BILLY J. WILLIAMS, OSB #901366 

United States Attorney 

District of Oregon 

ETHAN D. KNIGHT, OSB #992984 

GEOFFREY A. BARROW 

CRAIG J. GABRIEL, OSB #012571 

Assistant United States Attorneys 

ethan.knight@usdoj.gov

geoffrey.barrow@usdoj.gov 

craig.gabriel@usdoj.gov

1000 SW Third Ave., Suite 600 

Portland, OR 97204-2902 

Telephone: (503) 727-1000 

Attorneys for United States of America 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

UNITED STATES OF AMERICA 

 v. 

DAVID LEE FRY, 

 Defendant.

3:16-CR-00051-BR-13

GOVERNMENT’S RESPONSE TO 

DEFENDANT FRY’S SUPPLEMENTAL 

MEMORANDUM IN SUPPORT OF 

MOTION TO DISMISS COUNT 3 

(ECF 613)

 The United States of America, by Billy J. Williams, United States Attorney for the 

District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel, 

Assistant United States Attorneys, hereby responds to defendant Fry’s Supplemental 

Memorandum in Support of Motion to Dismiss Count 3 (ECF 613). 

 On April 27, 2016 defendant filed a Motion to Dismiss Count Three of the indictment, 

alleging defendant had possessed a firearm while committing a crime of violence. (ECF 466). 

On, June 11, 2016, the government filed its response. (ECF 548). On June 23, 2016, the 

Court heard oral argument on defendant’s Motion. At oral argument, defendant sought and 

Case 3:16-cr-00051-BR Document 625 Filed 06/01/16 Page 1 of 4
Government’s Response to Defendant Fry’s Supplemental Memorandum in 

Support of Motion to Dismiss Count 3 (#613) 

Page 2

received permission from the Court to file a supplemental brief relating to defendant’s argument 

that 18 U.S.C. § 372 (Section 372) is not categorically a crime of violence under the “force 

clause” of 18 U.S.C. § 924 (c)(3)(A). While there is no direct legal authority supporting the 

proposition that Section is categorically a crime of violence under 18 U.S.C. § 924 (c)(3)(A), this 

Court should nevertheless find that Section 372 is a crime of violence under the force clause 

because the conspiracy contemplated by Section 372 requires that the members of the conspiracy 

conspired to prevent by “force, threats, or intimidation.” Moreover, the elements of Section 

372 constitute a crime of violence under the “residual clause” of 18 U.S.C. § 924 (c)(3)(B).1

I. While conspiracies generally do not require “force,” Section 372 is different

Defendant correctly notes that two District Courts, post United States v. Johnson, 135 S. 

Ct. (2015) (Johnson II), have held that held that a conspiracy cannot be a crime of violence under 

the force clause, 18 U.S.C. § 924 (c)(3)(A). Another District Court has reached the same 

conclusion in a case not cited by defendant. See, United States v. Merritte, 2016 WL 2901661 

(D. Nev. 2016) (holding that a Hobbs Act conspiracy is not a 924(c) crime of violence). 

Section 372 differs from a Hobbs Act robbery, however, because the nature of the 

conspiracy necessarily involves either force or the threat of force; the conspiracy itself threatens 

the same harm that other statutes that explicitly include “force” as an element. The Third 

Circuit recognized this principle in United States v. Preston, 910 F.2d 81, 86 (3d Cir. 1990); and 

the Ninth Circuit (albeit without much analysis) affirmed a 924(c) conviction under the “force” 

clause for a charge that included that the defendant engaged in a conspiracy to make, to deposit 

 

1

 The government also argued in its responding brief that Section 372 is a crime of violence under the “modified 

categorical approach” but those arguments are not addressed here as this response to defendant’s supplemental filing 

is intended only to address arguments related to 18 U.S.C. § 924 (c)(3). 

