UNITED STATES OF AMERICA v. MARCUS WALKER
No. 15-4062
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 5, 2021
PRECEDENTIAL. On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-13-cr-00391-002). District Judge: Hon. Legrome D. Davis. ARGUED October 5, 2020.
Before: JORDAN, KRAUSE, and ROTH, Circuit Judges.
Linda D. Hoffa [ARGUED]
Dilworth Paxson
1500 Market Street - Suite 3500E
Philadelphia, PA 19102
Counsel for Appellant
Bernadette A. McKeon
Yvonne O. Osirim
Virginia P. Pratter
Robert A. Zauzmer [ARGUED]
Office of United States Attorney
615 Chestnut Street - Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE
JORDAN, Circuit Judge.
Does an attempt to commit a crime of violence categorically qualify as a crime of violence itself? That is the question we must answer in applying
Appellant Marcus Walker challenges his conviction under
In light of Davis, the most significant questions remaining before us are whether attempted Hobbs Act robbery is categorically a crime of violence under the remaining definition, the so-called “elements” clause of
I. BACKGROUND
This case stems from a robbery in which Walker acted as the lookout.1 While he waited in a car, two of his accomplices robbed a house, one holding a 12-year-old boy at gunpoint. All of Walker‘s codefendants
At trial, the government presented testimony from three cooperating individuals who were involved in or knew about the robbery, as well as from Agent Patrick Henning, the lead investigator on the case. In addition to testifying about proffer sessions he had with two of the cooperating witnesses, Henning spoke at length about cell phone records and cell site location information (“CSLI“) associated with cell phones used in furtherance of the crimes.2
With respect to the cell phone records, Henning testified that an analyst extracted data from cell phones seized from two of the cooperators, which yielded contact lists, call records, and text messages. In addition, the government obtained through
subpoena “call detail records” from the phone companies for those same phones, which included “pages and pages of phone records that list, with timestamps, calls that are made in sequential order[,]” as well as subscriber information. (App. at 686.) From this information, Henning and an analyst organized certain data into slides depicting phone contacts between codefendants during the relevant time frame.
The CSLI evidence was obtained pursuant to a court order, issued under the Stored Communications Act,
transposing [onto a map] the latitude and longitude” of a cell phone tower to which a phone had connected - information provided by the phone companies - did not require expert analysis, and the District Court allowed Henning to proceed. (App. at 710-11.) Henning went on to explain how the CSLI placed Walker and an accomplice in locations that were consistent with their involvement in the robbery.
The jury convicted Walker on all three counts, those counts being, again, conspiracy to commit Hobbs Act robbery in violation of
Walker timely appealed, arguing that the District Court erred in four ways: (1) admitting CSLI obtained without a search warrant as required by Carpenter v. United States, 138 S. Ct. 2206 (2018); (2) permitting Agent Henning to vouch for cooperating witnesses’ testimony and to violate the Sixth Amendment right to confrontation by testifying to information in a report Henning did not create; (3) allowing conviction on the
or conspiracy to commit robbery as the predicate crime of violence.
As already noted, we had issued a nonprecedential opinion affirming the District Court‘s judgment and the sentence it imposed, but following the Supreme Court‘s decision in Davis, Walker filed a petition for panel rehearing or for rehearing en banc. He argued that Davis abrogates United States v. Robinson, 844 F.3d 137 (3d Cir. 2016), a case we had relied upon in denying him relief in the earlier appeal of his
II. DISCUSSION5
A. Admissibility of the CSLI
We first consider the arguments related to CSLI. Walker‘s primary argument begins with the Supreme Court‘s decision in Carpenter v. United States. In Carpenter, the Court
held that compliance with the Stored Communications Act alone is not sufficient to legally access historical cell-site records because the showing required of the government by the Stored Communications Act “falls well short of the probable cause required for a warrant.” 138 S. Ct. at 2221. According to Walker, the District Court thus plainly erred when it allowed the government to introduce CSLI obtained without a warrant. Although it is now true that law enforcement must generally secure a search warrant based on probable cause to obtain CSLI, see id., Walker‘s argument is foreclosed by our decision in United States v. Goldstein, which holds that the exclusionary rule does not apply when the government “had an objectively reasonable good faith belief that its conduct was legal when it acquired [the] CSLI.” 914 F.3d 200, 202 (3d Cir. 2019). As in Goldstein, the agents here obtained the CSLI evidence in good faith reliance on a then-valid judicial order, a then-valid statute, and then-binding appellate authority. See id. at 204. The District Court, therefore, did not commit any error, much less plain error, by admitting the CSLI into evidence.
