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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

 

UNITED STATES OF AMERICA ) 

 ) 

 v. ) Cause No. 1:15-CR-42 

 ) 

FREDDIE L. CHURCH JR., ) 

SHAIKI SUTTON, ) 

TYLER M. MCCARTHY, ) 

CHRISTIAN J. SMITH,and ) 

AUTUMN CARTER ) 

GOVERNMENT’S SUPPLEMENTAL BRIEF 

Comes now, the United States of America by its attorney, Anthony W. 

Geller, Assistant United States Attorney, and files its Government’s 

Supplemental Brief. In an Opinion and Order dated December 1, 2015, the 

Court provided the parties with an opportunity to file supplemental briefs on 

the issue of whether the categorical approach applied to the analysis of 

predicate offenses pursuant to 18 U.S.C. § 924(c). The Court noted that there 

are vastly different policy concerns with the recidivist statutes spawning the 

categorical approach in Taylor v. United States, 495 U.S. 575 (1990). (R. 71) 

Considering the markedly different posture of a pending § 924(c) count, the 

Court considered whether the jury should be asked to evaluate the particular 

facts of this case in order to determine if the defendants’ actual conduct 

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involves the requisite element of force. (R. 71 at 14) Regarding the force 

clause in particular, it is the government’s position that the determination of 

the predicate crime as a crime of violence must be determined by the Court as 

a matter of law. Regarding the residual clause, the Seventh Circuit’s decision 

in United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015), would appear to 

pose an obstacle. 

In two unpublished decisions, the Seventh Circuit has stated that 

whether an offense is a crime of violence is a question of law rather than an 

application of law to the facts of a particular case. United States v. Meachum, 

182 F.3d 923 at *1 (7th Cir. 1999) (unpublished opinion); United States v. 

Charles, 1 F.3d 1244 at *2 (7th Cir. 1993) (unpublished opinion). The 

Meachum panel observed that categorizing the predicate offense was a 

matter of statutory interpretation and noted that other circuit courts were in 

agreement. Meachum, 182 F.3d at *1-2 (citations omitted). In both of these 

unpublished dispositions, the respective panels cited the categorical approach 

of Taylor as analogous support. Meachum, 182 F.3d at *2; Charles, 1 F.3d at 

*2. In Meachum in particular, the issue was squarely before the Seventh 

Circuit because the defendants there unsuccessfully contended that the 

district court should not have instructed the jury regarding the relevant 

predicates being crimes of violence as a matter of law. Meachum, 182 F.3d at 

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*1-2. The committee comments in the Seventh Circuit’s pattern instructions 

for the elements of § 924(c) also observed that “[w]hether a particular crime 

qualifies as such [as a crime of violence or drug trafficking crime] is a 

determination for the court.” Pattern Crim. Jury Instr., 7th Circuit, 18 

U.S.C. § 924(c) Elements (2013). 

As mentioned in Meachum, there are a number of other appellate 

courts holding the determination of the predicate as a crime of violence to be 

a question of law and not of fact. United States v. Credit, 95 F.3d 362, 364 

(5th Cir. 1996); United States v. Amparo, 68 F.3d 1222, 1225-26 (9th Cir. 

1995); United States v. Moore, 38 F.3d 977, 979-81 (8th Cir. 1994); United 

States v. Weston, 960 F.2d 212, 217 (1st Cir. 1992). After the unpublished 

decisions in the Seventh Circuit, the Tenth Circuit additionally rejected a 

defendant’s claim that the jury should have been given the opportunity to 

decide whether a predicate crime was a crime of violence pursuant to § 924(c). 

United States v. Morgan, 748 F.3d 1024, 1034-35 (10th Cir. 2014). The Tenth 

Circuit held this to be a question of law requiring examination of the legal 

elements of the crime and not an exploration of the underlying facts. Id. at 

1034-35. The Morgan decision relied upon the support of Leocal v. Ashcroft, 

543 U.S. 1, 7 (2004), which dealt with a nearly identical provision in 18 

U.S.C. § 16 and which required a look at the elements and the nature of the 

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offense of conviction rather than the particular facts of the crime. Morgan, 

748 F.3d at 1034-35. 

As the Court has observed in its Opinion and Order, a trial jury would 

be considering the defendants’ conduct without the need to revisit the facts of 

a prior conviction, and a jury could certainly make a determination of 

whether this conduct, “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” pursuant to the residual clause of § 924(c). The 

above cases however do not distinguish between the force clause and the 

residual clause, even though the latter arguably implicates an individualized 

factual application as opposed to the force clause’s consideration only of 

elements. 

Considering the above cases, the Court cannot submit a question of law 

to the jury for determination. Considering these cases and the Seventh 

Circuit’s recent decision in Vivas-Ceja, 808 F.3d at 719, it is not clear that the 

Court could submit even the residual clause question to the jury. In VivasCeja, the Seventh Circuit applied the reasoning of Johnson v. United States, 

135 S. Ct. 2551 (2015), to hold that 18 U.S.C. § 16(b) was unconstitutionally 

vague. Vivas-Ceja, 808 F.3d at 722-23. The residual clause in § 16(b) is in 

material aspects identical to the residual clause of § 924(c). While a petition 

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for rehearing en banc is pending in Vivas-Ceja and considering that § 924(c) 

is arguably distinguishable, this adverse precedent still has to be recognized. 

Nevertheless, as discussed in the government’s previous brief, there is no 

need for the Court to resolve either the constitutionality of the residual 

clause or the use of jury instructions as to that clause because the predicate 

crimes in the captioned matter are crimes of violence pursuant to the force 

clause. 

 Respectfully submitted, 

 DAVID CAPP 

 UNITED STATES ATTORNEY 

 /s/ Anthony W. Geller 

 By: Anthony W. Geller 

 Assistant United States Attorney 

 E. Ross Adair Federal Bldg. & U.S. 

Courthouse 

 1300 S. Harrison Street, Room 3128 

 Fort Wayne, IN 46802-3489 

 Telephone: (260) 422-2595 

 Facsimile: (260) 426-1616 

 E-mail: anthony.geller@usdoj.gov

 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 16, 2016, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system. I certify 

that all participants in the case who are registered CM/ECF users received 

service by the CM/ECF system. 

I hereby certify that I have mailed by United States Postal Service the 

document to the following non CM/ECF participants: 

None. 

 /s/ Samantha K. Lee 

 Samantha K. Lee 

 Supervisory Legal Assistant 

OFFICE OF THE U.S. ATTORNEY 

E. Ross Adair Federal Building and U.S. Courthouse 

1300 South Harrison Street, Room 3128 

Fort Wayne, IN 46802-3489 

Telephone: (260) 422-2595 

Facsimile: (260) 426-1616 

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