United States v. Stacy Haynes ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3657
STACY M. HAYNES,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
Nos. 16-4106, 4:96-CR-40034-JBM-1 — Joe Billy McDade, Judge.
____________________
ARGUED JULY 6, 2018 — DECIDED AUGUST 29, 2019
____________________
Before SYKES, HAMILTON, and BRENNAN, Circuit Judges.
HAMILTON, Circuit Judge. Petitioner-appellant Stacy
Haynes challenges three of his convictions under 18 U.S.C.
§ 924(c), which imposes steep penalties on a defendant who
uses a firearm during a “crime of violence.” Those convictions
are based on Haynes’ three convictions under 18 U.S.C.
§ 1952(a)(2), which required proof, among other things, that
he committed or attempted to commit a “crime of violence.”
The crimes of violence that form the basis of Haynes’
2 No. 17-3657
§ 1952(a)(2) convictions were three armed robberies in viola-
tion of the Hobbs Act, 18 U.S.C. § 1951, which is a crime of
violence for purposes of § 924(c). United States v. Fox, 878 F.3d
574, 579 (7th Cir. 2017).
The issue in this appeal is whether the different crimes in
this nested set of charges—§ 1951 nested inside § 1952(a)(2)
nested inside § 924(c)—can support the § 924(c) convictions.
The district court upheld Haynes’ § 924(c) convictions be-
cause the indictment and jury instructions, taken together, re-
quired jurors to find each element of the Hobbs Act rob-
beries—crimes of violence—at the center of the nested charg-
ing scheme. Haynes v. United States, 237 F. Supp. 3d 816 (C.D.
Ill. 2017). Haynes appeals, arguing both that § 1952(a)(2) is not
“divisible” and that the jury did not necessarily find him
guilty of the underlying Hobbs Act robberies. We agree with
the district court and affirm its judgment.
I. Factual and Procedural Background
In Samuel Johnson v. United States, 135 S. Ct. 2551 (2016), the
Supreme Court held that the “residual clause” in the defini-
tion of “violent felony” under the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague.
Earlier, in Taylor v. United States, 495 U.S. 575 (1990), the Court
adopted the so-called “categorical method” to determine
whether prior convictions could serve as predicate offenses
under the Armed Career Criminal Act. In the wake of Johnson,
federal courts have been applying the Court’s reasoning and
methods to a kaleidoscopic variety of individual cases—ap-
plying similar statutory and Sentencing Guideline definitions
of violent crimes to predicate convictions under a host of fed-
eral and state offenses arising in a wide variety of procedural
postures.
No. 17-3657 3
This appeal presents a particularly intricate variation on
the Johnson and Taylor themes. This case began with a one-
man crime wave in early 1996. In just a few weeks, Haynes
robbed six stores at gunpoint in the Quad Cities region. Three
robberies were in Illinois and three were in Iowa, which af-
fected the government’s charging decisions and set the stage
for the legal issues we address here.
The indictment charged Haynes with the three Illinois rob-
beries as Hobbs Act robberies under 18 U.S.C. § 1951. For each
of those robberies, Haynes also was charged with a corre-
sponding count under § 924(c) for using and carrying a fire-
arm during and in relation to a crime of violence. Those Illi-
nois Hobbs Act robberies and the three accompanying
§ 924(c) convictions are not challenged in this appeal.
The complications come from the Iowa robberies, which
were charged in an Illinois venue as three counts under
§ 1952(a)(2), which in relevant part makes it a crime to travel
in interstate commerce with the intent to commit a crime of
violence and then to attempt or carry out a crime of violence.
The indictment alleged that Haynes accomplished each viola-
tion of § 1952 “by committing the offense of robbery” as de-
fined in § 1951. Each of those § 1952 counts was also accom-
panied by a separate § 924(c) firearm charge.
A jury convicted Haynes on all twelve counts. He was sen-
tenced originally to life in prison for each robbery based on 18
U.S.C. § 3559(c)(1) because he had two prior Illinois state bur-
glary convictions that were treated as prior “serious violent
felonies.” In this collateral challenge, the six mandatory life
sentences were set aside in the district court because, after
Johnson, Haynes’ burglary convictions could not be used un-
der § 3559(c)(1). The government does not dispute that point.
