United States v. Tuan Luong ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10213
Plaintiff-Appellee,
D.C. No.
v. 4:15-cr-00178-HSG-1
TUAN NGOC LUONG,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted November 14, 2017
San Francisco, California
Submission Deferred November 30, 2018
Resubmitted July 10, 2020
Filed July 17, 2020
Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit
Judges, and William E. Smith,* District Judge.
Opinion by Judge Smith
*
The Honorable William E. Smith, United States District Judge for
the District of Rhode Island, sitting by designation.
2 UNITED STATES V. LUONG
SUMMARY**
Criminal Law
The panel affirmed a defendant’s convictions, vacated his
sentence, and remanded for resentencing in a case in which
the defendant robbed a victim at gun point after luring him to
a train station by posting an advertisement for a used car on
Craigslist.
At the defendant’s first trial, a jury found the defendant
guilty of being a felon in possession of a firearm (18 U.S.C.
§ 922(g)(1)), but did not reach a unanimous verdict on a
Hobbs Act robbery count (18 U.S.C. § 1951(a)) and a
dependent count of brandishing a firearm during and in
relation to a crime of violence (18 U.S.C. § 924(c)(1)(A)(ii)).
At retrial, a second jury convicted the defendant on the Hobbs
Act robbery and brandishing counts.
The panel held that there was sufficient evidence at the
first trial to satisfy the interstate-commerce element of the
Hobbs Act because a rational jury could have concluded that
the defendant advertised a commercial transaction on
Craigslist, a website that facilitates interstate commerce, to
facilitate the robbery. Because there was sufficient evidence
presented at the first trial to sustain a conviction, there was a
fortiori sufficient evidence presented at the retrial.
Rejecting the defendant’s argument that the indictment
was constructively amended during his second trial when the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LUONG 3
government presented additional theories to satisfy the
interstate-commerce element of Hobbs Act robbery, the panel
wrote that the indictment was not required to allege facts
specifically outlining how the defendant’s use of Craigslist or
a stolen credit card affected interstate commerce.
The panel held that because the jury was unanimous in
concluding that the defendant’s robbery affected interstate
commerce, and the government’s theories supporting the
interstate-commerce element were based in law, a specific
unanimity instruction was not warranted.
The panel held that the district court did not err in giving
an instruction that an effect on interstate commerce can be
established by proof of a probable or potential impact, which
can be slight but not speculative. The panel added that any
error would have been harmless.
Assuming that the defendant is correct that the
prosecution incorrectly stated the law when it argued to the
jury that the defendant’s robbery had an effect on interstate
commerce based upon “the use of interstate commerce,” the
panel held that the district court did not abuse its discretion in
concluding that this did not rise to the level of incurable
misconduct. The panel held that the prosecutor’s statements
attacking the credibility of defense counsel and telling the
jury that it could only carry out its duty by siding with the
government were plainly improper, but do not warrant
reversal, in the context of both attorneys’ arguments, the
district court’s directive to follow the instructions, the jury
instructions themselves, and the government’s statements at
other times during the argument that the jury must weigh all
of the evidence to reach its conclusion.
4 UNITED STATES V. LUONG
Reviewing for plain error, the panel held that it was clear
error under Rehaif v. United States, 139 S. Ct. 2191 (2019),
for the jury to not have been instructed that knowledge of
felon status was an element of felon-in-possession count, but
even if the district court had so instructed the jury, there is no
reasonable probability that the jury would have reached a
different verdict, and the error therefore did not affect the
defendant’s substantial rights, nor the fairness, integrity, or
public reputation of the first trial.
Following United States v. Dominguez, 954 F.3d 1251
(9th Cir. 2020), the panel held that Hobbs Act robbery
constitutes a predicate crime of violence under 18 U.S.C.
§ 924(c)(3)(A).
The panel held that insofar as the district court declined
to give the defendant a downward adjustment for acceptance
of responsibility under U.S.S.G. § 3E1.1(a) based on his
counsel’s challenges to the federal government’s jurisdiction
to prosecute the alleged offense and to the evidence going to
that question at trial, the district court erred as a matter of
law. Noting that the district court would have acted
according to law by denying the adjustment for the
defendant’s lack of contrition, the panel vacated the sentence
and remanded for resentencing, leaving it for the district court
to make a factual finding on contrition in the first instance.
COUNSEL
Ned Smock (argued), John Paul Reichmuth, and Robin
Packel, Assistant Federal Public Defenders; Steven G. Kalar,
Federal Public Defender; Office of the Federal Public
Defender, Oakland, California; for Defendant-Appellant.
UNITED STATES V. LUONG 5
Philip Kopczynski (argued) and Jonas Lerman, Assistant
United States Attorneys; Merry Jean Chan, Chief, Appellate
Section, Criminal Division; David L. Anderson, United States
Attorney; United States Attorney’s Office, San Francisco,
California; for Plaintiff-Appellee.
OPINION
SMITH, District Judge:
Appellant Tuan Ngoc Luong (“Luong”) robbed Joel
Montellano at gun point after luring him to a Bay Area Rapid
Transit (“BART”) train station in Castro Valley, California,
by posting an advertisement for a used car on a Craigslist site.
On March 26, 2015, a grand jury returned a three-count
indictment charging Luong with (1) a violation of the Hobbs
Act, 18 U.S.C. § 1951(a) (count 1); (2) brandishing a firearm
during and in relation to a crime of violence in violation of
18 U.S.C. § 924(c)(1)(A)(ii) (count 2); and (3) being a felon
in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) (count 3). The sole contested issue at trial was
whether the government’s evidence was sufficient to establish
that Luong’s robbery had an effect on interstate commerce, as
required to sustain a conviction under the Hobbs Act. See
18 U.S.C. § 1951(a).
The jury, after deliberating, found Luong guilty of being
a felon in possession of a firearm, but did not reach a
unanimous verdict on the Hobbs Act robbery count and
dependent § 924(c) count. The district court declared a
mistrial on counts 1 and 2. At retrial, the government
expanded its interstate-commerce theory and presented
additional evidence that the robbery affected interstate
6 UNITED STATES V. LUONG
commerce through the testimony of a second Craigslist
representative, as well as testimony that Luong’s attempted
use of a stolen debit card1 caused electronic transmissions to
travel to out-of-state servers. The second jury convicted
Luong on counts 1 and 2, and the district court sentenced him
to 144 months’ imprisonment followed by three years’
supervised release.
Luong appeals from his convictions and sentence,
pressing several arguments. We conclude that the
government presented sufficient evidence to convict Luong
on counts 1 and 2 at the first trial, and a fortiori the second
trial, and affirm Luong’s conviction on all counts, but we
vacate Luong’s sentence and remand for resentencing on
count 3.
