USA v. Lanni et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
-against-
ROBERT BROOKE,
Defendant.
MEMORANDUM
Case No. 23-CR-443 (FB)
BLOCK, Senior District Judge:
Defendant Robert Brooke has been at liberty since November 9, 2023.
Following his conviction on December 8, 2025, I denied the government’s request
to remand him pending sentencing. Since the government has appealed, I take this
opportunity to give a more fulsome explanation of my reasoning.1 Realistically,
my decision was made on the spot right after the jury returned its verdict and I
1It bears noting that seven of Brooke’s eight co-defendants pleaded guilty.
Although I denied each of the government’s requests to remand those defendants
pending sentencing, it appealed only the decision not to remand Brooke. Although
the decision whether to appeal is entirely within the government’s discretion, its
use of that discretion raises a serious question whether insisting that defendants
unwilling to plead guilty be remanded pending sentencing imposes an
unconstitutional burden on the Sixth Amendment right to a jury trial. Cf. United
States v. Tavberidze, 769 F. Supp. 3d 264, 270 (S.D.N.Y. 2025) (one-point
sentencing reduction for pleading guilty in time to save government from preparing
for trial “cannot possibly be an adequate ground for penalizing a defendant for the
exercise of a constitutional right”). I need not address that issue in this case.
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simply did not have the luxury of time to research the law and render a
comprehensive decision.
As an initial matter, I received of a letter from the government, dated
January 13, 2026, advising me that the filing of the appeal has divested me of
jurisdiction to reconsider the decision.2 It was unnecessary; after three decades on
the bench, I am well aware of that basic jurisdictional proscription. But since the
government has raised a jurisdictional issue, I should make it plain that I am not
reconsidering my decision or changing any of its foundational facts. On the
contrary, I am simply “acting to aid the appeal,” United States v. Katsourgrakis,
715 F.2d 769, 776 n.7 (2d Cir. 1983), by providing the reasons for my decision,
reasons which time constraints prevented me from placing on the record at the
time. I believe that in doing so I am discharging my duty to serve the interests of
justice. See, e.g., Padovani v. Bruchhausen, 293 F.2d 546, 547-48 (2d Cir. 1961)
(“[W]e do have an overriding responsibility to see that justice is done between
litigants before the court.”).
The government has the same obligation. “[Its] interest . . . in a criminal
prosecution is not that it shall win a case, but that justice shall be done.” Berger v.
United States, 295 U.S. 78, 88 (1935). It should not seek to chill me from assuring
2I told the government that I would be writing a memorandum to explain the
rationale for my decision at a tangentially related hearing on January 12, 2026.
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that the rights of a person whose liberty is at stake are protected. This is not a
sporting event.
My knee-jerk opinion was that remand was not mandatory. See Trial Tr. at
536. My subsequent research confirmed that I was correct.
Brooke was convicted of Hobbs Act extortion (and acquitted of conspiracy
to commit Hobbs Act extortion). Under 18 U.S.C. § 3143, any defendant awaiting
imposition of sentencing for which a term of imprisonment is recommended must
be detained “unless the judicial officer finds by clear and convincing evidence that
the person is not likely to flee or pose a danger to the safety of any other person or
the community if released.” Id. § 3143(a)(1). For a “crime of violence” (and
certain other crimes), release pending sentencing requires either a substantial
likelihood that a motion for an acquittal or new trial will be granted, or a
recommendation from the government that no term of imprisonment be imposed.
Id. § 3143(a)(2). These additional requirements can be dispensed with “if it is
clearly shown that there are exceptional reasons why [the defendant’s] detention
would not be appropriate.” Id. § 3145(c).
For this purpose, a “crime of violence” means
(A) an offense that has as an element of the offense the use, attempted use,
or threatened use of physical force against the person or property of another;
(B) any other offense that is a felony and that, 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; or
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(C) any felony under chapter 77, 109A, 110, or 117.