4 No. 17-3657
Victory on the challenge to the mandatory life sentences has
not produced meaningful relief, however, since Haynes was
resentenced to a total of 105 years in prison—the statutory
minimum for his six § 924(c) convictions. If Haynes could pre-
vail on his challenge to the three § 924(c) convictions prem-
ised on the § 1952 convictions, he would still face a minimum
of 45 years on resentencing—but that could offer at least some
possibility that he might complete his sentence before he
dies. 1
II. Analysis
Haynes argues that his convictions under § 1952(a)(2) can-
not qualify as “crimes of violence” sufficient to support the
three associated § 924(c) convictions. The legal landscape has
changed significantly since Haynes committed his six rob-
beries in 1996 and even since this appeal was argued. The “re-
sidual clauses” of the statutory definitions of “crime of vio-
lence” relevant to this case were held invalid in Sessions v. Di-
maya, 138 S. Ct. 1204 (2018) (18 U.S.C. § 16), and United States
v. Davis, 139 S. Ct. 2319 (2019) (18 U.S.C. § 924(c)). The upshot
of Davis and Dimaya is that Haynes’ three § 924(c) convictions
based on interstate travel for the Iowa robberies can stand
only if his three convictions under § 1952(a)(2)(B) have “as an
1 The district court granted Haynes a certificate of appealability au-
thorizing him to challenge the decision to leave intact the § 924(c) convic-
tions. Haynes appealed, and the district court stayed resentencing until
the conclusion of the appeal. We dismissed that appeal, however, because
the district court’s judgment was not final until Haynes was resentenced
on all counts of conviction. Haynes v. United States, 873 F.3d 954 (7th Cir.
2017). Haynes then was resentenced. With a final judgment in hand,
Haynes has appealed again.
No. 17-3657 5
element the use, attempted use, or threatened use of physical
force.” 18 U.S.C. §§ 16(a), 924(c)(3)(A).
We address the challenged § 924(c) convictions in two
steps. First, we address whether § 1952 is “divisible” such that
a court may use the modified categorical approach to look
through a conviction under § 1952(a)(2)(B) and rely on the el-
ements of the underlying “crime of violence.” We find that
§ 1952(a)(2)(B) incorporates the elements of the underlying
“crime of violence” and therefore is divisible. Second, we con-
sider the specific course of Haynes’ prosecution and whether
his three convictions under § 1952(a)(2)(B) can support their
associated § 924(c) convictions. We conclude that they can, af-
ter considering the indictment, jury instructions, and verdicts.
A. Divisibility of 18 U.S.C. § 1952(a)(2)(B)
We review de novo the district court’s decision that
Haynes’ § 1952 convictions qualify as crimes of violence un-
der the “elements clause” in § 924(c)(3)(A). See United States v.
Williams, 864 F.3d 826, 828 (7th Cir. 2017). That inquiry de-
pends on the statutory elements of each offense, not the actual
facts underlying the particular convictions. See Descamps v.
United States, 570 U.S. 254, 260–61 (2013), citing Taylor, 495 U.S.
575; Williams, 864 F.3d at 828. When a predicate statute lays
out one set of elements defining a single offense, the court ap-
plies the categorial method by looking at the elements of the
predicate offense to see if they include “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); see Mathis v.
United States, 136 S. Ct. 2243, 2248 (2016); United States v. Car-
dena, 842 F.3d 959, 995–99 (7th Cir. 2016).
6 No. 17-3657
Many criminal statutes include multiple, distinct crimes,
each with its own distinct set of elements. Many criminal stat-
utes also list different “means” of satisfying particular ele-
ments. Statutes that list alternative “elements” are “divisible”
into multiple crimes; provisions that list alternative “means”
are not. See Mathis, 136 S. Ct. at 2249. Some statutes combine
both multiple crimes and alternative means of committing
those particular crimes.
