USA v. Marcus Walker
Oрinions of the United States Court of Appeals for the Third Circuit
3-5-2021
2021 Decisions. 222.
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2021
Recommended Citation “USA v. Marcus Walker” (2021). 2021 Decisions. 222. https://digitalcommons.law.villanova.edu/thirdcircuit_2021/222
This March is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2021 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository.
Opinions of the United
States Court of Appeals
for the Third Circuit
3-5-2021
USA v. Marcus Walker
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2021
Recommended Citation
“USA v. Marcus Walker” (2021). 2021 Decisions. 222.
https://digitalcommons.law.villanova.edu/thirdcircuit_2021/222
This March is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2021 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-4062
_____________
UNITED STATES OF AMERICA
v.
MARCUS WALKER,
Appellant
_______________
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.
(Filed: March 5, 2021)
_______________
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 COURT
_______________
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
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
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 pleaded guilty to various counts, and Walker alone went to trial.
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
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
As already noted, we had issued a nonprecedential opinion affirming the District Court’s judgment and the sentence it imposed, but following the Suprеme 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
B. Agent Henning’s Testimony
Walker next argues that the District Court committed plain error by permitting Henning to testify about the phone records and CSLI because that testimony was based on a report Henning did not create and therefore the testimony violated Walker’s Confrontation Clause rights under the Sixth Amendment. Walker also argues that Henning improperly vouched for the testimony of the cooperating witnesses.
The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him[.]”
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
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
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“).
Walker next argues that, after the Supreme Court’s decision in Davis, attempted Hobbs Act robbery cannot serve as a valid predicate crime of violence under the elements clause of
Prior to Davis, there were two statutory avenues available for determining an offense to be a crime of violence under
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 whethеr 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
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.
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
Therefore, consistent with the reasoning in the concurrence in Robinson and with the position taken by our
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 commissiоn of the crime.” United States v. Tykarsky, 446 F.3d 458, 469 (3d Cir. 2006) (citation omitted). The elements clause of
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 сrime 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
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 that, when a substantive offense would be a crime of violence under
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 in an effort 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 physicаl force. Rather, the defendant has merely attempted to threaten to use physical
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.” (Id. at 3.) Finally, he argues that attempted Hobbs Act robbery cannot categorically be a crime of violеnce because a person can be convicted of Hobbs Act robbery based on an empty threat of force. It is possible, he says, for a person “with no intention of using ‘actual’ force” to be convicted of attempted Hobbs Act robbery. (Id. at 4.)
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 phrаse “has as an element the … attempted use … of physical force” to capture attempt offenses because the word “attempt”
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
Our own prior interpretations of congressional intent further support the conclusion that attempted crimes of violence qualify as crimes of violence themselves. Section
imprisonment for not more than twenty years, or both.“). Reading “attempted use” to capture attempt offenses is thus consistent with broader federal treatment of attempt offenses.
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
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 (emрhasis 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.” (Id. (emphasis added); Appellant Sept. 2019 Suppl. Ltr. at 5.)
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.
that a conspiracy crime is not a proper 924(c) predicate under the elements clause.“) (quoting Appellee Sept. 2019 Suppl. Ltr. at 2 (emphasis added)).
For the foregoing reasons, we will affirm the District Court’s judgment and sentence.