Case Information
*1 Before: CHAGARES, VANASKIE, and FUENTES, Circuit Judges. (Filed August 3, 2017)
____________
OPINION
____________ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.
CHAGARES, Circuit Judge.
Clifton McLean appeals his conspiracy, robbery, and firearms-related convictions.
For the reasons that follow, we will affirm.
I. [1]
On June 18, 2013, a paid confidential informant (“CI”) told Patrick Edwards, a special agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), that, approximately a week earlier, defendant Clifton McLean said that he was “looking for something to get into, . . . [that] he was looking for something to take.” [2] Appendix (“App.”) 99. Edwards testified that he understood McLean to mean that McLean was “looking . . . to commit a robbery.” App. 99. McLean had four prior drug trafficking convictions but was not then under any investigation.
The ATF directed the CI to arrange another meeting with McLean to “corroborate” the CI’s report. [3] App. 100-01. At the meeting, the CI asked if McLean “definitely” wanted to do the robbery and McLean said that he did. App. 761. The CI said that the robbery involved a significant amount of drugs and would require McLean *3 to assemble a team. Continuing to express interest, McLean offered that he had guns and knew two individuals who could help.
Twice McLean contacted the CI to ask for updates on the plan’s progress. On June 28, the CI told McLean that he was soon meeting with a contact who would provide information on the robbery target and whom the CI assured that McLean was capable and interested. On July 22, the CI told McLean to expect a meeting the following week.
On August 1, 2013, McLean met with the CI and Edwards, who was posing as the CI’s contact and a drug courier from New York. Edwards said he knew of a stash house containing “at least eight or nine bricks” of cocaine [4] and warned McLean to hear out the details before deciding whether he wanted to go forward with the sting. App. 782-83. McLean repeatedly expressed interest, even indicating he was ready to do the robbery right away. Edwards explained the set-up of the stash house and that inside would be at least two armed guards. [5] McLean then described how he would conduct the robbery. Edwards discussed how the stolen drugs would be divided and said that he would provide specifics about the robbery a day or two beforehand.
The three men met again on August 8, 2013. Edwards announced that the robbery would occur the next week and that there would be three armed guards instead of two. *4 Edwards also asked whether McLean was still interested. McLean said that he was and discussed his plan for carrying out the sting.
Later that day, the CI called McLean to tell him that Edwards had doubts about McLean and was considering finding another person to work with. The CI suggested that McLean bring his crew to the next meeting, and McLean agreed. McLean repeated that he was ready to commit the robbery on a call with the CI the following day.
On August 9, the CI, Edwards, McLean, and Leroy Winston, McLean’s co- defendant, met. McLean was relieved to learn from Edwards that the robbery would take place in Philadelphia instead of New York City, although he said that he would have traveled to New York if necessary. McLean also explained to Edwards that he and Winston planned to tie up the guards but were willing to kill them. The four men plotted the robbery in detail, and Edwards told them that it would likely take place next week.
The CI called McLean on August 13 to tell him the robbery was set for the next day. McLean agreed, at Edwards’ request, to sell the cocaine and pay Edwards his share in cash. The next morning, the CI picked up McLean and Winston and drove them to meet Edwards. After discussing the robbery plan, Edwards gave McLean and Winston a final opportunity to back out, which both men declined. The group traveled to a junkyard, where ATF agents arrested McLean and Winston. Law enforcement found two loaded firearms at the scene of the arrest, both of which were manufactured outside of Pennsylvania.
*5 On September 12, 2013, a grand jury returned an indictment charging McLean with conspiring and attempting to commit a Hobbs Act robbery, 18 U.S.C. § 1951(a); conspiring and attempting to possess with intent to distribute cocaine, 21 U.S.C. §§ 846 & 841(a)(1), (b)(1)(A); carrying a firearm during and in relation to a crime of violence and drug trafficking crime, 18 U.S.C. § 924(c); and possessing a firearm as a convicted felon, 18 U.S.C. §§ 922(g) & 924(e).
Trial commenced on May 4, 2015. Pursuant to a cooperation plea agreement, Winston testified against McLean. When asked how he became involved, Winston testified that McLean “had a friend that was trying to set up a robbery.” App. 336. Winston also stated that he was not surprised McLean approached him about participating because they “had talked about stuff like [that] before and . . . I did a robbery for him before.” App. 339. Winston explained that in 2009 or 2010, McLean had asked him and a friend to rob drug dealers who were selling on McLean’s block. McLean, however, did not participate in the robbery.
In addition to denying motions for judgment of acquittal, the District Court denied McLean’s request for a jury instruction on entrapment. On May 8, 2016, the jury found McLean guilty on all counts. On June 2, 2016, after a two-day hearing, the Court denied McLean’s post-trial motions and sentenced him to nineteen years of imprisonment followed by ten years of supervised release. The judgement of conviction was entered on June 13, 2016. McLean timely appealed.
