April 22, 2019

Tenth Circuit: Hobbs Act Robbery is “Crime of Violence” Because Force Element Can Only be Satisfied with Violent Force

The Tenth Circuit Court of Appeals issued its opinion in United States v. Jefferson on Friday, December 28, 2018.

Defendant Jefferson was convicted of five counts of Hobbs Act robbery under 18 U.S.C. § 1951, as well as two counts for brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(3)(A).

On appeal, Jefferson argued that the district court erred when it determined that robbery under § 1951 qualifies as a crime of violence under § 924(c)(3)(A) and that even if it did, the judge erred in directing a verdict on that element and the issue should have been submitted to a jury. Further, the district court erred when it refused to instruct the jury that “force” in § 1951 means “violent force,” and the prosecutor’s closing rebuttal arguments amounted to prosecutorial misconduct and violated his due process rights.

The Tenth Circuit affirmed the district court, and held that Hobbs Act robbery categorically qualifies as a “crime of violence,” and that both the district court’s error in failing to instruct the jury that “force” in § 1951 means “violent force” and that the prosecutor’s alleged error during closing rebuttal arguments were harmless beyond a reasonable doubt. 

On the issue of whether a crime fits the § 924(c) definition of a “crime of violence,” the Tenth Circuit reiterated its holding in United States v. Morgan, citing that such issue requires an examination of the legal elements of a crime, not an exploration of the underlying facts, and is therefore not a question of fact for a jury, but a question of law for the judge. Therefore, the judge did not err and in fact was obligated not to submit the issue to the jury.

The Tenth Circuit next considered whether Hobbs Act robbery is a “crime of violence” under § 924(c)(3)(A). Section 924(c) calls for increased penalties if a firearm is used or carried “during and in relation to any crime of violence” and defines “crime of violence” as a felony offense having “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). In a Hobbs Act robbery, one element the government must prove is the use of actual or threatened force, violence, or fear of injury.

Jefferson argued Hobbs Act robbery is not a “crime of violence” because force is a means of committing the crime, not an element of the crime. The Tenth Circuit agreed that force is a means of committing the crime, but disagreed that this determination ended the inquiry as to whether a statute “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Instead, the determination of whether statutory alternatives are elements or means is only important in deciding whether to apply the pure categorical approach or the modified categorical approach. Because the Hobbs Act statute alternatives are means, the pure categorical approach applies. Therefore, the distinction between means and elements only matters if one of the ways to commit Hobbs Act robbery did not involve force, so that a juror could find a defendant guilty irrespective of whether he used force to commit the crime. The Tenth Circuit agreed with the proposition that placing one in fear of injury requires the threatened use of physical force. The Circuit further reasoned that because violence is defined as “the use of physical force so as to injury, abuse, damage, or destroy,” each of the alternatives requires the threatened use of force, Hobbs Act robbery is categorically a “crime of violence” under § 924(c)(3)(A).

On the issue of whether the district court erred in its jury instructions, Jefferson argued that the jury should have been instructed that “force” in Hobbs Act robbery means “violent force.” The Tenth Circuit agreed. However, the error was found to be harmless because the evidence provided uncontroverted proof of “violent force” being used in each robbery. In the first robbery, Jefferson caused actual injury to a person. In the second and third robbery, Jefferson had engaged in a “tug-of-war” with the convenience store clerk and the store’s front door, which had the capacity to cause physical injury or pain to the store clerk. In the fourth and fifth robbery, surveillance videos showed Jefferson pointing a gun to the clerk’s head from a short distance away. Therefore, the district court’s error in failing to instruct the jury that “force” in Hobbs Act robbery means “violent force” was harmless beyond a reasonable doubt.

On the final issue, Jefferson argued that the prosecutor’s rebuttal closing argument that the “possibility that the gun is fake is not something that [the government has] to overcome” improperly shifted the burden of proof to Jefferson. The Tenth Circuit disagreed, finding that the challenged statements may have misstated the law as to the government’s burden of proof, but the alleged error was harmless because the jury had been correctly instructed and reminded of the government’s burden after closing arguments. Further, the extent and role of the misconduct was minimal—the challenged statements constituted only two sentences of the governments lengthy closing argument and a 4-day trial, and while the prosecutor may have arguably misstated the law, she corrected herself by stating “we do not have to disprove theoretical possibilities that a gun is fake and not real.” Finally, the evidence of guilt was substantial. In light of this, the Tenth Circuit concluded that the alleged error was harmless beyond a reasonable doubt.

Tenth Circuit: Hobbs Act Applied to Robbery of Drug Dealer; Co-Conspirator Statements Properly Admitted

The Tenth Circuit published its opinion in United States v. Rutland on Tuesday, January 22, 2013.

Terrence Rutland was convicted in federal district court on robbery, narcotics, and firearm charges. Rutland was prosecuted under the Hobbs Act, 18 U.S.C. § 1951, which makes it a federal crime to interfere with interstate commerce by force or threats. Rutland contended his federal conviction for robbery and use of a firearm during a violent felony were invalid, arguing that the robbery of a drug dealer at his home did not interfere with interstate commerce because the dealer was not engaged in a business.

The Tenth Circuit joined the majority of circuits in holding that a robbery of a criminal organization, even if an individual drug dealer, is a robbery of a business for purposes of the Hobbs Act. “To satisfy the Hobbs Act’s jurisdictional requirement, evidence must be adduced showing the illegal drug operation was engaged, either directly or indirectly, in interstate commerce and that the robbery depleted the assets of the drug operation.” The government met those requirements by showing the drug dealer got his drugs from another state and the robbery deprived him of drugs and drug proceeds. The court also rejected Rutland’s argument that the drug dealer was not robbed in his capacity of drug dealer so the Hobbs Act should not apply.

Rutland also argued the district court erred by admitting numerous out-of-court statements as coconspirator statements when there was insufficient evidence of a robbery conspiracy. Rutland did not contest the existence of the drug conspiracy. The Tenth Circuit found that the two conspiracies were closely related and, after applying the four-part Ailsworth test, concluded a robbery conspiracy did exist. The court evaluated the coconspirators’ statements and concluded the out-of-court statements were admissible. As to many of the statements, the declarants testified at trial and were subject to cross-examination so any error admitting them was harmless. The court affirmed Rutland’s convictions.