Two stick-up men have pleaded guilty to bank robberies, but not to charges they used guns during their crimes — a legal maneuver their attorneys hope will help rewrite the law on whether a bank heist is technically a crime of violence.
One of the bank bandits, Vincenzo Randazzo, has an uphill battle when it comes to beating the federal charge of using a firearm in a crime of violence at trial, and the other, Pierre Lee, lost at trial Thursday. But their lawyers with the Federal Defenders, are looking beyond the trial, and toward what an appeals court, or possibly the Supreme Court, might do with a fairly convoluted legal question.
Their argument is that the law requires courts take a “categorical approach” to whether bank robbery and attempted bank robbery are crimes of violence. That means that the court must ignore what the defendant actually did, and instead come up with the hypothetically least violent way to commit the crime, then determine if violence would be necessary at all to pull it off.
A similar issue proved a critical turning point in the federal prosecution of Luigi Mangione, who recently pleaded guilty in the killing of United Healthcare CEO Brian Thompson. In January, Manhattan Federal Court Judge Margaret Garnett barred the government from seeking the death penalty against Mangione because stalking — the federal charge he faced — isn’t necessarily a crime of violence.
In the Brooklyn case involving Lee, he robbed two Brooklyn banks and attempted to rob a third using a demand note: “ARMED. No dye no alarm. Loose bills. 100’s 50 20 10. Only need your drawer. Dead serious.” When he was caught in that attempted heist, he was carrying a loaded gun in a shopping bag — though that gun never came out during the robbery.
After a brief trial, Lee was convicted Thursday of using a firearm in a crime of violence in the attempted robbery.
But before the trial began, his defense lawyer, Michael Schneider, took aim in court filings at the legal question he is pressing: Whether attempted bank robbery is, by the law, actually a crime of violence.
He presented these hypotheticals in a bid to make his point: What if a would-be robber had a threatening note, meant only as a bluff, and walked into a bank but didn’t even get the note out of his pocket before getting arrested? What about when a robber is caught casing the bank, before even stepping foot inside?
The issue is not simply a legal technicality — using a firearm in a crime of violence carries a seven-year mandatory minimum sentence that must run consecutive to any other sentence handed down in the case.
For Randazzo, for example, that distinction would mean he gets a longer sentence than federal guidelines recommend — a judge would have to hand down at least seven years, instead of the roughly five for bank robbery that’s recommended to someone with his background.
“It’s important both at the sentencing level, and at the how-much-time-you-serve level,” explained former federal prosecutor and New York attorney Mitchell Epner.
Being convicted of a crime of violence makes a defendant ineligible for sentence reductions under the federal First Step Act, which means they could “serve as little as a third of your sentence… if you go in and you do all your programs and you’re a Boy Scout in prison.”
Randazzo entered his guilty plea on Aug. 26, telling Judge Carol Bagley Amon, “In March, you know, I robbed the Empire State Bank in Brooklyn demanding — I took money… I did so by forces and intimidation.”
“I needed some money to pay the rent,” Randazzo told the judge.
Prosecutors allege that his girlfriend used to work at the branch he knocked over, and he pointed a gun at the teller, getting nearly $6,900. He had four guns and more than $2,800 in marked cash in his home when the FBI arrested him, the feds said.
When Amon asked if he used a gun, his lawyer, Kannan Sundaram cut in, saying that would be decided at trial.
Sundaram filed a motion to dismiss the firearm in a crime of violence charge, arguing that “bank robbery …. doesn’t categorically qualify as a crime of violence” because it can be committed through extortion or intimidation — both methods that can be accomplished through non-violent means.
Amon denied Sundaram’s motion, ruling that the Second Circuit Court of Appeals, which covers the Brooklyn Federal Court region, has already decided that bank robbery is a crime of violence.
The defense attorney pointed out on Aug. 26, though, that there’s a “circuit split” on the question — meaning that federal appeals courts in other regions of the country have come to a different conclusion.
Sundaram said he’d prefer a bench trial, not a jury trial, because “Mr. Randazzo’s objective and mine is simply to be able to preserve an appellate challenge to the court’s motion.”
When the judge asked how long the trial would take, Sundaram said, “Less than a day I would think.”
Prosecutors didn’t consent to a bench trial, meaning the case will still go to a jury.
“I think that the odds are very strong that the Federal Defenders are doing what they need to do to preserve their appeals rights and bring the case, not to the Second Circuit, but to the Supreme Court,” Epner said, adding that a brief trial means they can file an appeal while minimizing any details in evidence the justices might latch onto. “What they want to do is create the least inflammatory record possible.”
Representatives of the Federal Defenders declined to comment for this story.
The question of whether a federal crime that all too often involves violence should, in fact, be considered an act of violence, has been hotly debated in courts for decades, and the answer varies from offense to offense.
“I think it is a very creative argument, but I think that it is exceedingly unlikely that they will win at the circuit or the district court,” Epner said of both cases. “Having said that, there is clearly a circuit split here, with the D.C. Circuit and the 8th Circuit going in the opposite direction, and it might be a case that catches the interest of the Supreme Court.”
Back in February, Brooklyn Federal Court Judge Brian Cogan ruled that first-degree murder is not, technically, a crime of violence, because someone can be charged with first-degree murder for a nonviolent act, because the federal first-degree murder statute allows for unintentional and accidental killings.
“We are not dealing with common sense here, but with the law,” Cogan wrote.