BACKGROUND
We recount the facts underlying the robbery, which are
largely undisputed, in the light most favorable to the
government. See United States v. Grovo, 826 F.3d 1207,
1213–14 (9th Cir. 2016) (citing United States v. Nevils,
598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc)). On
February 15, 2015, Luong posted an advertisement on
Craigslist’s San Francisco Bay Area website for a 1996 Acura
Integra, asking “$1100 or OBO cash only.” Specifically,
Luong posted the advertisement, free of charge, on the
“Dublin/Pleasanton/Livermore” subsection of the “East Bay”
section of the “S.F. Bay Area” Craigslist site. Luong had
posted, but deleted, a similar advertisement three days earlier
1
The terms “debit card” and “credit card” are used interchangeably
throughout this opinion.
UNITED STATES V. LUONG 7
on a different, but close by, subsection of the “East Bay”
section of the “S.F. Bay Area” site.
Joel Montellano, who lived in Hayward, California, saw
the advertisement and arranged to meet Luong shortly
thereafter. Both Montellano and Luong lived in the San
Francisco Bay Area, and the San Francisco-based Craigslist
website refers to itself as “a local service” “that provides
local classifieds and forums.” Luong called Montellano and
said his name was “Michael.” They arranged to meet later
that night at the Castro Valley BART train station for
Montellano to inspect the car.
Montellano’s girlfriend drove him to the BART station.
Once there, at Luong’s suggestion, Luong and Montellano
took the car for a test drive and Montellano agreed to buy the
car. Luong told Montellano that his wife had the title for the
car and directed Montellano to drive to Luong’s house.
When they arrived, Montellano got out of the Acura to further
inspect the car. Luong drew a pistol, pointed it at
Montellano, and shouted: “give me your money.”
Montellano told Luong that the money was not with him, but
was instead with his girlfriend at the BART station. At
Luong’s direction, and with Luong’s gun pointed at him,
Montellano placed his iPhone, his girlfriend’s debit card, and
his U.S. Department of Veterans Affairs medical card on the
car’s trunk. He provided Luong with an incorrect PIN for the
debit card. Luong left the scene in the Acura. Montellano
ran back to the BART station, and once there, his girlfriend
called 911.
About thirty minutes after the robbery, Luong attempted
to use the stolen debit card at nearby Citibank and Bank of
America ATMs, but was unable to withdraw money using the
8 UNITED STATES V. LUONG
incorrect PIN. Two days later, law enforcement arrested
Luong after posing as a potential buyer for the Acura. At the
time of his arrest, Luong possessed a semi-automatic pistol
and ammunition.
At Luong’s first trial, the government solely relied on
Luong’s use of Craigslist to establish an effect on interstate
commerce. From the evidence presented at trial, viewing the
facts in the light most favorable to the government, a rational
factfinder could have concluded the following: Craigslist is
a “local classified and forums service” based in San
Francisco, California. It is “primarily community moderated
and mostly free.” It displays user-posted classifieds in
categories such as housing, various items for sale, and job
postings.
Each month, Craigslist gets approximately 50 billion page
views, approximately 60 million people in the United States
use Craigslist, and 80 million advertisements are posted to the
site. While it has an international audience, “Craigslist is not
one national or worldwide site, [rather,] it’s multiple local
sites around the world,” including 700 sites in more than
70 countries, with approximately 28 of those sites in
California. Anyone in the world with an Internet connection
may view any of the Craigslist sites. A user cannot search
multiple Craigslist sites at once. Instead, a user must select
a particular location site before he or she can search. The
website’s policies prohibit “[n]onlocal content” and
“[p]osting the same ad to multiple locations.” And while
Craigslist has expanded beyond San Francisco, “it still retains
that focus on local searches and local postings” and it
“emphasizes and encourages local face-to-face transactions
at a number of places in its website.”
UNITED STATES V. LUONG 9
On a Craigslist site’s opening page and on its for-sale-by-
owner car pages, Craigslist provides links to “nearby cl” sites
to allow users to access easily the Craigslist sites associated
with nearby physical locations. For example, from the San
Francisco car site (on which Luong posted the advertisement
used to lure Montellano), a user can find the link to the Reno,
Nevada, Craigslist site, in addition to other nearby California
car sites. Similarly, on the Reno site, the San Francisco site
is listed as a nearby site. The jury further heard that on the
Craigslist Reno car site, for example, cars from California
and Oregon were offered for sale.
The government offered anecdotal evidence of users
buying and selling vehicles by using Craigslist sites in other
states. Montellano testified that he had sold a motorcycle to
someone from Nevada who traveled to California for the
transaction after he posted it on Craigslist’s San Francisco
Bay Area site. Special Agent Brian Koh testified that he had
used the Washington, D.C. Craigslist site while living in the
Bay Area, because he might have needed a car for a
temporary assignment in D.C.
Craigslist maintains redundant computer servers in
California and Arizona. A Craigslist representative, William
Powell, testified that he was not “certain if the data is on both
[servers] or one at a time,” but that they are intended to
provide a backup if one server fails. He testified that it was
his understanding that if the California server failed, the
Arizona server would provide the data to the Internet user.
10 UNITED STATES V. LUONG
DISCUSSION
I. Hobbs Act Jurisdictional Nexus
The court reviews de novo the sufficiency of the
evidence, viewing “the evidence in the light most favorable
to the prosecution and ask[ing] whether any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Grovo, 826 F.3d at 1213–14
(citing Nevils, 598 F.3d at 1163–64). “The district court’s
interpretation of a criminal statute and the scope of the
conduct covered by the statute is a question of law reviewed
de novo.” United States v. Sarkisian, 197 F.3d 966, 984 (9th
Cir. 1999) (citing United States v. Ripinsky, 20 F.3d 359, 361
(9th Cir. 1994)). If there was insufficient evidence to support
the convictions on counts 1 and 2 at Luong’s first trial, his
convictions on those counts at the second trial must be
vacated because they would violate the Double Jeopardy
Clause of the Fifth Amendment. See United States v. Brown,
785 F.3d 1337, 1350 (9th Cir. 2015) (stating that, if the
evidence is insufficient to establish guilt at the defendant’s
first trial, retrial is foreclosed). Thus, we focus our discussion
on the sufficiency of the government’s evidence at Luong’s
first trial.
The relevant offense of conviction, established by the
Hobbs Act, provides in pertinent part that:
Whoever in any way or degree obstructs,
delays, or affects commerce or the movement
of any article or commodity in commerce, by
robbery or extortion or attempts or conspires
so to do, or commits or threatens physical
violence to any person or property in
UNITED STATES V. LUONG 11
furtherance of a plan or purpose to do
anything in violation of this section shall be
fined under this title or imprisoned not more
than twenty years, or both.
