Document

Case: 16-6001 Document: 00117483386 Page: 1 Date Filed: 08/30/2019 Entry ID: 6278878
No. 16-6001
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
UNITED STATES OF AMERICA,

Appellee,
v.
DZHOKHAR A. TSARNAEV,
Defendant–Appellant.
_________________________
On Appeal from the United States District Court for the

District of Massachusetts, No. 1:13-CR-10200
(Hon. George A. O’Toole)
_________________________
SUPPLEMENTAL BRIEF FOR APPELLEE THE UNITED STATES

REGARDING UNITED STATES V. DAVIS
_________________________
ANDREW E. LELLING BRIAN A. BENCZKOWSKI

United States Attorney Assistant Attorney General
NADINE PELLEGRINI MATTHEW S. MINER

Assistant United States Attorney Deputy Assistant Attorney General
District of Massachusetts
WILLIAM A. GLASER
JOHN C. DEMERS Attorney, Appellate Section
Assistant Attorney General Criminal Division
National Security Division U.S. Department of Justice
950 Pennsylvania Ave., N.W.
JOSEPH F. PALMER Washington, DC 20530
Attorney (202) 532-4495
National Security Division William.Glaser@usdoj.gov
TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................................... i
TABLE OF AUTHORITIES ............................................................................................. iii
SUMMARY OF ARGUMENT ........................................................................................... 1
ARGUMENT ......................................................................................................................... 3
The Supreme Court’s Decision in United States v. Davis Does Not

Invalidate Tsarnaev’s Convictions on Counts 13, 15, 16, or 17, but It
Does Require Vacatur of Count 18 Under This Court’s Precedent. .................... 3
A. Background ........................................................................................... 4
B. Standard of review ............................................................................... 7
C. The capital offense of malicious destruction of property

resulting in death is a crime of violence under 18 U.S.C.
§ 924(c)(3)(A)...................................................................................... 10
1. A person cannot commit capital arson resulting in

death without using physical force against the person
of another. ............................................................................... 11
2. Capital arson resulting in death requires intentional

conduct. ................................................................................... 16
3. Tsarnaev’s contrary arguments are unpersuasive. .............. 19
D. The offenses of capital conspiracy to use a weapon of mass

destruction resulting in death and capital conspiracy to
bomb a place of public use resulting in death are crimes of
violence under 18 U.S.C. § 924(c)(3)(A). ........................................ 22
E. Under this Court’s precedent, non-capital conspiracy to

commit arson resulting in death is not a crime of violence. ......... 25
F. Count 18’s invalidity does not affect the validity of

Tsarnaev’s remaining convictions. ................................................... 26
i
CONCLUSION ................................................................................................................... 28
CERTIFICATE OF COMPLIANCE .............................................................................. 29
CERTIFICATE OF SERVICE ......................................................................................... 30
ii
TABLE OF AUTHORITIES
Cases
Apprendi v. New Jersey,

530 U.S. 466 (2000) ........................................................................................................ 12
Bennett v. United States,

868 F.3d 1 (1st Cir. 2017), opinion withdrawn, 870 F.3d 34 (1st Cir. 2017) .......... 17, 26
Braverman v. United States,

317 U.S. 49 (1942) .......................................................................................................... 22
Burrage v. United States,

571 U.S. 204 (2014) ............................................................................................12, 14, 15
Carlisle v. United States,

517 U.S. 416 (1996) .......................................................................................................... 9
Gonzales v. Duenas-Alvarez,
549 U.S. 183 (2007) ........................................................................................................ 23
Iannelli v. United States,

420 U.S. 770 (1975) ........................................................................................................ 22
Johnson v. United States,

135 S. Ct. 2551 (2015) ...................................................................................................... 6

520 U.S. 461 (1997) .......................................................................................................... 9

559 U.S. 133 (2010) ............................................................................................11, 13, 18
Jones v. United States,

526 U.S. 227 (1999) ........................................................................................................ 15
Lassend v. United States,

898 F.3d 115 (1st Cir. 2018) ............................................................................................ 9
Leocal v. Ashcroft,
543 U.S. 1 (2004)............................................................................................................. 24
iii
Mathis v. United States,

136 S. Ct. 2243 (2016) ................................................................................. 11, 12, 14, 20
Moncrieffe v. Holder,
569 U.S. 184 (2013) ........................................................................................................ 23
Ring v. Arizona,
536 U.S. 584 (2002) ........................................................................................................ 12
Sessions v. Dimaya,
138 S. Ct. 1204 (2018) .................................................................................................... 22
Stokeling v. United States,

139 S. Ct. 544 (2019) ...................................................................................................... 11
Taylor v. United States,

495 U.S. 575 (1990) ........................................................................................................ 11
United States v. Baskerville,

491 F.Supp.2d 516 (D. N.J. 2007) ................................................................................ 18
United States v. Booker,

543 U.S. 220 (2005) ........................................................................................................ 10
United States v. Castleman,

572 U.S. 157 (2014) ............................................................................................11, 13, 15
United States v. Cruz-Rivera,

904 F.3d 63 (1st Cir. 2018) .............................................................................................. 8
United States v. Davis,

139 S. Ct. 2319 (2019) .............................................................................................. 1, 3, 4
United States v. Douglas,

907 F.3d 1 (1st Cir. 2018), vacated, 139 S. Ct. 2775 (2019) ......................................... 22
United States v. García-Ortiz,

904 F.3d 102 (1st Cir. 2018) ........................................................................................ 8, 9
United States v. Grady,

746 F.3d 846 (7th Cir. 2014) ......................................................................................... 16
iv
United States v. Hayes,

589 F.2d 811 (5th Cir. 1979) ......................................................................................... 15
United States v. Hill,

890 F.3d 51 (2d Cir. 2018) ............................................................................................. 23
United States v. Joyner,

313 F.3d 40 (2nd Cir. 2002)........................................................................................... 15
United States v. Marcus,

560 U.S. 258 (2010) .................................................................................................... 9, 10
United States v. Mayendía-Blanco,

905 F.3d 26 (1st Cir. 2018) ...................................................................................... 10, 27
United States v. Rose,

896 F.3d 104 (1st Cir. 2018) ..............................................................................17, 18, 26
United States v. Salas,

889 F.3d 681 (10th Cir. 2018) ....................................................................................... 16
United States v. Taylor,

848 F.3d 476 (1st Cir.).................................................................................................... 11
United States v. Tkhilaishvili,

