Spentz v. USA

Filing 2

ORDER Denying 1 2255 Motion. Signed by Judge Kent J. Dawson on 9/30/2020. (Copies have been distributed pursuant to the NEF - DRS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,
ORDER

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Case No. 2:08-cr-00164-KJD-GWF
2:17-CV-0759-KJD

v.
JUSTIN SPENTZ,

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Defendant.

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Presently before the Court is Defendant’s Motion to Vacate, Set Aside, or Correct

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Sentence under § 2255 (#371). The Government filed a response in opposition (#379) to which

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Defendant replied (#383). The parties also filed multiple supplements

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(#389/391/394/402/418/421/426). Also, before the Court is Defendant’s Emergency Motion for

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Decision Due to Covid-19 Pandemic (#429).

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I. Background

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This case arose out of a Bureau of Alcohol Tobacco and Firearms (“ATF”) undercover

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operation in a tattoo shop. In September 2007, ATF opened the undercover storefront operation

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in Las Vegas. See Trial Transcript, ECF No. 264 (2/16/10 trial tr.) at 33-34. As criminals came

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into the business, a functioning tattoo shop, the agents would identify particularly dangerous

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individuals—those involved, for example, in residential burglaries and armed robberies—and

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propose to them a dangerous criminal opportunity. Id. at 38-39. An undercover agent posing as a

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disgruntled drug courier would tell the targets about a stash house containing a large quantity of

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cocaine. Id. at 38; ECF No. 261 (2/17/10 trial tr.) at 16. The agent would propose that the target

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rob the stash house, steal the drugs, and split the proceeds with him. ECF No. 264 at 38. ATF

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Special Agent Peter McCarthy assumed the undercover role of the tattoo shop owner. Id. at 32,

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34.

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In February 2008, a confidential informant introduced McCarthy to Reed. Id. at 36. Reed

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sold McCarthy a loaded, .25-caliber pistol, and said he could get more. Id. at 36-37. Based on his

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conversations with Reed and on information he had obtained that Reed was involved in a series

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of residential burglaries and had been arrested for conspiracy to commit armed robbery,

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McCarthy decided to approach Reed with the “stash house” robbery story. ECF No. 264, at 39-

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40.

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On April 17, 2008, Reed came to the tattoo shop to meet with McCarthy. Id. at 41-42. Of

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his own initiative, Reed brought Defendant Spentz with him. Id. at 42-44. McCarthy brought the

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men into his small back office and introduced them to ATF Special Agent Richard Zayas, who

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played the undercover role of the disgruntled drug courier. Id. at 40-42. While waiting for Zayas

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to arrive, McCarthy told Reed and his friends that whether they decided to work with Zayas or

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not was up to them. Id. at 48-49.

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Zayas first told the men that he was going to explain the situation to them, and that if they

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were not interested, everyone could go their own way as if they had never met. ECF No. 261 at

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16. Zayas said he worked as a courier for a Mexican drug organization, but that he was upset

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because he was being underpaid, and he wanted to steal their cocaine. Id. at 28. Zayas said when

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he arrives at the stash house to collect the six to seven kilograms of cocaine that he delivers,

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there are always two men in the house, one of whom always has a gun. Id. at 21. He said the

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armed man stays with him, while the other man goes into a room in the back of the house to get

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Zayas’s delivery. Id. at 21. Zayas also said that he always sees a large amount of cocaine—

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between 22 and 39 kilograms—packaged in bricks on a table in the front room of the house. Id.

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at 21-22. Zayas said the location of the stash house changes, and that he does not know the

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address until the drug traffickers call him right before he goes to pick up his delivery. Id. at 22.

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After explaining the scenario, Zayas asked whether this was something Reed could

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handle. Id. at 32. Reed said that he could handle it and proceeded to formulate the plan of how he

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would commit the robbery. Id. at 33-35. Reed said they would lay Zayas and the other men on

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the floor and steal the cocaine, id. at 35, and that if the other men “make a false move, it’s our

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turn to go and do what we got to do.” Reed said, “we got the utilities to take care of it,” and told

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Zayas he had a “burner with a silencer.” Id. at 35, 41. Reed reiterated that they would “beat [the

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drug dealers’] ass[es]... and if they make false moves, we do what we got to do.” Gov’t Exh. 2A.

