Murder not a ‘crime of violence,’ Federal judge rules in terrorism case

Murder is not a crime of violence — at least not as a matter of federal law, a Brooklyn judge has ruled as he dismissed two charges in a possible death penalty case against a terrorism suspect.

Brooklyn Federal Court Judge Brian Cogan made the head-scratcher of a pre-trial ruling Feb. 6 in an international terrorism case where the suspect is accused of planning a brutal November 2015 assault rifle and grenade attack on a hotel in Mali that killed 20 people, including a U.S. citizen.

In a 22-page decision that references murder cases dating back to the 16th century, Cogan acknowledged the “absurdity” of his ruling but pointed out that because the federal first-degree murder statute allows for unintentional and accidental killings, murder can’t strictly be categorized as an act of violence.

It’s not just a matter of semantics.

The distinction means two of the six charges against accused terrorist Fawaz Ould Ahmed Ould Ahemeid, brandishing and discharging a firearm during a crime of violence and causing death by firearm during a crime of violence, must be dismissed, Cogan ruled.

Federal courts have been litigating what is and isn’t a “crime of violence” for decades and often take what’s called a “categorical” approach — meaning an offense either is, or isn’t a crime of violence, regardless of the individual facts of the case, explained criminal defense attorney Kenneth White, a former federal prosecutor who writes about legal issues.

“In deciding whether a crime is a ‘crime of violence,’ federal courts focus on whether the crime NECESSARILY involves the use of force against another person,” White, using all-caps for emphasis, said in a written exchange with The News. “If the elements of a statute CAN be satisfied by nonviolent conduct, then it’s not a crime of violence, even if it MIGHT ALSO be satisfied by violence.”

The law defining first-degree murder falls under that “categorical approach,” according to Cogan — if someone can be charged with first-degree murder for a nonviolent act, then first-degree murder can’t be called an act of violence.

“It will be no comfort to the family or friends of the victim when they learn that this was somehow not a ‘crime of violence’ because, as a legal technicality, the Supreme Court’s ‘categorical approach’ governs the issue,” Cogan ruled.

The sticking point, according to Cogan, is that a participant in a felony that results in death can be charged with murder, even if that participant had no direct role in that death and the death was unintended or accidental.

And even though the suspect is accused of plotting the hotel attack and a second terrorist strike, and of personally killing five people in a third attack, the first-degree murder law he’s charged under also covers accidental, presumably non-violent deaths.

“We are not dealing with common sense here, but with the law, and with a conclusion that is ‘better explained by history than by logic,’” Cogan wrote  — directly quoting a federal appeals’ court’s commentary on a 2008 Supreme Court ruling that a man’s past DUI crimes couldn’t be counted as “crimes of violence” when calculating his sentence in a gun case.

Cogan’s ruling includes an entire section on “The History of Murder,” referencing a case from 1541 where a British noble named Lord Dacres and a second man trespassed on land to hunt. The two men got separated and unbeknown to Lord Dacres the second man killed someone while resisting arrest. Both men were convicted of murder.

“Lord Dacres’ conviction was later held unlawful, but by then he had already been executed,” Cogan wrote.

His ruling mirrors the reasoning by Manhattan Federal Court Judge Margaret Garnett last month barring the government from seeking the death penalty against accused CEO-killer Luigi Mangione because stalking isn’t necessarily a crime of violence.

Cogan appears to be nudging the Supreme Court to change its approach to determining what is and isn’t considered a crime of violence.

“Perhaps it is necessary for this case, Mangione, and others in a similar vein to demonstrate this counterintuitive reasoning in order to signal that a different approach is warranted,” wrote Cogan, who was appointed to the bench by George W. Bush in 2006.

Federal prosecutors are weighing whether they’ll appeal Cogan’s ruling, they said in a court filing Feb. 6.

And Ahemeid’s fate may already be sealed  — he was already sentenced to death by a Mali court in before his extradition to the U.S. in 2022 to face charges in Brooklyn.

Though one of the two capital offenses he’s charged with, causing death by firearm during a crime of violence, is dismissed, he still faces first-degree murder for the death of U.S. citizen Anita Ashok Datar — and that’s a death-eligible offense.

Former Attorney General Merrick Garland announced in November 2024 that prosecutors wouldn’t seek the death penalty, but his successor Pam Bondi has yet to decide if she’ll seek to reverse that decision.

Ahemeid’s lawyer Michael Bachrach declined comment on Cogan’s ruling.