926 F.3d 1 (1st Cir. 2019) ................................................................................................ 7
United States v. Vázquez-Rivera,

407 F.3d 476 (1st Cir. 2005) .......................................................................................... 10
United States v. Williams,

610 F.3d 271 (5th Cir. 2010) ......................................................................................... 18
United States v. Windley,

864 F.3d 36 (1st Cir. 2017) ...................................................................................... 17, 26
Voisine v. United States,

136 S. Ct. 2272 (2016) .................................................................................................... 18
v
Statutes and Rules
18 U.S.C. § 844...............................................................................................................passim
18 U.S.C. § 921.................................................................................................................. 4, 18
18 U.S.C. § 924...............................................................................................................passim
18 U.S.C. § 1111 ..................................................................................................................... 4
18 U.S.C. § 2332a.............................................................................................................. 5, 24
18 U.S.C. § 2332f ........................................................................................................ 5, 24, 25
18 U.S.C. § 3591 ............................................................................................................passim
Fed. R. Crim. P. 12 ................................................................................................................. 8
Fed. R. Crim. P. 29 ................................................................................................................. 8
Fed. R. Crim. P. 30 ................................................................................................................. 8
Fed. R. Crim. P. 52 ................................................................................................................. 8
vi
SUMMARY OF ARGUMENT
The Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019),
which invalidated the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B),
does not undermine Tsarnaev’s convictions under 18 U.S.C. § 924(c) on Counts 13,
15, 16, or 17. Each of those challenged § 924(c) convictions is based on a predicate
offense under the alternative definition of a “crime of violence” in § 924(c)(3)(A),
which includes any federal felony that “has as an element the use, attempted use, or
threatened use of physical force against the person or property of another.” 18 U.S.C.
§ 924(c)(3)(A). Count 18, however, is no longer based on a valid predicate under this
circuit’s precedent and should be vacated.
1. The predicate offense of capital arson resulting in death (the offense charged
in Counts 12 and 14) has as an element the use of force against the person of another.
Where, as here, arson is charged as a capital offense, the jury must find as an element
at least one of the four “gateway” special intent factors enumerated in the Federal
Death Penalty Act (FDPA), 18 U.S.C. § 3591(a)(2). Each of those intent factors
requires proof that the defendant engaged in intentional conduct that directly resulted
in a victim’s death. The government cannot satisfy those factors without proving that
the defendant intentionally used force sufficient to kill the victim.
Moreover, the separate element that “death result[ ]” from the arson
independently requires proof that the victim was subjected to “physical force” within
the meaning of the elements clause. The “death results” element requires a causal
1
connection between the defendant’s use of fire or explosives and the victim’s
death. Establishing that connection invariably requires proof that physical force was
used against another person.
2. Similarly, the predicate offenses of capital conspiracy to use a weapon of
mass destruction resulting in death (Count 1) and capital conspiracy to bomb a place
of public use resulting in death (Count 6) have as an element the use of physical force
against another person. These counts required proof of the gateway factors, each of
which requires the intentional use of force against the person of another. Each also
required proof that “death result[ed]” from the conspiracy. When a conspiracy has
actually resulted in death, the conspirators necessarily have moved beyond an inchoate
agreement and have engaged in an act that resulted in death. In any realistic scenario,
where a death results from a conspiracy to bomb a public place or to use a weapon of
mass destruction, the death must have resulted from the use of force.
3. The predicate offense underlying Count 18—conspiracy to commit arson
resulting in death (as charged in Count 11)—is not a § 924(c)(3)(A) crime of violence
under this Court’s precedent. This Court has held that reckless conduct, as opposed
to intentional conduct, cannot constitute the use of force against the person or
property of another. Because the jury did not find the gateway intent factors as to
Count 11 (because it was not a capital count), the jury did not find that Count 11
involved intentional conduct. Although the government believes that this Court’s
precedent was wrongly decided, it concedes that—unless that precedent is abrogated

2
by the Supreme Court or overruled by this Court sitting en banc—Count 18 should
be vacated.
ARGUMENT
The Supreme Court’s Decision in United States v. Davis Does Not Invalidate
Tsarnaev’s Convictions on Counts 13, 15, 16, or 17, but It Does Require Vacatur
of Count 18 Under This Court’s Precedent.
In his Second Supplemental Opening Brief, Tsarnaev contends that the
Supreme Court’s recent decision in United States v. Davis, 139 S. Ct. 2319 (2019), which
held that 18 U.S.C. § 924(c)(3)(B)’s definition of a “crime of violence” is
unconstitutionally vague, requires this Court to vacate his convictions on five counts
under § 924(c) and (j) (Counts 13, 15, 16, 17, and 18). 2nd Supp. Br. 5-20. Tsarnaev’s
convictions on Counts 13, 15, 16, and 17 remain valid even after Davis because they
are based on predicate offenses that are “crimes of violence” under § 924(c)(3)(A)—
that is, they “ha[ve] as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” Those offenses are capital
offenses that require an intentional act of violence under the Federal Death Penalty
Act (“FDPA”). And each of those offenses require proof that death resulted, which
independently ensures that they have as an element the use of physical force. The
predicate offense under Count 18, however, does not fall within § 924(c)(3)(A) under
this Court’s precedent because it can be committed with a mens rea of recklessness.
3
A. Background
Section 924(c) provides that “any person who, during and in relation to any
crime of violence . . . , uses or carries a firearm” shall be sentenced to a term of
imprisonment that is consecutive to the sentence for the underlying crime of
violence.1 18 U.S.C. § 924(c)(1)(A). Section 924(c)(3) defines “crime of violence” as a
felony that either “has as an element the use, attempted use, or threatened use of
physical force against the person or property of another,” 18 U.S.C. § 924(c)(3)(A), or
“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)(B). Davis struck down the latter definition as unconstitutionally vague.
139 S. Ct. at 2336.
Section 924(c) prescribes different minimum sentences depending on whether
the firearm was “use[d] or carrie[d],” “brandished,” or “discharged.” 18 U.S.C.
§ 924(c)(1)(A)(i)-(iii). A separate provision, § 924(j), increases the maximum penalty
to death if the defendant, “in the course of a violation of subsection (c), causes the
death of a person through the use of a firearm” and the killing is a murder as defined
in 18 U.S.C. § 1111. 18 U.S.C. § 924(j)(1).
1
For purposes of § 924(c), the term “firearm” includes “destructive device[s]”
such as bombs. 18 U.S.C. § 921(a)(3), (4).
4
The indictment in this case charged Tsarnaev with 15 counts of violating
§ 924(c). Add.1-65. The five counts at issue here each charged him with “possession
and use of a firearm during and relation to a crime of violence resulting in death,” in
violation of 18 U.S.C. § 924(c) and (j). Add.34, 38, 40, 42, 44 (capitalization omitted).
Each of the § 924(c) counts Tsarnaev challenges were charged as capital offenses.
Add. 66-71.
The underlying crimes of violence for each of those counts are as follows:
§ 924(c) & Predicate Offense