Id. § 3156(a)(4). Subsection (C) does not apply because the cited chapters deal
with human trafficking, sexual abuse, and sexual exploitation of minors. The
remaining subsections reflect Congress’s common practice of statutorily defining
“crimes of violence” in terms of the elements of the offense—subsection (A)—
with a residual clause—subsection (B)—covering crimes that do not have force,
attempted force, or threatened force as an element, but that nevertheless present a
“substantial risk” of such force in their commission. The Supreme Court has
instructed courts facing such statutes to apply a “categorical approach,”
disregarding the facts of a particular case in favor of the statutory definition (for
the elements clause) or the crime as it is committed “in the ordinary case” (for the
residual clause). James v. United States, 550 U.S. 192, 208 (2007).
Since 2015, the Supreme Court has voided several residual clauses as
unconstitutionally vague. See United States v. Johnson, 576 U.S. 591 (2015)
(residual clause defining “violent felony” in Armed Career Criminal Act); Sessions
v. Dimaya, 584 U.S. 148 (2018) (residual clause defining “aggravated felony” in
Immigration and Naturalization Act); United States v. Davis, 588 U.S. 445 (2019)
(residual clause defining “crime of violence” in 18 U.S.C. § 924(c)). Its reasoning
has uniformly been that the task of deciding how a particular crime is “ordinarily”
committed and then how much risk that hypothetical crime presents, is too
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subjective to give “ordinary people fair notice of the [punishable] conduct.”
Johnson, 576 U.S. at 595.
In United States v. Watkins, 940 F.3d 152 (2019), the Second Circuit
addressed 18 U.S.C. § 3142(f)(1), which requires a pretrial detention hearing for
cases involving “a crime of violence” and uses the same definition as § 3143(a)(2).
It perceived a dichotomy between Johnson, Dimaya, and Davis—which dealt with
statutes that either “establish new criminal offenses” or “impose severe or
enhanced penalties,” Watkins, 940 F.3d at 159—and Beckles v. United States, 580
U.S. 256 (2017), which held that a residual clause in the Sentencing Guidelines
was not subject to a vagueness challenge, see id. at 265. It reasoned that, just as
the Guidelines “merely guide the exercise of a court’s discretion in choosing an
appropriate sentence,” Watkins, 940 F.3d at 160 (quoting Beckles, 580 U.S. at 256),
§ 3142(f)(1) “merely performs a gate-keeping function by narrowing the types of
offenses that render an arrestee eligible for a detention hearing, id. Since §
3142(f)(1) “does not define criminal offenses or imposed mandatory penalties,” the
circuit court concluded that the statute was not subject to a vagueness challenge.
Id. at 161.
But § 3143(a)(2) does far more than dictate when a hearing is required or
guide a court’s discretion. Indeed, it significantly limits that discretion in the
context of detention pending sentencing in most cases involving a crime of
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violence. Motions for an acquittal or a new trial are rarely granted, the government
almost never recommends no prison time for such crimes, and most cases do not—
by definition—present “exceptional reasons.” As a practical matter, § 3143(a)(2)
makes presentence detention mandatory for defendants convicted of a “crime of
violence,” regardless of whether they pose a risk of flight or a danger to the
community.
The strictures of § 3142(a)(2) led Judge Caproni of the Southern District to
distinguish Watkins on that basis. See United States v. Cruz, 2024 WL 3634861, at
*4 (S.D.N.Y. Aug. 1, 2024) (“Because a near-certain loss of liberty is at play, the
Undersigned declines to extend Watkins to this context.”). I wholeheartedly agree.
Detention pending sentencing is undoubtedly a loss of liberty for those previously
released on bail. Due process protection for that liberty interest persists beyond
conviction and, indeed, beyond sentencing. See Wolff v. McDonnell, 418 U.S. 539,
557 (1974) (administrative denials of good-time credits require due process). For
these reasons, I agree that a defendant is entitled to fair notice of the circumstances
under which he will face mandatory detention prior to being sentenced. Accord
Cruz, 2024 WL 3634861, at *5. Since the residual clause of § 3156(a)(4) is
identical to the residual clause of § 924(c), Davis makes it clear that it is
unconstitutionally vague.
