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No. 07-741

 

In the Supreme Court of the United States

DAVID A. TURNER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
JOSEPH C. WYDERKO
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

 

 

QUESTION PRESENTED

Whether a conspiracy to commit robbery in violation of the Hobbs Act, 18 U.S.C. 1951, is a "crime of violence" under 18 U.S.C. 924(c).

 

 

 

In the Supreme Court of the United States

No. 07-741

DAVID A. TURNER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-27a) is reported at 501 F.3d 59.

JURISDICTION

The judgment of the court of appeals was entered on August 31, 2007. The petition for a writ of certiorari was filed on November 29, 2007. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the District of Massachusetts, petitioner was convicted of conspiracy to affect commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. 1951 (Count 1); attempt to affect commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. 1951 (Count 2); carrying a destructive device during and in relation to a crime of vio lence, in violation of 18 U.S.C. 924(c) (Count 3); carrying firearms during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c) (Count 4); possession of a destructive device by a convicted felon, in violation of 18 U.S.C. 922(g)(1) (Count 5); and possession of firearms by a convicted felon, in violation of 18 U.S.C. 922(g)(1) (Count 6). Pet. App. 7a; Judgment 1; Gov't C.A. Br. 3-4. He was sentenced to 460 months of imprisonment, to be followed by three years of supervised release. Judg ment 2-3.

1. In October 1997, an informant, Anthony Romano, alerted FBI agents that Carmello Merlino, his employer at TRC Auto-Electric, had suggested robbing the Loomis Fargo armored car facility in Easton, Massachu setts. Over the course of the following year, Romano continued to inform the agents about conversations with Merlino about plans for the robbery and reported that Merlino had asked him to recruit an insider to provide information about the Loomis Fargo facility. With Ro mano's cooperation, the FBI agents arranged a sting operation using an FBI agent as the insider. Pet. App. 2a-4a ; Gov't C.A. Br. 4-6.

Beginning in November 1998, Romano recorded nu merous conversations with Merlino discussing the de tails of the robbery plan. Pet. App. 3a-4a; Gov't C.A. Br. 5-6. Merlino and Romano discussed possible accompli ces for the robbery, and Merlino recommended peti tioner, as well as Stephen Rosetti. Pet. App. 4a; Gov't C.A. Br. 6-8. In January 1999, petitioner attended two meetings with Merlino and Rosetti at which they exten sively discussed the details of their plan for the robbery, including their intention to bring guns and grenades. Pet. App. 4a; Gov't C.A. Br. 7-8. Petitioner told the oth ers that they would "have it out" with the police if the police tried to stop them. Id. at 8.

On February 7, 1999, petitioner and his co-conspira tors assembled at TRC to carry out the robbery plan. When petitioner and Rosetti approached TRC in Roset ti's car, Rosetti and petitioner drove around the area in a counter-surveillance pattern, then drove to a nearby condominium complex where petitioner's vehicle was parked. They unloaded several large duffle bags into petitioner's vehicle before driving back to TRC in Roset ti's car. After a brief chase, Rosetti and petitioner were arrested. The duffle bags in petitioner's vehicle con tained a grenade, several semi-automatic handguns and an assault rifle, bullet proof vests, masks, and other equipment. Pet. App. 5a-6a; Gov't C.A. Br. 8; Indict ment Count I, ¶¶ 7-8, Count IV.

2. Petitioner was charged with, inter alia, violating 18 U.S.C. 924(c) by carrying firearms, including a de structive device (namely, the grenade), "during and in relation to," and possessing firearms "in furtherance of," a "crime of violence," namely, a conspiracy to affect commerce by robbery in violation of the Hobbs Act. Section 924(c) defines the term "crime of violence" as "an offense that is a felony" and:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) 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).

At trial, petitioner moved for judgments of acquittal on the Section 924(c) counts on the ground that conspir acy to commit a robbery in violation of the Hobbs Act is not a "crime of violence" within the meaning of Section 924(c)(3). The district court denied the motion. Gov't C.A. Br. 12-13. The jury found petitioner guilty on all counts. Pet. App. 7a.