The distinction between elements and means can be slip-
pery. Yet the legal consequences of the choice can be dramatic,
whether by calling for a more severe sentence, permitting one
offense to serve as the predicate offense for another, or requir-
ing jurors to be instructed about what they must find unani-
mously and beyond a reasonable doubt.
In applying the “elements” clauses of the various defini-
tions of crimes of violence and similar phrases, courts focus
on the elements of the crime of conviction. When dealing with
a divisible statute that provides for multiple crimes, a court
must “determine what crime, with what elements” a defend-
ant was really “convicted of” before deciding whether it
counts as a predicate for § 924(c) or similar purposes. Mathis,
136 S. Ct. at 2249; see also United States v. Franklin, 895 F.3d
954, 958 (7th Cir. 2018); United States v. Enoch, 865 F.3d 575,
579–80 (7th Cir. 2017). To do so, a court may review a limited
class of documents, including the indictment, jury instruc-
tions, and sentencing transcripts. See Shepard v. United States,
544 U.S. 13, 16 (2005); United States v. Ker Yang, 799 F.3d 750,
753 (7th Cir. 2015). This technique is known as the modified
categorical approach. Enoch, 865 F.3d at 580.
No. 17-3657 7
To determine whether a provision describing multiple
ways of committing an offense is divisible into alternative el-
ements, or instead contains just one element that can be com-
mitted by different means, we start with the foundation that a
crime’s elements are the set of propositions that must be es-
tablished beyond a reasonable doubt. See Mathis, 136 S. Ct. at
2248; Alleyne v. United States, 570 U.S. 99, 107–16 (2013); Ap-
prendi v. New Jersey, 530 U.S. 466, 476–77 (2000); Richardson v.
United States, 526 U.S. 813, 817 (1999). If a statute lists different
ways to commit a crime and the jurors need not agree on
which way the defendant did it, then the listed ways cannot
be treated as distinct elements.
With that principle in mind, to determine whether a stat-
ute is divisible—and thus subject to the modified categorical
approach—we look first to the statute defining the predicate
offense. See Mathis, 136 S. Ct. at 2248–49; Curtis Johnson v.
United States, 559 U.S. 133, 144 (2010). If the statute assigns
different maximum or minimum penalties to different vari-
ants of the offense, then we can be sure that each of those var-
iants is a distinct crime defined by alternative elements.
See Mathis, 136 S. Ct. at 2256 (“If statutory alternatives carry
different punishments, then under Apprendi they must be ele-
ments.”); Enoch, 865 F.3d at 579; United States v. Edwards, 836
F.3d 831, 837 (7th Cir. 2016).
If the statute assigns the same penalty range to different
listed ways of committing the crime, the problem may be
more difficult. In Mathis, the Supreme Court offered an “easy”
answer for some cases. If controlling judicial precedent holds
that jurors need not agree on a given proposition, then that
proposition is not an element. In Mathis, for example, the Iowa
burglary statute, according to the Iowa Supreme Court, stated
8 No. 17-3657
“alternative method[s] of committing one offense, so that a
jury need not agree whether the burgled location was a build-
ing, other structure, or vehicle.” The statute thus listed differ-
ent “means” of committing the same offense and was not di-
visible. Mathis, 136 S. Ct. at 2256 (emphasis added) (internal
quotation marks omitted).
In the case of 18 U.S.C. § 1952 as a predicate for § 924(c),
we do not have the benefit of such direct judicial holdings on
the questions. We start with the statutes.
At the time of Haynes’ robberies in 1996, as now, § 924(c)
made it a crime to carry or use a firearm “during and in rela-
tion to any crime of violence or drug trafficking crime … for
which [the defendant] may be prosecuted in a court of the
United States.” 18 U.S.C. § 924(c)(1) (1994). Likewise, in 1996,
§ 924(c) defined “crime of violence” 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.
Davis has since invalidated § 924(c)(3)(B) as unconstitution-
ally vague, leaving only subparagraph (A) in force. See also
Cardena, 842 F.3d at 996 (anticipating Davis on this issue).