(j) Count
Count 13 Count 12 Capital Malicious Destruction of Property Resulting in
Personal Injury and Death (18 U.S.C. § 844(i))
Count 15 Count 14 Capital Malicious Destruction of Property Resulting in
Personal Injury and Death (18 U.S.C. § 844(i))
Count 16 Count 1 Capital Conspiracy to Use a Weapon of Mass Destruction
Resulting in Death (18 U.S.C. § 2332a(a)(2))
Count 17 Count 6 Capital Conspiracy to Bomb a Place of Public Use
Resulting in Death (18 U.S.C. § 2332f(a)(1) & (c))
Count 18 Count 11 Conspiracy to Maliciously Destroy Property Resulting in
Personal Injury and Death (18 U.S.C. § 844(i) & (n))
Add.5, 21, 31, 32, 36. Because four of these predicate offenses were charged as
capital counts, the FDPA required the government to prove the existence of one or
more “gateway factors” in 18 U.S.C. § 3591(a)(2) with respect to a given count before
Tsarnaev was eligible for the death penalty on that count.
Without objection from Tsarnaev, the district court instructed the jury at the
guilt phase that each of the § 924(c) predicate offenses alleged in the indictment was a
“crime of violence” as a matter of law. 15.App.6878-81; Doc. 1232 at 36-39. The
5
jury convicted Tsarnaev on all counts. Add.74a-74af, 96. As relevant here, the jury
unanimously found two gateway factors—that Tsarnaev “intentionally killed the
victim” and “intentionally inflicted serious bodily injury that resulted in the death of
the victim”—with respect to Counts 1, 6, and 14. Add.79-80; 18 U.S.C.
§ 3591(a)(2)(A), (B). And with respect to all of the death-eligible predicate offenses
(which included Counts 1, 6, 12, and 14), the jury unanimously found that Tsarnaev
“intentionally participated in an act, contemplating that the life of a person would be
taken or intending that lethal force would be used in connection with a person . . . and
the victim died as a direct result of the act,” 18 U.S.C. § 3591(a)(2)(C), and
“intentionally and specifically engaged in an act of violence, knowing that the act
created a grave risk of death to a person . . . such that participation in the act
constituted a reckless disregard for human life and the victim died as a direct result of
the act,” 18 U.S.C. § 3591(a)(2)(D). Add.80. The jury imposed the death penalty on
six counts, including one § 924(c) count (Count 15) and one predicate offense (Count
14). Add.96.
On June 24, 2015, the district court imposed the death sentence on Count 15
and consecutive life sentences on Counts 13, 16, 17, and 18, and entered judgment.
Add.104. Two days later, the Supreme Court held in Johnson v. United States, 135 S. Ct.
2551, 2557 (2015), that the “residual clause” of the definition of a “violent felony” in
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii)—which is worded
similarly to the definition of a “crime of violence” in § 924(c)(3)(B)—was

6
unconstitutionally vague. In light of Johnson, Tsarnaev moved for judgment of
acquittal on all of his § 924(c) counts on the grounds that “none of [his] predicate
offenses categorically” qualified as crimes of violence under § 924(c)(3)(A) and that
§ 924(c)(3)(B) was unconstitutionally vague. Doc. 1506 at 29. Although Federal Rule
of Criminal Procedure 29 ordinarily requires a motion for judgment of acquittal to be
filed within 14 days after a guilty verdict, the district court had granted Tsarnaev until
August 17, 2015, to file such a motion. Doc. 1448. The government argued,
however, that Tsarnaev had waived his challenge to the § 924(c) counts by failing to
raise the challenge before trial, as required by Federal Rule of Criminal Procedure
12(b). Doc. 1542 at 14-15.
The district court denied Tsarnaev’s motion for judgment of acquittal,
concluding that § 924(c)(3)(B) was not void for vagueness and that, in any event, all of
the challenged predicate offenses were crimes of violence under § 924(c)(3)(A). Doc.
1620 at 23-36. The court noted that Tsarnaev may have waived any argument that his
§ 924(c) predicate offenses failed to satisfy § 924(c)(3)(A)’s elements clause (and may
have forfeited the argument for purposes of appeal), but the court did not resolve the
waiver issue because it found no error. Doc. 1620 at 30 n.22.
B. Standard of review
This Court ordinarily reviews de novo arguments that are preserved in a motion
for judgment of acquittal. United States v. Tkhilaishvili, 926 F.3d 1, 10 (1st Cir. 2019).
But a motion for judgment of acquittal was not the proper way to preserve Tsarnaev’s
7
claim. His argument was not that “the evidence [wa]s insufficient to sustain a
conviction,” Fed. R. Crim. P. 29(a), but that, regardless of the strength of the
evidence, the challenged counts were subject to dismissal and the district court’s
instructions that certain offenses were “crime[s] of violence” were erroneous. Rule
12(b) requires that all defenses based on defects in the indictment “must be raised by
pretrial motion if the basis for the motion is then reasonably available.” Fed. R. Crim.
P. 12(b)(3). And Rule 30 requires the parties to object to jury instructions before the
jury retires to deliberate. Fed. R. Crim. P. 30(d). Tsarnaev could have argued before
trial (and before jury deliberations) that § 924(c)(3)(B) was unconstitutionally vague
and that his predicate offenses were not crimes of violence under § 924(c)(3)(A), yet
he did not. Tsarnaev therefore failed to preserve the arguments made in his Second
Supplemental Opening Brief, and his arguments should be reviewed only for plain
error. Fed. R. Crim. P. 52(b).
Tsarnaev cites United States v. Cruz-Rivera, 904 F.3d 63, 65 (1st Cir. 2018), cert.
denied, 139 S. Ct. 1391 (2019), where this Court treated as “preserved” a challenge to a
§ 924(c) predicate raised in a Rule 29 motion. But in Cruz-Rivera the government
never challenged the preservation of the claim, so this Court did not definitively opine
on whether a Rule 29 motion is a proper means of preserving an argument that a
§ 924(c) charge is invalid.
Tsarnaev also cites United States v. García-Ortiz, 904 F.3d 102, 106 (1st Cir.
2018), cert. denied, 139 S. Ct. 1208 (2019), which overlooked a defendant’s failure to
8
preserve a claim that Hobbs Act robbery is not a § 924(c) predicate. García-Ortiz
relied on Lassend v. United States, 898 F.3d 115, 123 (1st Cir. 2018), cert. denied, 139 S.
Ct. 1300 (2019), which held that a defendant could show cause to excuse his
procedural default on collateral review where his claim was based on “the Supreme
Court’s overruling of its own precedent.”
This Court should not extend García-Ortiz to this case. Because the Court
found no error in García-Ortiz, the standard of review was not determinative and the
Court’s statements were dicta. See García-Ortiz, 904 F.3d at 106. And, unlike the
procedural default rule at issue in Lassend, Rule 52(b)’s plain-error rule contains no
exception for good cause. Reading García-Ortiz to have created an exception to Rule
52(b) would be contrary to Supreme Court precedent. See Johnson v. United States, 520
U.S. 461, 466 (1997) (concluding that the Court had “no authority” to “creat[e] out of
whole cloth . . . an exception” to Rule 52(b)); Carlisle v. United States, 517 U.S. 416, 426
(1996) (noting that federal courts do not have inherent power “to develop rules that
circumvent or conflict with the Federal Rules of Criminal Procedure”). Because
Tsarnaev failed to properly preserve his arguments, plain-error review applies.2 But
2
The government recognizes that, to the extent the challenged § 924(c) charges
are not based on offenses that are crimes of violence under § 924(c)(3)(A), Tsarnaev
can show in light of Davis that reliance on § 924(c)(3)(B) was “plain” error that
“affected [his] substantial rights” and “seriously affect[ed] the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262
(2010) (internal quotation marks omitted). But as to four of the five challenged
counts, Tsarnaev cannot show that it is “clear or obvious” that the predicate offenses
9
his arguments with respect to four of the challenged counts would fail even under a de
novo standard because he can show no error.
Tsarnaev failed to raise any challenge to his § 924(c) convictions in his opening
brief, which would ordinarily constitute waiver. See United States v. Mayendía-Blanco, 905
F.3d 26, 32 (1st Cir. 2018). This Court has, however, “accepted arguments raised for
the first time in supplemental briefing under exceptional circumstances, such as a
substantial change in applicable law.” Id. at 33. See United States v. Vázquez-Rivera, 407
F.3d 476, 487 (1st Cir. 2005) (allowing arguments based on United States v. Booker, 543
U.S. 220 (2005), to be raised in a supplemental brief).
C. The capital offense of malicious destruction of property resulting