The district court imposed a 30-year sentence on the Section 924(c) count that related to petitioner's carrying and possession of a "destructive device"-namely, a gre nade. Judgment 2; see 18 U.S.C. 924(c)(1)(B)(ii) (pre scribing 30-year mandatory minimum if firearm is a "destructive device"); 18 U.S.C. 921(a)(4)(A)(ii) (defining the term "destructive device" to include a grenade). The court imposed a concurrent five-year sentence on the Section 924(c) count that related to petitioner's carrying and possession of handguns and a rifle. Judgment 2. Finally, the court imposed concurrent sentences of 100 months on each of the remaining counts, to be served consecutively to the 30-year sentence on the Section 924(c) counts. Ibid. In total, petitioner was sentenced to 460 months of imprisonment, to be followed by three years of supervised release. Id. at 2-3.

3. The court of appeals affirmed. Pet. App. 1a-27a. The court rejected petitioner's claim that a Hobbs Act robbery conspiracy cannot serve as a predicate "crime of violence" under Section 924(c)(1) because an overt act is not an element of such a conspiracy. Id. at 9a-12a. First, the court noted that "[t]he overwhelming weight of authority holds that a Hobbs Act conspiracy is a 'crime of violence' for purposes of Section 924(c)." Id. at 10a (citing cases). The court further noted circuit prece dent holding that a conspiracy to commit a "crime of vio lence" is itself a "crime of violence" under the Bail Re form Act of 1984, 18 U.S.C. 3141 et seq., which contains a similar definition of the term. Pet. App. 10a-11a (cit ing United States v. Mitchell, 23 F.3d 1 (1st Cir. 1994) (per curiam)); see 18 U.S.C. 3156(a)(4). The court con cluded that the absence of an overt-act requirement does not change that analysis; in all cases, "the object of the conspiracy is the critical determinant of its nature." Pet. App. 11a.

The court of appeals rejected petitioner's argument that this authority was undermined by this Court's deci sion in Leocal v. Ashcroft, 543 U.S. 1 (2004), which held that the Florida offense of driving while intoxicated that causes serious bodily injury to another was not a "crime of violence" within the meaning of 18 U.S.C. 16, a statute that contains a definition of the term similar to the Sec tion 924(c)(3) definition. Pet. App. 11a. The court noted that "the Court's rationale was that the Florida statute criminalized conduct that was merely accidental or neg ligent and thus not inherently 'violent,'" and that "[t]his is not the case with a Hobbs Act violation." Ibid. (citing Leocal, 543 U.S. at 8-10). The Court also noted that Leocal did not deal with inchoate offenses, and "thus has not undermined the conclusion that a conspiracy may qualify as a crime of violence." Ibid.

Finally, the court of appeals noted that, in United States v. King, 979 F.2d 801 (1992), the Tenth Circuit held that the crime of conspiracy under New Mexico law was not a "violent felony" for purposes of the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e), where the conspiracy offense did not require proof of an overt act in furtherance of a particular underlying sub stantive offense. Pet. App. 12a; see King, 979 F.2d at 802. The court declined to follow King because it "does not consider the importance of the object of the conspir acy, which under our case law is a critical inquiry." Pet. App. 12a.

ARGUMENT

Petitioner renews his contention (Pet. 5-15) that a Hobbs Act conspiracy to affect commerce by robbery under 18 U.S.C. 1951 does not qualify as a "crime of vio lence" under 18 U.S.C. 924(c). The court of appeals cor rectly rejected that contention, and further review is unwarranted.

1. The court of appeals in this case correctly con cluded that a conspiracy to commit a robbery in violation of the Hobbs Act qualifies as a "crime of violence" for purposes of Section 924(c).

a. The Hobbs Act prescribes criminal penalties for "[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or com modity in commerce, by robbery[,] * * * or attempts or conspires so to do." 18 U.S.C. 1951(a). The Hobbs Act defines "robbery" as the unlawful taking or obtaining of personal property from a person 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 anyone in his company at the time of the taking or obtaining.

18 U.S.C. 1951(b)(1). Thus, a Hobbs Act robbery con spiracy is "by definition a conspiracy that involves a sub stantial risk that physical force may be used against the person or property of another" and therefore qualifies as a "crime of violence" under 18 U.S.C. 924(c)(3)(B). United States v. Elder, 88 F.3d 127, 129 (2d Cir. 1996) (per curiam); accord United States v. Taylor, 176 F.3d 331, 337-338 (6th Cir. 1999); United States v. Phan, 121 F.3d 149, 152-153 & n.7 (4th Cir. 1997), cert. denied, 522 U.S. 1109 (1998); United States v. Mendez, 992 F.2d 1488, 1491-1492 (9th Cir.), cert. denied, 510 U.S. 896 (1993).

