United States v. Clarke

171 F.Supp.3d 449

United States of America

v.Swain Clarke, Defendant.

CRIMINAL NO. JKB-15-503

United States District Court, D. Maryland.

Signed March 22, 2016

A. David Copperthite, Office of the United States Attorney, Baltimore, MD, for United States of America.

MEMORANDUM

James K. Bredar, United States District Judge

On September 16, 2015, a Grand Jury sitting in the District of Maryland returned an Indictment against Swain Clarke (“Defendant”), charging him with twenty counts of Interference with Commerce by Robbery in violation of 18 U.S.C. § 1951(a) (“Hobbs Act robbery”) and nine counts of brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). On January 28, 2016, Defendant moved to dismiss all counts under § 924(c), contending that Hobbs Act robbery categorically fails to qualify as a “crime of violence” within the meaning of § 924(c)(3)(A) and that the statute's residual clause, § 924(c)(3)(B), is unconstitutionally vague under Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). (ECF No. 27.)

The Government filed a response in opposition to Defendant's Motion to Dismiss (ECF No. 35 at 24), and Defendant replied (ECF No. 37 at 15). No hearing is necessary on this strictly legal question; the briefs on both sides are excellent, and they fully illuminate the relevant issues. For the reasons explained below, the Court holds that Hobbs Act robbery categorically constitutes a crime of violence. Accordingly, the Court will DENY Defendant's Motion to Dismiss on statutory grounds without reaching the separate, and unnecessary, question whether the residual clause is unconstitutionally vague.¹

I. Statutory and Analytical Framework

Defendant has been charged under the Hobbs Act, which provides that “[w]hoever in any way... affects commerce ... by robbery or extortion or attempts or conspires so to do ... shall be fined ... or imprisoned not more than twenty years, or both.” 18 U.S.C. § 1951(a). The statute defines robbery as follows:

The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

§ 1951(b)(1).

Defendant has also been charged under 18 U.S.C. § 924(c), a sentencing-enhancement statute that imposes five years of mandatory incarceration for “[a]ny person who, during and in relation to any crime of violence...uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” § 924(c)(1)(A). The mandatory minimum sentence is increased to seven years where, as alleged here, the firearm is brandished. § 924(c)(1)(A)(ii).

Significantly, the § 924(c) enhancement applies only to the extent that a firearm is used, possessed, or brandished in connection with a “crime of violence.” Section 924(c)(3) defines a “crime of violence” as a felony that (A) “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the “Force Clause”); or (B) “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” (the “Residual Clause”). Because § 924(c) defines “crime of violence” in somewhat ambiguous terms, courts must determine whether a proposed predicate offense is properly included within the scope of either the Force Clause or the Residual Clause. In conducting this analysis, courts may—depending on the features of the predicate statute—employ either the so-called “categorical approach” or the “modified categorical approach.”²

The categorical approach applies where the predicate statute contains a single set of indivisible elements that must be proved beyond a reasonable doubt. “Under the ‘categorical approach,’ the court ‘look [s] only to the...statutory definition of the [ ] offense.’ ” United States v. Fuertes , 805 F.3d 485 (4th Cir.2015) (alternations in original) (quoting James v. United States , 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) ), cert. denied sub nom. Ventura v. United States , No. 15–7656, –––U.S. ––––, 136 S.Ct. 1220, 194 L.Ed.2d 221, 2016 WL 763642 (Feb. 29, 2016) (mem.). Either the offense categorically qualifies as a crime of violence, or it does not: if the “most innocent” conduct proscribed by the predicate statute does not fall within either the Force Clause or the Residual Clause, then the offense categorically is not a crime of violence regardless whether the facts of a particular case involve violent conduct. See United States v. Naughton , 621 Fed.Appx. 170, 178 (4th Cir.2015) (“If any one of the available means of violating the statute is non-violent, under the categorical approach the offense is not a crime of violence ... irrespective of the defendant's actual conduct.”), cert. denied , No. 15–7924, ––– U.S. ––––, 136 S.Ct. 1393, 194 L.Ed.2d 372, 2016 WL 395062 (Mar. 7, 2016) (mem.).

