USCA4 Appeal: 20-6812 Doc: 62 Filed: 10/26/2022 Pg: 1 of 17
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-6812
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTIN JAY MANLEY, a/k/a Buck,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, Senior District Judge. (4:08-cr-00144-RBS-3; 4:20-cv-00022-RBS)
Argued: September 14, 2022 Decided: October 26, 2022
Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion for the court in Parts I, II, and IV, in which Judge Diaz and Judge Quattlebaum concurred. Judge Niemeyer wrote an opinion in Part III.
ARGUED: Jacob Smith, Holly Chaisson, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: J. Scott Ballenger, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Raj Parekh, Acting United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 20-6812 Doc: 62 Filed: 10/26/2022 Pg: 2 of 17
NIEMEYER, Circuit Judge, wrote the opinion for the court in Parts I, II, and IV, and wrote an opinion in Part III:
The issue presented in this appeal is whether offenses under 18 U.S.C. § 1959
(violent crimes in aid of racketeering activity, commonly referred to as “VICAR”) — in
particular, VICAR assault and VICAR murder — must be committed with a sufficiently
culpable mens rea to amount to “crime[s] of violence,” as necessary for conviction under
18 U.S.C. § 924(c). The VICAR statute punishes certain crimes committed in aid of
racketeering activity, including (1) assault with a dangerous weapon or resulting in serious
bodily injury under state or federal law and (2) murder under state or federal law. Id.
§ 1959(a)(1), (3). While the Supreme Court recently held in Borden v. United States,
141 S. Ct. 1817 (2021), that a crime with a mens rea of “recklessness” cannot qualify as a
“violent felony” under 18 U.S.C. § 924(e), which is materially similar to a “crime of
violence” in § 924(c)(3), we hold that the elements of both VICAR assault and VICAR
murder in this case include a mens rea more culpable than mere recklessness and that the
mens rea of both VICAR crimes satisfies the mens rea element of a “crime of violence” in
§ 924(c). Accordingly, we affirm the district court’s judgment reaching the same result
but for different reasons.
I
Martin Manley, a member of the street gang in Newport News, Virginia, known as
the “Dump Squad,” was charged in 2009 with counts of racketeering conspiracy, drug
conspiracy, conspiracy to interfere with and interference with commerce by robbery, using
a firearm during and in relation to a crime of violence, assault with a dangerous weapon in
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aid of racketeering activity, maiming in aid of racketeering activity, murder in aid of
racketeering activity, and using a firearm causing death. Later in 2009, he pleaded guilty
to Count 1, charging him with racketeering conspiracy, in violation of 18 U.S.C. § 1962(d);
Count 25, charging him with the use of a firearm during and in relation to a crime of
violence, in violation of § 924(c); and Count 35, charging him with the use of a firearm
during and in relation to a crime of violence causing death, in violation of § 924(c), (j).
Following the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319
(2019), Manley filed a motion under 28 U.S.C. § 2255 to vacate his two convictions for
violation of § 924(c) (Counts 25 and 35), contending that the predicate offenses alleged for
those violations were no longer “crimes of violence,” as defined by § 924(c)(3). Davis
held that the “residual clause” defining a crime of violence in § 924(c)(3)(B) was
unconstitutionally vague but left standing the “elements clause” definition in
§ 924(c)(3)(A). Manley contended that his § 924(c) convictions relied on conspiracy to
engage in racketeering as charged in Count 1, which, he argued, was not a crime of violence
because it satisfied only the invalidated residual clause and that therefore his convictions
on Counts 25 and 35 were no longer valid.
The district court denied Manley’s § 2255 motion, noting that while the residual
clause had indeed been held to be unconstitutionally vague, the elements clause
“remain[ed] constitutionally valid.” Rejecting Manley’s contention that his two 924(c)
convictions were premised on racketeering conspiracy as charged in Count 1, the court
held that the predicate offense for Manley’s conviction on Count 25 was “assault with a
dangerous weapon in aid of racketeering activity,” in violation of 18 U.S.C. § 1959(a)(3),
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as alleged in Count 24, which remained a crime of violence under the elements clause. It
also held that the predicate offense for Manley’s conviction on Count 35 was “murder in
aid of racketeering activity,” in violation of 18 U.S.C. § 1959(a)(1), as alleged in Count 34,
which also remained a crime of violence under the elements clause.