II. [7]
McLean seeks to vacate several of his convictions, arguing that 1) the District Court erred in denying an entrapment jury instruction; 2) the District Court erred in denying McLean’s motion for acquittal for lack of jurisdiction under the Hobbs Act; and 3) a Hobbs Act robbery is not a “crime of violence” for purposes of 18 U.S.C. § 924(c). [8]
A.
We review de novo the District Court’s denial of McLean’s request to instruct the
jury on entrapment. United States v. Dennis,
*7
Inducement is more than “mere solicitation” to partake in a crime. United States
v. Wright,
We recently ordered a new trial for a defendant who contended that he was
entrapped into committing a fictitious drug stash house heist. In Dennis, the defendant
was identified by an informant, a longtime friend, in the course of the ATF’s
investigation into a string of robberies.
Three times the defendant denied the informant’s offers to participate in various robberies. Id. On the fourth ask, the informant said that he wanted to rob a drug stash house, containing drugs valued at $2 million, to help his cancer-afflicted mother. Id. The defendant finally agreed. Id.
Through a series of meetings involving an undercover ATF agent, the defendant appeared to be a willing and active participant: he recruited other individuals, strategized the plan of attack, and plotted how the money would be divided. Id. at 687-89. He also declined the agent’s offer to back out of the scheme. Id. at 688.
But the defendant testified at trial that he felt in over his head and that he feigned enthusiasm for the plan, at the informant’s request, to impress the agent, whom the informant had said was his old friend. Id. Additional trial testimony evidenced that the defendant was not prone to violence and was particularly susceptible to his friend’s influence. Id. at 688, 695.
We reversed the District Court’s denial of an entrapment jury instruction and vacated the conviction. Id. at 695. The Government, “with the help and persuasion of . . . a friend of the target, actively led [the defendant] into the commission of a crime,” sufficiently demonstrating inducement. Id. at 691-92. As for lack of predisposition, we determined that the absence of prior violent crime or robbery convictions, his initial repeated reluctance to help, and his trial testimony satisfied the defendant’s burden. Id. at 692-93.
McLean bears some similarity to the defendant in Dennis but the facts differ in
material ways. Although he lacks any relevant criminal history, the ease with which the
ATF was able to entice McLean’s participation, his ensuing enthusiasm for the plot, and
his rebuff of multiple opportunities to back out evidence his predisposition to the criminal
conduct. Cf., e.g., Wright,
B.
McLean argues that his Hobbs Acts convictions cannot be sustained because there
was insufficient evidence that his conduct affected or would have affected interstate
commerce. The Hobbs Act criminalizes a person who “in any way or degree obstructs,
delays, or affects commerce or the movement of any article or commodity in commerce
by robbery . . . .” 18 U.S.C. § 1951(a). The requirement that the defendant’s conduct
affect commerce is jurisdictional, and it must be proven along with the other elements of
the offense. See United States v. Powell,
We have held that federal jurisdiction exists over Hobbs Act conspiracy and attempt charges arising from a fictitious sting operation. United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982) (en banc). In that case, the defendants were convicted under the Hobbs Act after becoming involved in a fabricated Government plot targeted at public officials suspected of corruption. Id. at 581. The District Court set aside the defendants’ convictions for lack of jurisdiction, and we reversed. Id.
*11
We noted that the jurisdictional reach of the Hobbs Act extended as far as
Congress’s power under the Commerce Clause would allow.
[11]
Id. at 590-91 (citations
omitted). This expansive power allows Congress to regulate all “activities affecting
interstate commerce,” and a statute doing so may apply in a case even where no “actual
interstate effect is shown.” Id. at 591 (citing Perez v. United States,
McLean first contends that this precedent was “called into doubt” by an
intervening decision, United States v. Manzo,
In National Federation of Independent Business v. Sebelius, the Supreme Court
held that the Affordable Care Act’s requirement that individuals purchase health
insurance or suffer a penalty was not a valid exercise of Congress’s Commerce power.
This argument does not follow from the Supreme Court’s holding. NFIB
concerned Congress’ authority to compel commercial activity, not its ability to proscribe
attempted or planned criminal activity. That the Government fabricates a crime in a
reverse sting operation does not alter the fact that a defendant participant, of his own
volition, contemplates and takes affirmative acts toward conduct which, if carried out as
envisioned, would affect or potentially affect interstate commerce. The Supreme Court
has not displaced the long-held rule that this contemplated effect on commerce is
*13
sufficient to sustain federal jurisdiction. See, e.g., Jannotti,
At trial, a Government expert testified that cocaine originates from outside of
Pennsylvania, and that the theft of eight to nine kilograms of the drug would affect the
drug market. This evidence showed that if McLean were successful in his plan he would
have affected interstate commerce. Thus, the jurisdictional element was satisfied. Manzo,
C.
*14
McLean contends that his conviction under § 924(c) must be vacated because two
of the possible predicate offenses — Hobbs Act robbery and conspiracy — do not qualify
as crimes of violence.