The modified categorical approach, by contrast, applies where a “divisible statute, listing potential offense elements in the alterative, renders opaque which element played a part in the defendant's conviction.” Fuertes , 805 F.3d at 498 (quoting Descamps v. United States , –––U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) ). “The modified categorical approach allows the court to examine approved documents, including an indictment, to determine which statutory alternative is implicated by the predicate offense.” United States v. Hancock , Crim. No. GJH–13–0274, 168 F.Supp.3d 817, 820, 2016 WL 899239, at *2 (D.Md. Mar. 2, 2016) (quoting United States v. Evans , No. 5:15–CR–57–H, 2015 WL 6673182, at *2 (E.D.N.C. Oct. 20, 2015) ).

In evaluating the interrelationship between Hobbs Act robbery and § 924(c), courts have differed over whether to invoke the categorical approach, the modified categorical approach, or some hybrid thereof. In a recent opinion, Judge Hazel of this District observed that the “confusion is understandable because the Hobbs Act contains both divisible and indivisible provisions.” Id. As Judge Hazel explained, the statute proscribes two independent criminal acts—robbery (defined in § 1951(b)(1) ) and extortion (defined in § 1951(b)(2) ). Thus, Judge Hazel reasoned that courts must “use the modified categorical approach but may only do so to determine which of these forms of the Hobbs Act (robbery or extortion) is at issue in [a given] case.” Id. ; cf. Evans , 2015 WL 6673182, at *3 (finding that the Hobbs Act itself is a divisible statute but that Hobbs Act robbery is “not further divisible” because every such robbery involves the “unlawful taking or obtaining of personal property from the person or in the presence of another, against his will,” albeit through one of several alternative means).³

This Court agrees with and adopts Judge Hazel's well-reasoned analysis, and it thus consults the Indictment only for the limited purpose of ascertaining which Hobbs Act crime (robbery or extortion) Defendant is accused of committing. This is a straightforward task: each of the twenty Hobbs Act counts accuses Defendant of committing robbery, elaborating that he “did unlawfully take and obtain monies in the form of U.S. Currency, from the person and presence of employees of [certain retail establishments] against the employees' will by means of actual and threatened force, violence, and fear of injury.” (See ECF No. 1 at 1.) As there is no further ambiguity about the predicate offenses with which Defendant has been charged, the Court's modified categorical analysis comes to an end, and it must determine whether the most innocent conduct that constitutes Hobbs Act robbery would also qualify as a crime of violence under § 924(c) —either through the Force Clause or through the Residual Clause.

II. Hobbs Act Robbery Is Categorically a Crime of Violence

To qualify as a crime of violence under the Force Clause, Hobbs Act robbery must categorically have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” § 924(c)(3)(A) (emphasis added). It is this requirement of force on which Defendant pins his hopes: he presents three reasons why he believes that at least certain Hobbs Act robberies would not necessarily involve the requisite degree of force. Unfortunately for Defendant, his arguments have been squarely rejected by district courts nationwide; this Court joins the rising chorus and declares that Hobbs Act robbery is a crime of violence within the meaning of the Force Clause.⁴

A. Intangible Property

Defendant first argues that “a person may violate the Hobbs Act robbery statute by placing another person in fear of injury to his intangible property ,” and that it is therefore possible to commit Hobbs Act robbery without applying physical force to a person or his property. (ECF No. 27 at 12.) As authority, Defendant cites a handful of old cases: United States v. Arena , 180 F.3d 380 (2d Cir.1999), abrogated in part by Scheidler v. Nat'l Org. for Women, Inc. , 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) ; United States v. Local 560, Int'l Bhd. of Teamsters , 780 F.2d 267 (3d Cir.1985) ; and United States v. Iozzi , 420 F.2d 512 (4th Cir.1970).

Defendant's argument is unpersuasive. First, the cases on which Defendant relies are not Hobbs Act robbery cases; they are Hobbs Act extortion cases. As the Court explained above, the Hobbs Act is a divisible statute in that it proscribes two independent forms of wrongdoing with their own constituent elements—(1) robbery, which involves an unlawful taking by “actual or threatened force, or violence, or fear of injury”; and (2) extortion, which involves the ...