While Manley’s appeal from the district court’s order denying his § 2255 motion
was pending, the Supreme Court handed down its decision in Borden, which held that
offenses that can be committed with a mens rea of recklessness are not “violent felonies.”
141 S. Ct. at 1821–22, 1825 (plurality opinion); id. at 1835 (Thomas, J., concurring).
Manley now argues that the predicate offenses for his § 924(c) convictions in both Counts
25 and 35 can be committed with a mens rea of recklessness and that therefore they are, by
reason of Borden, no longer crimes of violence that can support his convictions under
§ 924(c).
II
Section 924(c), the offense of which Manley was convicted on both Counts 25 and
35, provides:
[A]ny person who, during and in relation to any crime of violence . . . uses or carries a firearm . . . shall [be punished].
18 U.S.C. § 924(c)(1)(A) (emphasis added). And “crime of violence” is defined in the
elements clause as “an offense that is a felony and . . . has as an element the use, attempted
use, or threatened use of physical force against the person or property of another.” Id.
§ 924(c)(3)(A) (emphasis added).
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Here, the predicate crime of violence alleged in Count 25 was assault with a
dangerous weapon in aid of racketeering activity (“VICAR assault”), in violation of
18 U.S.C. § 1959(a)(3), “as set forth in Count Twenty-four of [the] Indictment.” And
Count 24 charged Manley with committing VICAR assault by “knowingly, intentionally
and unlawfully assault[ing]” a rival gang member “with a dangerous weapon, which
resulted in serious bodily injury to [the rival gang member], in violation of Va. Code Ann.
§ 18.2-51 [unlawful wounding], for the purpose of gaining entrance to and maintaining and
increasing position in an Enterprise engaged in racketeering activity.” The crime of
violence alleged in Count 35 was murder in aid of racketeering activity (“VICAR murder”),
in violation of 18 U.S.C. § 1959(a)(1), “as set forth in Count Thirty-four of [the]
Indictment.” And Count 34 charged Manley with committing VICAR murder by
“knowingly, willfully, and unlawfully caus[ing] the murder of Tony Vaughn in violation
of Va. Code Ann. § 18.2-32 [first and second-degree murder], for the purpose of gaining
entrance to and maintaining and increasing position in an Enterprise engaged in
racketeering activity.”
The issue before us is the question of law whether the offenses charged in Counts
24 and 34 — which were incorporated into Counts 25 and 35, purportedly as crimes of
violence — required a mens rea more culpable than mere recklessness so as to actually
qualify as “crime[s] of violence” following Borden. We address each crime in order.
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A
The offense charged in Count 24 and incorporated into Count 25 purportedly as a
“crime of violence” was a violation of VICAR assault (§ 1959(a)(3)), premised on the state
offense of unlawful wounding in violation of Virginia Code § 18.2-51. The elements
necessary for a conviction of VICAR assault are (1) that there be an “enterprise,” as defined
in § 1959(b)(2); (2) that the enterprise be engaged in “racketeering activity,” as defined in
18 U.S.C. § 1961; (3) that the defendant have committed an assault “with a dangerous
weapon” or “resulting in serious bodily injury”; (4) that the assault have violated state or
federal law; and (5) that the assault have been committed for a designated pecuniary
purpose or “for the purpose of gaining entrance to or maintaining or increasing position in
[the] enterprise.” 18 U.S.C. § 1959(a)(3); see also United States v. Zelaya, 908 F.3d 920,
926–27 (4th Cir. 2018); United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994). And the
minimum elements necessary for proving the state assault offense alleged in Count 24 are
that the person (1) “unlawfully” (2) cause a person bodily injury (3) “with the intent to
maim, disfigure, disable, or kill.” Va. Code Ann. § 18.2-51.
Manley’s guilty plea to Count 25, therefore, confessed that each element of the
crime alleged in Count 24 was satisfied, and thus those elements may be considered to
determine whether the offense qualified as a crime of violence for purposes of § 924(c).
Of course, if the mens rea element can, as a matter of law, be satisfied with a mental state
of recklessness or negligence, the offense is not a crime of violence. See Borden, 141 S.
