Murder not technically a ‘crime of violence,’ Brooklyn federal judge rules in terrorism case

Murder is not a crime of violence — at least not under federal law, a Brooklyn judge ruled in dismissing two charges in a possible death penalty case against a terrorism suspect.

On February 6, Brooklyn Federal Court Judge Brian Cogan issued a landmark ruling in an international terrorism case in which the suspect is accused of planning a brutal assault rifle and grenade attack on a hotel in Mali in November 2015 that killed 20 people, including a U.S. citizen.

In a 22-page ruling referencing murder cases dating back to the 16th century, Cogan acknowledged the “absurdity” of his ruling but emphasized that because federal first-degree murder law allows for unintentional and accidental killings, murder cannot be strictly categorized as an act of violence.

It’s not just a matter of semantics.

The distinction means two of 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 debated what is or is not a “crime of violence” for decades and often take what’s called a “categorical” approach — meaning an offense is or is not a crime of violence, regardless of the individual facts of the case, explained criminal defense attorney Kenneth White, a former federal prosecutor who writes on 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 said, using capital letters for emphasis, in a written exchange with The News. “If the elements of a law CAN be satisfied by nonviolent conduct, then it is not a crime of violence, even though it CAN ALSO be satisfied by violence.”

The law defining first-degree murder falls under this “categorical approach,” according to Cogan: If someone can be charged with first-degree murder for a nonviolent act, then first-degree murder cannot be characterized as an act of violence.

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

The sticking point, according to Cogan, is that a participant in a crime resulting in death can be charged with murder, even if that participant played no direct role in that death and the death was unintentional or accidental.

And although the suspect is accused of planning the hotel attack and a second terrorist attack, and of personally killing five people in a third attack, the first-degree murder statute he is charged with also covers accidental, presumably non-violent deaths.

“We are dealing here not with common sense, but with the law, and with a conclusion that is ‘better explained by history than by logic,'” Cogan wrote – directly citing a federal appeals court’s comment on a 2008 Supreme Court ruling that said an intoxicated man’s past crimes could not 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 1541 case in which a British nobleman named Lord Dacres and a second man entered territory to hunt. The two men separated and, unbeknownst to Lord Dacres, the second man killed someone while resisting arrest. Both men were convicted of murder.

“Lord Dacres’ conviction was later found to be unlawful, but he had already been executed,” Cogan wrote.

His decision mirrors Manhattan Federal Court Judge Margaret Garnett’s reasoning last month, barring the government from seeking the death penalty against Luigi Mangione, accused of killing the CEO, because harassment is not necessarily a crime of violence.

Cogan appears to be urging the Supreme Court to change its approach to determining what is and is not considered a crime of violence.

“It is perhaps necessary in this case, Mangione and others like it, 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 considering whether they will appeal Cogan’s decision, they said in a Feb. 6 court filing.

And Ahemeid’s fate may already be sealed: he has already been sentenced to death by a Malian court before his extradition to the United States in 2022 to face charges in Brooklyn.

Although one of the two capital offenses he is charged with, causing death by firearm during a crime of violence, has been dismissed, he still faces first-degree murder for the death of U.S. citizen Anita Ashok Datar – and that is an offense punishable by death.

Former Attorney General Merrick Garland announced in November 2024 that prosecutors would not seek the death penalty, but his successor Pam Bondi has not yet decided whether she would seek to reverse that decision.

Ahemeid’s attorney, Michael Bachrach, declined to comment on Cogan’s decision.