in death is a crime of violence under 18 U.S.C. § 924(c)(3)(A).
Tsarnaev first argues that Counts 13 and 15 are invalid because the predicate
offense for those counts—malicious destruction of property under 18 U.S.C. § 844(i)
(often referred to simply as “arson”)—is not a crime of violence under § 924(c)(3)(A).
He argues that § 844(i) is “overbroad” because (1) it can be committed by maliciously
destroying one’s own property (and thus does not require “as an element” that force
be used against “the person or property of another,” 18 U.S.C. § 924(c)(3)(A) (emphasis
added)), and (2) it can be committed with a mens rea of recklessness, rather than
knowingly or intentionally. 2nd Supp. Br. 6, 10.
were not crimes of violence under § 924(c)(3)(A). Id. (internal quotation marks
omitted).
10
1. A person cannot commit capital arson resulting in death

without using physical force against the person of another.
The crime of violence underlying Counts 13 and 15—capital arson resulting in
death under 18 U.S.C. § 844(i) as charged in Counts 12 and 14—qualifies as a “crime
of violence” under § 924(c)(3)(A) because it “has as an element the use, attempted
use, or threatened use of physical force against the person . . . of another.” “Physical
force” in this context means “force capable of causing physical pain or injury to
another person,” Johnson v. United States, 559 U.S. 133, 140 (2010) (interpreting
analogous provision of the ACCA), including any “amount of force necessary to
overcome a victim’s resistance,” Stokeling v. United States, 139 S. Ct. 544, 555 (2019)
(also interpreting the ACCA). The force may be indirect and involve no actual bodily
contact, such as using poison to cause physical harm. United States v. Castleman, 572
U.S. 157, 171 (2014).
To determine whether an offense falls within the definition of a “crime of
violence” in § 924(c)(3)(A), courts generally apply a “categorical approach.” See United
States v. Taylor, 848 F.3d 476, 491 (1st Cir.), cert. denied, 137 S. Ct. 2255 (2017); see also,
e.g., Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (describing categorical
approach in context of the ACCA); Taylor v. United States, 495 U.S. 575, 602 (1990)
(same). Under that approach, a court “focus[es] solely” on “the elements of the crime
of conviction,” not “the particular facts of the case.” Mathis, 136 S. Ct. at 2248. If the
statute of conviction lists multiple alternative elements, as opposed to alternative
11
means of committing a single element, it is “divisible” into different offenses. Id. at
2249. To classify a conviction under a divisible statute, a court may “look[ ] to a
limited class of documents (for example, the indictment, jury instructions, or plea
agreement and colloquy) to determine what crime, with what elements, [the]
defendant was convicted of.” Id.
Capital arson resulting in death qualifies as a crime of violence under
§ 924(c)(3)(A) for two reasons. First, because it is a capital offense, it requires proof of
at least one of the gateway factors in 18 U.S.C. § 3591(a)(2) in order to increase the
statutory maximum punishment to death, each of which necessarily involves the use
of physical force against the person of another. See Ring v. Arizona, 536 U.S. 584, 609
(2002) (holding that “aggravating circumstance[s] necessary for imposition of the
death penalty” are elements of the capital offense that must be found by a jury); see
also Mathis, 136 S. Ct. at 2256 (“If statutory alternatives carry different punishments,
then under Apprendi [v. New Jersey, 530 U.S. 466 (2000)] they must be elements.”);
Burrage v. United States, 571 U.S. 204, 210 (2014) (explaining that a fact that “increase[s]
the minimum and maximum sentences to which [a defendant is] exposed . . . is an
element that must be submitted to the jury and found beyond a reasonable doubt”).
Those gateway factors require a showing that the defendant intentionally (A) “killed
the victim,” (B) “inflicted serious bodily injury that resulted in the death of the
victim,” (C) “participated in an act, contemplating that the life of a person would be
taken or intending that lethal force would be used in connection with a person . . . and
12
the victim died as a direct result of the act,” or (D) “engaged in an act of violence,
knowing that the act created a grave risk of death to a person, other than one of the
participants in the offense, such that participation in the act constituted a reckless
disregard for human life and the victim died as a direct result of the act.” 18 U.S.C.
§ 3591(a)(2)(A)-(D).
Each of these factors requires the intentional use of physical force. The first
two factors require the defendant to have intentionally “killed” the victim or “inflicted
serious bodily injury” resulting in death, while the remaining two factors require
intentionally participating in an “act” that directly resulted in the victim’s death. All
four factors thus require a use of force sufficient to kill the victim. The gateway
factors’ requirement of force that actually kills a victim is sufficient under the
elements clause because such force is necessarily “capable of causing physical pain or