Ct. at 1821–22, 25 (plurality opinion) (explaining that offenses with a mens rea of ordinary
recklessness are not violent felonies); Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (holding
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that offenses with a mens rea of negligence are not crimes of violence). But if the elements
of a crime “demand[]” that the person have “direct[ed] his action at, or target[ed], another
individual,” the action is more purposeful and satisfies the mens rea requirement necessary
for an offense to qualify as a crime of violence. Borden, 141 S. Ct. at 1825 (plurality
opinion).
We have held specifically that the unlawful wounding offense proscribed by
Virginia Code § 18.2-51 meets the criteria for a crime of violence. In United States v.
Rumley, 952 F.3d 538, 551 (4th Cir. 2020), we concluded that Virginia unlawful wounding
was categorically a “violent felony” under 18 U.S.C. § 924(e) — which defines “violent
felony” similarly to the way § 924(c)(3) defines “crime of violence” — because it satisfied
the elements clause. We explained, “[N]ot only does the Virginia statute require the
causation of bodily injury, . . . it also requires that the person causing the injury have acted
with the specific intent to cause severe and permanent injury — maiming, disfigurement,
permanent disability, or death.” Id. at 550. And this “specific intent” requirement,
combined with the causation of bodily injury, necessarily entailed the use of physical force.
Id.; see also Moreno-Osorio v. Garland, 2 F.4th 245, 253–54 (4th Cir. 2021). Thus, we
readily conclude that Virginia unlawful wounding, in violation of § 18.2-51, satisfies the
criteria set forth in Borden for a crime of violence, as the Virginia statute “demands that
the perpetrator direct his action at, or target, another individual,” and such a mens rea is
greater than negligence or recklessness. Borden, 141 S. Ct. at 1825 (plurality opinion); cf.
United States v. Townsend, 886 F.3d 441, 445 (4th Cir. 2018) (noting that North Carolina
assault with a deadly weapon with intent to kill and inflicting serious injury required proof
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of “a mens rea greater than negligence or recklessness” because it required “proof of a
specific intent to kill”).
Manley argues that we should not consider the elements of the state statute alleged
in Count 24 to determine whether the VICAR assault offense is a crime of violence because
the predicate crime of violence alleged in Count 25 was VICAR assault, not Virginia
assault. But this argument overlooks element (4) of VICAR assault, which requires that
the assault be “in violation of the laws of any State or the United States.” 18 U.S.C.
§ 1959(a). To properly charge a VICAR assault, therefore, the government must identify
a specific state or federal law that the defendant violated by engaging in the conduct
underpinning the VICAR offense. In this case, that charged offense was a violation of
Virginia Code § 18.2-51 (unlawful wounding). And because the Virginia offense
constitutes an element of the VICAR offense, it is proper to examine whether a conviction
under the Virginia statute would be a crime of violence. See United States v.
Mathis, 932 F.3d 242, 264–65 (4th Cir. 2019); see also United States v. Keene, 955 F.3d
391, 392–93 (4th Cir. 2020).
Presuming that it is appropriate to consider the mens rea of the unlawful wounding
offense under Virginia Code § 18.2-51, Manley argues that cases from the Virginia Court
of Appeals show that convictions under § 18.2-51 are upheld in Virginia based on reckless
conduct, thus precluding the crime’s qualification as a crime of violence. See Shimhue v.
Commonwealth, No. 1736-97-2, 1998 WL 345519, at *1 (Va. Ct. App. June 30, 1998)
(upholding a conviction for malicious wounding when the defendant twice fired his
weapon into the floor of his apartment to frighten a woman, but one bullet traveled through
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the floor and struck the leg of a neighbor in the apartment below); David v. Commonwealth,
340 S.E.2d 576, 577 (Va. Ct. App. 1986) (upholding a conviction for unlawful wounding
after the defendant intentionally fired a gun at the cement near where other people were
standing and the bullet ricocheted and hit the victim’s foot); Knight v. Commonwealth,
733 S.E.2d 701, 702–03 (Va. Ct. App. 2012) (upholding a conviction for malicious
wounding based on the defendant’s traveling at dangerously excessive speeds in a
populated area and causing a multi-car crash). All three cases, however, came to the
appellate court under a challenge to the sufficiency of the evidence. See Shimhue,
1998 WL 345519, at *1–2; David, 340 S.E.2d at 577; Knight, 733 S.E.2d at 707–08. And
the sufficiency of the evidence was a question for the trier of fact. In its review, therefore,
the Virginia Court of Appeals was required to view the evidence in the light most favorable
to the Commonwealth. Thus, the court in each case could and did accept that the factfinder
inferred that the defendant intended the immediate consequences of his voluntary acts. See
Shimhue, 1998 WL 345519, at *1; David, 340 S.E.2d at 577; Knight, 733 S.E.2d at 704,
707–08. The Virginia court’s holdings in these cases, however, hardly rejected the mens
rea required by the explicit text of the statute that the perpetrator act with “the intent to
main, disfigure, disable, or kill.” Va. Code Ann. § 18.2-51; see also Rumley, 952 F.3d at
550 (noting that § 18.2-51 requires “the specific intent to cause severe and permanent
injury”). The Supreme Court of Virginia has likewise described Virginia Code § 18.2-51
as requiring proof of “specific intent.” See, e.g., Commonwealth v. Vaughn, 557 S.E.2d
220, 222 (Va. 2002).