Case 3:16-cr-00051-BR Document 625 Filed 06/01/16 Page 2 of 4
Government’s Response to Defendant Fry’s Supplemental Memorandum in 

Support of Motion to Dismiss Count 3 (#613) 

Page 3

for mailing, and to cause a destructive device to be delivered with the intent to kill or injure. 

United States v. Collins, 109 F.3d 1413 (9th Cir. 1997).2

 

II. Section 372 is a crime of violence under 924(c)(3)(B) (residual clause) 

 Defendant argues that under Johnson II, a conspiracy to commit a violent crime can no 

longer be considered a crime of violence under 18 U.S.C. § 924 (c)(3)(B). (Def Supp Mem at 

2). Taken to its logical extreme, plainly violent crimes like conspiracy to commit murder 

would fail to qualify as a predicate offense under 924(c). Although defendant relies upon two 

very recent district court decisions that applied Johnson II and Dimaya v. Lynch, 803 F.3d 1110 

(9th Cir. 2015), to hold that 924(c)’s residual clause is unconstitutional, no appellate court has 

reached that conclusion to date. (Def Supp Mem at 1-2). In fact, the only appellate court 

decision to address whether Johnson applies to 924(c) at all held that it does not: United States 

v. Taylor, 814 F.3d 340 (6th Cir. 2016). The district court decisions, while attempting to follow 

the Ninth Circuit’s lead, failed to analyze the significant differences between 924(c) and criminal 

statutes like the ACCA and 16(b). Simply overlaying the Supreme Court’s ruling in Johnson II

onto an entirely different statute that operates in a far different manner should not compel this 

Court to accept defendant’s arguments, particularly when the only Circuit opinion on point 

reached the opposite result.3

Unlike the ACCA and 16(b), the charge in 924(c) is not designed to enhance punishment 

for past conduct. Instead, 924(c) seeks to capture the increased risk of harm occasioned by 

 

2

 As defendant notes, (Def Supp Mem at 7), such a finding by this Court would not be completely unprecedented. 

(See United States v. Preston, 910 F.2d 81, 86 (3d Cir.1990) (conspiracy to commit robbery came within the “force” 

clause because “the elements of criminal conspiracy to commit robbery ... subsume the elements of robbery”). 3

 If the Ninth Circuit were to extend Johnson (2015) to 924(c) it would create another inter-circuit split that would 

have to be resolved (ultimately) by the Supreme Court. 

Case 3:16-cr-00051-BR Document 625 Filed 06/01/16 Page 3 of 4
Government’s Response to Defendant Fry’s Supplemental Memorandum in 

Support of Motion to Dismiss Count 3 (#613) 

Page 4

those who commit potentially violent felonies with firearms. Thus, whether Section 372 

constitutes the type of violent or potentially violent crime is a question that should be answered 

by the jury. As the government has previously argued, this Court may determine that the 

offense categorically qualifies as a violent offense, and then leave to the jury the question of 

whether the defendants actually employed firearms in connection with a crime that threatens a 

substantial risk of physical force. The government believes it can carry this burden: a person 

who sits in the doorway of a federal facility, blocking employees’ entrance, has impeded the 

discharge of those employees’ official duties. But such a person is easily removed without 

violence or significant risk of harm. Contrast that with a person who sits in the doorway of a 

federal building holding a loaded firearm; that person is not easily removed. He poses a 

significant risk of harm to himself, his compatriots, and the law enforcement officers who seek to 

secure his removal. It is the latter conduct that 924(c) was designed to address, and as a 

consequence, this charge should stand. 

III. Conclusion 

 The Court should deny defendant’s Motion to Dismiss. 

 Dated this 1st day of June 2016. 

 Respectfully submitted, 

 BILLY J. WILLIAMS 

 United States Attorney 

 s/ Ethan D. Knight 

 ETHAN D. KNIGHT, OSB #992984 

 GEOFFREY A. BARROW 

 CRAIG J. GABRIEL, OSB #012571 

 Assistant United States Attorneys 

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