United States v. Christian

528 F.Supp.3d 174

UNITED STATES of America

v.Raymond CHRISTIAN, Glenn Thomas, and Tyrell Whitaker, Defendants.

12 Cr. 626 (ER)

United States District Court, S.D. New York.

Signed March 23, 2021

Christopher Jordan Clore, Robert Benjamin Sobelman, Parvin Daphne Moyne, Kan Min Nawaday, Michael Dayton Longyear, Rebecca Talia Dell, United States Attorney's Office, Andrew Bauer, Arnold & Porter Kaye Scholer LLP, Parvin Daphne Moyne, Akin Gump Strauss Hauer & Feld LLP, Rachel Maimin, Lowenstein Sandler LLP, New York, NY, for United States of America.

OPINION AND ORDER

Ramos, D.J.:

Defendants Raymond Christian, Glenn Thomas and Tyrell Whitaker were found guilty after a trial held in August 2014 of Counts One, Two, Four and Five of the above-captioned indictment. Those Counts charged them with conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 ; Hobbs Act robbery, in violation of 18 U.S.C. § 1951 ; murder through the use of a firearm relating to a crime of violence, in violation of 18 U.S.C. § 924(j) ; and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c)(l)(A), respectively. On August 6, 2015, the Court denied defendants’ post-trial motions for acquittal or for a new trial. Doc. 243. Thereafter, the defendants filed supplemental motions for acquittal or for a new trial primarily on the basis of a series of subsequently-decided Second Circuit and Supreme Court cases addressing: (1) the definition of a "crime of violence" under 18 U.S.C. § 924(c) and (j) ; and (2) whether the "risk of force" clause is unconstitutionally vague. See United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019) ; Sessions v. Dimaya, ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018); Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015) ; United States v. Barrett, 903 F.3d 166 (2d Cir. 2018) ; United States v. Hill , 832 F.3d 135 (2d Cir. 2016) ; see also United States v. Taylor, 979 F.3d 203 (4th Cir. 2020).¹ The defendants also argued that that Counts Four and Five should be dismissed because the Court's jury instructions on aiding and abetting the possession and use of a firearm were incorrect under Rosemond v. United States, 572 U.S. 65, 134 S. Ct. 1240, 188 L.Ed.2d 248 (2014), and that Counts Four and Five are multiplicitous. Defendant Christian separately requested that the DNA material recovered from the ski mask he wore during the robbery and murder of Jeffrey Henry be made available, and that a hearing be held concerning a photograph taken during a December 17, 2010 video-taped interview of Christian. By Order dated October 17, 2019, the Court denied the motions.

Raymond Christian and Glenn Thomas have renewed their motion to set aside their convictions under Count Four and Count Five, murder through use of a firearm during and in relation to a crime of violence, and brandishing a firearm during and in relation to a crime of violence, respectively. Both of these offenses are necessarily premised on their convictions under Count Two of the superseding indictment for attempted Hobbs Act Robbery. Defendants argue that their attempted Hobbs Act Robbery convictions cannot serve as a predicate "crime of violence" for these offenses under 18 U.S.C. § 924(c)(3), and thus that these convictions must be set aside.

As set forth more fully below, because the Court finds that attempted Hobbs Act Robbery is categorically a crime of violence, the Court denies Defendants’ renewed motions. This opinion also explains the Court's rationale for denying the balance of defendants’ motions pursuant to an order issued on October 17, 2019.

I. Attempted Hobbs Act Robbery is Categorically a Crime of Violence

This issue turns on the construction of 18 U.S.C. § 924(c)(3). The statute reads as follows:

(3) For purposes of this subsection the term "crime of violence" means an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) 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.

18 U.S.C. § 924(c)(3).

Subsection A is commonly known as the "force" clause or "elements" clause; and Subsection B is commonly known as the "residual clause." In 2019, the Supreme Court held that the residual clause was unconstitutionally vague. See United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019). Thus, the residual clause can no longer serve as a basis to find that attempted Hobbs Act Robbery is a crime of violence. Moreover, in light of Davis , the Second Circuit has also found that a conspiracy to commit a Hobbs Act Robbery is not categorically a crime of violence. See United States v. Barrett , 937 F.3d 126, 127 (2d Cir. 2019). However, there is no dispute that a completed Hobbs Act Robbery is a crime of violence. See United States v. Hill , 890 F.3d 51, 54 (2d Cir. 2018), cert denied ––– U.S. ––––, 139 S. Ct. 844, 202 L.Ed.2d 612 (2019). Thus, the only question here is whether the force clause supports the classification of Christian and Thomas’ attempted Hobbs Act Robbery convictions as predicate crimes of violence. The Second Circuit has not yet directly addressed this question.