b. Petitioner contends (Pet. 8-9, 11-15) that the court of appeals "erred in considering the object of the con spiracy to conclude that a Hobbs Act conspiracy consti tutes a crime of violence," for four reasons: (1) because the conspiracy may be abandoned; (2) because a prose cution for conspiracy under the Hobbs Act requires no proof of an overt act that would tie the conspiracy to the underlying substantive offense; (3) because there is no risk that force will be used "in the course of committing" a Hobbs Act robbery conspiracy, 18 U.S.C. 924(c)(3)(B); and (4) because the conduct encompassed by the ele ments of Hobbs Act conspiracy does not categorically present a substantial risk that physical force will be used. Each of these contentions lacks merit.

First, although it is possible that a conspiracy may be abandoned before its object has been achieved, the of fense of conspiracy is, by its nature, substantially likely to lead to commission of a substantive criminal offense. Conspiracy is a criminal offense precisely because "[c]oncerted action both increases the likelihood that the criminal object will be successfully attained and de creases the probability that the individuals involved will depart from their path of criminality." Callanan v. United States, 364 U.S. 587, 593 (1961); accord United States v. Jimenez Recio, 537 U.S. 270, 275 (2003). When the object of the conspiracy involves the use of "actual or threatened force, of violence, or fear of injury," as under the Hobbs Act, 18 U.S.C. 1951(b)(1), the conspir acy itself creates "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).

Second, that the Hobbs Act does not contain an overt act requirement does not mean, as petitioner suggests, that "there is no basis to consider the underlying sub stantive offense to determine if a substantial risk exists that force will be used in committing the conspiracy of fense." Pet. 12; see also ibid. (citing United States v. Brown, 200 F.3d 700 (10th Cir. 1999), cert. denied, 528 U.S. 1178, and 529 U.S. 1081 (2000)). A prosecution un der the Hobbs Act for conspiracy to commit robbery necessarily "invites consideration of the underlying sub stantive offense," Brown, 200 F.3d at 706, because the conspiracy is defined by its object: "the unlawful taking or obtaining of personal property * * * by means of actual or threatened force, or violence, or fear of injury." 18 U.S.C. 1951(a) and (b)(1).

Third, contrary to petitioner's argument (Pet. 13-14), conspiracy to commit robbery in violation of the Hobbs Act involves a substantial risk that physical force may be used "in the course of committing the offense." 18 U.S.C. 924(c)(3)(B). The crime of conspiracy does not end when an unlawful agreement is reached. Rather, conspiracy is a continuing offense that does not termi nate until it has succeeded or the conspiracy has been abandoned. United States v. Kissel, 218 U.S. 601, 608 (1910); see Pinkerton v. United States, 328 U.S. 640, 646 (1946) (citing Hyde v. United States, 225 U.S. 347, 369 (1912)). There is thus a substantial risk that physical force may be used "in the course of committing the of fense" of conspiring to take the personal property of another by force, violence, or fear of injury.

Finally, as petitioner notes (Pet. 14), whether a Hobbs Act robbery conspiracy is a "crime of violence" under Section 924(c)(3)(B) must be determined as a cat egorical matter, focusing on "the elements of the of fense," rather than "the specific conduct of this particu lar offender." James v. United States, 127 S. Ct. 1586, 1593-1594 (2007); cf. Leocal v. Ashcroft, 543 U.S. 1, 7 (2004) (stating that the nearly identical language of 18 U.S.C. 16(b) "requires us to look to the elements and the nature of the conviction, rather than to the particular facts relating to petitioner's crime"). But the elements of the offense of which petitioner was convicted are not merely, as petitioner contends (Pet. 14-15), "an agree ment." Rather, they are an agreement to use or threaten physical force, violence, or fear of injury to take the personal property of another. 18 U.S.C. 1951(a) and (b)(1). For the reasons explained above, that is con duct that, by its nature, involves a "substantial risk that physical force * * * may be used in the course of com mitting the offense." 18 U.S.C. 924(c)(3)(B).