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Throughout the conversation, Spentz sat on a couch next to Reed, saying nothing; he did not

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react or act surprised when Reed emphasized that they would beat the drug dealer’s asses and

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they would “do what we got to do” if they made a false move.

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The meeting ended with Zayas and Reed agreeing to get together in person around May

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12, when Zayas said he would learn the date of the next drug delivery. Reed called McCarthy on

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May 8 to confirm that the plan was still on. ECF No. 264, at 52-53. Zayas met with Reed again

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on May 12 and met with Reed and co-conspirator Jackson on May 14. Id. at 56-57; ECF No.

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264, at 57-58, 61. At the meeting on the 14th, Reed agreed to meet Zayas with his co-

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conspirators the next day to commit the robbery. ECF No. 264 at 76-77.

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The next day, Reed and his three co-defendants (Jackson, Spentz and Golden), arrived at

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the Ice House parking lot as planned. ECF No. 264 at 81. Reed and Jackson arrived in a red

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Chevy Blazer, followed by Spentz and Golden in a white Nissan. Id. Zayas, McCarthy, and

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Agent Gomez (who had been playing the undercover role as McCarthy’s sidekick), huddled with

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the defendants. ECF No. 264 at 81, 86, 91-92. Zayas asked Reed whether he had explained to

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Spentz and Golden that one of the two men at the stash house was armed; Reed said he had. ECF

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No. 261 at 54.

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Zayas explained the entire scenario again, and asked “is that cool?” ECF No. 264 at 92.

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Reed responded “That’s cool,” and Golden said “yeah,” and Spentz nodded affirmatively. ECF

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No. 264 at 92-93. The agents told the defendants that the rental vans were waiting at a nearby

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location, and the agents and the defendants drove in tandem to that location. ECF No. 264 at 93.

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When they arrived at the warehouse and exited their cars, Zayas gave the predetermined

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signal, and an ATF tactical team moved in and arrested the defendants. ECF No. 261 at 64- 65.

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Agents recovered a Glock semiautomatic pistol with an extended magazine loaded with 32

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rounds, in the Nissan; and a Taurus PT145 semiautomatic pistol, loaded with eight .45- caliber

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hollow-point rounds, in the center console of Reed’s Chevy Blazer. Id. at 7-79, 84-86.

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II. Procedural Background
On December 17, 2019, a jury convicted Spentz and Golden (co-conspirator Reed was

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tried separately) of conspiracy to commit Hobbs Act robbery (Count One), conspiracy to possess

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with the intent to distribute cocaine (Count Two) (“the drug trafficking conspiracy”) and

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possessing, aiding and abetting possession of a firearm in furtherance of either the drug

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trafficking conspiracy or the Hobbs Act conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)

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(Count Three). On March 24, 2010, the Court sentenced Spentz to 192 months custody: 132

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months on Count One, 132 months on Count 2 concurrent, and a consecutive 60 months on

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Count Three.

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Spentz filed a court-authorized successive section 2255 motion in 2016, seeking relief

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based on the Supreme Court’s June 2015 decision in Johnson v. United States, 135 S. Ct. 2551,

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2557 (2015), which held that the residual clause in the definition of a “violent felony” in the

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Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), is unconstitutionally

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vague. Spentz argued, among other things, that Johnson’s holding also invalidated the “residual

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clause” in the definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B), and that the

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conspiracy to commit Hobbs Act robbery offense that served as one of the predicates for his

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section 924(c) conviction did not qualify as a crime of violence.

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The government responded that Spentz did not meet the requirements for successive §

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2255 motions; and that Johnson did not invalidate section 924(c)(3)(B). ECF No. 377. Although

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the government was correct that Johnson did not invalidate section 924(c)(3)(B)—a conclusion

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the Ninth Circuit later confirmed, see United States v. Blackstone, 903 F.3d 1020 (9th Cir.

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2018)—the Supreme Court’s more recent decision in United States v. Davis, 139 S. Ct. 2319

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(2019), did. The government agrees with Spentz that, as a matter of judicial efficiency, the Court

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should decide the present motion on its merits (after considering the parties’ arguments in the

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supplemental pleadings), rather than dismissing the present motion as untimely and requiring

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Spentz to start over with a section 2255 motion based on Davis. The Court agrees.

