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United States v. Cook

United States District Court, D. Connecticut

July 31, 2018

UNITED STATES OF AMERICA
v.
HAROLD COOK, GERUND MICKENS, TERRELL HUNTER, DOUGLAS LEE, and JESUS ASHANTI

          RULING ON MOTION TO DISMISS COUNT TWO OF THE INDICTMENT

          Stefan R. Underhill United States District Judge.

         Defendants Harold Cook, Gerund Mickens, Terrell Hunter, and Douglas Lee[1] (“the defendants”) are charged with crimes stemming from the kidnapping, robbery, and murder of Charles Teasley in Hartford, Connecticut on January 9, 2009. The indictment charges the defendants with kidnapping resulting in the death of a person, in violation of 18 U.S.C. § 1201(a)(1) & (2) (Count One); with firearm-related murder and kidnapping, in violation of 18 U.S.C. §§ 924(c), 924(j)(1) & (2), 1111(a), & 1201(a)(1) & (2) (Count Two); and with firearm-related murder and Hobbs Act robbery, in violation of 18 U.S.C. §§ 924(c), 924(j)(1) & (2), 1111(a), & 1951(a) (Count Three).

         The defendants filed a Motion to Dismiss Count Two of the Indictment, arguing that the government failed to state an offense. Mot. to Dism., Doc. No. 203 at 1. Principally, the defendants argue that under the categorical approach, kidnapping cannot serve as the predicate crime of violence under either the “force clause” or the “residual/risk-of-force clause” of Section 924(c)(3). Id.; see 18 U.S.C. §§ 924(c)(3)(A), (B). On July 19, I held oral argument on a number of pre-trial motions filed in this case and I denied the defendants' Motion to Dismiss Count Two on the record, but indicated that I would issue a more thorough written ruling.

         I. Background

         On January 12, 2009, the body of Charles Teasley was discovered by his friend, Desmond Wright, in a car parked on Colebrook Street in Hartford, Connecticut. Teasley, a known drug dealer, had been shot multiple times in the head.

         On March 30, 2017, Harold Cook, Gerund Mickens, Terrell Hunter, Douglas Lee, and Jesus Ashanti were all charged in a three-count indictment with Teasley's kidnapping, robbery, and murder. According to the allegations in the indictment, Lee set up Teasley to be robbed by arranging to buy cocaine from him and providing Cook with the details of the planned transaction. When Teasley went to meet Lee, he was ambushed by Cook, Mickens, Hunter, and Ashanti, who kidnapped Teasley by binding his hands with zip-ties and forcing him into the back of his car. Cook, Mickens, Hunter, and Ashanti then assaulted Teasley; forced him to telephone his girlfriend, who brought the defendants a safe hidden at Teasley's residence; and finally murdered Teasley by shooting him in the head at close range.

         On March 31, 2017, the court issued warrants for the defendants' arrest. Cook, Mickens, and Hunter were all arrested on April 4, 2017; Lee was arrested on April 6, 2017; and Ashanti was arrested on April 11, 2017. The case was transferred to me by Senior United States District Judge Alfred V. Covello on January 25, 2018.

         II. Discussion

         Federal Rule of Criminal Procedure 12(b)(3) sets forth various defenses and objections that “must be raised by pretrial motion.” Those defenses include “defect[s] in the indictment.” Fed. R. Crim. P. 12(b)(3)(B)(v). Here, the defendants move to dismiss Count Two of the indictment pursuant to Rule 12(b)(3)(B)(v) for failure to state an offense. See Mot. to Dism., Doc. No. 203. As indicated on the record at oral argument, I deny the motion to dismiss.

         The defendants are charged in Count Two with Firearm-Related Murder/Kidnapping pursuant to 18 U.S.C. § 924(j)(1). Section 924(j) imposes additional penalties for certain violations of section 924(c). Section 924(c) requires, as an element of the offense, that the defendants have carried a firearm “during and in relation to any crime of violence.” Subsection (3) defines a “crime of violence” as an “offense that is a felony” and:

(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.

18 U.S.C. § 924(c)(3). The Second Circuit has referred to clause (A) as the “force clause” and clause (B) as the “risk-of-force clause, ” though clause (B) is sometimes also referred to as the “residual clause.” United States v. Hill, 890 F.3d 51, 54 n.5 (2d Cir. 2018). The “crime of violence” alleged in Count Two of the indictment is kidnapping, pursuant to Section 1201(a)(1) which provides, in relevant part:

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person … when the person is willfully transported in interstate or foreign commerce … or uses the mail or any means, facility, or instrumentality of interstate or foreign ...

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