B. Agent Henning‘s Testimony
Walker next argues that the District Court committed plain error by permitting
The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]”
statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
Although Walker asserts that Henning was testifying about what another investigator did, it is at least arguable that he was speaking about his own work. The record contains evidence that Henning personally reviewed the data at issue, even though he worked “[i]n conjunction with an analyst.” (App. at 695.)6 Thus, it appears that Henning had an independent basis on which to testify about both the phone
records and the CSLI.7 Cf. Bullcoming v. New Mexico, 564 U.S. 647, 662 (2011) (finding relevant to its conclusion that a Confrontation-Clause violation occurred that the State did not contend that the testifying analyst - who did not perform the lab test at issue - had an “independent opinion” concerning the test results (citation omitted)).
Assuming, however, that there was some Confrontation-Clause error in permitting Henning‘s testimony about those matters, it was not plain. There is no consensus concerning the proper bounds of the Confrontation Clause when multiple people collaborate to make a testimonial statement.8 What little law there is supports the government‘s contention that the testimony Henning proffered was permissible. See Bullcoming, 564 U.S. at 672-73 (Sotomayor, J., concurring in part) (noting that it was “not a case in which the person testifying [was] a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the
[testimonial statement] at issue“); Grim v. Fisher, 816 F.3d 296, 307 (5th Cir. 2016)
Walker‘s vouching argument also fails. Vouching occurs when a prosecutor, or testimony elicited by a prosecutor, (1) “assure[s] the jury that the testimony of a Government witness is credible, and (2) this assurance [is] based on either the prosecutor‘s personal knowledge, or other information not contained in the record.” United States v. Berrios, 676 F.3d 118, 133-34 (3d Cir. 2012) (citation and internal quotation marks omitted). Bolstering witness testimony in that way is forbidden, id., and would be a problem here if Henning‘s testimony did what Walker claims. But it did not.
There is no sensible vouching challenge to be made because Henning‘s testimony did not “invite[] a plausible jury inference of extra-record proof of reliability[.]” United States v. Milan, 304 F.3d 273, 290 (3d Cir. 2002). After the cooperators themselves had testified and been cross-examined about their version of the events, Henning testified about his interviews with them and the cell phone data that he analyzed, confirming that the cell phone data was “consistent with [his] investigation[,]” that is, consistent with what the jury heard about the various locations related to the robbery. (App. at 731-32.) Because Henning‘s testimony cannot fairly be interpreted as improperly bolstering the credibility of the cooperators through information not in the record, Walker‘s vouching argument fails. See Milan, 304 F.3d at 290 (finding no plain error where the defendant failed “to show that the prosecutors referred to facts not adduced at trial or offered personal opinions to bolster the integrity and believability of their witnesses“).