18 U.S.C. § 1951(a) (emphasis added). The Hobbs Act
defines “commerce,” in pertinent part, as “all commerce
between any point in a State . . . and any point outside
thereof; all commerce between points within the same State
through any place outside such State; and all other commerce
over which the United States has jurisdiction.” 18 U.S.C.
§ 1951(b)(3).
The Supreme Court has held that the Hobbs Act “speaks
in broad language, manifesting a purpose to use all the
constitutional power Congress has to punish interference with
interstate commerce by extortion, robbery or physical
violence. The Act outlaws such interference ‘in any way or
degree.’” Stirone v. United States, 361 U.S. 212, 215 (1960)
(quoting 18 U.S.C. § 1951(a)); see also Taylor v. United
States, 136 S. Ct. 2074, 2077 (2016) (stating that the Hobbs
Act “criminalizes robberies and attempted robberies that
affect any commerce ‘over which the United States has
jurisdiction’”); United States v. Lynch, 437 F.3d 902, 908 (9th
Cir. 2006) (“Lynch IV”). This court has similarly held that,
when Congress chooses to use the words “affecting interstate
commerce,” it intends “to regulate to the outer limits of its
Commerce Clause authority[.]” Brown, 785 F.3d at 1351.
The Commerce Clause of the United States Constitution
grants Congress the authority to regulate commerce in “three
broad categories of activity”: (1) “the use of the channels of
interstate commerce[;]” (2) “the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities[;]”
12 UNITED STATES V. LUONG
and (3) “those activities having a substantial relation to
interstate commerce, . . . i.e., those activities that substantially
affect interstate commerce.” United States v. Morrison,
529 U.S. 598, 608–09 (2000) (quotation marks and citations
omitted). This broad authority, however, does not permit the
federal government “to pile inference upon inference in a
manner that would bid fair to convert congressional authority
under the Commerce Clause to a general police power of the
sort retained by the States.” United States v. Lopez, 514 U.S.
549, 567 (1995).
Consistent with this broad reading, the Hobbs Act
interstate-commerce element is satisfied by actual impact
when the government “establish[es] that a defendant’s acts
had a de minimis effect on interstate commerce.” Lynch IV,
437 F.3d at 908 (citing United States v. Atcheson, 94 F.3d
1237, 1241 (9th Cir. 1996); United States v. Phillips,
577 F.2d 495, 501 (9th Cir. 1978)); see also Atcheson,
94 F.3d at 1243 (noting that connection to interstate
commerce need only be “slight” (quoting United States v.
Huynh, 60 F.3d 1386, 1389 (9th Cir. 1995))). Or, in the
absence of actual impact, the interstate-commerce nexus
requirement is met “‘by proof of a probable or potential
impact’ on interstate commerce.” Lynch IV, 437 F.3d at 909
(quoting Huynh, 60 F.3d at 1389).
By using a website that facilitates interstate commerce
(like Craigslist) to advertise a commercial transaction, Luong
necessarily affected or potentially affected “commerce over
which the United States has jurisdiction.” 18 U.S.C.
§ 1951(b)(3). As the evidence at Luong’s first trial
demonstrated, Craigslist is an Internet site that facilitates
commerce on a national and international level. Cf. United
States v. Horne, 474 F.3d 1004, 1006 (7th Cir. 2007) (holding
UNITED STATES V. LUONG 13
eBay “is an avenue of interstate commerce, like an interstate
highway or long-distance telephone service”). The evidence
presented at the first trial included, for example, that the
victim previously sold a motorcycle on Craigslist to a Nevada
buyer who traveled from Nevada to purchase and collect the
motorcycle in California. The victim further testified that he
received inquiries on other vehicles he posted on the Bay
Area site from prospective buyers in Nevada, Texas, and
Florida. He also testified that he had seen car advertisements
posted on the Bay Area site from sellers located in Nevada,
Oregon, Texas, Minnesota, and other states. Finally, the jury
heard that the Reno, Nevada site contained advertisements
from sellers in California and Oregon.
Moreover, despite Craigslist’s stated aspirational goal of
facilitating local transactions, the government highlighted at
trial that Craigslist sites allow a user to search other localities
across state lines. Specifically, local sites provide drop-down
menus that include links to sites for nearby cities. For
example, the Bay Area site links users to the Reno site, which
links its users to the Bay Area site, other California local
sites, and at least one site in Oregon. The jury also heard that
the investigating agent in this case, while still in the Bay
Area, once searched Washington, D.C.’s site for a car to
purchase before he was transferred there on long-term
assignment. From all of this, and viewing the evidence in the
light most favorable to the government, a jury could
reasonably conclude that the Craigslist Bay Area site
facilitated commercial transactions beyond the local area and
operated as an interstate market for used vehicles. Cf. Horne,
474 F.3d at 1006. Thus, Craigslist transactions are
“commerce over which the United States has jurisdiction”
and a robbery occurring within the context of such a
transaction “affect[s] . . . commerce ‘over which the United
14 UNITED STATES V. LUONG
States has jurisdiction.’” Taylor, 136 S. Ct. at 2077 (quoting
18 U.S.C. § 1951(b)(3)).
Even if we view Craigslist as facilitating only local
transactions, the interstate-commerce jurisdictional nexus is
still met here. The Supreme Court’s opinion in Taylor v.
United States, 136 S. Ct. 2074 (2016), guides our analysis. In
Taylor, the Supreme Court concluded that, because Congress
has the authority to regulate the national marijuana market,
including the purely intrastate production, possession, and
sale of marijuana, based on its aggregate effect on interstate
commerce, so too may Congress regulate intrastate marijuana
theft under the Hobbs Act. Id. at 2077. While the Court in
Taylor limited its holding “to cases in which the defendant
targets drug dealers for the purpose of stealing drugs or drug
proceeds[,]” and declined to “resolve what the Government
must prove to establish Hobbs Act robbery where some other
type of business or victim is targeted[,]” id. at 2082, the logic
employed in Taylor readily applies to the facts of this case.
Therefore, the Hobbs Act’s interstate-commerce element is
satisfied in cases like this one, where the government
demonstrates that a person used a commercial website to
advertise a commercial transaction in order to facilitate a
robbery.
