United States v. Abdul Howard ( 2016 )

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 24 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-10042
Plaintiff-Appellee, D.C. No. 2:13-cr-00186-GMN-
VCF-1
v. District of Nevada,
Las Vegas
ABDUL HOWARD, AKA Lesley Long,
ORDER
Defendant-Appellant.
Before: McKEOWN and FRIEDLAND, Circuit Judges and LEFKOW,* District
Judge.
Filed concurrently with this order is an amended memorandum. The
petition for rehearing and rehearing en banc filed on June 6, 2016 remains pending.
No future petitions will be entertained.
*
The Honorable Joan Lefkow, District Judge for the U.S. District Court
for the Northern District of Illinois, sitting by designation.
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 24 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10042
Plaintiff-Appellee, D.C. No. 2:13-cr-00186-GMN-
VCF-1
v.
AMENDED
ABDUL HOWARD, AKA Lesley Long, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted May 11, 2016
San Francisco, California
Before: McKEOWN and FRIEDLAND, Circuit Judges and LEFKOW,** District
Judge.
Defendant-Appellant Abdul Howard appeals his convictions for Hobbs Act
robbery, 18 U.S.C. § 1951, and possession of a firearm in furtherance thereof, 18
U.S.C. § 924(c). He argues that Hobbs Act robbery does not qualify as a “crime
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan H. Lefkow, District Judge for the U.S. District
Court for the Northern District of Illinois, sitting by designation.
of violence” under § 924(c) and that therefore his convictions on the firearm counts
must be vacated. In addition, he argues that jury irregularities necessitated a
mistrial. We have jurisdiction under 28 U.S.C. § 1291. We disagree with
Howard’s arguments on appeal.
Section 924(c)(3) defines a “crime of violence” as, inter alia, a felony that
“has 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) (the “force
clause”). The Hobbs Act defines “robbery” as “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.” 18 U.S.C. § 1951(b)(1). Thus, if Hobbs Act
“robbery” “has as an element the use, attempted use, or threatened use of physical
force against the person or property of another,” it is a crime of violence.
Focusing on the Hobbs Act’s “actual or threatened force, or violence”
language, we have previously stated that Hobbs Act “[r]obbery indisputably
qualifies as a crime of violence” under § 924(c). United States v. Mendez, 992
F.2d 1488, 1491 (9th Cir. 1993). Howard, however, argues that because Hobbs
Act robbery may also be accomplished by putting someone in “fear of injury,” 18
U.S.C. § 1951(b), it does not necessarily involve “the use, attempted use, or
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threatened use of physical force,” 18 U.S.C. § 924(c)(3)(A).1 Howard’s
arguments are unpersuasive and are foreclosed by United States v. Selfa, 918 F.2d
749 (9th Cir. 1990). In Selfa, we held that the analogous federal bank robbery
statute, which may be violated by “force and violence, or by intimidation,” 18
U.S.C. § 2113(a) (emphasis added), qualifies as a crime of violence under U.S.S.G.
§ 4B1.2,2 which uses the nearly identical definition of “crime of violence” as
§ 924(c). Selfa, 918 F.2d at 751. We explained that “intimidation” means
willfully “to take, or attempt to take, in such a way that would put an ordinary,
reasonable person in fear of bodily harm,” which satisfies the requirement of a
1
This circuit has held that crimes that require only a de minimis use of force do
not qualify as crimes of violence under USSG § 2L1.2. See United States v.
Dominguez-Maroyoqui, 748 F.3d 918, 921 (9th Cir. 2014) (assault statute
criminalizing “any force whatsoever against a federal officer” does not
categorically require “violent force capable of causing physical pain or injury”);
United States v. Flores-Cordero, 723 F.3d 1085, 1088 (9th Cir. 2013) (resisting
arrest statute criminalizing even a “minor scuffle” did not qualify as a crime of
violence); see also United States v. Parnell, 818 F.3d 974 (9th Cir. 2016)
(Massachusetts armed robbery statute criminalizing any level of force as long as
the victim is aware of the act did not qualify as a crime of violence under the
Armed Career Criminal Act, 18 U.S.C. § 924(e)). Howard does not argue that
Hobbs Act robbery may be accomplished through de minimis use of force, and we
take no position on that issue or the applicability of these precedents to Hobbs Act
robbery.