C. Attempted Hobbs Act Robbery as Predicate for § 924(c) Conviction10
Walker next argues that, after the Supreme Court‘s decision in Davis, attempted
Prior to Davis, there were two statutory avenues available for determining an offense to be a crime of violence under
vague. Davis, 139 S. Ct. at 2336. Accordingly, an offense is now a “crime of violence” within the meaning of the statute only if it meets the definition contained in the elements clause,
The Supreme Court in Davis also indicated that the categorical approach is to be used when deciding whether a conviction is a crime of violence under the elements clause. Davis, 139 S. Ct. at 2328. We accordingly must ask whether the minimum conduct punishable as attempted Hobbs Act robbery qualifies as a crime of violence. See Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013) (explaining that, under the categorical approach, we “presume that the conviction rested upon nothing more than the least of the act criminalized, and then determine whether even those acts are encompassed by the generic federal [definition of
Our sister courts of appeals are split on the answer to that question. The Fifth, Seventh, Ninth, and Eleventh Circuits have all held that attempted Hobbs Act robbery is categorically a crime of violence under the elements clause of
accomplish that COV, is in and of itself a COV under the elements clause.“). The Fourth Circuit disagreed, however, and recently adopted the position expressed in some dissenting opinions from those other courts, holding that attempted Hobbs Act robbery is not categorically a crime of violence. United States v. Taylor, 979 F.3d 203, 209-10 (4th Cir. 2020); see also United States v. Tucker, No. 18-0119, 2020 WL 93951, at *6 (E.D.N.Y. Jan. 8, 2020) (“[T]his Court concurs with [dissenting] judges of the 11th Circuit that, ‘it is incorrect to say that a person necessarily attempts to use physical force within the meaning of 924(c)‘s elements clause just because he attempts a crime that, if completed would be violent.‘”
1. Completed Hobbs Act Robbery
Our reasoning begins with a consideration of whether Hobbs Act robbery as a completed act, rather than an attempt, is categorically a crime of violence. The Hobbs Act defines “robbery” as:
the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
The concurrence further noted that “Congress specifically singled out the federal bank robbery statute as a crime that is the prototypical ‘crime of violence’ captured by Section 924(c). Yet, the federal bank robbery statute,
That analysis is thoroughly persuasive, but Walker disputes it. He argues that Hobbs Act robbery cannot be a crime of violence because it can be completed by taking money from a victim “through fear of injury to the victim‘s intangible property” without the use or threatened use of force. (Appellant Dec. 2020 Suppl. Ltr. at 3.) Not so.
The history of the Hobbs Act makes clear that a physical act is a key component of Hobbs Act robbery. We long ago explained why in United States v. Nedley, 255 F.2d 350 (3d Cir. 1958). During the promulgation of the Hobbs Act, Representative Sam Hobbs of Alabama and several other members of Congress confirmed that the terms “robbery” and “extortion” in the Act were based on the then-existing New York penal laws, which defined robbery consistently with the common law definition of that crime. Id. at 355-56. “The legislative debates are replete with statements that the conduct punishable under the Hobbs Act was already punishable under state robbery and extortion statutes.” United States v. Culbert, 435 U.S. 371, 379 (1978) (citations omitted). And because “[r]obbery, at common law, is the felonious and forcible taking from the person of another of goods or money to any value by
violence or putting him in fear[,]” Nedley, 255 F.2d at 356 (citation and internal quotation marks omitted), it follows that a non-forcible taking based on fear of injury to intangible property would not be sufficient to satisfy the force requirement of Hobbs Act robbery, since Hobbs Act robbery is simply a common law robbery that affects interstate commerce.12
Therefore, consistent with the reasoning in the concurrence in Robinson and with the position taken by our
sister circuits, we conclude that completed Hobbs Act robbery necessarily has as an element the use, attempted use, or threatened use of physical force against the person or property of another and is therefore categorically a crime of violence.
2. Attempted Hobbs Act Robbery
With that in mind, we turn to a consideration of attempted Hobbs Act robbery and note at the outset the general definition of attempt offenses. “[A]n attempt conviction requires evidence that a defendant (1) acted with the requisite intent to violate the statute, and (2) performed an act that, under the circumstances as he believes them to be, constitutes a substantial step in the commission of the crime.” United States v. Tykarsky, 446 F.3d 458, 469 (3d Cir. 2006) (citation omitted). The elements clause of
explain our own reasoning, we first lay out the competing arguments from other courts.
