"Recklessness" and Crimes of Violence: Toki
Facts: Toki's (and Maumau's) Well-Tread waters
Toki, Maumau and Kamahele were found guilty of several offenses including convictions based on VICAR offenses (remember that VICAR is engaging in crimes like murder, kidnapping, assault and threats that are for the purpose of furthering an illegal enterprise such as a gang) as well as 924(c) offenses. The violent crimes that served as the basis of the 924(c) offenses were based on the VICAR charges, some of which were based on Utah and Arizona state crimes of assault of a dangerous weapon.
The defendants in this case [Toki] argued that since the Arizona and Utah state crimes could be committed with a mens era (or mental state) of reckless, that they could not serve as violent crimes for purposes of VICAR. And since the offenses that serve as the basis for VICAR can't serve as violent crimes, Toki argued that the 924(c) offenses also had to fall because there was no longer a crime of violence to serve as a back bone either (remember that a 924(c) can be committed by possession/branishing/discharge of a firearm in furtherance of a CRIME OF VIOLENCE, so if you have no crime of violence then you have no 924(c)).
(If Maumau's name sounds familiar to you, that is because separately they argued [and won] the argument that their pre-First Step Act "stacked 924(c)" convictions served as extraordinary and compelling circumstances for a 3582 motion and that USSG 1B1.13 was not applicable after the signing of the FIRST STEP Act).
Toki originally made this argument pre-Borden and lost. Borden, as you may remember, is a Supreme Court case "which held that a crime that can be committed with a mens rea of recklessness cannot qualify as a “violent felony” under the Armed Career Criminal Act’s (“ACCA”) “elements” or “force” clause, § 924(e)(2)(B)(i)." After the Supreme Court decided Borden, they sent Toki's case back down to the 10th Circuit, which asked the Toki and the prosecutors to discuss whether Borden affected their case.
HOLDING: The holding in Borden (indicating that crimes with a mens rea of recklessness cannot qualify as a "violent felony" under the ACCA) should be applied to 924(c)'s "elements" clause.
The Corollaries between the ACCA and 924(c)'s elements clause
The Tenth Circuit previously stated that the elements clauses of the ACCA and 924(c) should be interpreted identically regarding what mens rea they require in United States vs. Mann, 899 F.3d 898, 907-08. As a result, "after Borden, an offense that can be committed recklessly is not categorically a “crime of violence” under 924(c)’s elements clause."
When a Supreme Court Rule Applies Retroactively:
Toki was originally sentenced long before Borden. However the Tenth Circuit held that Borden was a "substantive rule" which should apply retroactively. A substantive rule includes decisions that narrow the scope of a criminal statute by interpreting its terms.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004). The court determined that Borden was properly decided as a "Substantive Rule":
"Borden is properly understood as establishing a substantive rule because it interpreted the language of ACCA’s elements clause—which, as discussed above, is materially identical to § 924(c)’s elements clause—and held it did not reach predicate crimes that can be committed recklessly... Accordingly, we accept the government’s concession that Borden’s rule applies to our review of petitioners’ § 924(c) claims."
As a result of this, Toki's claim that he was entitled to relief from VICAR-based 924(c) convictions was granted:
In light of the above, petitioners are entitled to relief from their VICAR-based § 924(c) convictions. The government concedes that, pursuant to Borden, petitioners’ VICAR convictions for crimes that can be committed recklessly cannot satisfy § 924(c)’s elements-clause definition of a crime of violence. Those convictions also cannot qualify as valid § 924(c) predicates under the unconstitutional residual clause...Petitioners’ VICAR offenses are therefore not “crime[s] of violence” that can support their separate § 924(c) convictions. The trial court erred when it instructed the jury otherwise. Moreover, the trial court’s error had a “substantial and injurious effect or influence in determining the jury’s verdict,” and therefore was not harmless.
The Tenth Circuit gave orders to remand Toki's case back down to the district court and vacate Toki's 924(c) convictions that were based on the recklessly-based Arizona and Utah state crimes that served as the basis of the VICAR convictions. No. 17-4153
What does the Toki case Mean?
The Reckless mens rea that is present in the state-level crimes that made up Toki's VICAR convictions and as a result, his 924(c) convictions, is present in many state courts and makes up the basis of many crimes that we now know to be unlawful. If you believe that you have a VICAR case and a 924(c) that is based on a state level crime that has a mens rea of recklessness then call the office today so that we can talk about your options.