injury.” Johnson, 559 U.S. at 140. See Castleman, 572 U.S. at 174 (Scalia, J., concurring in
part and concurring in the judgment) (“[I]t is impossible to cause bodily injury
without using force ‘capable of’ producing that result.”). Simply put, without the
“use” of force, the victim would not have died.
In this case, although the jury ultimately selected the death sentence only on
one of the § 924(c) predicates at issue (Count 14), it found Tsarnaev eligible for the
death penalty on Count 12 (as well as the conspiracy charges in Counts 1 and 6,
discussed further below), meaning it found him guilty of the offense of capital arson
as to both counts. See Add. 79-81 (special verdict form finding at least one gateway
13
factor as to Counts 12 and 14); Mathis, 136 S. Ct. at 2249 (noting that, when a statute
is divisible, the court may look to underlying documents to determine the specific
crime and elements for which the defendant was convicted). Accordingly, the
relevant predicate offense for which Tsarnaev was actually convicted in Counts 12
and 14 is capital arson. And that offense categorically has as an element—imported
from the gateway factors in 18 U.S.C. § 3591(a)(2)—the use, attempted use, or
threatened use of physical force against the person or property of another because no
defendant can be subjected to the death penalty for that offense without a jury finding
beyond a reasonable doubt that he used force capable of causing physical pain or
injury against another person.
Second, even in the non-capital context, the offense of arson resulting in death
requires the use of force. Section 844(i) makes it a crime to “maliciously damage[ ] or
destroy[ ] . . . by means of fire or an explosive, any building, vehicle, or other real or
personal property used in interstate or foreign commerce.” 18 U.S.C. § 844(i). The
statute ordinarily authorizes a prison sentence of “not less than 5 years and not more
than 20 years.” Id. But it authorizes a sentence of “not less than 7 years and not
more than 40 years” if “personal injury results to any person,” and a sentence of death
or life imprisonment “if death results to any person.” Id.
Because the death-results provision triggers an enhanced penalty, it is an
element of the aggravated offense of arson resulting in death. See Burrage, 571 U.S. at
210 (“Because the ‘death results’ [penalty] enhancement [in 21 U.S.C. § 841(b)]
14
increased the minimum and maximum sentences to which Burrage was exposed, it is
an element that must be submitted to the jury and found beyond a reasonable
doubt.”); Jones v. United States, 526 U.S. 227, 252 (1999) (holding that carjacking
statute’s provision for higher penalties where the carjacking results in “serious injury”
or “death” established “separate offenses by the specification of distinct elements”);
United States v. Joyner, 313 F.3d 40, 45 (2nd Cir. 2002) (holding that death-resulting
provision of arson statute is an element that must be found by a jury).
To prove the offense of arson resulting in death, the government necessarily
must prove that the defendant used “physical force” on the victim. The requirement
that “death results” from the arson requires a causal connection between the arson
and the death. See Burrage, 571 U.S. at 214 (“a phrase such as ‘results from’ imposes a
requirement of but-for causation”); United States v. Hayes, 589 F.2d 811, 821 (5th Cir.
1979) (holding that the “death results” provision of 18 U.S.C. § 242 incorporates
general principles of causation and noting that death would not “result” from a
Section 242 violation if the victim is struck by lightning while being detained pursuant
to an illegal arrest). It is difficult to imagine any scenario in which a defendant could
commit arson resulting in death without using physical force—directly or indirectly—
upon his victim. As the Supreme Court has found, even the indirect use of force such
as “employing poison” or “pulling the trigger on a gun” counts as the “use of force”
against the person of another. Castleman, 572 U.S. at 171. So too, using “fire or an
15
explosive” in a way that causes the death of another person constitutes the use of
force against another. 18 U.S.C. § 844(i).
Tsarnaev argues that arson does not categorically satisfy § 924(c)(3)(A)’s
elements clause “because it encompasses the destruction of one’s own property.” 2nd
Supp. App. 6; see id. at 6-10. He is correct that the offense of arson simpliciter, without
the additional element of serious bodily injury or death resulting, is not categorically a
crime of violence. See, e.g., United States v. Salas, 889 F.3d 681, 684 (10th Cir. 2018),
cert. denied, 139 S. Ct. 2773 (2019). The offense can be committed without using
physical force against the “person or property of another.” 18 U.S.C. § 924(c)(3)(A)
(emphasis added). But where death results, the burning-your-own-building problem is
beside the point. One cannot commit the death-resulting offense without using
physical force against the “person . . . of another.” Id. (emphasis added).
2. Capital arson resulting in death requires intentional

