United States v. Corey Vampelt Fogg
2016 U.S. App. LEXIS 16479
| 8th Cir. | 2016Background
- Corey Fogg was convicted by a jury of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) after police chased him and recovered a handgun thrown into a yard during the pursuit.
- At trial the district court excluded evidence of prior allegations of Officer Walker’s excessive-force use under Fed. R. Evid. 403; the court nevertheless allowed limited evidence explaining consequences for excessive force.
- The presentence report treated Fogg as an Armed Career Criminal under the ACCA, 18 U.S.C. § 924(e), based on three prior violent-felony convictions: first-degree manslaughter, simple robbery, and attempted drive-by shooting under Minn. Stat. § 609.66, subd. 1e(b).
- Fogg objected at sentencing, arguing his Minnesota drive-by shooting conviction did not qualify as an ACCA violent felony: (1) the statute does not criminalize force "against the person of another," (2) the statute is reckless rather than intentional, and (3) the statute is not divisible so the modified-categorical approach is improper.
- The Eighth Circuit affirmed: it held the Rule 403 evidentiary ruling was not an abuse of discretion; it concluded Fogg’s plea admitted firing “at or toward a person” under Minn. Stat. § 609.66, subd. 1e(b), and that reckless discharge qualifies under the ACCA force clause (relying on Voisine analysis).
Issues
| Issue | Fogg's Argument | Government / District Court Argument | Held |
|---|---|---|---|
| Admissibility of past complaints about Officer Walker under Rule 403 | Evidence of Walker’s prior excessive-force allegations was relevant to Fogg’s defense (claimed planting of gun) | Prior-incident evidence was more prejudicial/confusing than probative and could be excluded under Rule 403 | District court did not abuse discretion in excluding that evidence; |
| ACCA force-clause qualification — does Minn. § 609.66(1e)(b) involve force "against the person of another"? | Drive-by statute (as convicted) involved firing at a person; Fogg argued the statute can cover non-person targets and thus is broader than the ACCA definition | Government: Fogg’s plea admitted firing at a person; conviction therefore involved force against a person and qualifies under the ACCA | Court held Fogg pleaded guilty to firing "at or toward a person," so the conviction involved force against a person and qualifies as an ACCA predicate; |
| Divisibility / use of the modified-categorical approach for § 609.66(1e) | § 609.66(1e) is not divisible; Minnesota Supreme Court (Hayes) treated 1e(b) as a sentencing enhancement, so federal courts must accept state court elements | Government relied on Mathis/Apprendi analysis to treat the enhanced subsection as supplying an element when it increased the statutory maximum and used plea transcript under modified-categorical approach | Majority applied the modified-categorical approach and treated 1e(b) as supplying elements; concurrence/dissent argued that under Hayes the statute is indivisible and federal courts must follow the state-court elements; |
| Mens rea — can a reckless mens rea qualify under the ACCA force clause? | Fogg argued the statute’s recklessness mens rea should not qualify as the ACCA requires intentional use of force | Government relied on Voisine and subsequent Eighth Circuit decisions holding reckless use can satisfy the "use of force" language | Court concluded recklessness suffices (Voisine reasoning), so the reckless drive-by conviction qualifies under the ACCA force clause |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (limits modified-categorical approach; asks whether statutory alternatives are elements or means)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding facts that increase statutory maximum must be treated as elements for Sixth Amendment purposes)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (reckless conduct can constitute "use" of physical force for statutes defining crimes of violence)
- Johnson v. United States, 559 U.S. 133 (2010) (federal courts are bound by a state supreme court’s interpretation of state-law elements when assessing ACCA predicates)
- Descamps v. United States, 570 U.S. 254 (2013) (narrow scope for applying the modified-categorical approach; statute must be divisible)
- Taylor v. United States, 495 U.S. 575 (1990) (foundational categorical approach for predicate-offense analysis)
- State v. Hayes, 826 N.W.2d 799 (Minn. 2013) (Minnesota Supreme Court's interpretation of Minn. Stat. § 609.66(1e) and treatment of subsection 1e(b))
- United States v. Vinton, 631 F.3d 476 (8th Cir. 2011) (examining convictions and application of prior-state-law predicates)