965 F.3d 973
9th Cir.2020Background:
- Luong posted a Craigslist ad for a 1996 Acura in the SF Bay Area, lured Montellano to meet, and robbed him at gunpoint, stealing an iPhone, a debit card, and other personal items.
- A grand jury indicted Luong on three counts: Hobbs Act robbery (18 U.S.C. §1951), brandishing a firearm in relation to a crime of violence (18 U.S.C. §924(c)(1)(A)(ii)), and being a felon in possession of a firearm (18 U.S.C. §922(g)(1)).
- At the first trial the jury convicted on §922(g) but deadlocked on the Hobbs Act and §924(c) counts; the court declared a mistrial on counts 1–2. At retrial the government presented expanded interstate-commerce theories (Craigslist as an interstate market and out-of-state electronic ATM transmissions) and secured convictions on counts 1–2; court sentenced Luong to 144 months.
- The principal contested legal question was whether the government proved the Hobbs Act interstate-commerce nexus at the first trial (double-jeopardy barrier to retrial if insufficient).
- The Ninth Circuit affirmed the convictions on all counts but vacated the sentence and remanded for resentencing because the district court erred in denying a Guidelines acceptance-of-responsibility reduction.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of Hobbs Act interstate-commerce nexus | Gov't: Craigslist and evidence of interstate use/servers show an actual or probable effect on interstate commerce | Luong: Craigslist use and alleged effects are local; data-transmission theory insufficient | Evidence at first trial was sufficient; Craigslist functioned as an interstate market or, at minimum, the effect was more than speculative — conviction affirmed |
| Constructive amendment of indictment | Gov't: indictment charged robbery tied to Craigslist posting generally | Luong: Gov't broadened theory at retrial to include ATM-triggered out-of-state electronic transmissions not alleged in indictment | No constructive amendment; indictment fairly put defendant on notice and trial evidence fell within the charged complex of facts |
| Jury unanimity / specific-unanimity instruction request | Luong: jury must unanimously agree on which interstate-commerce theory applied | Gov't: theories were alternative means of one element | No abuse of discretion in denying a specific unanimity instruction; jurors need not unanimously agree on alternate means |
| Hobbs Act jury instruction (actual vs. potential impact) | Luong: instruction allowed conviction on merely speculative/potential slight effects | Gov't: instruction properly allowed actual or probable impact, non-speculative | Instruction acceptable; any error harmless because evidence established an effect on interstate commerce |
| Prosecutorial misconduct (arguments) | Luong: prosecutor misstated law and urged jury to "do its duty"; attacked defense counsel | Gov't: statements cured by instructions; no prejudice | Improper comments occurred but, viewed in context and with court instructions, were harmless; no reversal |
| §922(g) Rehaif knowledge-of-status error | Luong: indictment/jury lacked required proof/instruction that he knew he was a felon | Gov't: error conceded but argues no prejudice given prior convictions | Error (failure to instruct) was clear under Rehaif but did not affect substantial rights given overwhelming evidence of prior felonies; conviction affirmed |
| §924(c) predicate (is Hobbs Act robbery a crime of violence?) | Luong: Hobbs Act robbery is not a §924(c)(3)(A) crime of violence | Gov't: Hobbs Act robbery qualifies as a crime of violence | Hobbs Act robbery is a crime of violence under §924(c)(3)(A); conviction on §924(c) affirmed |
| Acceptance-of-responsibility Guidelines reduction | Luong: he admitted factual guilt and litigated only jurisdictional element; denial penalized legitimate challenges | Gov't: defendant contested many aspects of evidence and did not show contrition | District court misapplied law by denying reduction based solely on trial challenges; sentence vacated and remanded for resentencing to allow factual finding on contrition |
Key Cases Cited
- Stirone v. United States, 361 U.S. 212 (Hobbs Act language interpreted broadly to reach interference with interstate commerce)
- Taylor v. United States, 136 S. Ct. 2074 (Hobbs Act may reach intrastate commercial markets where aggregate effect on interstate commerce is cognizable)
- Rehaif v. United States, 139 S. Ct. 2191 (§922(g) requires proof the defendant knew his prohibited status)
- United States v. Lynch, 437 F.3d 902 (interstate-commerce element satisfied by de minimis actual effect)
- United States v. Atcheson, 94 F.3d 1237 (Ninth Circuit on slight or probable effect satisfying Hobbs Act nexus)
- United States v. Woodruff, 50 F.3d 673 (indictment need not plead the precise interstate-commerce theory)
- United States v. Brown, 785 F.3d 1337 (Congressional reach of Hobbs Act intent to regulate to outer Commerce Clause limits)
- United States v. Dominguez, 954 F.3d 1251 (Hobbs Act robbery is a §924(c)(3)(A) crime of violence)
- United States v. Lopez, 514 U.S. 549 (limits on Commerce Clause and caution against converting it into a general police power)
- United States v. Huynh, 60 F.3d 1386 (probable or potential impact theory for interstate-commerce nexus)