The view that attempted Hobbs Act robbery is categorically a crime of violence begins with the Seventh Circuit‘s decision in Hill v. United States, 877 F.3d 717, 719 (7th Cir. 2017), cert. denied, 139 S. Ct. 352 (2018). The court in Hill considered whether a defendant‘s conviction for attempted murder qualified as a violent felony under the Armed Career Criminal Act (“ACCA“). Id. at 718. Similar to
The defendant in Hill argued that, because an attempt crime under Illinois law consists of setting out to commit a crime and taking a substantial step toward accomplishing that end, it is possible to attempt murder without using, attempting, or threatening physical force. Id. at 719. One might, for example, draw up assassination plans and buy a gun without any actual use, attempted use, or threatened use of physical force. The Seventh Circuit rejected that argument, holding that, “[w]hen a substantive offense would be a violent felony under [the ACCA] and similar statutes, an attempt to commit that offense also is a violent felony.” Id.. The court declared that “an attempt to commit a crime should be treated as an attempt to commit every element of that crime[.]” Id. Later, in United States v. Ingram, the Seventh Circuit applied the holding from Hill to conclude that attempted Hobbs Act robbery is, for purposes of
In the meantime, the Eleventh Circuit also applied the reasoning from Hill to a
When the Eleventh Circuit denied rehearing en banc in St. Hubert, a dissent challenged the reasoning adopted from Hill. United States v. St. Hubert, 918 F.3d 1174, 1210 (11th Cir. 2019) (Pryor, Jill, J. joined by Wilson and Martin, JJ., dissenting) (hereinafter ”St. Hubert II“). That dissent rejected the conclusion that an attempt to commit a crime should be treated as an attempt to commit every element of that crime, saying instead that “[i]ntending to commit each element of a crime involving the use of force simply is not the same as attempting to commit each element of that crime.” Id. at 1212. According to the dissent, it is incorrect to say that a person necessarily attempts to use physical force within the meaning of
The Ninth Circuit soon thereafter in United States v. Dominguez sided with the Seventh and Eleventh Circuits in holding
“explicitly includes as crimes of violence offenses that have as an element the ‘attempted use’ or ‘threatened use’ of force. In order to be guilty of attempt, a defendant must intend to commit every element of the completed crime. An attempt to commit a crime should therefore be treated as an attempt to commit every element of that crime.” Id. (citations omitted).13 The Fifth Circuit also agreed, adopting the same reasoning in United States v. Smith and holding that a predicate attempt offense that includes the specific intention to commit a crime of violence and a substantial step to bring about or accomplish that crime of violence, “is in and of itself a [crime of violence] under the elements clause.” 957 F.3d at 596.
Finally, and most recently, the Fourth Circuit split from the consensus and adopted the dissenting view, holding that “[w]here a defendant takes a nonviolent substantial step toward threatening to use physical force ... the defendant has not used, attempted to use, or threatened to use physical force. Rather, the defendant has merely attempted to threaten to use physical
force. The plain text of
In the present case, Walker of course urges us to reject the reasoning of the Fifth, Seventh, Ninth, and Eleventh Circuits and instead adopt the approach taken by the Fourth Circuit. Specifically, he argues that attempted Hobbs Act robbery is not a crime of violence because “it does not categorically require the attempted use of physical force - much less the use or threatened use of physical force - against the person or property of another.” (Appellant Sept. 2019 Suppl. Ltr. at 2.) Quoting the dissent in St. Hubert II, he says that “[i]ntending to commit each element of a crime involving the use of force simply is not the same as attempting to commit each element of that crime.” (
Although it is true that an intent to act is not the equivalent of an attempt to act, we nevertheless are unpersuaded by Walker‘s arguments and instead agree with the majority of courts of appeals that
Beginning with the language of the statute, we read the phrase “has as an element the ... attempted use ... of physical force” to capture attempt offenses
