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United States v. Toney

United States District Court, N.D. Indiana, Hammond Division

September 15, 2017

UNITED STATES OF AMERICA
v.
DIAMOND TONEY and DEDRICK BUFKIN

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE

         Following Diamond Toney's and Dedrick Bufkin's guilty pleas to brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), the Court sentenced them to imprisonment. According to the indictment, the predicate offense for the convictions-the crime of violence-was kidnapping as set out in 18 U.S.C. § 1201(a)(1). Following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), both defendants moved to vacate their convictions pursuant to 28 U.S.C. § 2255(a). While they filed their petitions separately, they are identical. Therefore, the petitions can be addressed in a single order.

         Both sides agree that the petitions are timely, but disagree whether kidnapping is in fact a crime of violence. And although both defendants had plea agreements with the government waiving their rights to contest their convictions collaterally as they're doing now, [1] the government's response is silent on this issue. It's not clear whether this silence is by design so as to constitute the government's own waiver or an oversight so as to constitute a forfeiture. The Court will not second-guess the government, which knows its cases from the outset and knows them best. Whatever the reason, the plea agreement waiver question is not before the Court and the outcome of the § 2255 petition rests on the merits of the parties' arguments about whether kidnapping is a crime of violence as defined in § 924(c)(3).[2] As the Seventh Circuit Court of Appeals recently held in the context of a direct appeal, but which equally applies here, it is not. See United States v. Jenkins, 849 F.3d 390 (7th Cir. 2017).

         As charged in this case, to establish guilt the government had to prove that each defendant brandished a firearm (or aided and abetted such brandishing) during and in relation to a crime of violence. (See Indict., Count 2, DE 15 at 2); 18 U.S.C. § 924 (c)(1)(A)(ii). Subsection 924(c)(3) defines a crime of violence as-

         an offense that is a felony and-

(A) has as element the use, attempted use, or threatened use of physical force against the person or property of another, [3] 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.[4]

Id.

         As related to this case, the purported crime of violence was kidnapping. (Indict., Count 2, DE 15 at 2).

         While the petitions to vacate the convictions were pending, the Court of Appeals for the Seventh Circuit issued an opinion in United States v. Jenkins, 849 F.3d 390. Defendants supplemented their briefs with a notice of this opinion to which the government has not responded.

         Jenkins held that “[b]ecause the Residual Clause, § 924(c)(3)(B), is unconstitutionally vague and kidnapping under § 1201(a) does not have, as an element, the use, threatened use, or attempted use of physical force” defendant Jenkins's conviction had to be reversed. In that case, the government presented arguments that are repeated in the instant case but the Court of Appeals rejected them all. The government's error was to rely on pre-Johnson cases, see Jenkins, 849 F.3d at 394, and to conflate the “force clause” with the “residual clause, ” id. at 393.

         None of the pre-Johnson cases cited by the government in Jenkins (nor any of such cases cited by the government here) “found that kidnapping had physical force as an element, and one even expressly stated that it does not.” Jenkins, 849 F.3d at 394 (referring to Delgado-Hernandez v. Holder, 697 F.3d 1125, 1130 (9th Cir. 2012) (“The federal kidnapping statute has no force requirement . . . .”)). Rather, while kidnapping generally invokes the images of great danger and violence, kidnapping can be “accomplished without physical force” as well. Id. at 393. After all, a person commits a kidnapping offense when he “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person” and willfully transports him “in interstate or foreign commerce.” 18 U.S.C. § 1201(a).

         Both the first element of the offense-unlawfully seizing, confining, inveigling, decoying, kidnaping, abducting, or carrying away-and the second one-holding for ransom or reward or otherwise-can be accomplished without force, even if that is not the usual scenario for kidnappings. That is to say, one cannot escape the charge of kidnapping if he can restrain himself from use of force and sets out to abduct another “civilly”:

For example, a perpetrator could lure his victim into a room and lock the victim inside against his or her will. This would satisfy the holding element of kidnapping under ยง 1201(a) without using, ...

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