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All that remains is the elements clause. Since “completed Hobbs Act
robberies are categorically crimes of violence,” United States v. McCoy, 58 F.4th
72, 74 (2d Cir. 2023), one might be forgiven for thinking the same was true of
Hobbs Act extortion. Here is subsection (a) of the Hobbs Act in its entirety:
Whoever in any way or degree obstructs, delays, or affects commerce
or the movement of any article or commodity in commerce, by
robbery or extortion or attempts or conspires so to do, or commits or
threatens physical violence to any person or property in furtherance of
a plan or purpose to do anything in violation of this section shall be
fined under this title or imprisoned not more than twenty years, or
both.
18 U.S.C. § 1951(a). “Extortion” is defined as “the obtaining of property from
another, with his consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right.” Id. § 1951(b)(2).
In United States v. Nikolla, 950 F.3d 51 (2d Cir. 2020), the Second Circuit
observed that “the Hobbs Act defines several separate offenses, one of which
applies to a defendant who ‘commits or threatens physical violence to any person
or property in furtherance of a plan or purpose to [commit Hobbs Act robbery or
extortion].’” Id. at 54 (quoting 18 U.S.C. § 1951(a)). It then held that that offense
was categorically a crime of violence. See id. (“The elements of that offense
mirror almost exactly the definition of a ‘crime of violence’ in the Elements Clause
of § 924(c).”).
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But Brooke was not convicted of violence in furtherance of Hobbs Act
extortion; he was convicted of Hobbs Act extortion, specifically that he obtained
property with its owner’s consent, “which consent was induced by wrongful use of
actual and threatened force, violence and fear.” Indictment ¶ 27 (emphasis added).
It is beyond doubt that that last word includes fear of economic harm, see United
States v. Gotti, 459 F.3d 296, 324-35 (2d Cir. 2006), and fear of reputational harm
United States v. Jackson, 180 F.3d 55, 71 (2d Cir. 1999), neither of which
necessarily entails “the use, attempted use, or threatened use of physical force
against the person or property of another.” 18 U.S.C. § 3156(a)(4)(A). Provided
the other elements of the crime were satisfied, saying nothing more than, “Unless
you give me half of your profits, I will see to it that you lose every one of your
customers,” would be enough to support a conviction for Hobbs Act extortion.
Under the categorical approach, it matters not that Brooke made no such statement.
See James, 550 U.S. at 208.
“A number of recent district court decisions have held that Hobbs Act
extortion does not qualify as a crime of violence under § 924(c)’s force clause
because of the ‘fear’ element.” Capozzi v. United States, 531 F. Supp. 3d 399, 404-
05 (citing cases). While the question is technically an open one in the Second
Circuit, the scope of the statutory language admits of no other conclusion: Hobbs
Act extortion can be committed by instilling a fear of economic or reputational
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harm and is therefore not categorically a crime of violence under § 3156(a)(4)’s
elements clause.
Since Brooke was not convicted of a crime of violence—or any other crime
triggering § 3143(a)(2)—I had the discretion not to remand him upon a “find[ing]
by clear and convincing evidence that the person is not likely to flee or pose a
danger to the safety of any other person or the community if released.” 18 U.S.C.
§ 3143(a)(1). It is undisputed that Brooke has been at liberty for more than two
years on a $1 million bond with two sureties without incident. That, coupled with
the evidence adduced at trial that Brooke had been involved in a single altercation
over a disputed invoice, clearly convinced me that “he’s [not] going to violate the
Court’s trust in keeping him at liberty,” Trial Tr. at 536, and that he was not “a
threat or . . . a risk of flight at all, under the circumstances,” id. at 537.
The government’s brief is due on January 27, 2026. In fairness to the
government, I have endeavored to write this memorandum in sufficient time to
afford the government ample opportunity to consider it. I hope it will be of value
to both the government and the Second Circuit.
SO ORDERED.
_/S/ Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
January 15, 2026
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