is a term of art in criminal law that attaches liability to an incomplete crime when “the perpetrator not only intended to commit the completed offense, but also performed .... an ‘overt act’ that constitutes a ‘substantial step’ toward completing the offense.” United States v. Resendiz-Ponce, 549 U.S. 102, 106-07 (2007) (citations omitted). The word is not used in the general sense of something unsuccessfully tried. To hold that attempt crimes are beyond the reach of
attempt crime need not specifically allege a particular overt act because “we think that the ‘substantial step’ requirement is implicit in the word ‘attempt‘“); Sullivan v. Stroop, 496 U.S. 478, 483 (1990) (“But where a phrase in a statute appears to have become a term of art ... any attempt to break down the term into its constituent words is not apt to illuminate its meaning.“); cf. United States v. Nasir, 982 F.3d 144, 159 (3d Cir. 2020) (en banc) (noting that the similar definition of crime of violence under the United States Sentencing Guidelines
The manner in which federal attempt crimes are typically defined further supports that reading. Rather than rely on a general statute outlawing all attempts to violate federal criminal law, Congress has chosen to interweave prohibitions on attempted crimes within the statutes defining the underlying substantive offenses.15 In those statutes, it is
clear that the words “attempts to” authorize the prosecution of attempt offenses. We similarly read the words “attempted use” in the elements clause of
Our own prior interpretations of congressional intent further support the conclusion that attempted crimes of violence qualify as crimes of violence themselves. Section 924(c) assures additional punishment for those who create heightened risk or cause additional harm through the possession or use of a firearm in connection with a crime of violence or a drug trafficking offense. We have recognized that “Congress‘s ‘overriding purpose’ in passing Section 924(c) ‘was to combat the increasing use of guns to commit federal felonies.’ ... The chief sponsor of this provision explained that ‘the provision seeks to persuade the man who is tempted to commit a Federal felony to leave his gun at home.‘” United States v. Walker, 473 F.3d 71, 78 (3d Cir. 2007) (emphasis added) (quoting Simpson v. United States, 435 U.S. 6, 10 (1978); Muscarello v. United States, 524 U.S. 125, 132 (1998)).
It seems abundantly clear that, by adding “attempted use” to the elements clause, Congress was not inviting us to engage in the casuistry so often associated with the categorical approach and to thereby read those same words out of the statute. The elected lawmakers wanted to categorically include attempt crimes in the statutory definition, and they said so plainly. Cf. Quarles v. United States, 139 S. Ct. 1872, 1879 (2019) (Cautioning that in the application of the categorical approach, statutes should not be interpreted in a manner that would eliminate most crimes of the same type from the generic definition selected by Congress because doing so “not only would defy common sense, but also would defeat Congress‘[s] stated objective of imposing enhanced punishment .... We should not lightly conclude that Congress enacted a self-defeating statute.“). We thus follow the majority rule that attempted Hobbs Act robbery is categorically a crime of violence under
D. Jury Instructions
Although not affected by the Supreme Court‘s Davis decision, Walker also renews his argument that the jury instructions in this case were insufficient because they leave open to doubt whether his
however, because the instructions made it sufficiently clear that the attempt was the predicate offense.
The jury was instructed that, to convict Walker on the
that the conspirator or the accomplice committed the crime of attempted interference with interstate commerce by robbery. So you would have to find ...
that during and in relation to the commission of that attempted Hobbs Act robbery, the Defendant or one of his accomplices or conspirators knowingly used or carried a firearm.
(App. at 885 (emphasis added).) Although the word “attempt” was repeatedly used in the instruction and the predicate crime was expressly identified as “attempted Hobbs Act robbery,” Walker says the District Court erred in telling the jury that a conviction could be sustained if the “[d]efendant or one of his accomplices or conspirators knowingly used or carried a firearm.” (
We remain unpersuaded. As the government points out, nothing in Davis affects our earlier case-specific conclusion that the District Court was clear enough when it instructed the jury on the attempt charge. That suffices for affirmance.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court‘s judgment and sentence.