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At bottom, we conclude that the VICAR assault offense charged in Count 24 and
incorporated into Count 25 purportedly as a crime of violence is indeed a crime of violence,
thereby rendering Manley’s conviction under Count 25 valid.
B
The offense charged in Count 34 and incorporated into Count 35 purportedly as a
“crime of violence” was a violation of VICAR murder (§ 1959(a)(1)), premised on the state
offense of murder in violation of Virginia Code § 18.2-32 (first and second-degree murder).
The elements for a conviction of VICAR murder are the same as those of VICAR assault
other than that the offense committed must be murder under a state or federal law, rather
than assault. And the Virginia murder statute alleged in Count 34 includes two offenses,
first-degree murder and second-degree murder. Second-degree murder is defined as all
murders that are not first-degree murder. Va. Code Ann. § 18.2-32. The parties agree that
the allegations in the indictment charge Manley with second-degree murder.
The Virginia Supreme Court has held that Virginia’s murder statute, Virginia Code
§ 18.2-32, codifies the common-law crime of murder. See Flanders v. Commonwealth,
838 S.E.2d 51, 56 (Va. 2020) (“[A]lthough Virginia law recognizes capital murder, first-
degree murder, and second-degree murder and punishes each with different ranges of
penalties[,] . . . all three gradations punish the same offense of common-law murder”). The
crime of second-degree murder has two elements. First, the victim must be shown to have
died as a result of the defendant’s conduct, and second, the defendant’s conduct must be
shown to be malicious. See Essex v. Commonwealth, 322 S.E.2d 216, 220 (Va. 1984). In
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the absence of express malice, the malice element “may only be implied from conduct
likely to cause death or great bodily harm, willfully or purposefully undertaken.” Id.
Defining implied malice more fully, the Virginia Supreme Court has stated that it
“encapsulates a species of reckless behavior so willful and wanton, so heedless of
foreseeable consequences, and so indifferent to the value of human life that it supplies the
element of malice.” Watson-Scott v. Commonwealth, 835 S.E.2d 902, 904 (Va. 2019)
(cleaned up). This mens rea thus amounts to what the parties agree is “extreme
recklessness.”
The parties dispute, however, whether “extreme recklessness” is a level of mens rea
sufficient to satisfy the statutory definition of a crime of violence in § 924(c)(3)(A)
(requiring as an element “the use, attempted use, or threatened use of physical force against
the person or property of another”). Borden specifically elected not to address whether a
mens rea of extreme recklessness is sufficient to constitute a violent felony or crime of
violence. See Borden, 141 S. Ct. at 1825 n.4 (plurality opinion). But the Court’s analysis
is nonetheless informative.
Borden addressed two distinct concepts: (1) what constitutes criminally culpable
mens rea, and (2) what mens rea does the definition of “violent felony” require. In its
discussion of the violent felony definition in the elements clause of § 924(e), which is
similar to the definition in the elements clause in § 924(c)(3)(A) at issue here, the Court
directs us to the statutory definition’s requirement of the “use of physical force against the
person of another,” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added), and notes that it
“demands that the perpetrator direct his action at, or target, another individual,” Borden,
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141 S. Ct. at 1825 (plurality opinion). And that conclusion led the Court to hold that
conduct that is “purposeful” or “knowing” fits § 924(e)’s mens rea requirement, whereas
conduct that is “reckless” or “negligent” does not. Id. at 1826–28. That holding was made
within the context of the Court’s general discussion of mens rea, where it observed that
“four states of mind . . . give rise to criminal liability,” which are “in descending order of
culpability: purpose, knowledge, recklessness, and negligence.” Id. at 1823. The Court
acknowledged, however, that some statutes have a mens rea of “extreme recklessness,”
falling somewhere between “knowledge” and “recklessness” on the Court’s scale. Id. at
1825 n.4. But it made clear that it was not addressing whether the definition of a violent
felony could be satisfied with a mens rea of extreme recklessness. Id. We conclude,
however, that the answer to that question can nonetheless be derived from the Court’s
analysis.
