granted pretrial motions to dismiss 924(c) counts when it
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determines that the concurrently charged predicate offense is not categorically a crime of
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violence. See, e.g., United States v. Smith, 2:11-cr-00058-JAD-CWH (ECF 230) (D. Nev. 2016)
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(granting a pretrial motion to dismiss 924(c) count based on concurrently filed conspiracy to
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commit Hobbs Act robbery because conspiracy to commit Hobbs Act robbery is not categorically
a crime of violence).
B. The categorical inquiry only considers the force clause of the crime of violence
definition because the residual clause is unconstitutionally vague.
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In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that the
residual clause of the violent felony definition in the ACCA was unconstitutionally vague.
Overruling several prior decisions, including Sykes v. United States, 564 U.S. 1 (2011), the
Supreme Court held that the use of the residual clause to enhance a defendants sentence would
violate the Constitutions guarantee of due process. Id. at 2563.
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The relevant provision of the ACCAs residual clause defined a violent felony to include
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any felony that involves conduct that presents a serious potential risk of physical injury to
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another. Johnson, 135 S. Ct. at 2555-56 (emphasizing this language). Similar language appears
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in the residual clause of 924(c)(3)(B), which defines an offense as a crime of violence if by its
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nature, [it] involves a substantial risk that physical force against the person or property of another
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may be used in the course of committing the offense.
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The Ninth Circuit has recognized that the differences in language between the residual
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clause struck down in Johnson and that in 924(c)(3)(B) does not lead to a different result. In
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Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), the Court analyzed the residual clause of the
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crime of violence definition in 18 U.S.C. 16(b), a statute governing immigration removals. That
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residual clause, which defines a crime of violence as any other offense that is a felony and that,
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by its nature, involves a substantial risk that physical force against the person or property of
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another may be used in the course of committing the offense, is essentially the same as that in
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924(c)(3)(B). Applying Johnson, the Court ruled that this residual clause was unconstitutionally
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vague. Dimaya, 803 F.3d at 1120. If due process bars the application of an almost identically
worded residual clause in a civil immigration context, it must certainly bar the application of that
clause when it concerns the definition of a criminal offense. See Dimaya at 1113 (acknowledging
vagueness concerns are most often invoked in the context of criminal statutes).
Numerous district courts in the Ninth Circuit, including this Court, have recognized that
Johnson and Dimaya require the residual clause of 924(c)(3)(B) to be found unconstitutionally
vague. See Smith, 2:11-cr00058-JAD-CWH (ECF 230); Bundy, 2016 WL 3361490 at **5-6;
United States v. Baires-Reyes, 2016 WL 3163049 at **3-5 (N.D. Cal. 2016); United States v.
Lattanaphom, 2016 WL 393545 at **3-6 (E.D. Cal. 2016); United States v. Bell, 2016 WL
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344749 at *13 (N.D. Cal. 2016).
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Although the Supreme Court recently granted certiorari in Dimaya, see Lynch v. Dimaya,
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No. 15-1498, 2016 WL 3232911 (U.S. Sept. 29, 2016), Dimaya still remains binding precedent
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within this Circuit, and district courts have no discretion to ignore binding Ninth Circuit authority
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unless and until the Supreme Court overrules it. See Hart v. Massanari, 266 F.3d 1155, 1170
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(9th Cir. 2001) (Binding authority must be followed unless and until overruled by a body
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competent to do so.); see also Mohamed v. Uber Techs., Inc., ___F.3d___, No. 15-16178, 2016
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WL 4651409, at *6 (9th Cir. Sept. 7, 2016) (The district court does not have the authority to
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ignore circuit court precedent . . . .).
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Further, the grant of certiorari alone does not alter the binding character of circuit law.
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Notably, in the capital habeas context the Eleventh Circuit has explained that the mere grant of
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certiorari does not change the binding law of the circuit. See Schwab v. Secy, Dept of Corr.,
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507 F.3d 1297, 1298 (11th Cir. 2007) (The district court's action in granting the stay is contrary
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to the unequivocal law of this circuit that, because grants of certiorari do not themselves change
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the law, they must not be used by courts of this circuit as a basis for granting a stay of execution
that would otherwise be denied.); Bowden v. Kemp, 774 F.2d 1494, 1495 (11th Cir. 1985)
(holding that grant of certiorari by Supreme Court does not constitute contrary authority, and that
circuit precedent remains binding); see also Yong v. I.N.S., 208 F.3d 1116, 1119 n.2 (9th Cir.
2000) (noting that once a federal circuit court issues a decision, the district courts within that
circuit are bound to follow it and have no authority to await a ruling by the Supreme Court before
applying the circuit court's decision as binding authority). Moreover, Dimayas holding
represents the 4-1 majority position among circuits that have addressed whether section 16(b) is
void for vagueness. Compare Golicov v. Lynch, ___F.3d___, No. 16-9530, 2016 WL 4988012,
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at *8 (10th Cir. Sept. 19, 2016) (holding that 16(b) is void for vagueness), Shuti v. Lynch, 828
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F.3d 440, 451 (6th Cir. 2016) (same), United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir.
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2015) (same), and Dimaya, 803 F.3d at 1120 (same), with United States v. Gonzalez-Longoria,
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___F.3d___, No. 15-40041, 2016 WL 4169127, at *1 (5th Cir. Aug. 5, 2016) (en banc) (holding
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that 16(b) is not void for vagueness).
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As further detailed below, Johnson calls into question prior precedent holding that
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offenses may qualify as crimes of violence. To the extent these prior decisions are based on
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the residual clause of the applicable crime of violence definition, these decisions are no longer
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good law, and their holdings must be re-evaluated.
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C. The predicate offenses alleged in Counts 3, 6, 9, and 15 are not crimes of violence.
1. Conspiracy to impede federal officers under 18 U.S.C. 372 is not categorically
a crime of violence (Count 3).
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Count 3 of the Indictment alleges that conspiracy to impede federal officers under 18
U.S.C. 372, as charged in Count Two, constitutes a crime of violence.
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In a separate but parallel prosecution involving Ryan Payne and several other co-defendants in
this case, the District Court of Oregon ruled that 18 U.S.C. 372 was not a crime of violence and
thus dismissed the 924(c) count alleged in that case. See United States v. Bundy, 2016 WL
3361490 (D. Or. 2016). As detailed herein, the same reasoning compels the dismissal of Count
3 in this case.
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Section 372 prohibits:

conspir[ing] to prevent, by force, intimidation, or threat, any person
from accepting or holding any office, trust, or place of confidence
under the United States, or from discharging any duties thereof, or
to induce by like means any officer of the United States to leave the
place, where his duties as an officer are required to be performed, or
to injure him in his person or property on account of his lawful
discharge of the duties of his office, or while engaged in the lawful
discharge thereof, or to injure his property so as to molest, interrupt,
hinder, or impede him in the discharge of his official duties.
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Count 2 specifically alleges that the defendants conspired to prevent by force,
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intimidation, and threats of violence, federal law enforcement officers from discharging the duties
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of their office . . . and to induce by force, intimidation, and threats, federal law enforcement
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officers to leave the place where their duties were required to be performed. ECF No. 27, p. 40.
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Count 2 does not refer to the other sections of 372 that list injury to the person or property of
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the officer as a means of committing the offense. And Count 3 adds the qualification that the
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defendants purportedly conspired to prevent the discharge of duties by force, intimidation, and
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threats of violence. Id. (emphasis added).
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For purposes of a categorical analysis, the superseding indictments charging language
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does not matter. The Court must only look to the statutory definition of the predicate offense.
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Piccolo, 441 F.3d at 1086. The facts alleged in the indictment only matter when a court applies
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the modified categorical approach, for which the charging paper (i.e., the indictment) is one
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of the limited class of documents to which a court may refer. Mathis, 133 S. Ct. at 2284. But
the modified categorical approach only applies when a statute is divisible and not when, as
here, the statute merely lists alternative means of committing an offense.
As the Oregon court recognized, 372 is not divisible as to whether the object of the
conspiracy was accomplished by force, intimidation, or threat. Bundy, 2016 WL 3361490, at
*4. Force, intimidation, and threat are merely three means by which a conspiracy to prevent
officers from performing their duties may be accomplished under the statute. 2 Id. (citing United
States v. Demott, 2005 WL 2314134 at **1-2 (N.D. NY 2005)). The government cannot evade a
categorical inquiry into a statutory definition by alleging a narrower crime in the indictment or
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by adding extra-statutory requirements.
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Section 372 criminalizes a broader swath of conduct than the definition of crime of
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violence in the physical force clause contained in 924(c). As relevant here, 372 only
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requires proof that a defendant conspired to use force, intimidation, or threat to prevent an
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officer from discharging his duties or induce him to leave. The physical force clause of 924,
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however, requires actual use, attempted use, or threatened use of physical force.
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At most, it might be contended that 372 is divisible with respect to the four objects or goals
of the prohibited conspiracy, i.e., to: 1) prevent any person from accepting or holding any office,
trust, or place of confidence under the United States, or from discharging any duties thereof; (2)
induce any officer of the United States to leave the place, where his duties as an officer are required
to be performed; (3) injure an officer of the United States in his person or property on account of
his lawful discharge of the duties of his officer, or while engaged in the lawful discharge thereof;
or (4) injure the property of an officer of the United States so as to molest, interrupt, hinder, or
impede him in the discharge of his official duties. Cf. Demott 2005 WL 2314134 at *1 (breaking
down the elements of the statute). Here, however, the indictment only alleges the first two of these
four goals. But both of these goals both require proof of the indivisible force, intimidation, or
threat element. Id. As explained below, this language renders the statute categorically broader
than the crime of violence definition.
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Moreover, the Supreme Court has held physical force means violent force -- that is,
force capable of causing physical pain or injury to another person. Johnson v. United States,
559 U.S. 133, 140 (2010). Section 372 contains no such limitation and does not require proof
that the defendant used, attempted to use, or threatened to use physical force. Courts, accordingly,
have upheld 372 convictions when the offense did not involve any acts or threats of physical
violence. In United States v. Fulbright, the defendant harassed a bankruptcy judge by mailing
him documents, including a Notice and Demand for Declaration of Judges Impartiality and a
Citizens Arrest Warrant for Citizens Arrest. 105 F.3d at 446. The letters were described as
threatening and intimidating, but there is no indication they contained any threats of physical
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violence. 105 F.3d 443 (9th 1997), overruled on other grounds by United States v. Heredia, 105
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F.3d 443 (9th Cir. 2007); see also Finn v. United States, 219 F.2d 894, 898 (9th Cir. 1955)
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(upholding 372 conviction based on citizens arrest of a United States District Attorney that
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involved no force other than placing handcuffs on him); United States v. Hall, 342 F.2d 849 (4th
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Cir. 1965) (evidence of a conspiracy to arrest an undercover officer, with no other evidence of a
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plan for violence, sufficient to affirm 372 conviction).
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In ruling that 372 is broader than 924s force clause, the District Court of Oregon
likewise recognized:
[A] threat does not always implicate the threatened use of
physical force against the person or property of another. For
example, because the express terms of 372 do not limit a threat
to the threat of physical force against the person or property of
another, a threat under 372 could be a threat to blackmail a
federal officer for the purpose of preventing the officer from
discharging his or her duties, which is a kind of threat that does not
necessarily require as an element the threatened use of physical
force. See 18 U.S.C. 924(c)(3)(A). Nevertheless, a threat
under 372 must be illegitimate. See United States v. Fulbright,
105 F.3d 443, 452 (9th Cir. 1997). Moreover, the Court notes the
word intimidation may also encompass conduct that does not
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present a threat of physical force because intimidation could, for