Luong advances several arguments against a jurisdictional
nexus, none of which is convincing. First, Luong argues that
the Ninth Circuit Model Criminal Jury Instructions
undermine the government’s theory of the case. The Ninth
Circuit Model Criminal Jury Instruction for the “affecting
interstate commerce” element of the Hobbs Act was updated
in December 2016 to state that, “[c]onduct affects interstate
commerce if it in any way involves, interferes with, changes,
or alters the movement or transportation or flow of goods,
UNITED STATES V. LUONG 15
merchandise, money, or other property in commerce between
or among the states or between the United States and a
foreign country.” 9th Cir. Crim. Jury Instr. 8.143B. Luong
avers that the government’s Internet data-transmission theory
is insufficient under the model instruction, emphasizing that
the criminal conduct must affect “goods, merchandise,
money, or other property in commerce.”
This argument fails. Pattern jury instructions are
not authoritative legal pronouncements. See Caveat, 9th Cir.
Crim. Jury Instr. iv, available at http://www3.ce9.uscourts.gov/
jury-instructions/sites/default/files/WPD/Criminal_Instructions
_2019_12_0.pdf (“The Ninth Circuit Court of Appeals does
not adopt these instructions as definitive. Indeed,
occasionally the correctness of a given instruction may be the
subject of a Ninth Circuit opinion.”). In any event, we do not
rely on the government’s data-transmission theory, and
instead we conclude that the jurisdictional element is met
because Luong’s use of a service like Craigslist had an actual
impact on interstate commerce. For this reason, whether the
data-transmission theory comports with the model instruction
is of no import here.
Second, Luong argues that the Hobbs Act’s jurisdictional
language—requiring that the offense conduct “obstruct[],
delay[], or affect[] commerce,” 18 U.S.C. § 1951(a)—
provides a narrower jurisdictional grant than those criminal
statutes requiring the defendant to “us[e] the mail or any
facility or means of interstate . . . commerce,” see, e.g., 18
U.S.C. § 2422(b). In contrast, the government asserted
during oral argument that the mere use of any instrumentality
of interstate commerce is sufficient under the Hobbs Act. We
do not need to reach this question, however, because the
evidence was sufficient to show that Luong clearly affected
16 UNITED STATES V. LUONG
interstate commerce by robbing his victim as part of a
commercial transaction facilitated by a website that forms an
interstate market for used cars.
This conclusion does not render the interstate-commerce
element of the Hobbs Act superfluous. See Taylor, 136 S. Ct.
at 2081 (stating that while the Hobbs Act, “unlike the
criminal provisions of the [Controlled Substances Act],
applies to forms of conduct that, even in the aggregate, may
not substantially affect commerce,” the Hobbs Act interstate-
commerce element is not superfluous). While the Hobbs Act
is implicated by robberies involving commercial transactions
facilitated by electronic marketplaces, this does not mean
every local robbery is a Hobbs Act robbery simply because
the robber touched his smart phone to check the weather or
plan a get-away route. See, e.g., Lynch IV, 437 F.3d
at 909–10 (adopting depletion-of-assets test in Hobbs Act
cases involving crimes directed toward individuals with an
indirect effect on interstate commerce (citing United States v.
Collins, 40 F.3d 95, 99 (5th Cir. 1994))); United States v.
Turner, 272 F.3d 380, 387 (6th Cir. 2001) (concluding that
there was insufficient evidence to satisfy interstate-commerce
element because the government did not demonstrate that the
victim, “as an individual victim, had a substantial connection
to ‘a business engaged in interstate commerce,’ or that the
defendants were motivated by [the victim]’s connection to
interstate commerce” (internal citation omitted)), amended
sub nom. United States v. James, 280 F.3d 1078 (6th Cir.
2002); United States v. Peterson, 236 F.3d 848, 853 (7th Cir.
2001) (noting that “the government rightly concedes that the
out-of-state origin of the currency alone is insufficient to
satisfy the commerce element of the Hobbs Act” (quotation
omitted)), abrogated on other grounds by Taylor, 136 S. Ct.
UNITED STATES V. LUONG 17
2074. In this case, the Craigslist website was an integral
element of the robbery, not a peripheral afterthought.
Accordingly, because a rational juror could have
concluded that Luong advertised a commercial transaction on
Craigslist to facilitate the robbery, the evidence was sufficient
to satisfy the interstate-commerce element of the Hobbs Act.
Because there was sufficient evidence presented at Luong’s
first trial to sustain a conviction, there was a fortiori
sufficient evidence presented at Luong’s retrial.
II. Constructive Amendment of the Indictment
The court reviews de novo an argument that the
indictment was constructively amended. United States v.
Adamson, 291 F.3d 606, 612 (9th Cir. 2002).
It is axiomatic that “after an indictment has been
returned[,] its charges may not be broadened through
amendment except by the grand jury itself.” Stirone,
361 U.S. at 215–16 (citing Ex parte Bain, 121 U.S. 1, 7
(1887)). “[A] court cannot permit a defendant to be tried on
charges that are not made in the indictment against him.” Id.
at 217. A constructive amendment to the indictment occurs
“where . . . there is a complex of facts presented at trial
distinctly different from those set forth in the charging
instrument.” United States v. Hui Hsiung, 778 F.3d 738, 757
(9th Cir. 2015) (alterations omitted) (quoting Adamson,
291 F.3d at 615). If the court determines that the indictment
was constructively amended, a reversal is always in order.
Adamson, 291 F.3d at 615.
Count 1 of the indictment, alleging a violation of the
Hobbs Act, 18 U.S.C. § 1951(a), states that Luong
18 UNITED STATES V. LUONG
knowingly obstructed, delayed, and affected
commerce and the movement of articles and
commodities in commerce by robbery, in that
[he] did unlawfully take and obtain against the
victim’s will by means of actual and
threatened force, by violence, and by fear of
injury to the victim’s person, personal
property from the victim, namely the victim’s
iPhone 6, credit card, driver’s license, and
medical card, by purporting to offer for sale
on Craigslist, an online marketplace allowing
users to advertise merchandise and services
for sale throughout the United States, a 1996
Acura Integra, and when the victim met the
defendant in order to purchase the car, the
defendant robbed the victim at gunpoint.
Luong argues that the indictment was constructively amended
during his second trial when the government presented
additional theories to the jury to satisfy the interstate-
commerce element. Specifically, Luong argues that the
indictment, as written, did not allege that he had affected
interstate commerce by triggering out-of-state electronic
transmissions by the attempted use of the credit card at an
ATM after the robbery.
An indictment generally “is sufficient if it sets forth the
elements of the charged offense” so as to provide the
defendant with fair notice of the charges against him and to
ensure that the defendant is not placed in double jeopardy.