[15]
We review this question de novo, United States v. Singletary,
Section 924(c) prohibits, inter alia, carrying a firearm “during and in relation to any crime of violence or drug trafficking crime.” Relevant here, a “crime of violence” is 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). [16] This describes McLean’s Hobbs Acts convictions.
Our conclusion rests squarely on United States v. Robinson,
*15 Hobbs Act robbery is not a “crime of violence” as required for his conviction under § 924(c). We disagreed, holding that because the defendant’s contemporaneous convictions — for robbery, and for using a gun in furtherance of it — “necessarily support the determination that the predicate offense was committed with the ‘use, attempted use, or threatened use of physical force,’” the predicate offense constituted a crime of violence for purposes of § 924(c). Id. at 143.
In other words, we may look to the contemporaneous convictions of the predicate
crime and of § 924(c) to determine if the facts underlying the § 924(c) conviction render
the commission of the predicate crime a “crime of violence.” See United States v. Galati,
McLean was charged with conspiring to “take . . . cocaine . . . by means of actual or threatened force, violence, or fear of injury . . . ,” App. 24, and attempting to take cocaine “by using a loaded firearm to threaten and control the victims and steal cocaine from them,” App. 28. McLean was also charged with carrying a loaded firearm “during and in relation to a crime of violence . . . .” App. 31. The indictment specifies that McLean “brought [a gun] . . . loaded with four live rounds of ammunition, with him, to use during the robbery.” App. 27. The jury found him guilty on all counts.
Although McLean did not ultimately use his firearm, the jury’s contemporaneous
findings of guilt recognized that the loaded guns featured prominently in McLean’s plan
*16
for the unrealized robbery. As in Robinson, “the combined convictions before us make
clear that the ‘actual or threatened force, or violence, or fear of injury’ in [McLean]’s
Hobbs Act robbery sprang from the barrel of a gun.”
III.
We have considered McLean’s remaining arguments and conclude that they are without merit. For the foregoing reasons, we will affirm the judgment of conviction.
Notes
[1] We write solely for the benefit of the parties and recount only those facts necessary to our disposition.
[2] The CI had contacted McLean at least six times between June 16 and 18, but did not inform the ATF of these communications. All subsequent meetings and communications with McLean were recorded.
[3] The Government claims that if McLean declined to meet with the CI, the ATF would have terminated the investigation.
[4] At the time, eight to nine bricks of cocaine were valued at approximately $320,000.
[5] Edwards testified that his description of the heavily-armed guards was meant to “dissuade anyone who would not be inclined to commit this type of robbery from doing so.” App. 135.
[6] Edwards testified that the ATF would not have arrested McLean or Winston if they decided to abandon the plan at this point.
[7] The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
[8] McLean also argues that his conviction under 18 U.S.C. § 922(g)(1) must be
vacated because the Commerce Clause does not authorize Congress to criminalize the
simple intrastate possession of a firearm. As McLean himself admits, we have
determined otherwise. United States v. Singletary,
[9] In Wright, we noted the lack of “any case in which the defense of entrapment
was successful where the defendant had not indicated reluctance to engage in criminal
activity.”
[10] Unlike McLean, we do not regard his post-inducement conduct as irrelevant to
the predisposition analysis. McLean cites a sister court which held that “active
engagement in the scheme after the government’s extended efforts to procure his
participation has limited bearing on his [initial] predisposition,” United States v.
Mayfield,
[11] See also, e.g., United States v. Walker,
[12] McLean contends that Manzo is relevant because in it we intimated that the defense of legal impossibility may be available for certain Hobbs Act violations. 636 F.3d 65, 67 n.10 (3d Cir. 2011). He does not argue why that defense applies here, however, and so the argument is forfeited.
[13] Although this Court must usually rule en banc to overturn a precedential
decision, we may “reevaluate the holding of a prior panel which conflicts with
intervening Supreme Court precedent.” In re Krebs,
[14] McLean argues that entirely fictitious stings cannot yield Hobbs Acts convictions because “there is no possibility at all, neither remote, potential, nor de minimis, of any effect on interstate commerce.” McLean Br. 29. However, “factual impossibility . . . is not a defense to a charge of conspiracy or attempt.” Manzo, 636 F.3d at 66 (citation omitted). The Supreme Court has not held otherwise, and so our precedent stands.
[15] McLean does not dispute that his drug possession convictions qualify as predicate offenses under § 924(c). Rather, he argues that his robbery convictions do not, and because it is unclear on which of the predicate offenses the jury relied in convicting him, the conviction must be set aside. Because we find that his robbery convictions suffice as predicate offenses, we need not reach this argument.
[16] The statute also defines “crime of violence” as a felony “that by its nature,
involves a substantial risk that physical force against the person or property of another
may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B).
McLean argues that, in light of the Supreme Court’s decision in Johnson v. United States,
[17] The various scenarios McLean posits in which robbery could occur absent
physical force are inapposite here. See United States v. Galati,