No. 17-3657 9
Section 1952 has been amended since 1996, but not in any
significant way. When Haynes drove to Iowa and robbed the
three stores, the statute provided in relevant part:
(a) Whoever travels in interstate or foreign com-
merce or uses the mail or any facility in inter-
state or foreign commerce, with intent to—
(1) distribute the proceeds of any unlawful
activity; or
(2) commit any crime of violence to further any
unlawful activity; or
(3) otherwise promote, manage, establish,
carry on, or facilitate the promotion, man-
agement, establishment, or carrying on, of
any unlawful activity,
And thereafter performs or attempts to per-
form—
(A) an act described in paragraph (1) or (3)
shall be fined under this title, imprisoned
not more than 5 years, or both; or
(B) an act described in paragraph (2) shall be
fined under this title, imprisoned for not
more than 20 years, or both, and if death re-
sults shall be imprisoned for any term of
years or for life.
18 U.S.C. § 1952 (1994) (emphasis added).
Section 1952 does not define “crime of violence,” so the
general definition from 18 U.S.C. § 16 applies. See Davis, 139
S. Ct. at 2330–31; United States v. Sanders, 708 F.3d 976, 993
10 No. 17-3657
(7th Cir. 2013) (stating that Congress used term “crime of vi-
olence” consistently throughout criminal code). Section 16 de-
fines “crime of violence” as:
(a) an offense that has as an element the use, at-
tempted use, or threatened use of physical force
against the person or property of another, or
(b) any other offense that is a felony and that, by
its nature, involves a substantial risk that phys-
ical force against the person or property of an-
other may be used in the course of committing
the offense.
And, we now know, the residual clause in § 16(b) is unconsti-
tutionally vague. See Dimaya, 138 S. Ct. 1204.
The text of § 1952 shows that it creates some distinct of-
fenses and is thus divisible to some extent. For example, a con-
viction under § 1952(a)(2)(B) for interstate travel to commit a
crime of violence carries a longer sentence than a conviction
under § 1952(a)(1)(A) for interstate travel to distribute pro-
ceeds of unlawful activity. Those different penalties show that
those different parts of the statute define distinct offenses
with distinct elements. See Mathis, 136 S. Ct. at 2256; Enoch,
865 F.3d at 579; Edwards, 836 F.3d at 837.
We use the modified categorical approach to determine
which provision is at issue. See Mathis, 136 S. Ct. at 2249. The
indictment shows that the relevant counts charged Haynes
with traveling interstate “with the intent to commit a crime of
violence to further an unlawful activity” and with actually
“committing the offense of robbery” as defined in 18 U.S.C.
§ 1951. We agree with the parties that this language alleges
No. 17-3657 11
violations of § 1952(a)(2)(B). 2 Thus, the government was re-
quired to prove that Haynes (1) traveled in interstate com-
merce (2) intending to commit a crime of violence to further
unlawful activity and (3) afterward committed or attempted
to commit a crime of violence. See United States v. Dvorkin,
799 F.3d 867, 876 (7th Cir. 2015) (explaining § 1952).
But Haynes argues that § 1952(a)(2)(B) is where the stat-
ute’s divisibility into distinct, alternative offenses ends, so
that a particular crime of violence (like the Hobbs Act rob-
beries alleged in this case) need not be proven beyond a rea-
sonable doubt to the satisfaction of a unanimous jury. If that
were correct, his convictions under § 1952(a)(2)(B) could not
serve as crimes of violence for purposes of § 924(c). He con-
tends that although one element of § 1952(a)(2)(B) is commit-
ting or trying to commit a crime of violence, “the actual crime
of violence committed is simply a means of establishing the
crime of violence element” of the § 1952 offense. And, he con-
tinues, because we now know that the expansive § 16(b)—
which in 1996 was one way to satisfy § 1952’s “crime of vio-
lence” requirement—is unlawfully vague, at the time of his
1996 robberies, § 1952 swept in more “crimes of violence”
than § 924(c) allows today. By this reasoning, he concludes
that his § 924(c) convictions based on the § 1952 offenses are
invalid.
2 The text shows that § 1952(a)(2)(B) is actually further divisible: one
variant carries a maximum prison term of 20 years, but that maximum
rises to life imprisonment if death results from the crime of violence. There
is no allegation of death here, so the 20-year variant applies in this case.