United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004)
(quoting United States v. Woodruff, 50 F.3d 673, 676 (9th
Cir. 1995) (“Woodruff I”)). To secure a conviction for Hobbs
Act robbery, a grand jury must set forth in the indictment, and
UNITED STATES V. LUONG 19
the government must prove, two elements: “(1) that the
defendant either committed or attempted to commit a
robbery, and (2) a nexus between the defendant’s acts and
interstate commerce.” Id. (quoting United States v. Woodruff,
122 F.3d 1185, 1185 (9th Cir. 1997) (“Woodruff II”)). But
while “the interstate commerce nexus is an element that ‘must
be proved at trial[,] . . . it need not . . . be expressly described
in the indictment.’” Id. (quoting Woodruff I, 50 F.3d at 677).
In Woodruff I, the court held that “[a]lthough the indictment
contained no facts alleging how interstate commerce was
interfered with, and did not state any theory of interstate
impact,” the indictment was sufficient on its face. 50 F.3d
at 676.
The indictment here alleges that Luong committed Hobbs
Act robbery by offering a car for sale on Craigslist and then
robbing the victim at gunpoint of his credit card and other
personal effects. The government proved as much at the
second trial. The indictment was not required to allege facts
specifically outlining how Luong’s use of Craigslist or the
stolen credit card affected interstate commerce. See
Rodriguez, 360 F.3d at 958. Luong was tried on the same
“complex of facts” as that set forth in the indictment, and
thus, Luong had notice of the charges against him. See Hui
Hsiung, 778 F.3d at 757–58 (finding no constructive
amendment where the “facts in the indictment necessarily
supported” the evidence presented at trial and thus “gave fair
notice” of the facts proved at trial).
III. Specific Unanimity Instruction
Where, as here, the issue has been preserved, the court
reviews for abuse of discretion the district court’s denial of a
20 UNITED STATES V. LUONG
defendant’s request for a specific unanimity instruction.
United States v. Kim, 196 F.3d 1079, 1082 (9th Cir. 1999).
“[I]n the ordinary case, a general instruction that the
verdict must be unanimous will be sufficient to protect the
defendant’s rights.” United States v. Anguiano, 873 F.2d
1314, 1319 (9th Cir. 1989) (quoting United States v.
Echeverry, 719 F.2d 974, 974 (9th Cir. 1983)). Under certain
circumstances, however, a specific unanimity instruction
should be given, instructing the jury not to return a guilty
verdict unless it “unanimously agree[s] to a particular set of
facts.” Id. (alteration in original) (quoting Echeverry, 719
F.2d at 975). A specific unanimity instruction is necessary
“where it appears that ‘there is a genuine possibility of jury
confusion or that a conviction may occur as the result of
different jurors concluding that the defendant committed . . .
acts’” consisting of different legal elements. Id. (quoting
Echeverry, 719 F.2d at 975). In general, “jurors are not
constitutionally required to unanimously agree on alternative
theories of criminal liability,” and accordingly, no specific
unanimity instruction is warranted where jurors may find
criminal liability based on alternative means of committing
a single element of a crime. Kim, 196 F.3d at 1083.
At his retrial, Luong requested an instruction requiring the
jury to unanimously agree on the factual basis underpinning
the interstate-commerce element. The district court declined,
concluding that the government’s two theories went to the
same offense element, and accordingly, the jury did not need
to “agree to the specific means by which interstate commerce
was affected.” On appeal, Luong contends that the district
court abused its discretion in failing to give a specific
unanimity instruction because, in his view, there was “more
than a ‘genuine possibility’ of jury confusion in this case.”
UNITED STATES V. LUONG 21
The district court did not abuse its discretion in denying
Luong’s request for a specific unanimity instruction. The
government’s interstate-commerce theories were alternative
means the jury could have found satisfied a single element of
Hobbs Act robbery, and “jurors are not constitutionally
required to unanimously agree on alternative theories of
criminal liability.” Kim, 196 F.3d at 1083. Because the jury
was unanimous in concluding that Luong’s robbery affected
interstate commerce and the government’s theories
supporting the interstate-commerce element were based in
law, a specific unanimity instruction was not warranted.
IV. Hobbs Act Jury Instruction
The court reviews de novo Luong’s next preserved claim
of error: whether the district court erred in crafting the jury
instruction at Luong’s retrial. See United States v. Hofus,
598 F.3d 1171, 1174 (9th Cir. 2010). A district court “has
substantial latitude” in crafting jury instructions, provided
that they “fairly and adequately cover the issues presented.”
United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir. 2000)
(quoting United States v. Frega, 179 F.3d 793, 806 n.16 (9th
Cir. 1999)). Thus the question on appeal is whether “the
instructions, viewed as a whole, ‘were misleading or
inadequate to guide the jury’s deliberation.’” United States
v. Kaplan, 836 F.3d 1199, 1215 (9th Cir. 2016) (quoting
United States v. Moore, 109 F.3d 1456, 1465 (9th Cir. 1997)
(en banc)). Jury instructions only require reversal where they
prejudiced the defendant. Id.
At the retrial, the district court, over Luong’s objection,
instructed the jury in relevant part that the government was
required to prove, beyond a reasonable doubt, that
22 UNITED STATES V. LUONG
the robbery affected interstate commerce in
some way. An effect on interstate commerce
is established by proof of an actual impact,
however small, or in the absence of an actual
impact, proof of a probable or potential
impact. This impact can be slight, but not
speculative.
(emphasis added). Luong argues on appeal that this
instruction misstated the law and allowed the jury to
impermissibly convict “if it found that his robbery had no
more than a potential slight impact on interstate commerce.”
Even putting aside the inquiry into whether there is any
meaningful difference between a slight potential effect and
great potential effect when the character of any potential
effect cannot be known, the district court did not err in giving
this instruction. This court has intimated that it is sufficient
for the government to prove a de minimis, probable effect on
interstate commerce, so long as it is not purely speculative.
See United States v. Lynch, 282 F.3d 1049, 1052 (9th Cir.
2002), overruled on other grounds, 437 F.3d 902 (9th Cir.
2006) (stating that Atcheson supported a finding of “only a de
minimis effect on interstate commerce, including a de minimis
effect that was probable rather than actual” (citing Atcheson,
94 F.3d at 1243)); cf. United States v. Reyes, 363 F. App’x
192, 195 (3d Cir. 2010) (stating that the government was
“required to prove only a minimal, potential effect on
interstate commerce”).
Moreover, any error would have been harmless. It is clear
beyond a reasonable doubt that a rational jury could have
found Luong guilty because, as stated above, Luong clearly
affected interstate commerce by robbing his victim as part of
UNITED STATES V. LUONG 23
a commercial transaction facilitated by a website that forms
an interstate market for used cars.