example, apply to threats of nonviolent harm to property. See
United States v. Cassel, 408 F.3d 622, 636 (9th Cir. 2005) (We
conclude that intimidation under 18 U.S.C. 1860 requires the
threat of harm inflicted by the defendant upon the victim's person or
property.).
Bundy, 2016 WL 3361490, at *3.
Without any statutory requirement of actual, attempted, or threatened use of physical
force, 372 cannot be a crime of violence. See United States v. Parnell, 818 F.3d 974, 979-80
(9th Cir. 2016) (holding Massachusetts armed robbery offense not a crime of violence, even if it
encompasses a willingness to use physical force, when it does not require defendant to threaten
such force); United States v. Werle, 815 F.3d 614, 621 (9th Cir. 2016) (finding conviction under
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Washingtons riot statute not a violent felony because it defines force more broadly than physical
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force as defined by Johnson).
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There are two other features of 372 that prevent it from being a crime of violence. First,
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it does not attach the required mens rea to the element of force, intimidation or threats. [T]o
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qualify as defining a violent felony, a state statute must require that the physical force be inflicted
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intentionally, as opposed to recklessly or negligently. United States v. Lawrence, 627 F.3d 1281,
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1284 (9th Cir. 2010); see also Begay v. United States, 553 U.S. 137, 144-45 (2008) (holding the
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ACCAs definition of violent felony refers to crimes that involve purposeful, violent, and
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aggressive conduct). Section 372, of course, does not require any sort of physical force at all and
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certainly does not require the intentional infliction of such force.
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Second, 372 is an inchoate offense, requiring only that the government prove a
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conspiracy to use force, intimidation, or threat to impede a federal officer. Indeed, 372 does
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not even require proof of an overt act in furtherance of the conspiracy. Because the gist of a
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conspiracy is an agreement to effectuate a criminal design . . . it is not necessary to the crime of
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conspiracy that its object be accomplished. United States v. Melchor-Lopez, 627 F.2d 886, 891
(9th Cir. 1980). Thus, even if the completed offense contemplated in 372, i.e., the use of force,
intimidation, or threat to impede a federal officer somehow categorically constituted a crime of
violence, that completed offense would not be an element of the conspiracy offense. See United
States v. Sherbondy, 865 F.2d 996, 1010 (9th Cir. 1988) (defining an element as a constituent
part of the offense which must be proved by the prosecution in every case to sustain a conviction
under a given statute) (emphasis in original).
This Court has recognized that a conspiracy to commit an offense may not be a crime of
violence even if the underlying offense is such a crime. In Smith, 2:11-cr-00058-JAD-CWH
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(ECF No. 230) (D. Nev. May 18, 2016), this Court distinguished a Hobbs Act robbery from a
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conspiracy to commit that offense. While the former qualified as a categorical crime of violence,
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[a]greeing to commit a robbery does not necessarily involve the use, attempted use, or threatened
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use of physical force. Id. at p. 10. The Court dismissed the 924 Count predicated on conspiracy
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to commit Hobbs Act robbery. See also United States v. White, 571 F.3d 365, 369 (4th Cir. 2009),
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abrogated on other grounds by Johnson, 135 S. Ct. 2551 (holding North Carolina conviction for
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conspiracy to commit robbery with a deadly weapon offense did not have as an element, the use,
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attempted use, or threatened use of physical force); United States v. Gore, 636 F.3d 728 (5th
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Cir. 2011) (holding Texas conspiracy to commit aggravated robbery conviction did not satisfy
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ACCAs force clause because factfinder could convict based on mere agreement to commit
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offense, and without finding that force was actually used or threatened); United States v. King,
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979 F.2d 801, 804 (10th Cir. 1992) (holding conspiracy offense not a crime of violence because
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the crime of conspiracy in New Mexico is complete upon the formation of the intent to commit
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a felony, and does not require that any action be taken on that intent.).
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For all these reasons, Count 3 should be dismissed with prejudice.
2. Assault on a federal officer under 18 U.S.C. 111(a)(1) and (b) is not categorically
a crime of violence (Count 6).
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Count 6 of the superseding indictment alleges that assault on federal officer in violation
of Title 18, United States Code, 111(a)(1) and (b), as charged in Count Five, constitutes a crime
of violence.
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Section 111 of Title 18 reads:

(a) In general.--Whoever-(1) forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with any person designated in section 1114 of this title
while engaged in or on account of the performance of official duties;
or
(2) forcibly assaults or intimidates any person who formerly served
as a person designated in section 1114 on account of the
performance of official duties during such person's term of service,
shall, where the acts in violation of this section constitute only
simple assault, be fined under this title or imprisoned not more than
one year, or both, and where such acts involve physical contact with
the victim of that assault or the intent to commit another felony, be
fined under this title or imprisoned not more than 8 years, or both.
(b) Enhanced penalty.--Whoever, in the commission of any acts
described in subsection (a), uses a deadly or dangerous weapon
(including a weapon intended to cause death or danger but that fails
to do so by reason of a defective component) or inflicts bodily
injury, shall be fined under this title or imprisoned not more than 20
years, or both.
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The Ninth Circuit has held that 111 includes three separate offenses: (1) a misdemeanor
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simple assault; (2) a felony offense defined in 111(a) requiring physical contact or the intent to
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commit another felony; and (3) the enhanced penalty offense in 111(b), requiring proof of a
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deadly or dangerous weapon or the infliction of bodily injury. Dominquez-Maroyoqui, 748
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F.3d at 919-20. 3 Count 6 of the indictment refers to multiple sections of the statute: that is
111(a)(1) and 111(b), excluding the alternative 111(a)(2) definition that applies to former officials
who are assaulted on account of their former duties.
To the extent that Count 6 encompasses all of the offenses in 111, it involves an offense
that is categorically broader than the physical force clause. The Ninth Circuit has held that one
of these offenses, the simple assault defined in 111(a), cannot be a crime of violence because it
criminalizes conduct that does not require proof of physical force. See Dominguez-Maroyoqui,
748 F.3d at 920-22. Because 111 can include offenses that are not crimes of violence, the statute
as a whole cannot be a crime of violence.
10
The government may argue that: (a) Count 6 only alleges the enhanced offense in
11
111(b); and (b) the 111(b) offense is divisible from the rest of the statute. See United States
12
v. Juvenile Female, 566 F.3d 943, 947 (9th Cir. 2009) (rejecting argument that court must consider
13
the entire range of conduct criminalized by 111 in conducting a categorical analysis). Count
14
5, which alleges the predicate assault offense, includes language from 111(b), alleging that the
15
defendants did use a dangerous and deadly weapon.
16
The cases, assuming that 111 can be subdivided into separate offenses, Juvenile Female
17
and Dominguez-Maroyoqui, both concern earlier versions of the statute.
See Dominquez-
18
Maroyoqui, 748 F.3d at 920, n.2; Juvenile Female, 566 F.3d at 945. And both cases predate the
19
Supreme Courts decision in Mathis, which clarified and narrowed the application of the modified
20
categorical approach. Mathis, 136 S. Ct. at 2253-54 (criticizing the lower courts failure to
21
22
23
24
Dominguez-Maroyoqui interpreted a prior version of the statute with different wording. The
current statute, however, continues to list three different ranges of punishment, including a
misdemeanor simple assault and the enhanced felony offense. See 748 F.3d at 920 n.2 (citing
the prior version of the statute).
16
properly apply the categorical approach). The Ninth Circuit has not ruled whether the current
version of the statute is divisible. Payne contends that the alternative offenses listed in 111
should be understood, after Mathis, to list separate means of committing a 111 assault and
thus that the entire statute must be encompassed within a categorical analysis.
But even if the offense in 111(b) was a divisible, separate offense for purposes of a
categorical analysis, it is still categorically broader than the force clause. It is true that the
Ninth Circuit held otherwise in Juvenile Female, where it ruled that 111(b) would satisfy the
force clause of 18 U.S.C. 16 (which is substantially identical to that in 924) under a categorical
analysis. Juvenile Female, 566 F.3d at 947-48. Juvenile Female, however, predates the Supreme
10
Courts decisions Johnson (Johnson I), 559 U.S. at 140, and Johnson (Johnson II), 135 S. Ct.
11
2551. Both the Johnson decisions undermine the reasoning in Juvenile Female.
12
As an initial matter, Juvenile Female correctly recognized that the alternate means of
13
committing a 111(b) offense, that is with a dangerous or deadly weapon or by inflicting bodily
14
injury, are not divisible. 566 F.3d at 948 (analyzing both means even though the defendant was
15
only charged with one of them). Under Mathis, these alternative ways of committing the offense
16
are classic examples of separate means, rather than separate elements. 136 S. Ct. at 2253-54.
17
As such, it is irrelevant that Count 5 of the superseding indictment only lists one of these means
18
(the deadly weapon) because 111(b) is not categorically a crime of violence unless both of the
19
listed means necessarily satisfy the force clause. The Court must only look to the statutory
20
definition of the predicate offense. Piccolo, 441 F.3d at 1086. See also Section (C)(1) infra
21
(explaining why governments narrowing of nondivisible offense in indictment did not affect
22
categorical analysis).
23
24
17
Johnson I held that physical force must involve violent force -- that is, force capable
of causing physical pain or injury. 559 U.S. at 140. Nothing in 111(b) requires the use of such
force. As Dominguez-Maroyoqui recognized, the general definition in 111(a)(1) contains no
such requirement either. 748 F.3d at 920-22. See also United States v. Jim, 865 F.2d 211, 214
(9th Cir. 1989) (recognizing 111 prohibits much more than mere assault and its language
indicates that Congress intended to prevent interference with federal functions, not just assault on
federal officers).
Juvenile Female assumed the additional requirement in 111(b) that the defendant use a
deadly or dangerous weapon would necessarily make any assault a crime of violence because
10
deadly weapons are defined as objects that may endanger the life of or inflict great bodily harm
11
on a person. 566 F.3d at 948 (citing United States v. Sanchez, 914 F.2d 1355, 1358 (9th Cir.
12
1990)). But the definition of a deadly weapon is extremely broad. Almost any weapon, as used
13
or attempted to be used, may endanger life or inflict great bodily harm. United States v. Moore,
14
846 F.2d 1163 (8th Cir. 1988). There is no requirement that the weapon in question be inherently
15
dangerous. Id. Deadly weapons need only be capable of doing serious damage to the victim.
16
United States v. Bey, 667 F.2d 7, 11 (5th Cir. 1982) (emphasis added). Courts have found a
17
variety of normally innocuous objects to constitute deadly weapons. Moore, 846 F.2d at
18
1167 (mouth and teeth deemed a deadly weapon); see also United States v. Johnson, 324 F.2d
19
264, 266 (4th Cir. 1963) (chair); United States v. Loman, 551 F.2d 164, 169 (7th Cir. 1977)
20
(walking stick); United States v. Williamson, 482 F.2d 5087, 513 (5th Cir. 1973) (automobile);
21
United States v. Barber, 297 F. Supp. 917, 923 (D. Del. 1969) (shoe).
22
The deadly weapon enhancement, moreover, does not require any proof of physical
23
contact between the assailant and the victim. United States v. Fallen, 256 F.3d 1082, 1087 (11th
24
18
Cir. 2001). For that matter, it does not even require the victim to see the weapon. Id. at 1088-90
(That Fallen did not display a weapon so that the agents could see it is of no moment given
his repeated assertion that he had a gun and was willing to use it.). The addition of the deadly
weapon requirement, as such, does not cure the overbreadth of 111 with respect to the force
clause. See Parnell, 818 F.3d at 978 (finding Massachusetts offense requiring proof of robbery
while in possession of a weapon to be categorically overbroad).
But even if an assault using a deadly weapon would necessarily satisfy the force clause,
the alternate means of inflict[ing] bodily injury would not. Although this requires the assault
to result in bodily injury, the statute does not require the defendant to intend that any injury result.
10
See United States v. Jim, 865 F.2d 211, 212-15 (9th Cir. 1989) ( 111 reaches acts involving any
11
amount of force and does not require any specific intent to cause harm.) [A] crime may result
12
in death or serious injury without involving use of physical force. United States v. Torres-
13
Miguel, 701 F.3d 165, 168 (4th Cir. 2012) (emphasis in original) (finding California Penal Code
14
422(a), criminalizing a threat to commit a crime which will result in death or great bodily
15
injury, was not a crime of violence); United States v. Cruz-Rodriguez, 625 F.3d 274, 277 (5th
16
Cir. 2010) (same); but see United States v. Villavicencio-Burruel, 603 F.3d 556, 563 (9th Cir.
17
2010) (holding that California Penal Code 422(a) was crime of violence). Under 111(b), a
18
defendant lacking intent to use physical force could nonetheless be convicted if the victim
19
happened to suffer an injury. [T]o qualify as defining a violent felony, a state statute must require
20
that the physical force be inflicted intentionally, as opposed to recklessly or negligently. United
21
States v. Lawrence, 627 F.3d 1281, 1284 (9th Cir. 2010); see also Begay v. United States, 553
22
U.S. 137, 144-45 (2008) (holding the ACCAs definition of violent felony refers to crimes that
23
involve purposeful, violent, and aggressive conduct). Statutes like 18 U.S.C. 111(b) that require
24
19
the causation of injury, but which do not require the intentional use of physical force, are
categorically broader than the force clause. United States v. Perez-Vargas, 414 F.3d 1282, 1287
(10th Cir. 2005) (Colorado statute requiring bodily injury not a crime of violence when it does
not require the use of physical force); Chrzanoski v. Ashcroft, 327 F.3d 188, 194-95 (2nd Cir.
2003) (Connecticut statute requiring the causation of an injury not a crime of violence when it
does not require the use of physical force, because the intentional causation of injury does not
necessarily involve the use of force); United States v. Gracia-Cantu, 302 F.3d 308, 311 (5th Cir.
2002) (Texas statute requiring injury to a child not a crime of violence because injury can be
accomplished without the use of force).
10
Juvenile Female additionally held that 111(b) satisfied the reserve clause of the crime
11
of violence definition. 566 F.3d at 948. As explained supra, Johnson II held that the reserve
12
clause is unconstitutionally broad and cannot render an offense a crime of violence if it does not
13
satisfy the physical force clause.
14
15
16
For all of these reasons, Juvenile Female is no longer good law. Section 111(b) is not a
categorical crime of violence, and Count 6 must be dismissed.
3. Threatening a federal law enforcement officer under 18 U.S.C. 115(a)(1)(B) is
not categorically a crime of violence (Count 9).
17
18
Count Nine of the indictment alleges that threatening a federal law enforcement officer,
19
in violation of Title 18, United States Code, 115(a)(1)(B), as charged in Count Eight is a crime
20
of violence. Section 115(a)(1) reads:
21
(a)(1) Whoever--
22
(A) assaults, kidnaps, or murders, or attempts or conspires to kidnap