12 No. 17-3657
The government responds that § 1952(a)(2)(B) uses alter-
native offense elements based on the underlying crime of vi-
olence, so that the modified categorical approach can be used
to determine which offenses support Haynes’ § 1952 convic-
tions. The government contends that “a § 1952(a)(2)(B) prose-
cution requires the government to prove the defendant com-
mitted all the acts of the underlying crime of violence.” If that
is correct, then a court may look to the indictment and ver-
dicts to determine whether the underlying “crime of vio-
lence”—Hobbs Act robbery—is covered by the still-valid ele-
ments clause in 18 U.S.C. § 924(c)(3)(A). And it is. Hobbs Act
robbery is a categorical crime of violence under § 924(c) be-
cause it has as an element the actual, attempted, or threatened
use of force. Fox, 878 F.3d at 579.
As a general proposition, we agree with the government
that § 1952(a)(2)(B) incorporates the elements of the underly-
ing crime of violence, thereby creating multiple alternative of-
fenses. We base our decision on several lines of comparison
involving statutory cross-references that are common in fed-
eral criminal law. Incorporating elements by such references
is consistent with the way courts analyze a number of federal
criminal statutes that refer to others, most typically to en-
hance the penalties for actions that are already criminal.
In § 1952(a) itself, for example, paragraphs (1), (2), and (3)
all require that the travel or use of mails or interstate or for-
eign commerce occur with intent to act in relation to some
other “unlawful activity.” Paragraph (1) requires intent to dis-
tribute the proceeds of “any unlawful activity,” while para-
graph (2) requires intent to commit any crime of violence “to
further any unlawful activity.” Paragraph (3) requires intent
No. 17-3657 13
to “otherwise promote, manage, establish, carry on, or facili-
tate the promotion, management, establishment, or carrying
on, of any unlawful activity.” The statute defines “unlawful
activity” in subsection (b) to include both violent and non-vi-
olent activities: gambling, selling illegal liquor, drug distribu-
tion, prostitution, extortion, bribery, arson, money-launder-
ing, and so on. We and other circuits interpret the “unlawful
activity” language as an element that requires specific proof
of a particular unlawful activity, signaling that the unlawful
activity is an element. That makes § 1952(a) divisible with re-
spect to different kinds of “unlawful activity.” See Myers v.
Sessions, 904 F.3d 1101, 1108–09 & n.4 (9th Cir. 2018) (collect-
ing cases, including United States v. Dvorkin, 799 F.3d 867, 876
(7th Cir. 2015) (§ 1952 requires “the intent to commit a speci-
fied unlawful act”)). In Myers, the Ninth Circuit applied the
modified categorical method to determine whether a convic-
tion under § 1952 was a “controlled substance offense” that
rendered a non-citizen removable from the United States un-
der 8 U.S.C. § 1227(a)(2)(B)(i). Myers held that the statute is
divisible and that the specific “unlawful activity” is an ele-
ment of the offense, so that Myers’ conviction could properly
be treated as a conviction for a controlled substance offense
for immigration purposes.
Similarly, § 924(c) itself incorporates the elements of the
underlying crime of violence. United States v. Rodriguez-
Moreno, 526 U.S. 275, 280 (1999) (“a defendant’s violent acts
are essential conduct elements” for purposes of venue for
§ 924(c) prosecution). Haynes argues that Rodriguez-Moreno
dealt with venue and specific facts, not the categorical method
that applies here. But the focus of the venue analysis is on the
acts establishing the elements of the offense. Rodriguez-Moreno
14 No. 17-3657
held squarely that the elements of the underlying crime of vi-
olence are elements of a § 924(c) offense:
To prove the charged § 924(c)(1) violation in this
case, the Government was required to show that
respondent used a firearm, that he committed
all the acts necessary to be subject to punish-
ment for kidnaping (a crime of violence) in a
court of the United States, and that he used the
gun “during and in relation to” the kidnaping
of Avendano.