V. Prosecutorial Misconduct
The court reviews for abuse of discretion preserved
claims of prosecutorial misconduct, applying a harmless error
analysis. United States v. Del Toro-Barboza, 673 F.3d 1136,
1150 (9th Cir. 2012). This requires viewing the “challenged
conduct ‘in the entire context of the trial,’ and revers[ing]
‘only if it appears more probable than not that prosecutorial
misconduct materially affected the fairness of the trial.’”
United States v. Alcantara-Castillo, 788 F.3d 1186, 1190–91
(9th Cir. 2015) (quoting United States v. Ruiz, 710 F.3d 1077,
1082 (9th Cir. 2013)). Where the defendant failed to object
to a statement at trial, the court reviews for plain error. Id.
at 1190. On plain error review, reversal is warranted only if
“(1) there was error; (2) it was plain; (3) it affected the
defendant’s substantial rights; and (4) ‘viewed in the context
of the entire trial, the impropriety seriously affected the
fairness, integrity, or public reputation of judicial
proceedings.’” Id. at 1191 (quoting United States v. Combs,
379 F.3d 564, 568 (9th Cir. 2004)). While there is no
question that the tenor of the parties’ arguments was tense
and accusatory, we ultimately conclude that nothing in them
requires reversal.
Luong first argues that the government committed
misconduct by misstating the law; specifically, he contends
that the prosecutor repeatedly argued to the jury that Luong’s
robbery had an effect on interstate commerce based upon “the
use of interstate commerce.” This issue was preserved, and
thus we review whether the district court abused its discretion
24 UNITED STATES V. LUONG
in finding that any alleged error was cured by its instructions.
See Del Toro-Barboza, 673 F.3d at 1150.
Because we do not reach whether the mere use of the
Internet, no matter how slight, is sufficient to satisfy the
Hobbs Act jurisdictional nexus, we assume the defendant is
correct that the government incorrectly stated the law. Even
so, the district court did not abuse its discretion in concluding
that this did not rise to the level of incurable misconduct. The
district court and the government admonished the jury several
times that the jury instructions controlled over the
government’s recitation of the law, and the jury instructions
clearly stated that a conviction required the jury to find that
Luong’s robbery had affected interstate commerce. As
discussed above, there was considerable evidence that
Craigslist formed an interstate market for used cars and that
Luong affected interstate commerce by robbing his victim as
part of a commercial transaction facilitated by Craigslist.
Therefore, the prosecutor’s statements when considered “in
the entire context of the trial” amounted to harmless error.
See Alcantara-Castillo, 788 F.3d at 1190 (quoting Ruiz,
710 F.3d at 1082).
Luong next attacks the prosecutor’s statements that the
jury needed to do its “job” or “duty” and convict the
defendant, as well as the prosecutor’s accusations that
defense counsel had asked the jury to disobey the instruction
and “[f]eign[ed] re[v]erence for the Constitution.” The
district court’s denial of the defendant’s motion for new trial
is reviewed for plain error because defense counsel did not
contemporaneously object. See United States v. Sanchez,
176 F.3d 1214, 1218 (9th Cir. 1999).
UNITED STATES V. LUONG 25
This court has held that it is “improper for the prosecutor
to state that the duty of the jury is to find the defendant
guilty.” Id. at 1224–25 (citing United States v. Polizzi,
801 F.2d 1543, 1558 (9th Cir. 1986)); see also United States
v. Young, 470 U.S. 1, 18, 20 (1985) (stating that the
prosecutor erred in trying “to exhort the jury to ‘do its job’
[because] that kind of pressure, whether by the prosecutor or
defense counsel, has no place in the administration of
criminal justice,” but ultimately concluding that, “reviewed
in context,” the statements did not undermine fundamental
fairness and “contribute to a miscarriage of justice”). The
court, in Sanchez, observed that
[t]here is perhaps a fine line between a proper
and improper “do your duty” argument. It is
probably appropriate for a prosecutor to argue
to the jury that “if you find that every element
of the crime has been proved beyond a
reasonable doubt, then, in accord with your
sworn duty to follow the law and apply it to
the evidence, you are obligated to convict,
regardless of sympathy or other sentiments
that might incline you otherwise.”
Id. at 1225. In Sanchez, the court concluded that the
prosecutor’s argument had been improper in part because the
prosecutor “did not tell the jury that it had a duty to find the
defendant guilty only if every element of the crime had been
proven beyond a reasonable doubt. Nor did he remind the
jury that it had the duty to acquit Sanchez if it had a
reasonable doubt regarding his guilt.” Id.; see also United
States v. Gomez, 725 F.3d 1121, 1131 (9th Cir. 2013)
(holding prosecutor’s statement was proper where prosecutor
argued that “if the jury finds that the prosecution has met its
26 UNITED STATES V. LUONG
burden of proving the elements beyond a reasonable doubt,
then it is the jury’s duty to convict” (emphasis in original)).
The government’s statements plainly were improper: the
government impermissibly attacked the credibility of defense
counsel and told the jury that it could only carry out its duty
by siding with the government. But, in the context of both
attorneys’ arguments, the district court’s directive to follow
the instructions, the jury instructions themselves, and the
government’s statements at other times during the argument
that the jury must weigh all of the evidence to reach its
conclusion, these statements do not warrant reversal. See
United States v. Frederick, 78 F.3d 1370, 1380 (9th Cir.
1996) (disapproving of a prosecutor’s statements maligning
defense counsel to the jury, but concluding that those
comments did not “cross[] the line sufficiently to warrant”
reversal).
VI. Felon in Possession Conviction under Section
922(g)(1)
After this case was argued and submitted, the Supreme
Court decided Rehaif v. United States, in which it held that,
in order to convict a defendant under 18 U.S.C. § 922(g), the
government “must prove both that the defendant knew he
possessed a firearm and that he knew he belonged to the
relevant category of persons barred from possessing a
firearm.” 139 S. Ct. 2191, 2200 (2019) (emphasis added).
We granted Luong leave to file supplemental briefing to
address the impact of Rehaif on his conviction on count 3 for
being a felon in possession of a firearm pursuant to 18 U.S.C.
§ 922(g)(1).
UNITED STATES V. LUONG 27
The following is undisputed: the indictment did not
charge the requisite knowledge of status; Luong stipulated to
the fact that he had, at the time of the robbery, been convicted
of a crime punishable by imprisonment for a term exceeding
one year; and the government did not present evidence to the
jury that Luong knew he was a convicted felon when he
possessed the firearm. Luong argues that the district court’s
failure to instruct the jury that knowledge of his felon status
was an element of the felon-in-possession count constituted
plain error. The government concedes that, with respect to
this knowledge-of-status element, an obvious error occurred,
but it argues that such error did not affect Luong’s substantial
rights, nor does it seriously affect the fairness, integrity, or
public reputation of the judicial proceedings.