conduct.
Tsarnaev next argues that arson under § 844(i) “is not an elements-clause crime
of violence for a second, independent reason: the offense requires a mens rea of only
recklessness, whereas § 924(c)(3)(A) demands conduct that is intentional.” 2nd Supp.
Br. 10. It is true that § 844(i)’s mens rea of acting “maliciously” does not require
intentional conduct, but can be satisfied by some degree of recklessness. See United
States v. Grady, 746 F.3d 846, 848-49 (7th Cir. 2014). Moreover, this Court has held (in
the context of the ACCA) that merely reckless conduct does not categorically involve
16
the use of physical force against the person or property of another. United States v.
Rose, 896 F.3d 104, 109-10 (1st Cir. 2018); United States v. Windley, 864 F.3d 36, 39 (1st
Cir. 2017) (per curiam); Bennett v. United States, 868 F.3d 1, 8 (1st Cir. 2017), opinion
withdrawn, 870 F.3d 34 (1st Cir. 2017).
As explained above, however, Tsarnaev was charged with capital arson resulting
in death, which requires the jury to find the existence of at least one of the gateway
factors in 18 U.S.C. § 3591(a)(2). Those factors require intentional conduct that
causes the victim’s death. The first three factors require a showing that the defendant
“intentionally killed the victim”; “intentionally inflicted serious bodily injury that resulted
in the death of the victim”; or “intentionally participated in an act, contemplating that
the life of a person would be taken or intending that lethal force would be used in
connection with a person . . . and the victim died as a direct result of the act.” 18
U.S.C. § 3591(a)(2)(A)-(C) (emphasis added). These factors clearly require the
intentional or knowing taking of human life and do not embrace recklessness.
The final gateway factor is satisfied if the defendant “intentionally and
specifically engaged in an act of violence, knowing that the act created a grave risk of
death to a person, other than one of the participants in the offense, such that
participation in the act constituted a reckless disregard for human life and the victim
died as a direct result of the act.” 18 U.S.C. § 3591(a)(2)(D). Although this factor
refers to “reckless disregard for human life,” it also requires that the defendant
“intentionally and specifically engage[ ] in an act of violence.” Id. As the Fifth Circuit
17
has explained, the “ordinary meaning” of the term “act of violence” in § 3591(a)(2)(D)
requires the “use of physical force.” United States v. Williams, 610 F.3d 271, 286, 288
(5th Cir. 2010). See Johnson, 559 U.S. at 140 (“Even by itself, the word ‘violent’ . . .
connotes a substantial degree of force.”); United States v. Baskerville, 491 F.Supp.2d 516,
522 (D. N.J. 2007) (holding that the ordinary meaning of “act of violence” in §
3591(a)(2)(D) means “an act that involves the use of physical force”). Thus, although
this final gateway factor can involve recklessness with respect to the ultimate death,
recklessness alone is not sufficient. Rather, § 3591(a)(2)(D) requires an intentional act
of violence that resulted in death, which cannot be committed without the intentional
use of physical force. That is all this Court’s precedent demands.
In the alternative, even assuming the predicate offenses require only reckless
conduct, the Supreme Court has made clear that reckless conduct can satisfy a use-of-
force requirement. See Voisine v. United States, 136 S. Ct. 2272, 2279 (2016)
(concluding that the word “use” in the phrase “use . . . of physical force” in 18 U.S.C.
§ 921(a)(33)(A) is “indifferent as to whether the actor has the mental state of
intention, knowledge, or recklessness with respect to the harmful consequences of his
volitional conduct”). The government acknowledges that, even after Voisine, this
Court in Rose rejected that argument in the context of the ACCA, see Rose, 896 F.3d at
109-10, and this panel is bound by Rose. However, the government seeks to preserve
for purposes of potential further review its position that arson resulting in death—
even without the added intent element required by the Federal Death Penalty Act—
18
categorically requires the use of force against the person of another under
§ 924(c)(3)(A)’s elements clause.
Because Counts 12 and 14 charged capital arson resulting in death, they were
crimes of violence under § 924(c)(3)(A)’s elements clause. Tsarnaev’s § 924(c) and (j)
convictions under Counts 13 and 15 are therefore valid even after Davis.
3. Tsarnaev’s contrary arguments are unpersuasive.
Tsarnaev argues that it is “immaterial” that the jury unanimously found the
death-resulting element of his aggravated offense beyond a reasonable doubt. 2nd
Supp. Br. 11. First, he argues that “th[is] element[ ] do[es] not figure in the
§ 924(c)(3)(A) analysis because Counts 13 and 15 alleged that the predicate crimes of
violence were ‘malicious destruction of property’ simpliciter, not ‘malicious
destruction of property resulting in . . . death.’” Id. at 12 (quoting Add.34, 38). He
asserts that “to indict Tsarnaev on Counts 13 and 15, the grand jury did not have to
find probable cause that his malicious destruction of property resulted in personal
injury or death,” and that the petit jury did not “have to find these elements proved”
in order to convict him on those counts. Id. He is incorrect.
As an initial matter, the grand jury did find probable cause that the arsons
resulted in death in order to indict Tsarnaev on Counts 12 and 14, the counts
19
underlying Counts 13 and 15. 3 Add.32, 36 (“The Grand Jury further charges that the
offense resulted in the death of at least one person . . . .”). And Counts 13 and 15
specifically incorporated Counts 12 and 14, referring to “malicious destruction of
property, as charged in Count Twelve” and “as charged in Count 14.” Id. at 34, 38 (emphasis
added); see also 15.App.6878 (instructing the jury that “Counts Thirteen and Fifteen
charge the defendant with using and carrying a firearm during and in relation to the
crime[s] of violence alleged in Counts Twelve and Fourteen.”). The fact that Counts
13 and 15 used shorthand to refer to the underlying counts—“malicious destruction
of property, as charged in Count [X],” Add.34, 38, rather than “capital malicious
destruction of property resulting in personal injury and death,” Add.32, 36—does not
mean that the indictment’s allegations and the jury’s actual finding that death resulted
should be ignored.
Moreover, even assuming the indictment were somehow unclear (which it is
not), this Court may look to the underlying record, including the jury’s special verdict,
to determine the “elements” of the aggravated offense of which Tsarnaev was actually
convicted. See Mathis, 136 S. Ct. at 2249. As explained above, the jury’s finding by
special verdict of both the “death results” element and the capital “gateway” intent
The grand jury also found probable cause for the gateway intent factors as to
3
Counts 12 and 14. See Add.66-69.

