996 F.3d 1100
11th Cir.2021Background
- Foster participated in an ATF reverse-sting in which he and co-defendants planned an armed robbery of a house they believed contained ~15 kg of cocaine; Foster was arrested with a loaded pistol on his person.
- Superseding indictment charged (inter alia) Count 1 (Hobbs Act conspiracy), Counts 2–3 (conspiracy and attempt to possess with intent to distribute cocaine), Count 4 (§ 924(o) conspiracy to use/carry firearm in relation to the crime(s) charged in Counts 1–3), and Count 5 (§ 924(c) use/possession of a firearm in relation to those crime(s)).
- Jury received instructions permitting conviction on Counts 4–5 if the jury found either the Hobbs Act conspiracy (Count 1) or the drug offenses (Counts 2–3); the jury returned a general verdict finding Foster guilty on all counts.
- After direct appeal affirmed, the Supreme Court decided Davis (invalidating § 924(c)’s residual clause); Foster obtained leave to file a successive § 2255 arguing his § 924(o)/(c) convictions could rest on the now-invalid Hobbs Act conspiracy predicate.
- The district court held any error was harmless because the Hobbs Act conspiracy was inextricably intertwined with the valid drug predicates and the jury could not reasonably have relied solely on the invalid predicate; the district court denied relief and granted a COA. The Eleventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Foster) | Defendant's Argument (Gov’t) | Held |
|---|---|---|---|
| Whether §924(c)/(o) convictions must be vacated because the jury could have relied on Hobbs Act conspiracy (invalid after Davis) | Davis means the Hobbs Act conspiracy is no longer a valid §924(c) crime-of-violence predicate; general verdict leaves open that jury relied on it, so convictions must be vacated | Even if Hobbs Act conspiracy is invalid, the jury necessarily also relied on valid drug-trafficking predicates (Counts 2–3); any instructional/indictment error is harmless | Harmless-error; convictions affirmed because predicates were inextricably intertwined and jury could not have relied solely on the invalid predicate |
| Whether the government may raise procedural default on appeal | (Implicit) Foster contends merits adjudication appropriate | Gov’t raised procedural-default defense for first time on appeal | Waived: gov’t failed to assert procedural default in district court; therefore it cannot raise it on appeal |
| Whether district court’s record-based inquiry into which predicate jurors relied on violates the Stromberg rule (general verdicts) / requires automatic vacatur | A general verdict that may rest on an unconstitutional ground requires vacatur under Stromberg; court may not engage in factual inquiry to determine jury reasoning | Hedgpeth and related precedent allow harmless-error review; court may examine the record under Brecht standard to see whether invalid predicate prejudiced the verdict | Court may examine the record and apply Brecht harmless-error review; no Stromberg-based automatic vacatur applies |
| Whether the categorical approach requires presuming the jury relied on the least serious predicate (Hobbs Act conspiracy) | The court must apply the categorical approach and assume the least culpable predicate supported the general verdict | The categorical approach does not govern which of several alternative predicates a jury actually relied upon; context and record govern | Categorical approach does not apply here; court may assess the record and treat intertwined predicates as making reliance on the invalid predicate implausible |
Key Cases Cited
- 139 S. Ct. 2319 (United States v. Davis) (Supreme Court decision invalidating § 924(c) residual clause)
- 990 F.3d 1272 (Granda v. United States) (11th Cir.) (held alternative predicate offenses inextricably intertwined; harmless-error analysis supports affirmance)
- 942 F.3d 1069 (Brown v. United States) (11th Cir.) (Hobbs Act conspiracy does not qualify as a §924(c) crime-of-violence under the elements clause)
- 555 U.S. 57 (Hedgpeth v. Pulido) (per curiam) (Stromberg-type errors are subject to harmless-error review)
- 507 U.S. 619 (Brecht v. Abrahamson) (harmless-error standard for collateral review: relief only if error had substantial and injurious effect)
- 513 U.S. 432 (O’Neal v. McAninch) (requirement to ask whether an error substantially influenced the jury’s decision)
- 538 U.S. 500 (Massaro v. United States) (procedural-default rule is a defense the government must assert and preserve)
- 987 F.3d 924 (United States v. Cannon) (11th Cir.) (trial record may make clear that jurors could not rationally have relied on an invalid predicate alone)