The court applies plain error review to a sufficiency-of-
the-evidence argument that was not raised before the district
court. See United States v. Benamor, 937 F.3d 1182, 1188
(9th Cir. 2019), cert. denied, 140 S. Ct. 818 (2020) (citing
United States v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011)).
To establish plain error, a defendant must demonstrate “(1) an
error (2) that was obvious and (3) that affected the
defendant’s substantial rights and (4) that seriously affected
the fairness, integrity, or public reputation of judicial
proceedings[.]” Id. (citing United States v. Olano, 507 U.S.
725, 734, 736 (1993)).
It was clear error, under Rehaif, for the jury to not have
been instructed that knowledge of status was an element of
count 3. See Henderson v. United States, 568 U.S. 266, 272
(2013) (“Even where a new rule of law is at issue, Rule 52(b)
does not give a court of appeals authority to overlook a
failure to object unless an error not only ‘affect[s] substantial
rights’ but also ‘seriously affect[s] the fairness, integrity or
28 UNITED STATES V. LUONG
public reputation of judicial proceedings.’” (quoting Olano,
507 U.S. at 732)); see also Griffith v. Kentucky, 479 U.S. 314,
321 & n.6 (1987) (holding that Supreme Court decisions
govern criminal cases pending on direct appeal). Still,
however, Luong cannot satisfy the third and fourth
requirements of the plain error test. For an error to affect a
defendant’s substantial rights, in the ordinary case, the
defendant must demonstrate “‘a reasonable probability that,
but for the error,’ the outcome of the proceeding would have
been different[.]” Molina-Martinez v. United States, 136 S.
Ct. 1338, 1343 (2016) (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 76, 82 (2004)).
Luong had at least six prior felony convictions at the time
he possessed the charged firearm, four of which resulted in
prison sentences exceeding one year. In total, these
convictions resulted in Luong being incarcerated for more
than a decade. In light of this, while clear error did occur
here, we conclude that, even if the district court had
instructed the jury on the knowledge-of-status element, there
is no reasonable probability that the jury would have reached
a different verdict on count 3. See Rehaif, 139 S. Ct. at 2198
(noting that it would not be burdensome for the government
to prove a defendant’s knowledge of status where
“knowledge can be inferred from circumstantial evidence”
(quoting United States v. Staples, 511 U.S. 600, 615 n.11
(1994))). For this reason, the error did not affect Luong’s
substantial rights, nor the fairness, integrity, or public
reputation of the first trial. See Benamor, 937 F.3d at 1189
(holding plain error did not affect the defendant’s substantial
rights, nor the fairness, integrity, or public reputation of the
trial, where the defendant had seven prior convictions: three
resulting in sentences of more than one year of imprisonment,
including one for being a felon in possession of a firearm, and
UNITED STATES V. LUONG 29
one for being a felon in possession of ammunition); see also
United States v. Johnson, No. 17-10252, 2020 WL 3458969,
at *5 (9th Cir. June 25, 2020) (holding that uncontroverted
evidence of felony convictions for which a defendant served
sentences exceeding one year “will ordinarily preclude a
defendant from satisfying the fourth prong of plain-error
review when challenging the sufficiency of the evidence that
he knew of his status as a convicted felon”). Thus, we affirm
Luong’s conviction on count 3.
VII. Hobbs Act Robbery as a Predicate Crime of
Violence under Section 924(c)
The court reviews “de novo whether a criminal conviction
is a crime of violence under § 924(c)(3).” United States v.
Dominguez, 954 F.3d 1251, 1256 (9th Cir. 2020) (citing
United States v. Begay, 934 F.3d 1033, 1037 (9th Cir. 2019)).
In his penultimate challenge on appeal, Luong argues that
the district court erred in denying his motion to dismiss count
2 of the indictment, which charged Luong with brandishing
a firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). As the basis for his
challenge, Luong argues that Hobbs Act robbery does not
constitute a predicate crime of violence as defined in
§ 924(c)(3)(A). During the pendency of this appeal, another
panel of this court “reaffirm[ed] that Hobbs Act robbery is a
crime of violence under 18 U.S.C. § 924(c)(3)(A),”
Dominguez, 954 F.3d at 1261, thus foreclosing Luong’s
argument. For the same reasons as those set forth in
Dominguez, we hold Hobbs Act robbery constitutes a
predicate crime of violence, and therefore affirm Luong’s
conviction on count 2.
30 UNITED STATES V. LUONG
VIII. Credit for Acceptance of Responsibility
In his final challenge on appeal, Luong argues that the
district court erred in declining to give him a two-level
downward adjustment for acceptance of responsibility under
the United States Sentencing Guidelines (“U.S. Sentencing
Guidelines” or “U.S.S.G.”). “We review de novo whether the
district court misapprehended the law with respect to the
acceptance of responsibility reduction.” United States v.
Garrido, 596 F.3d 613, 617 (9th Cir. 2010) (quoting United
States v. Cortes, 299 F.3d 1030, 1037 (9th Cir. 2002)).
“Whether or not the defendant has accepted responsibility for
his crime is a factual finding that we review for clear error.”
Id. (citing United States v. McKinney, 15 F.3d 849, 852 n.6
(9th Cir. 1994)).
The U.S. Sentencing Guidelines provide for a two-level
decrease to a defendant’s offense level where the defendant
“clearly demonstrates acceptance of responsibility for his
offense[.]” U.S.S.G. § 3E1.1(a). A defendant’s decision to
go to trial does not necessarily foreclose him from receiving
this offense-level decrease. U.S.S.G. § 3E1.1 cmt. 2; see also
McKinney, 15 F.3d at 854 (vacating sentence and concluding
the defendant was eligible for a reduction where he confessed
and assisted police upon apprehension, tried to plead guilty
but was rebuffed, and went to trial on conspiracy charge).
The comments to § 3E1.1(a) state, in relevant part:
In rare situations a defendant may clearly
demonstrate an acceptance of responsibility
for his criminal conduct even though he
exercises his constitutional right to a trial.
This may occur, for example, where a
defendant goes to trial to assert and preserve
UNITED STATES V. LUONG 31
issues that do not relate to factual guilt (e.g.,
to make a constitutional challenge to a statute
or a challenge to the applicability of a statute
to his conduct).
U.S.S.G. § 3E1.1 cmt. 2. At bottom, the district court must
determine whether a defendant “manifest[ed] a genuine
acceptance of responsibility for his actions.” Cortes, 299 F.3d
at 1038 (quoting McKinney, 15 F.3d at 852). “If [the
defendant’s] statements and conduct made it clear that his
contrition was sincere, he [is] entitled to the reduction.” Id.