2
“Crime of violence” is defined in U.S.S.G. § 4B1.2 as, inter alia, “any offense
under federal or state law, punishable by imprisonment for a term exceeding one
year, that . . . has as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G. § 4B1.2.
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“threatened use of physical force” under § 4B1.2. Id. (emphasis added) (quoting
United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983)). Because bank
robbery by “intimidation”—which is defined as instilling fear of injury—qualifies
as a crime of violence, Hobbs Act robbery by means of “fear of injury” also
qualifies as crime of violence.3
We also disagree with Howard’s arguments regarding the alleged jury
irregularities. The district judge reasonably found, after questioning Jurors 3 and
13, that Juror 3’s request for dismissal was motivated by a serious health issue.
The district court reasonably interpreted Juror 3’s remark that she felt like a “lone
ranger” on certain things referred to her insistence on following procedural rules,
rather than the merits of the case. Even if her comments touched on the merits,
such a “passing reference,” United States v. Christensen, 801 F.3d 970, 1017 (9th
Cir. 2015), may be “properly ignored” and does not bar dismissal for other
legitimate reasons when the concerns expressed in United States v. Symington, 195
F.3d 1080 (9th Cir. 1999), are not present. United States v. Vartanian, 476 F.3d
1095, 1098-99 (9th Cir. 2007) (holding that where “questions of juror bias or
competence . . . focus on some event . . . that is both easily identifiable and subject
to investigation and findings without intrusion into the deliberative process,”
3
Because we conclude that Hobbs Act robbery qualifies as a crime of violence
under § 924(c)’s force clause, we need not consider Howard’s arguments regarding
§ 924(c)’s alternative “residual clause” definition of “crime of violence.”
4
Symington’s rule mandating a finding of error where there is a “reasonable
possibility” that the dismissal stemmed from “the quality and coherence of the
juror’s views on the merits” is not triggered (quoting Symington, 195 F.3d at 1087
& n.6 (emphasis omitted))).
Furthermore, Juror 3 gave no indication that the phone call she received
from someone who knew Juror 13 was threatening, and the district court did not
abuse its discretion in refusing to dismiss Juror 13. Juror 3 stated that she was
troubled by the call because (1) her belief that Juror 13 had discussed deliberations
with a third party even though the jurors had been instructed not to do so, and (2)
her (incorrect) belief that Juror 13 had not disclosed to the court her nephew’s
shooting. After questioning Juror 13, it was not unreasonable to conclude that she
could continue to serve on the jury.
With respect to Howard’s contention that the district court failed to apply a
presumption of prejudice stemming from the third-party phone call,4 we conclude
that although the district court did not address the presumption issue, it ultimately
does not matter because regardless of who bore the burden to show prejudice, the
4
This circuit has recognized “a bright-line rule: any external contact with a juror is
subject to a presumption that the contact prejudiced the jury’s verdict, but the
government may overcome that presumption by showing that the contact was
harmless.” Tarango v. McDaniel, 815 F.3d 1211, 1221 (9th Cir. 2016). This rule
applies when an unauthorized communication “raises a risk of influencing the
verdict.” Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691, 697 (9th Cir.
2004).
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district court reasonably found that there was none. See United States v.
Armstrong, 654 F.2d 1328, 1332 (9th Cir. 1981) (“[W]hether or not we speak in
terms of the rebuttable presumption of prejudice or of the fairness of the
defendants’ trial, we reach the same result.”).
Finally, we conclude that the district court did not abuse its discretion in
limiting as it did the hearing on juror issues. A district court has “considerable
discretion” in determining such a hearing’s “nature and extent,” United States v.
Simtob, 485 F.3d 1058, 1064-65 (9th Cir. 2007) (quoting United States v. Soulard,
730 F.2d 1292, 1305 (9th Cir. 1984)), based on “the content of the allegations,
including the seriousness of the alleged misconduct or bias, and the credibility of
the source,” United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir. 1977).
The district court here questioned Jurors 3 and 13 with the participation of both the
government and defense counsel, who were present at all times. The hearing was
“reasonably calculated to resolve the doubts raised about the allegations of juror
misconduct, and the process ensured that all parties were fairly represented.”
Price v. Kramer, 200 F.3d 1237, 1254 (9th Cir. 2000).
AFFIRMED.
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