or murder, or threatens to assault, kidnap or murder a member of the
immediate family of a United States official, a United States judge,
a Federal law enforcement officer, or an official whose killing
would be a crime under section 1114 of this title; or
23
24
20
(B) threatens to assault, kidnap, or murder, a United States official,

a United States judge, a Federal law enforcement officer, or an
official whose killing would be a crime under such section, with
intent to impede, intimidate, or interfere with such official, judge, or
law enforcement officer while engaged in the performance of
official duties, or with intent to retaliate against such official, judge,
or law enforcement officer on account of the performance of official
duties, shall be punished as provided in subsection (b).
2
3
4
5
6
The offense in 115(a)(1)(B) criminalizes threaten[ing] to assault, kidnap, or murder
certain federal officers, when done with intent to impede, intimidate, or interfere with said
officers in connection with their official duties. Even assuming this offense is divisible from the
rest of the statute, which Mr. Payne does not concede, it does not categorically state a crime of
10
violence. 4
11
Section 115(a)(1)(B) only requires proof that (1) the defendant (2) threatened to assault
12
(3) a federal law enforcement officer (4) with intent to impede, intimidate, interfere with, or
13
retaliate against that officer, (5) while the officer was engaged in or on account of the performance
14
of his official duties. United States v. Orozco-Santillan, 903 F.3d 1262, 1265 (9th Cir. 1990),
15
overruled on other grounds as recognized by United States v. Hanna, 293 F.3d 1080, 1088 (9th
16
Cir. 1990). Indeed, this is exactly what Count Eight alleges. Thus, even if 115(a)(1)(B)s
17
alternate means of threatening to kidnap or murder were somehow a separate, divisible offense,
18
they would not be relevant under a modified categorical approach because the government does
19
not charge the defendants with these offenses.
20
21
22
23
Section 115(a)(1)(A) is similar to 115(a)(1)(B), except that it concerns the family members of
the designated officers and is not limited to threats, but also includes attempts, conspiracies and
substantive offenses. If this is a divisible offense, then it is irrelevant because Count 8 does not
charge the defendants with committing the 115(a)(1)(A) offense. In any event, 115(a)(1)(A) would
be categorically overbroad for the same reasons that 115(a)(1)(B) is.
24
21
A defendant can be punished under 115 for threatening to commit nothing more than a
simple assault. 5 See 18 U.S.C. 115(b)(1)(B)(i) (listing punishments for the offense). The
statute does not require proof of any threat to inflict physical injury. See, e.g., Orozco-Santillan,
903 F.3d at 1264, 1266 (holding telephonic statement to federal officer Vela that you will pay
for this sufficient evidence of a threat to assault, as the fact that Orozco-Santillan subsequently
said Vela would pay, rather than that he would injure Vela, is no defense). For that matter, the
statutory language of 115 even requires that the threatened assault be communicated to the
target. United States v. Hinkson, 349 F.Supp.2d 1350, 1355 (D. Idaho 2004) (Tallman, J., sitting
by designation). If a simple assault under 18 U.S.C. 111(a) is not categorically a crime of
10
violence, then a mere threat to commit a simple assault, which may not have even been
11
communicated to the target, cannot categorically constitute a crime of violence either.
12
Dominquez-Maroyoqui, 748 F.3d at 920-22 (holding 111(a) simple assault not categorically
13
a crime of violence). Count 9 must therefore be dismissed.
14
4. Hobbs Act Extortion under 18 U.S.C. 1951 is not categorically a crime of

violence (Count 15).
15
16
Count Fifteen of the indictment alleges that interference with interstate commerce by
17
extortion, in violation of Title 18, United States Code, Section 1951 as charged in Count
18
Fourteen is a crime of violence.