526 U.S. at 280. Because the kidnaping element was commit-
ted in New Jersey in that case, the § 924(c) offense was
properly venued there as well, even if the defendant did not
possess or use a firearm in New Jersey over the course of the
interstate kidnaping.
Similarly, the “continuing criminal enterprise” offense in
21 U.S.C. § 848 requires proof that the defendant committed a
drug offense as part of a “continuing series of violations” of
drug laws. In Richardson v. United States, 526 U.S. 813, 815
(1999), the Supreme Court held that other specific violations
are elements that the jury must agree upon unanimously: “a
jury in a federal criminal case brought under § 848 must unan-
imously agree not only that the defendant committed some
‘continuing series of violations’ but also that the defendant
committed each of the individual ‘violations’ necessary to
make up that ‘continuing series.’”
In Dimaya, the Supreme Court similarly applied the cate-
gorical method, looking first through layers of statutes with
cross-references to other statutes to define “aggravated fel-
ony” under the Immigration and Naturalization Act, which
No. 17-3657 15
cross-references “crime of violence” in § 16, and then apply-
ing that definition to the elements of the underlying state bur-
glary offense. See 138 S. Ct. at 1211, 1217.
Or consider prosecutions under the substantive RICO pro-
visions of 18 U.S.C. § 1962(a), (b), or (c). They all require proof
of a “pattern of racketeering activity,” which requires proof of
at least two acts of “racketeering activity,” defined in terms of
numerous other federal and state crimes. 18 U.S.C. § 1961(1).
Specific “acts of racketeering activity” are elements that must
be proven beyond a reasonable doubt and subject to unani-
mous jury findings. See, e.g., United States v. Gotti, 451 F.3d
133, 137 (2d Cir. 2006) (“In order to find that a defendant par-
ticipated in two racketeering acts, as needed to establish a
‘pattern,’ the jury must be unanimous not only that at least
two acts were proved, but must be unanimous as to each of
two predicate acts.”); United States v. Maloney, 71 F.3d 645, 662
(7th Cir. 1995) (noting separate special verdicts as to each
charged act). 3
Similarly, in United States v. Armour, 840 F.3d 904, 907–09
(7th Cir. 2017), we looked through a defendant’s conviction
under 18 U.S.C. § 2, the general aiding and abetting statute,
and analyzed whether his underlying attempted offense—
federal bank robbery, 18 U.S.C. § 2113(a)—qualified as a
crime of violence under § 924(c). And in Hill v. United States,
877 F.3d 717, 719 (7th Cir. 2017), we adopted that approach for
3 The rule is different for RICO conspiracies charged under § 1962(d).
See Salinas v. United States, 522 U.S. 52, 65–66 (1997) (government need not
prove that individual conspirator committed or agreed to commit two or
more predicate acts needed for substantive RICO violation); United States
v. Neapolitan, 791 F.2d 489, 492 (7th Cir. 1986) (same).
16 No. 17-3657
all convictions that arise under a jurisdiction’s general at-
tempt statute: “When a substantive offense would be a violent
felony under § 924(e) and similar statutes, an attempt to com-
mit that offense also is a violent felony.”
Other circuits have taken similar approaches to statutes
that incorporate by reference elements from other statutes,
regulations, or schedules. See United States v. Ceron, 775 F.3d
222, 228 (5th Cir. 2014) (“[I]n defining the elements of a crime
for the purposes of applying the modified categorical ap-
proach, laws and regulations cross-referenced by the charged
statute can also be the subject of the modified categorical ap-
proach.” (cleaned up)); Coronado v. Holder, 759 F.3d 977, 984–
85 (9th Cir. 2014) (using modified categorical approach be-
cause controlled-substance statute incorporated various drug
schedules and statutes); United States v. Abbott, 748 F.3d 154,
158–59 (3d Cir. 2014) (same).