20
element for Counts 12 and 14 makes clear that Tsarnaev was convicted of capital
arson resulting in death. See Add. 74m, 74o, 79-81.
Tsarnaev next argues that “even if considered,” the death-resulting element
“do[es] not cure § 844(i)’s overbreadth” because the statute applies to “destroying
one’s own property, not the property of another” and requires only “a mens rea of
recklessness, not intent.” 2d Supp. Br. 12-13. That argument is meritless for the
reasons explained above: arson resulting in death requires using force against the
person of another, and capital arson resulting in death requires the intentional use of
physical force.
Tsarnaev also argues that the death-resulting element “adds no further actus
reus or mens rea requirements to the basic offense.” 2d Supp. Br. 13. Contrary to
Tsarnaev’s argument, however, the death-resulting element adds a requirement that
the defendant’s conduct actually resulted in the death of another person, which
demonstrates that the defendant used force against that person. And the gateway
factors add an additional element that requires an intentional act of violence that
directly resulted in the death of another person.
21
D. The offenses of capital conspiracy to use a weapon of mass

destruction resulting in death and capital conspiracy to bomb a
place of public use resulting in death are crimes of violence under
18 U.S.C. § 924(c)(3)(A).
Tsarnaev next argues that Counts 16 through 18 are invalid because they are
based on conspiracy counts. 4 2nd Supp. Br. 15-17. “Conspiracy is an inchoate
offense, the essence of which is an agreement to commit an unlawful act.” Iannelli v.
United States, 420 U.S. 770, 777 (1975). Ordinarily, “conspiracy’s elements are met as
soon as the participants have made an agreement.” Sessions v. Dimaya, 138 S. Ct. 1204,
1219 (2018). Even where a conspiracy offense requires proof of an overt act, that act
need not be violent or even “be itself a crime.” Braverman v. United States, 317 U.S. 49,
53 (1942). Thus, simply conspiring to commit a violent act does not necessarily have as
an element the use, attempted use, or threatened use of physical force. Accordingly,
most conspiracies to commit what would otherwise be crimes of violence are not
categorically crimes of violence under § 924(c)(3)(A). See United States v. Douglas, 907
F.3d 1, 6 n.7 (1st Cir. 2018) (noting Department of Justice’s position), vacated, 139 S.
Ct. 2775 (2019).
The analysis is different, however, where the defendant is convicted of
conspiracy to commit an offense that results in death, particularly where the offense is
a capital one. When death has actually resulted, the offense has moved beyond an
4
Count 18 is addressed separately below.
22
inchoate agreement. The conspirators must have engaged in some act that resulted in
death. And the death must have resulted from the use of force.
Although it might be possible to imagine scenarios in which death resulted
from a still-inchoate conspiracy involving no use of force—such as where a person
overheard the defendants’ agreement to commit a crime and died of a heart attack—
the Supreme Court has cautioned against using “legal imagination” to treat an offense
as categorically overbroad. See Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (internal
quotation marks omitted); id. (“there must be ‘a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside the
generic definition of a crime’”) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007)); United States v. Hill, 890 F.3d 51, 56 (2d Cir. 2018) (“To show that a particular
reading of the statute is realistic, a defendant must at least point to his own case or
other cases in which the courts in fact did apply the statute in the manner for which
he argues. To that end, the categorical approach must be grounded in reality, logic,
and precedent, not flights of fancy.”) (internal quotation marks, citation, and ellipses
omitted), cert. denied, 139 S. Ct. 844 (2019). Tsarnaev has cited no case involving such
a situation.
Tsarnaev argues that the death-results element does no work in the conspiracy
context because he need not have “intended to cause death” and “the unintended
causation of death does not constitute the use of force” under Leocal v. Ashcroft, 543
23
U.S. 1, 9-10 (2004). 2d Supp. Br. 18 n.3. He is mistaken. The conspiracy counts
underlying Counts 16 and 17 require an intent to use force.
Count 16 is premised on Count 1, which charged conspiracy to use a weapon
of mass destruction, in violation of 18 U.S.C. § 2332a(a)(2). See Add.5. That statute
applies to any person “who, without lawful authority, uses, threatens, or attempts or
conspires to use, a weapon of mass destruction . . . against any person or property within
the United States” that has a specified connection with interstate commerce. 18
U.S.C. § 2332a(a)(2) (emphasis added). In order to convict Tsarnaev on this count,
the jury had to find that he agreed with another person to use a weapon of mass
destruction and that he “knowingly and voluntarily joined in the agreement intending
that the crime of using a weapon of mass destruction be committed.” 15.App.6850
(emphasis added). Thus, to convict Tsarnaev of the death-resulting version of this
offense, the jury had to find that he intended to use a weapon of mass destruction
“against any person or property” and that death resulted. Because death actually
resulted, the crime was no longer purely inchoate and the jury necessarily found both
that Tsarnaev intended to use force against the person or property of another and that
he or a co-conspirator actually did use such force to kill a person.
The same is true of Count 17, which is based on the offense charged in Count
6 of conspiracy to bomb a place of public use resulting in death, in violation of 18
U.S.C. § 2332f(a)(1). See Add.21. That statute applies to anyone who “unlawfully
delivers, places, discharges, or detonates an explosive or other lethal device in, into, or
24
against a place of public use . . . (A) with the intent to cause death or serious bodily injury, or
(B) with the intent to cause extensive destruction of such a place.” 18 U.S.C. § 2332f(a)(1)
(emphasis added). In order to convict Tsarnaev of conspiring to commit this offense,
the jury had to find that he “agreed with another to bomb a place of public use,” that
he “knowingly and voluntarily joined in that agreement intending that the crime of
bombing a place of public use be committed,” and that death resulted from that
offense. 15.App.6850-51 (emphasis added). Tsarnaev could not take part in a
conspiracy to bomb a place of public use that resulted in death without specifically
intending to kill or seriously injure a person or to destroy a place of public use and
actually killing another person. To do so, he had to intentionally use force against that
person.
Moreover, because Tsarnaev was charged with capital conspiracy to use a
weapon of mass destruction resulting in death and capital conspiracy to bomb a place
of public use with death resulting, the jury had to find that he intended to commit a
violent act. See 18 U.S.C. § 3591(a)(2).
E. Under this Court’s precedent, non-capital conspiracy to commit