The Court allowed that extreme recklessness falls on the mens rea scale of
culpability between “knowledge” and “recklessness,” where “knowledge” is a sufficient
mens rea for a violent felony and “recklessness” is not. Borden, 141 S. Ct. at 1825 n.4
(plurality opinion). It defined “knowledge” to exist when one “is aware that a result is
practically certain to follow from his conduct” and “recklessness” to exist where one
“consciously disregards a substantial and unjustifiable risk.” Id. at 1823–24 (emphasis
added) (cleaned up). Employing the Court’s scale, we conclude that extreme recklessness,
as defined by Virginia law, not only falls between “knowledge” and “recklessness” but
also that it is closer in culpability to “knowledge” than it is to “recklessness.” As the
Virginia Supreme Court has stated, the implied-malice element of second-degree murder
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encapsulates “a species of reckless behavior so willful and wanton, so heedless of
foreseeable consequences, and so indifferent to the value of human life that it supplies the
element of malice.” Watson-Scott, 835 S.E.2d at 904 (cleaned up). The Virginia Supreme
Court has explained that this malice element may be “implied by conduct” when the
conduct is “so harmful” to the victim as to support an inference of malice. Id. (emphasis
added) (cleaned up). While this definition may not describe precisely the “practically
certain” state of “knowing,” it comes close. It follows, we conclude, that this formulation
necessarily requires conduct that uses physical force against another, as required by the
definition of a crime of violence in § 924(c)(3)(A).
Since Borden was decided, two other courts of appeals have reached the same
conclusion that crimes involving a mens rea short of knowledge but greater than ordinary
recklessness can qualify as crimes of violence. See Alvarado-Linares v. United States,
44 F.4th 1334, 1343–44 (11th Cir. 2022); United States v. Begay, 33 F.4th 1081, 1093 (9th
Cir. 2022) (en banc), petition for cert. denied, 598 U.S. ____ (2022). And prior to Borden,
the First Circuit similarly decided that second-degree murder under Puerto Rico law is a
violent felony under § 924(e) because it requires “extreme recklessness” and therefore
satisfies the elements clause, even though the First Circuit previously determined that
ordinary recklessness does not suffice. See United States v. Báez-Martínez, 950 F.3d 119,
125–27 (1st Cir. 2020). We now join these courts.
Our conclusion that an offense with a mens rea of extreme recklessness satisfies the
mens rea of a “crime of violence” accords with the context and purpose of § 924(c). That
statute assigns additional culpability to individuals who use or carry a firearm during the
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commission of a crime of violence, and murder is obviously among the most violent of
crimes. Indeed, we have observed that “[c]ommon sense dictates that murder is
categorically a crime of violence under the force clause.” In re Irby, 858 F.3d 231, 237
(4th Cir. 2017). While we still must, of course, analyze the mens rea required in the
commission of murder under any given statute, we believe that the difference between
“extreme recklessness” and ordinary criminal recklessness assuages the concern articulated
in Borden that a lower mens rea requirement may “blur the distinction between the
‘violent’ crimes Congress sought to distinguish for heightened punishment and [all] other
crimes.” Borden, 141 S. Ct. at 1831 (plurality opinion) (quoting Leocal, 543 U.S. at 11).
C
At bottom, we hold that VICAR assault committed by violating Virginia Code
§ 18.2-51 and VICAR murder committed by violating Virginia Code § 18.2-32 are crimes
of violence under § 924(c) and that Manley’s convictions under Counts 25 and 35 are
therefore valid.