In keeping with that body of precedent, we conclude that
the elements of the underlying “crime of violence” support-
ing a § 1952(a)(2)(B) charge are incorporated as elements in
the § 1952(a)(2)(B) charge itself. 4 That means that a
§ 1952(a)(2)(B) offense is “divisible” and may qualify as a
crime of violence for purposes of § 924(c) if the underlying
4 By implication, our holding requires the government, in prosecuting
future cases under § 1952(a)(2)(B), to prove to a jury that a defendant com-
mitted or attempted a specific crime of violence, and the jury must agree
which crime of violence is the basis of the § 1952 conviction. At argument
Haynes asserted that juror unanimity on the underlying crime of violence
was not required. But as detailed above, the authority is against him on
the proper reading of § 1952. Our circuit’s Pattern Criminal Jury Instruc-
tions for § 1952 may need to be updated to account for this need for una-
nimity on the relevant “crime of violence” under § 1952(a)(2)(B).
No. 17-3657 17
crime supporting the § 1952(a)(2) conviction would itself
qualify as a crime of violence under § 924(c). And as noted
above, Hobbs Act robbery in violation of § 1951 so qualifies.
Fox, 878 F.3d at 579.
B. Haynes’ Trial and Convictions
Applying the modified categorical approach, we may ex-
amine the indictment and verdicts to determine whether
Haynes’ § 1952(a)(2)(B) convictions qualify as crimes of vio-
lence. Looking at the indictment and verdicts, each § 1952
charge and conviction was based on a specific Hobbs Act rob-
bery. Count 3 was based on the February 9, 1996 robbery of
an Eagle Food Center in Davenport, Iowa, in violation of 18
U.S.C. § 1951. Count 5 was based on the February 13, 1996
robbery of a Jewell Food Store, also in Davenport, also
charged in violation of § 1951. And Count 10 was based on the
February 27, 1996 robbery of a Venture store, also in Daven-
port and also charged as a violation of § 1951. Each charge al-
leged that Haynes took property from store employees “by
means of actual and threatened force, violence, and fear of in-
jury, immediate and future, to their persons and to property
in their custody as employees of the business in that he did
use and display a firearm in a threatening manner to assist in
committing the robbery.”
The jury verdicts show that the jury found that Haynes
had committed each Hobbs Act robbery supporting each of
the three § 1952 charges. Each verdict was phrased: “We the
jury find the defendant, Stacy M. Haynes Guilty of the offense
of interstate travel in aid of racketeering enterprises as alleged
in Count” 3, 5, or 10. (Emphasis added.) Each § 924(c) verdict
was phrased: “We the jury find the defendant, Stacy M.
Haynes Guilty of the offense of using and carrying a firearm
18 No. 17-3657
during and in relation to a crime of violence as alleged in
Count” 4, 6, or 11. Given the allegations in the indictment, the
only path to these convictions was to find that Haynes had
committed the three Hobbs Act robberies used as predicates
for the § 1952 charges.
Haynes points out, however, that the jury was not actually
instructed on the specific elements of the Hobbs Act robberies
that occurred in Iowa. The jury instructions for the § 1952
charges used the following elements:
First, the defendant traveled in interstate com-
merce, or used or caused to be used a facility in
interstate commerce, including the mail;
Second, the defendant did so with the intent to
commit a crime of violence to further unlawful
activity;
Third, thereafter the defendant did commit or
attempt to commit a crime of violence to further
unlawful activity.
App. 62. These instructions on Counts 3, 5, and 10 did not
spell out the elements of each underlying Hobbs Act robbery
as alleged in the indictment. The jury was, however, given in-
structions for Counts 1, 8, and 12 that detailed the elements of
Hobbs Act robbery for purposes of those counts. And a later
instruction defined the term “crime of violence” by giving the
jury the statutory definitions in 18 U.S.C. § 16, including the
now-unconstitutional residual clause in § 16(b).
With the hindsight of twenty years, during which the ap-
plicable law has changed substantially, we can say that today
a jury should be instructed differently on such charges that
embed a Hobbs Act robbery within a § 1952 violation within
No. 17-3657 19
a § 924(c) violation. We would ordinarily expect more detail
in terms of the elements of the underlying Hobbs Act rob-
beries, and we would not expect to give the jury the question
of law about what counts as a “crime of violence.”
