United States v. McCoy
995 F.3d 32
2d Cir.2021Background
- McCoy and Nix were tried in W.D.N.Y. for a series of 2014 home invasions; the government relied principally on testimony of cooperating coconspirators (Barnes, Moscicki, Gary Lambert) and cell‑phone location records. Both defendants were convicted of Hobbs Act conspiracy, Hobbs Act robbery and attempted robbery counts, related § 924(c) brandishing counts, a narcotics conspiracy, and felon‑in‑possession (§ 922(g)(1)).
- Jury instructions included (over defense objection) a Pinkerton theory and the court told the jury Hobbs Act conspiracy, attempted robbery, and robbery constitute crimes of violence for § 924(c) purposes.
- After conviction, defense counsel learned a juror (Juror No. 3) had undisclosed felony convictions; defendants moved for a new trial under Fed. R. Crim. P. 33. The district court held an evidentiary hearing, found the juror lied but not to secure jury service, found no actual/implied/inferred bias, and denied a new trial; denial of reconsideration was also denied.
- While appeals were pending, Supreme Court decisions (Davis and Rehaif) and subsequent Second Circuit decisions (Barrett II, Hill) altered the legal landscape about what counts as a "crime of violence" under § 924(c) and what mental‑state elements § 922(g) requires.
- The Second Circuit affirmed most convictions and the denial of a new trial, but held Hobbs Act conspiracy is not a § 924(c) "crime of violence" post‑Davis/Barrett II, reversed the § 924(c) brandishing conviction predicated on the conspiracy (Count 2), and remanded for resentencing and for the district court to consider First Step Act relief.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (McCoy/Nix) | Held |
|---|---|---|---|
| New trial for juror nondisclosure | Juror's nondisclosure did not show bias; no automatic relief for a statutorily disqualified juror raised after voir dire | Juror's undisclosed felony convictions required new trial and violated Sixth Amendment impartial‑jury right | Denial of new trial affirmed; district court did not abuse discretion (no actual/implied/inferred bias; statutory challenge untimely) |
| Whether Hobbs Act conspiracy is a § 924(c) "crime of violence" | Gov't conceded after Davis that conspiracy cannot qualify under the remaining § 924(c)(3)(A) approach | Conspiracy not a crime of violence; § 924(c) brandishing counts predicated on conspiracy invalid | Reversed § 924(c) convictions predicated on Hobbs Act conspiracy (Count 2); remand for resentencing |
| Whether Hobbs Act robbery and attempted robbery are § 924(c) crimes of violence | Hobbs Act robbery and attempts qualify under the categorical approach and § 924(c)(3)(A) | Defendants argued robbery/attempt could be applied to non‑force conduct (theoretical) | Affirmed: Hobbs Act robbery and attempted robbery are crimes of violence under § 924(c)(3)(A); § 924(c) convictions based on those predicates stand |
| Rehaif challenge to § 922(g)(1) instructions (knowledge of felon status) | Trial court's omission was error but harmless on this record because PSR and stipulations show both served multi‑year prison terms | Jury should have been instructed that gov't must prove defendant knew he was a felon; convictions must be vacated | No reversal: plain error acknowledged but harmlessness (defendants knew they were sentenced to >1 year; convictions on Counts 9/10 stand) |
| First Step Act resentencing relief | Gov't argued temporal limits may bar retroactive relief for defendants already sentenced before enactment | Defendants argued they are eligible and seek remand for § 403 consideration | Remanded: district court to consider whether First Step Act § 403 relief applies at resentencing (court did not decide retroactivity) |
Key Cases Cited
- United States v. Barrett, 937 F.3d 126 (2d Cir. 2019) (held Hobbs Act conspiracy is not a § 924(c) crime of violence post‑Davis)
- United States v. Hill, 890 F.3d 51 (2d Cir. 2018) (Hobbs Act robbery is a § 924(c)(3)(A) crime of violence under the categorical approach)
- United States v. Davis, 139 S. Ct. 2319 (2019) (struck § 924(c)(3)(B) as unconstitutionally vague)
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (holding gov't must prove defendant knew his § 922(g) status)
- McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984) (two‑part test for new trial based on juror false answers during voir dire)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for determining whether predicate offense is a violent felony)
- Pinkerton v. United States, 328 U.S. 640 (1946) (conspirator liability for foreseeable substantive offenses)