Section 1951, commonly known as the Hobbs Act, states:
19
(a) Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in
20
21
5
22
23
24
Sections 115(b)(1)(B)(ii-iv) lists enhanced penalties for other assaults that involve physical
contact, the intent to commit another felony, bodily injury, or serious bodily injury. Even if these
enhancements counted as separate, divisible offenses, they would not help the government in a
modified categorical approach because Count 8 does not allege the defendants committed any
enhanced version of the offense.
22
commerce, by robbery or extortion or attempts or conspires so to do,

or commits or threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in violation of this
section shall be fined under this title or imprisoned not more than
twenty years, or both.
2
3
(b) As used in this section--
(1) The term robbery means the unlawful taking or obtaining of

personal property from the person or in the presence of another,
against his will, by means of actual or threatened force, or violence,
or fear of injury, immediate or future, to his person or property, or
property in his custody or possession, or the person or property of a
relative or member of his family or of anyone in his company at the
time of the taking or obtaining.
5
6
7
8
(2) The term extortion means the obtaining of property from

another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right.
9
10
Although the basic offense is set forth in a single section, 1951(a), this Court has found
11
the Hobbs Act is a divisible statute that contains disjunctive phrases that essentially creates six
12
functionally separate crimes: interference with commerce by robbery, interference with
13
commerce by extortion, attempt to interfere with commerce by robbery, attempt to interfere with
14
commerce by extortion, conspiracy to interfere with commerce by robbery, and conspiracy to
15
interfere with commerce by extortion. Smith, 2:11-cr-00058-JAD-CWH (ECF No. 230) (D.
16
Nev. May 18, 2016), p. 8.
17
Under Mathis, however, a statute is not divisible simply because it contains disjunctive
18
phrasing.
19
unfairness of basing an increased penalty on something not legally necessary to a prior
20
conviction. Mathis, 136 S. Ct. at 2253. All of the offenses in the Hobbs Act are set forth in a
21
single subsection and carry a single penalty. A conviction under the Hobbs Act only requires that
22
the defendant committed, attempted, or conspired to commit either robbery or extortion. The
A statutes listing of disjunctive means does nothing to mitigate the possible
23
24
23
Court should view the Hobbs Act as a single, indivisible statute for purposes of a categorical
analysis.
Under that approach, the Hobbs Act is categorically overbroad. As this Court recognized
in Smith, at least one of the means listed in the Act, a conspiracy to commit robbery, is
categorically overbroad. 6 Hobbs Act conspiracy to rob does not require proof of any overt act.
See, e.g., United States v. Salahuddin, 765 F.3d 329, 338-39 (3rd Cir. 2014). Merely agreeing
to commit a robbery does not necessarily involve the use, attempted use, or threatened use of
physical force. Smith, supra at p. 10. The same would be true of a conspiracy to commit Hobbs
Act extortion. See United States v. White, 571 F.3d 365, 369 4th Cir. 2009), abrogated on other
10
grounds by Johnson II, 135 S. Ct. 2551 (holding North Carolina conviction for conspiracy to
11
commit robbery with a deadly weapon offense did not have as an element, the use, attempted
12
use, or threatened use of physical force); Gore, 636 F.3d 728 (holding Texas conspiracy to
13
commit aggravated robbery conviction did not satisfy ACCAs physical force clause because
14
factfinder could convict based on mere agreement to commit offense, and without finding that
15
force was actually used or threatened); King, 979 F.2d 801, 804 (10th Cir. 1992) (conspiracy
16
offense not a crime of violence because the crime of conspiracy in New Mexico is complete
17
upon the formation of the intent to commit a felony, and does not require that any action be taken
18
on that intent).
19
20
21
22
23
24
Smith acknowledged the Ninth Circuits ruling in United States v. Mendez, 992 F.2d 1488, 149091 (9th Cir. 1993), which found that Hobbs Act conspiracy to rob was a crime of violence. But
Mendez was based solely on the now-invalidated residual clause of 18 U.S.C. 924. 992 F.2d
1488, at 1491. (We do not address whether conspiracy to rob in violation of Section 1951 is a
crime of violence under subsection (A) of Section 924(c)(3) because we conclude that it is a
crime of violence under subsection (B).). Mendez also erred by looking only to the charged
offense in conducting a purported categorical analysis. Id. As Mathis made clear, a charging
document is only considered with respect to the modified categorical offense, which only applies
when a statute is divisible. 136 S. Ct. at 2253-54.
24
But even if the Hobbs Act were a divisible statute, Count 15 must still be dismissed. Count
14 charges the defendants with two of the separate offenses noted in Smith:
extortion
interfering with interstate commerce, and an attempt to interfere with commerce by extortion.
Both offenses depend on the Hobbs Act definition of extortion, which encompasses the obtaining
of property from another, with his consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right. 18 U.S.C. 1951(b)(2). Whether attempted or
completed, extortion under this definition is not categorically a crime of violence.
Extortion under the Hobbs Act need not involve any violence. The Supreme Court has
recognized that the statute encompasses and indeed expands upon the common law understanding
10
that extortion was an offense committed by a public official who took by color of office money
11
that was not due to him for the performance of official duties. Evans v. United States, 504 U.S.
12
255, 260-61 (1992) (describing extortion as the rough equivalent of . . . taking a bribe.); see
13
also Ocasio v. United States, 136 S. Ct. 1423, 1437-40 (2016) (Thomas, J., dissenting and arguing
14
Evans wrongly equated extortion with bribery). Courts frequently uphold Hobbs Act Extortion
15
convictions based on non-violent acts of bribery and kickbacks. See, e.g., Ocasio, 136 S. Ct. at
16
1427 (kickback scheme involving police officer and auto repair shop.); United States v.
17
Inzunza, 638 F.3d 1006, 1013-16 (9th Cir. 2009) (city councilmans acceptance of campaign
18
contributions to perform official act); United States v. Freeman, 6 F.3d 586, 588-89 (9th Cir.
19
1993) (legislative staff members acceptance of bribes). Hobbs Act extortion, as such, is not
20
categorically (or even usually) a crime of violence.
21
The government may contend it has avoided this problem by removing the under color
22
of official right language from Count 14 of the indictment and only alleging that the purported
23
offense was induced by the wrongful use of force, violence, and fear. This is irrelevant. The
24
25
categorical analysis requires court to look only to the statutory definition of the prior offense.
Piccolo, 441 F.3d 1084 at 1086. The facts alleged in the indictment only matter when a court
applies the modified categorical approach, for which the charging paper (i.e., the indictment)
is one of the limited class of documents to which a court may refer. Mathis, 133 S. Ct. at 2284.
But the modified categorical approach only applies when a statutein this case, Hobbs Act
extortionis divisible and not when, as here, the statute merely lists alternative means of
committing an offense. Under the statutory definition of extortion, the wrongful use of actual
or threatened force, violence, or fear, or under color of official right, are simply alternative means
by which a defendant may commit the same offense. 18 U.S.C. 1951(b)(2). The government
10
cannot avoid the categorical overbreadth of this offense by inventing and charging the defendants
11
with a narrower offense or by making disjunctive elements conjunctive.
12
Even if the government argues the categorical inquiry could somehow be limited to Count
13
14s allegations that the defendants induced consent by the wrongful use of force, violence, or
14
fear, the offense is still broader than the force clause of 924(c). The statute contains no
15
requirement that the defendant inflict, attempt to inflict, or threaten to inflict physical, violent
16
harm. Extortion by means of fear does not require fear of any physical harm or injury: extortion
17
can be accomplished solely by creating fear of economic loss. See, e.g., Levitt v. Yelp! Inc., 765
18
F.3d 1123, 1130-33 (9th Cir. 2014) (recognizing threats of economic harm can be a federal
19
extortion offense when the defendant does not have a legitimate claim to the property obtained
20
through such threats); United States v. Marsh, 26 F.3d 1496, 1501 (9th Cir. 1994) (reasonable
21
fear of economic harm may establish extortion conviction); United States v. Abelis, 146 F.3d
22
73, 83 (2nd Cir. 1998) (The statute does not limit the definition of extortion to those
23
circumstances in which property is obtained through the wrongful use of fear created by implicit
24
26
or explicit threats, but instead leaves open the cause of the fear.); United States v. Nedza, 880
F.2d 896, 902 (7th Cir. 1989) (showing that the defendant preyed upon or exploited the victims
fear of economic harm was sufficient evidence); United States v. Lisinski, 728 F.2d 887, 889-
90 (7th Cir. 1984) (fear of losing liquor license sufficient to support Hobbs Act extortion); United
States v. Margiotta, 688 F.2d 108, 134 (2nd Cir. 1982), overruled on other grounds by McNally
v. United States, 483 U.S. 350 (1987) (putting the victim in fear of economic loss can satisfy the
element of fear required by the Hobbs Act); United States v. Sander, 615 F.2d 215, 218 (5th Cir.
1980) (same). Likewise, extortion through force does not necessarily constitute a crime of
violence because the force element does not require that any particular level of force be used.
10
11
12
Dominguez-Maroyoqui, 748 F.3d at 921.