We do not, however, believe that such criticism of the jury
instructions requires that these § 924(c) convictions be set
aside. We agree with Judge McDade:
Here, the ultimate “crime of violence” alleged in
the Indictment was robbery and the definition
of “robbery” given was from 18 U.S.C.
§ 1951(b)(1). In order to find Petitioner guilty of
the § 924(c) violations, Petitioner’s jury had to
find he committed or attempted to commit
Hobbs Act robberies, which Anglin holds neces-
sarily requires using or threatening force. That
means the use or threat of force was an implicit
element of each of the § 924(c) convictions pred-
icated on the § 1952 convictions, which were in
turn predicated on Hobbs Act robberies.
237 F. Supp. 3d at 827–28. 5
This was the view of the judge who presided over the trial
and understood best how the issues developed at trial. The
issues at trial did not involve the doctrinal nuances implicated
by the categorical method or the modified categorical method.
5 The citation was to United States v. Anglin, 846 F.3d 954 (7th Cir.
2017), which was later vacated by the Supreme Court on other grounds,
for reconsideration in light of Dean v. United States, 137 S. Ct. 1170 (2017).
See Anglin v. United States, 138 S. Ct. 126 (2017). We have cited United States
v. Fox, 878 F.3d 574, 579 (7th Cir. 2017), for the same Hobbs Act point.
20 No. 17-3657
Nor did they involve particular elements of robbery in gen-
eral or Hobbs Act robbery in particular. The issue was iden-
tity: whether Haynes was the person who had committed
what were obviously robberies (of businesses engaged in in-
terstate commerce). See United States v. Haynes, 172 F.3d 54
(table), 1999 WL 38088 (7th Cir. 1999) (direct appeal chal-
lenged denial of compensation for expert witness on reliabil-
ity of eyewitness identification; no issue raised regarding jury
instructions).
District judges craft jury instructions to fit the particular
trial, focusing the jurors’ attention on what is disputed, with-
out burdening them with detailed explanations of undisputed
legal points. The instructions should of course include each
element of each charge. Neder v. United States, 527 U.S. 1, 6–8
(1999); United States v. Gaudin, 515 U.S. 506, 510 (1995); United
States v. Edwards, 869 F.3d 490, 499 (7th Cir. 2017). But even
the omission of an element is subject to harmless-error and
plain-error analysis. Neder, 527 U.S. at 9–10; Johnson v. United
States, 520 U.S. 461, 468–70 (1997) (no plain error where judge
decided one issue that should have been submitted to jury);
United States v. Natale, 719 F.3d 719, 734 (7th Cir. 2013) (finding
plain error in failure to instruct jury on one element, but deny-
ing relief where overwhelming evidence on the element
showed that omission did not affect defendant’s substantial
rights and was harmless).
In this case, the hindsight we can bring twenty years after
the trial, with the benefit of knowing the issues being raised
now, would favor including more detailed jury instructions.
They might have included all the elements of the underlying
Hobbs Act robberies in Iowa (in addition to those given for
the ones in Illinois). And that hindsight tells us the judge
No. 17-3657 21
should have decided the questions of law, which include
what counts as a “crime of violence” under § 1952 and
§ 924(c). As a practical matter, though, without objections to
the jury instructions as given, without challenges to the in-
structions on direct appeal, and without indications that those
different jury instructions would have addressed truly con-
tested issues, we see no sound basis for relief here. The jury
had the charges in the indictment, and it found Haynes guilty
of all but one charge “as alleged” in the respective counts of
the indictment.
In other words, the only basis for convicting Haynes on
the § 924(c) counts stemming from the § 1952 counts was to
find that he committed the three Iowa robberies that plainly
qualify as crimes of violence under the still-valid elements
clauses of the definitions in § 924(c)(3)(A) and § 16(a).
Because the modified categorical approach applies to de-
termine that Haynes’ § 1952 convictions incorporated the ele-
ments of Hobbs Act robbery, and because Hobbs Act robbery
is a “crime of violence” under § 924(c)(3)(A), Haynes’ § 1952
convictions are valid predicate offenses for the three corre-
sponding § 924(c) convictions. The judgment of the district
court is therefore
AFFIRMED.