arson resulting in death is not a crime of violence.
Count 18 is premised on Count 11, which charged conspiracy to commit arson
resulting in death, in violation of 18 U.S.C. § 844(i) and (n). Unlike the other § 924(c)
predicates at issue, Count 11 was not a capital count. See 18 U.S.C. § 844(n) (death
penalty not authorized for conspiracy to commit arson). As explained above, because
25
Count 11 charged that the conspiracy to commit arson resulted in death, the
conspiracy was no longer merely an inchoate agreement. The jury had to find that
Tsarnaev or his co-conspirator took some action that caused a death. In the
government’s view, this necessarily means that the offense involved the use of
physical force against the person of another.
This Court, however, has held that to constitute the “use . . . of physical force
against the person of another” the conduct must be intentional, and not merely
reckless. Rose, 896 F.3d at 109; Windley, 864 F.3d at 37 n.2; Bennett, 868 F.3d at 18-20.
Although conspiracy to commit arson requires intent to destroy property, see
15.App.6851, the property destroyed may be one’s own. The crime does not
necessarily require proof that the defendant intended the resulting death. See id.
Therefore, under this Court’s precedent, the non-capital conspiracy charged in Count
11 is not a crime of violence under § 924(c)(3)(A), and Count 18 therefore lacks a
valid predicate. As noted above, the government believes the relevant precedent was
wrongly decided and seeks to preserve that issue for possible further review. But
under this Court’s precedent as it currently stands, Count 18 should be vacated.
F. Count 18’s invalidity does not affect the validity of Tsarnaev’s

remaining convictions.
The appropriate remedy for Counts 18’s invalidity is to vacate Count 18 and
the sentence of life imprisonment imposed on that count. Even if some or all of the
remaining challenged § 924(c) and (j) counts were invalid, the appropriate remedy
26
would be the same—to vacate Tsarnaev’s convictions on those counts. Tsarnaev has
not argued that vacatur of the challenged counts would affect the validity of his death
sentences on the five other counts; he argues only that this Court should “vacate [his]
convictions on Counts 13, 15, 16, 17, and 18.” 2nd Supp. Br. 20. He has therefore
waived any claim that the alleged invalidity of the five challenged counts affected the
validity of his remaining death sentences. Mayendía-Blanco, 905 F.3d at 32.
But even if he had raised such an argument, it would fail. The district court
instructed the jury to consider each count separately without regard to the other
counts. See 19.App.8658 (“You must deliberate and determine the appropriate
sentence for each of the capital counts individually.”); 8659 (“[T]he number of counts
does not by itself mean that the defendant’s conduct is more blameworthy or that he
is deserving of greater punishment.”); 8694 (instructing that for each capital count for
which the jury had found at least one gateway factor and one statutory aggravating
factor, “you must engage in a weighing process with regard to that count”). And the
verdict form shows that the jury followed those instructions. The jury chose to
impose the death penalty only on six counts, even though it found at least one
gateway factor and one statutory aggravating factor with respect to all 17 of the capital
counts. Add.79-84, 95-96. There is therefore no indication that the existence of
Count 15 (on which Tsarnaev was sentenced to death) or Counts 13, 16, 17, and 18
(on which Tsarnaev received life sentences) affected the jury’s decision to impose
death on the five remaining counts.

27
CONCLUSION
This Court should vacate Tsarnaev’s conviction and sentence on Count 18, but
otherwise affirm the judgment of the district court.
Respectfully submitted,
ANDREW E. LELLING BRIAN A. BENCZKOWSKI

United States Attorney Assistant Attorney General
NADINE PELLEGRINI MATTHEW S. MINER

Assistant United States Attorney Deputy Assistant Attorney General
District of Massachusetts
s/William A. Glaser
JOHN C. DEMERS WILLIAM A. GLASER
Assistant Attorney General Attorney, Appellate Section
National Security Division Criminal Division
U.S. Department of Justice
JOSEPH F. PALMER 950 Pennsylvania Ave., N.W.
Attorney Washington, DC 20530
National Security Division (202) 532-4495
William.Glaser@usdoj.gov
28
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 7,227 words, excluding the parts of the brief exempted
by Fed. R. App. P. 32(f).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word in
Garamond 14-point type.
s/William A. Glaser
WILLIAM A. GLASER
29
CERTIFICATE OF SERVICE
I hereby certify that on August 30, 2019, I electronically filed the foregoing
document with the United States Court of Appeals for the First Circuit using the
CM/ECF system. I certify that all participants in the case are registered CM/ECF
users and that service will be accomplished by the CM/ECF system.
s/William A. Glaser
WILLIAM A. GLASER
30

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Case: 16-6001 Document: 00117483386 Page: 1 Date Filed: 08/30/2019 Entry ID: 6278878

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

On Appeal from the United States District Court for the

SUPPLEMENTAL BRIEF FOR APPELLEE THE UNITED STATES

ANDREW E. LELLING BRIAN A. BENCZKOWSKI

NADINE PELLEGRINI MATTHEW S. MINER

TABLE OF CONTENTS ..................................................................................................... i

TABLE OF AUTHORITIES ............................................................................................. iii

SUMMARY OF ARGUMENT ........................................................................................... 1

The Supreme Court’s Decision in United States v. Davis Does Not

B. Standard of review ............................................................................... 7

C. The capital offense of malicious destruction of property

1. A person cannot commit capital arson resulting in

2. Capital arson resulting in death requires intentional

3. Tsarnaev’s contrary arguments are unpersuasive. .............. 19

D. The offenses of capital conspiracy to use a weapon of mass

E. Under this Court’s precedent, non-capital conspiracy to

F. Count 18’s invalidity does not affect the validity of

CERTIFICATE OF COMPLIANCE .............................................................................. 29

CERTIFICATE OF SERVICE ......................................................................................... 30

Apprendi v. New Jersey,

Bennett v. United States,

Braverman v. United States,

Burrage v. United States,

Carlisle v. United States,

Iannelli v. United States,

Johnson v. United States,

Johnson v. United States,

Johnson v. United States,

Jones v. United States,

Lassend v. United States,

Mathis v. United States,

Stokeling v. United States,

Taylor v. United States,

United States v. Baskerville,

United States v. Booker,

United States v. Castleman,

United States v. Cruz-Rivera,

United States v. Davis,

United States v. Douglas,

United States v. García-Ortiz,

United States v. Grady,

United States v. Hayes,

United States v. Hill,

United States v. Joyner,

United States v. Marcus,

United States v. Mayendía-Blanco,

United States v. Rose,

United States v. Salas,

United States v. Taylor,

United States v. Tkhilaishvili,

United States v. Vázquez-Rivera,

United States v. Williams,

United States v. Windley,

Voisine v. United States,

Statutes and Rules

18 U.S.C. § 1111 ..................................................................................................................... 4

18 U.S.C. § 2332f ........................................................................................................ 5, 24, 25

18 U.S.C. § 3591 ............................................................................................................passim

Fed. R. Crim. P. 12 ................................................................................................................. 8

Fed. R. Crim. P. 29 ................................................................................................................. 8

Fed. R. Crim. P. 30 ................................................................................................................. 8