To assess whether an offense is a crime of violence under the force clause, Courts apply the categorical approach. Under this framework, the Court must identify the minimum conduct necessary to sustain a conviction under the particular statute by reviewing its elements. See Hill , 890 F.3d at 55. If there is a "realistic probability" that the statute at issue proscribes conduct that does not involve the use of physical force, then the statute is not a categorical crime of violence. Id. at 56 (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ). This probability cannot be hypothetical—that is, a defendant must at least point to their own case or other cases in which the statute was applied to conduct that supports their argument. Id. It does not matter if—as is the case here—the defendants in the instant case actually did use force, because under the categorical approach, the Court only looks to the elements of the offense and not the actual facts of the case before it. See United States v. Hendricks , 921 F.3d 320, 327 (2d Cir. 2019).

The parties disagree about exactly how to apply the categorical approach to the crime of attempted Hobbs Act Robbery. Both sides have some support. Indeed, this issue, like other applications of the categorical approach, has been the source of substantial differences of opinion in the courts.

A. The Parties’ Positions

Defendants argue that, to sustain a conviction for an attempt crime under federal law, including attempted Hobbs Act Robbery, "a defendant must (a) have the intent to commit the object crime; and (b) engage in conduct amounting to a substantial step towards its commission." See Celaj v. United States , No. 13-cv-1290 (ALC), 516 F. Supp. 3d 351, 369 (S.D.N.Y. Feb. 1, 2021) (internal quotations omitted). Thus, they argue, this Court must apply the categorical approach to assess whether either of these elements, in the context of an attempted Hobbs Act Robbery, proscribe conduct that falls short of the "use, attempted use, or threatened use of physical force." See § 924(c)(3)(a) ; Doc. 452 at 3–4.

Several district courts in this Circuit, as well as the Fourth Circuit, have followed this reasoning and found that attempted Hobbs Act Robbery is not a crime of violence because a "substantial step" might include steps taken that are not cognizable under the force clause, such as reconnoitering, assembling weapons or disguises, or otherwise attempting to make an empty threat of physical force. See United States v. Taylor , 979 F.3d 203, 208 (4th Cir. 2020) ; see also United States v. Jackson , 560 F.2d 112, 120 (2d Cir. 1977) (finding it sufficient as a matter of law that the defendants "reconnoitered the place contemplated for the commission of the crime and possessed the paraphernalia to be employed in connection with the commission of the crime."). Judge Amon came to a similar conclusion in United States v. Pica , Nos. 08 Cr. 559 (CBA), 16 Civ. 3211 (CBA) (E.D.N.Y. March 17, 2020), Doc. 378. She reasoned that conduct such as Mr. Pica's attempted surveillance of a target with the intent to make an empty threat of force was sufficient to sustain a Hobbs Act Robbery conviction, but that such conduct was beyond the scope of § 924(c)(3). Id. at 9 (citing defendants’ brief).

The Government argues that the reference to "attempted use" of physical force in § 924(c)(3) was intended to encompass attempt liability in connection with any crime that is categorically a crime of violence. See Doc. 464 at 3–4. It argues that the word "attempt," as used in the federal criminal code, was well-understood at the time of § 924(c)(3) ’s adoption to refer to the specific intent to commit a crime, coupled with a substantial step toward the commission of that crime. Thus, the government argues, so long as these elements of the attempt offense are established with regard to a categorical crime of violence, the statute's command that one has engaged in the "attempted use" of physical force has been met. This is similar to the rationale recently adopted by the Third Circuit in United States v. Walker , which found that § 924(c)(3) ’s inclusion of the "attempted use" of force was best understood as a term of art, referring to the attempt liability that lies when someone has the specific intent to commit a crime of violence and takes a substantial step towards doing so. See 990 F.3d 316, 328–29 (3d Cir. 2021).

The Government also argues that any "substantial step" toward a Hobbs Act Robbery is necessarily a crime of violence because the concept of a "substantial step" is necessarily...