III
NIEMEYER, Circuit Judge, as to this Part III:
Manley also contends that Counts 24 and 34, which are incorporated into Counts 25
and 35, to which he pleaded guilty, simply allege generic assault and generic murder and
that therefore we must focus on the elements of the VICAR offenses without regard to the
counts’ references to violations of state law. Indeed, he notes that he did not even plead
guilty to state offenses because the state offenses were not mentioned in his plea agreement,
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the statement of facts, or the order accepting the plea. Based on these premises, he contends
that VICAR assault can be committed with a mens rea of “ordinary recklessness” and
therefore is not, by reason of Borden, a crime of violence, and that VICAR murder can be
committed with a mens rea of “extreme recklessness,” which is simply another form of
recklessness insufficient to amount to a crime of violence.
First, I should note, as discussed above, that Manley’s guilty plea was to Counts 25
and 35, which specifically incorporated Counts 24 and 34, respectively, charging Manley
with the commission of VICAR assault and VICAR murder, the elements of which
included violations of Virginia Code §§ 18-2.51 and 18-2.32, respectively. But addressing
Manley’s argument on the merits, I note that Manley simply overlooks the mens rea
elements for the VICAR violations.
While Manley focuses only on the mens rea elements of generic assault and generic
murder standing alone, he fails to account for the necessary VICAR element (5) that the
assault or murder be committed “as consideration for the receipt of, or as consideration for
a promise or agreement to pay, anything of pecuniary value from” a racketeering enterprise
or “for the purpose of gaining entrance to or maintaining or increasing position” in the
racketeering enterprise. 18 U.S.C. § 1959(a). Thus, to be guilty of VICAR assault or
VICAR murder, a defendant must carry out the assault or murder for a racketeering-related
pecuniary purpose or with the purpose of improving his position in a racketeering
enterprise. And “purpose,” as Borden explained, is a state of mind where the defendant
“‘consciously desires’ a particular result.” 141 S. Ct. at 1823 (plurality opinion) (quoting
United States v. Bailey, 444 U.S. 394, 404 (1980)). It follows that, when a defendant
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assaults or murders to gain a personal collateral advantage with an enterprise, he makes a
decision — a deliberate choice — to carry out the assault or the murder to demonstrate his
worth to the enterprise. This state of mind is more culpable than the reckless conduct
described in Borden. As Borden noted, the definition of a violent felony or a crime of
violence “covers purposeful and knowing acts.” Id. at 1826. For this reason, I also
conclude — in addition to our conclusions that Virginia law provides a sufficient mens rea
for both offenses — that VICAR assault and VICAR murder require a mens rea sufficient
to support the mens rea of a crime of violence within the meaning of § 924(c)(3) and that
therefore Manley’s convictions under § 924(c)(1) are valid.
Manley argues nonetheless that a defendant can engage in conduct with the specific
intent to increase or maintain his position in a racketeering enterprise without
simultaneously intending to use or threaten force. He offers the example of a defendant
who drives a get-away car recklessly to evade police and kills someone, as well as the
example of a defendant who drives drunk and causes serious bodily harm after getting
behind the wheel because a fellow gang member dared him to do so. He maintains that
these defendants would be acting with the specific intent of gaining or maintaining a
position in the enterprise without intending to use force against the person or property of
another.
This argument, however, cannot be accepted if we are to remain faithful to the
VICAR text. VICAR’s “purpose” element requires that the defendant commit the assault
or murder “for the purpose of gaining entrance to or maintaining or increasing position” in
the enterprise, not that the defendant commit any act with that purpose that may then have
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the unintended consequences of resulting in assault or murder. 18 U.S.C. § 1959(a). In
Manley’s examples, the hypothetical defendant may separately be acting with a purpose to
increase his position in the enterprise, but he is not acting with that purpose with respect to
committing the assault or murder. The get-away driver intends to escape the police and
the drunk gang member intends to impress his fellow gang members, both in connection
with their role in the enterprise. But if they harm someone negligently or recklessly in the
process, the harm was not committed “for the purpose of” increasing their position in the
enterprise. VICAR’s purpose element demands a closer tie between the purpose of
maintaining or increasing position in the enterprise and the commission of the assault or
murder.
IV
Counts 24 and 34 of the indictment alleged violations of VICAR assault and VICAR
murder, respectively, with their multiple layers of mens rea ranging from extreme
recklessness to purposefulness. And common sense confirms that a defendant who, as part
of his role in a racketeering enterprise, commits an assault with a dangerous weapon or that
results in serious bodily injury or commits second-degree murder, commits a crime of
violence, as he used or threatened to use force against the person of another.
The judgment of the district court is accordingly
AFFIRMED.