For all these reasons, Count 15 must be dismissed.
13
D. Even if the residual clause of 18 U.S.C. 924(c)(3)(B) were not unconstitutionally

vague, the predicate offenses in Counts 3, 6, 9, and 15 are still not categorically
crimes of violence
14
As stated above in (B), supra, Dimaya v. Lynch, 803 F.3d 1110, remains binding law in
15
this Circuit and compels a finding that the residual clause of 28 U.S.C. 924(c)(3)(B) is
16
unconstitutionally vague. Even if the residual clause were somehow applicable, however, the
17
predicate offenses in counts 3, 6, 9, and 15 are still not categorically crimes of violence.
18
The residual clause defines a crime of violence as an offense [t[hat by its nature, involves
19
a substantial risk that physical force against the person or property of another may be used in the
20
course of committing the offense. 18 U.S.C. 924(c)(3)(B). The clause, as such, still requires
21
a categorical nexus to physical force.
22
As the Ninth Circuit recognized in Dominguez-Maroyoqui, an offense requiring nothing
23
more than some form of assault and which does not require that any particular level of force
24
27
be used does not necessarily encompass any threat of physical force. 748 F.3d 918 at 921.
Dominguez-Maroyoqui noted numerous cases involving assault convictions falling below this
threshold. See id. (citing United States v. Fernandez, 837 F.2d 1031, 1033 (11th Cir. 1988)
(chasing prosecutor down the street and bumping into him); [United States v.] Sommerstedt, 752
F.2d [1494] at 1495 (walking up to prosecutor and jolting her arm and shoulder); United States v.
Hightower, 512 F.2d 60, 61 (5th Cir. 1975) (grabbing wildlife agents jacket); United States v.
Frizzi, 491 F.2d 1231, 123132 (1st Cir. 1974) (spitting in mail carriers face)). These sorts of
minor assaults: jolting an arm, grabbing a jacket, and spitting -- cannot be said to involve a
substantial risk of physical harm any more than they involve the actual, attempted, or threatened
10
use of such harm. Thus, statutes that encompass such broad conduct cannot satisfy the residual
11
clause any more than they satisfy the force clause.
12
This is true of all the predicate offenses alleged in Counts 3, 6, 9, and 15. Conspiring to
13
impede federal officers under 18 U.S.C. 372, as discussed in (C)(1), supra, need not involve
14
any physical force, or indeed any sort of force at all. A crime that may encompass, for example,
15
mailing letters to a judge, see United States v. Fulbright, 105 F.3d at 446, or a citizens arrest,
16
Finn v. United States, 219 F.2d at 898, does not categorically create a substantial risk of
17
physical harm. And even if the substantive offense of impeding federal officers did somehow
18
categorically create this risk, a mere conspiracy to commit that offense, lacking any requirement
19
of any overt act, would not necessarily create that risk.
20
The examples cited in Dominquez-Maroyoqui make clear that an assault under 18 U.S.C.
21
111 would not necessarily constitute a crime of violence under the residual clause. 748 F.3d at
22
921 (listed supra). Juvenile Female held in 2009 that an offense charged under 18 U.S.C. 111(b)
23
was a divisible offense that was a crime of violence under both the force and residual clause. 566
24
28
F.3d at 948. As noted in (C)(2), supra, Juvenile Females divisibility and force clause holdings
are no longer good law in light of subsequent Supreme Court rulings. The residual clause holding
would fare no better, because Juvenile Female conducted no separate analysis, but rather held
that the residual clause was satisfied [f]or the same reasons described above with respect to the
force clause. 748 F.3d at 948.
A threat against a federal officer under 18 U.S.C. 115(a)(1)(B) does not require proof of
any threat to inflict physical injury, see Orozco-Santillan, 903 F.3d at 1266, and does not even
require that the threatened assault be communicated to the target. United States v. Hinkson,
349 F.Supp.2d at 1355. Such conduct cannot categorically constitute even a significant risk of
10
physical injury.
11
Finally, Hobbs Act Extortion under 18 U.S.C. 1951 may encompass (and often does
12
encompass) conduct that doesnt involve any physical force or risk of physical force at all, such
13
as bribery by public officials, see, e.g. Ocasio, 136 S. Ct. at 1427 (kickback scheme involving
14
police officer and auto repair shop); Inzunza, 638 F.3d at 1013-16 (city councilmans acceptance
15
of campaign contributions to perform official act); United States v. Freeman, 6 F.3d at 588-89
16
(legislative staff members acceptance of bribes), or fear of purely economic injury, see, e.g.
17
Levitt v. Yelp! Inc., 765 F.3d at 1130-33 (recognizing threats of economic harm can be a federal
18
extortion offense when the defendant does not have a legitimate claim to the property obtained
19
through such threats); United States v. Marsh, 26 F.3d at 1501 (reasonable fear of economic
20
harm may establish extortion conviction). Hobbs Act Extortion cannot categorically qualify as
21
a crime of violence under the residual clause, even if that clause were constitutional.
22
23
24
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CONCLUSION
Counts 3, 6, 9, and 15 of the superseding indictment fail to allege predicate statutory
offenses that constitutes crimes of violence under the meaning of 18 U.S.C. 924(c). As such,
they must all be dismissed with prejudice. The Court should also strike the language in Count 1,
subsection (c) that cites these alleged 924(c) violations as predicate offenses for the conspiracy
alleged in Count 1. See ECF 27, p. 38.
DATED this 3rd day of October, 2016.
Respectfully Submitted,
RENE VALLADARES
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By: /s/ William Carrico