The focus of this inquiry must be “on the defendant’s
personal contrition, rather than on his exercise of his
constitutional rights” in order to “best serve[] the purposes of
the acceptance of responsibility reduction.” McKinney,
15 F.3d at 853. And just as the U.S. Sentencing Guidelines
do not aim to “penalize the exercise of the constitutional right
to go to trial[,]” id. at 852, the Guidelines do not set out to
penalize a defendant for preventing constitutionally infirm or
otherwise inadmissible evidence from reaching the jury. See
United States v. Ochoa-Gaytan, 265 F.3d 837, 844 (9th Cir.
2001) (holding that the district court erred in denying
acceptance of responsibility adjustment on the basis that the
defendant moved to suppress a constitutionally infirm
statement).
At trial, Luong admitted his factual guilt—specifically,
that he used a gun to rob Montellano—but he moved to
exclude evidence supporting the government’s interstate-
commerce theory. To illustrate, Luong objected to the
testimony of Patrice Alexander-Lee, a product manager at
STAR Networks, on the grounds of personal knowledge, lack
of expert notice, and hearsay, as well as to the testimony of
Jeffrey Jackson, a Bank of America operations analyst and
32 UNITED STATES V. LUONG
custodian of records, on the basis of lack of personal
knowledge. The district court allowed Alexander-Lee and
Jackson to testify but later struck portions of Jackson’s
testimony. Luong further objected to, on hearsay and
Confrontation Clause grounds, the testimony of William
Powell, Craigslist’s director of government and law
enforcement relations, regarding information he had learned
from coworkers at Craigslist. The district court agreed the
testimony would be hearsay, and ruled that “the only server-
related information to which he may testify is his knowledge
of the location of the servers.” In response to this ruling, the
government summoned to testify Dallas Wisehaupt, a
Craigslist system manager, that same day. The district court
overruled an objection that it was expert testimony for which
Luong had not been provided proper notice and time to
prepare.
At the sentencing hearing, the district court acknowledged
that Luong’s decision to go to trial was not reason in itself to
deny the two-level decrease. The district court stated that
Luong had challenged only the jurisdictional element of the
Hobbs Act, and commented on counsel’s zealous
performance in challenging that single element. The district
court noted that, while Luong’s challenges to the
government’s evidence on the interstate-commerce element
constituted a “legitimate strategy,” they were not consistent
with contrition. Making no other findings as to the
defendant’s contrition, the district court concluded that, under
these circumstances, a reduction for acceptance of
responsibility was not warranted.
The district court erred, Luong contends, because his
evidentiary objections went only to whether the interstate-
commerce nexus was satisfied, he presented no evidence in
UNITED STATES V. LUONG 33
his defense, and his cross-examination was confined to
challenging the interstate-commerce element and any
suggestion that he was dangerous or violent. The government
counters that Luong fought to exclude a range of government
evidence, including cell phone evidence, photo line-up
evidence, other-acts and prior-conviction evidence, Craigslist
evidence, and testimony from Bank of America, STAR
Network, and Craigslist employees, among others.
The commentary to the U.S. Sentencing Guidelines
explicitly provides that a defendant may admit factual guilt
but go to trial to “challenge . . . the applicability of a statute
to his conduct.” U.S.S.G. § 3E1.1(a) cmt. 2. Here, Luong
admitted factual guilt, but proceeded to trial to assert that his
offense conduct did not fall within the scope of the Hobbs
Act’s jurisdictional nexus. Challenging the federal
government’s jurisdiction to prosecute the alleged offense
conduct is not inconsistent with contrition. Nor is a
defendant foreclosed from receiving credit for acceptance of
responsibility because his attorney made good-faith
challenges at trial to evidence going to that question. Insofar
as the district court declined to give the adjustment based on
such challenges by Luong’s counsel, it erred as a matter of
law.
To hold otherwise would be to mandate that defense
counsel sit on her hands while the government proffers
affidavits in lieu of live testimony, or lay witnesses rather
than qualified experts to provide expert opinions, or surprise
witnesses a la Perry Mason. Here, Luong’s evidentiary
challenges, some of which were sustained and resulted in
stricken testimony, were part and parcel of Luong’s challenge
to the interstate-commerce nexus. See United States v Rojas-
Flores, 384 F.3d 775, 780–81 (9th Cir. 2004) (holding that
34 UNITED STATES V. LUONG
the district court erred in denying adjustment for acceptance
of responsibility where the defendant went to trial to
challenge the applicability of the statute of offense instead of
his factual guilt, and the defendant cross-examined
witnesses); United States v. Ing, 70 F.3d 553, 556 (9th Cir.
1995) (vacating sentence and remanding case for
resentencing, noting that “an entrapment defense is not
necessarily incompatible with acceptance of responsibility”);
McKinney, 15 F.3d at 852 (noting that a defense that relied on
cross-examination and presented no affirmative defense “is
hardly the kind of defense that refutes the strong inference
that [the defendant] accepted responsibility”).
While the government also takes issue with Luong’s
counsel’s use of the word “innocence” during closing
arguments and Luong’s failure to demonstrate, in the
government’s view, meaningful contrition, these arguments
are non-starters. Luong’s attorney argued that he was
innocent under the statute because the interstate-commerce
nexus was not satisfied. See, e.g., ER 364 (“He is innocent of
the charges in Counts One and Two because this robbery did
not affect or potentially affect interstate commerce . . . .
[T]he Defense is not here to deny that a robbery occurred; to
deny the experience of the victim in this case, Mr.
Montellano. Nobody should have to experience being
robbed. But what happened was not a federal crime on
February 15th, 2015.”). But as discussed above, this is not
inconsistent, as a matter of law, with contrition. And while
the district court clearly would have acted according to law
by denying the adjustment for the defendant’s lack of
contrition, in light of his failure to allocute and his brief letter
of contrition, the district court did not state that it relied on
these factors. See, e.g., United States v. McKittrick, 142 F.3d
1170, 1178 (9th Cir. 1998) (concluding that the defendant’s
UNITED STATES V. LUONG 35
challenge to regulation’s intent requirement did not foreclose
an adjustment for acceptance of responsibility and,
accordingly, vacating and remanding case to determine
whether the denial was based on an impermissible ground).
We vacate Luong’s sentence and remand for resentencing,
leaving it for the district court to make a factual finding on
contrition in the first instance.
CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED in part and VACATED in part. The
case is REMANDED to the district court for further
proceedings consistent with this opinion.