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III. Analysis

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Essentially, Defendant contends that his § 924(c) conviction for using a firearm during

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and in relation to a crime of violence is void because the “crime of violence” element is not

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satisfied. The parties agree that conspiracy to commit Hobbs Act robbery no longer qualifies as

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a crime of violence after Davis. Therefore, unless Spentz’s conviction for conspiracy to possess

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with the intent to distribute cocaine (Count Two) is enough to satisfy the requirements of §

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924(c), the Court must vacate Defendant’s conviction on Count Three and resentence Defendant

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without the sixty (60) month consecutive sentence.

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With respect to Count Three, the Court instructed the jury—without objection—that it

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could convict Spentz if it found beyond a reasonable doubt that he or a co-conspirator possessed

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a firearm during and in relation to either the Hobbs Act conspiracy or the drug trafficking

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conspiracy. ECF 132, p. 19-22. Now that the residual clause of § 924(c) is invalid, Spentz argues

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that the conviction on Count Three is invalid, because the jury issued a general verdict that did

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not specify which of the conspiracies the jury relied on when finding him guilty of Count Three.

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See Zant v. Stephens, 462 U.S. 862, 881 (1983) (Stromberg requires that a general verdict must

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be set aside if the jury was instructed that it could rely on any two grounds, and one of the

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grounds is insufficient, because the verdict may have rested exclusively on the insufficient

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ground).

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Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008), agrees that a conviction based on a general

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verdict is subject to challenge if the jury was instructed on alternative theories and may have

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relied on an invalid one However, it also instructs that such errors are subject to harmless error

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review. Id. at 60. In fact, errors to which harmless error analysis does not apply are the exception

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and not the rule. Id.at 61.

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The error is subject to the harmless error standard set for the in Brecht v. Abrahamson,

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507 U.S. 619, 623 (1993), under which the reviewing court asks whether the flaw (in this case

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the inclusion of the conspiracy to commit Hobbs Act robbery as a predicate offense for the

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924(c) violation) in the instruction “had a substantial and injurious effect or influence in

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determining the jury’s verdict.” The proper harmless error standard is defined by Neder v. United

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States, 527 U.S. 1, 7-8 (1999). See Hedgpeth, 555 U.S. at 18. The Court must determine whether

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it was “clear beyond a reasonable doubt that a rational jury would have found the defendant

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guilty absent the error.” Neder, 527 U.S. at 7-8. Therefore, the Court must conduct a thorough

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examination of the record to determine “whether the record contains evidence that could

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rationally lead to a contrary finding with respect” to the error. Id. at 19.

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Here, the evidence clearly shows that the robbery conspiracy is inextricably intertwined

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with the drug trafficking conspiracy. The conspiracy had one goal: steal the cocaine and resell it.

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This was a one-time event. The guns at issue were not used in a string of robberies but were

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stolen or purchased without background checks and used for one purpose, to facilitate the theft of

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the cocaine. The jury was properly instructed on the elements of the drug trafficking conspiracy

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and the jury found Spentz unanimously guilty of the charged drug trafficking conspiracy. There

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were no notes from the jury evincing confusion about the jury instructions or what elements were

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necessary to convict on the drug trafficking conspiracy.

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In this case, the two predicate crimes were co-extensive. It is not a case where, for

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example, defendant was convicted of two robberies committed at different times and places and

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the 924(c) count was predicated on both robberies. In that case, the jury’s general verdict on the

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924(c) count would not mean it necessarily found the defendant possessed the firearm during and

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in relation to both robberies. Because the present conspiracies were co-extensive, both limited in

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time, location and scope, the Court cannot conclude that the instructional error led the jury to

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convict based solely on the invalid predicate (conspiracy to commit Hobbs Act robbery). In fact,

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based on the evidence and the conviction based on the drug trafficking conspiracy, no rational

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fact finder could have found Defendant’s conviction for the 924(c) violation was based solely on

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the conspiracy to commit Hobbs Act robbery. This is not a case where the Court “is in grave

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doubt as to the harmlessness of an error that affects substantial rights.” O’Neal v. McAninch, 513

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U.S. 432, 445 (1995) (citing Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)).

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Accordingly, Movant’s petition is denied.

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IV. Conclusion

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Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Vacate, Set Aside,
or Correct Sentence under § 2255 (#371) is DENIED;
IT IS FURTHER ORDERED that Defendant’s Emergency Motion for Decision Due to

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Covid-19 Pandemic (#429) is DENIED as moot.

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Dated this 30th day of September 2020.

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_____________________________
Kent J. Dawson
United States District Judge

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