WILLIAM CARRICO
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By: /s/ Ryan Norwood

RYAN NORWOOD
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By: /s/ Brenda Weksler

BRENDA WEKSLER
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CERTIFICATE OF ELECTRONIC SERVICE
The undersigned hereby certifies that she is an employee of the Federal Public Defender
for the District of Nevada and is a person of such age and discretion as to be competent to
serve papers.
That on October 3, 2016, she served an electronic copy of the above and foregoing
DEFENDANT RYAN PAYNES MOTION TO DISMISS COUNTS 3, 6, 9, AND 15 FOR
FAILURE TO ALLEGE A CRIME OF VIOLENCE by electronic service (ECF) to the person
named below:
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DANIEL G. BOGDEN
United States Attorney
ERIN M. CREEGAN
Assistant United States Attorney
NADIA JANJUA AHMEN
NICHOLAS DICKINSON
STEVEN MYHRE
501 Las Vegas Blvd. South
Suite 1100
Las Vegas, NV 89101
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/s/ Lauren Pullen

Employee of the Federal Public Defender
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10-03-2016 ECF 710 USA V Ryan Payne - Motion To Dismiss Re Counts 3, 6, 9, and 15

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Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 1 of 31

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

Case No. 2:16-cr-046-GMN-PAL

Certification: This Motion is timely filed.

Defendant RYAN W. PAYNE, through his counsel, WILLIAM CARRICO, RYAN

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 2 of 31

By: /s/ William Carrico

By: /s/ Ryan Norwood

By: /s/ Brenda Weksler

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 3 of 31

MEMORANDUM OF POINTS AND AUTHORITIES

Code, Section 372, as charged in Count Two.

111(a)(1) and (b), as charged in Count Five.

Code, Section 115(a)(1)(B), as charged in Count Eight.

States Code, Section 1951, as charged in Count Fourteen.

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 4 of 31

Count 1. See ECF 27, p. 38.

years, in addition to the punishment he receives for the underlying offense.

Section 924(c)(3) defines a crime of violence as a felony that:

924(c)(3)(B), is generally known as the residual clause.

particular facts underlying the defendants conviction. United States v. Dominguez-Maroyoqui,

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 5 of 31

(citing Descamps, 133 S. Ct. at 2287).

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 6 of 31

categorical approaches. Id.

(applying categorical approach in determining whether the defendants instant offense of

conviction is a felony that is . . . a crime of violence).

qualify as a predicate offense. Id.

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 7 of 31

violate the Constitutions guarantee of due process. Id. at 2563.

may be used in the course of committing the offense.

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 8 of 31

344749 at *13 (N.D. Cal. 2016).

ignore circuit court precedent . . . .).

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 9 of 31

that 16(b) is not void for vagueness).

good law, and their holdings must be re-evaluated.

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 10 of 31

Section 372 prohibits:

Count 2 specifically alleges that the defendants conspired to prevent by force,

threats of violence. Id. (emphasis added).

For purposes of a categorical analysis, the superseding indictments charging language

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 11 of 31

here, the statute merely lists alternative means of committing an offense.

conspiracy was accomplished by force, intimidation, or threat. Bundy, 2016 WL 3361490, at

by adding extra-statutory requirements.

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 12 of 31

plan for violence, sufficient to affirm 372 conviction).

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 13 of 31

present a threat of physical force because intimidation could, for

Without any statutory requirement of actual, attempted, or threatened use of physical

force as defined by Johnson).

certainly does not require the intentional infliction of such force.

conspiracy is an agreement to effectuate a criminal design . . . it is not necessary to the crime of

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 14 of 31

intimidation, or threat to impede a federal officer somehow categorically constituted a crime of

under a given statute) (emphasis in original).

violence even if the underlying offense is such a crime. In Smith, 2:11-cr-00058-JAD-CWH

Case 2:16-cr-00046-GMN-PAL Document 710 Filed 10/03/16 Page 15 of 31

For all these reasons, Count 3 should be dismissed with prejudice.

Section 111 of Title 18 reads:

deadly or dangerous weapon or the infliction of bodily injury. Dominquez-Maroyoqui, 748