c. Petitioner also purports (Pet. 15) to find support for his position in the legislative history of the statute. Two of the bills he cites, however-S. 52, 98th Cong., 2d Sess. § 2 (1984) (as passed by the Senate), and S. 1688, 97th Cong., 2d Sess. § 2 (1982) (as passed by the Sen ate)-are unenacted proposals relating to the definition of "violent felony" in Section 924(e), and not the defini tion of "crime of violence" in Section 924(c). See James, 127 S. Ct. at 1593 (discussing S. 52); United States v. Strahl, 958 F. 2d 980, 986 (10th Cir. 1992) (discussing S. 52 and S. 1688). And the third bill petitioner cites did not, as petitioner contends (Pet. 15), propose amending the definition of "crime of violence" in Section 924(c)(3) to include conspiracy as a predicate offense. Rather, that unenacted bill proposed expanding the prohibitions in Section 924(c)(1)(A) on using, carrying, or possessing firearms to include conspiring to use, carry, or possess firearms in the circumstances prohibited by the statute. S. 155, 109th Cong., 1st Sess. § 209(a)(1) (2005).

2. Petitioner claims (Pet. 5) that this Court's review is warranted because the courts of appeals are divided on the question "whether a conspiracy that does not re quire proof of an overt act can qualify as a 'crime of vio lence.'" Petitioner's contention is incorrect.

Like the court of appeals in this case, the Second, Fourth, Sixth, and Ninth Circuits have held that a Hobbs Act robbery conspiracy qualifies as a "crime of violence" under Section 924(c). See Taylor, 176 F.3d at 337-338; Phan, 121 F.3d at 152-153 & n.7; Elder, 88 F.3d at 128-129; Mendez, 992 F.2d at 1491-1492.

The Tenth Circuit has not considered whether a Hobbs Act conspiracy qualifies as a "crime of violence" under Section 924(c), and any tension with the Tenth Circuit's decision in United States v. King, 979 F.2d 801 (1992), does not warrant review. In King, the Tenth Circuit held that a conspiracy to commit a violent felony in violation of New Mexico state law was not a "violent felony" under the ACCA, 18 U.S.C. 924(e)(2)(B).1 979 F.2d at 802-803. King's reasoning is not altogether clear, but the court appeared to hold that the elements of a New Mexico conspiracy, which did not require proof of an overt act, see id. at 802, did not "necessarily pres ent circumstances which create the high risk of violent confrontation inherent in a completed" crime, id. at 804 (quoting Strahl, 958 F.2d at 986).

Subsequently, in Brown, the Tenth Circuit distin guished King in holding that conspiracy to commit carjacking, in violation of 18 U.S.C. 371, qualifies as a "violent felony" under the ACCA. 200 F.3d at 706. The court in Brown focused on the need for proof of an overt act under Section 371, in contrast to the statute in King, but also recognized that "at a minimum, an agreement to accomplish the statutory elements of carjacking nec essarily involves a substantial risk of physical force against the person or property of a victim." Ibid. More recently, the court reviewed its decisions in King and Brown and concluded that it need not directly apply those decisions because this Court has "recently pro vided the federal courts with a new framework applica ble to the question whether a prior conviction for an in choate crime qualifies as a violent felony under the ACCA." United States v. Fell, No. 06-1438, 2007 WL 4395444, at *4 (10th Cir. Dec. 18, 2007) (citing James v. United States, supra). Applying James, the court of appeals concluded that a Colorado conspiracy to commit a second degree burglary, which requires proof of an overt act, was not a violent felony under the ACCA's residual clause. Id. at *9 (concluding that the criminal conduct in a burglary conspiracy will not necessarily increase the likelihood that the conspirators will come near the building or otherwise engage in acts posing a risk of physical harm to persons). The court's decision in Fell makes clear that review is not warranted based on a purported conflict between King and the approach taken by the First Circuit to Hobbs Act conspiracies under Section 924(c). The Tenth Circuit no longer re gards an overt-act requirement as the litmus test for whether the underlying conduct in a conspiracy may be considered; rather, the crime must simply be judged by the risks that it entails. At least until the Tenth Circuit has the opportunity to consider the applicability of Fell's analysis in the context of a Hobbs Act robbery conspir acy, this Court's intervention would be premature.

3. Finally, petitioner contends (Pet. 9-11) that this case presents a question this Court reserved in its deci sion in James. That contention is also incorrect.

In James, this Court held that attempted burglary under Florida law was a "violent felony" under the ACCA because it involved "conduct that present[ed] a serious potential risk of physical injury to another" within the meaning of 18 U.S.C. 924(e)(2)(B)(ii). 127 S. Ct. at 1594-1596. In reaching that conclusion, the Court emphasized that Florida law required an overt act directed toward entering or remaining in a structure or conveyance, and not merely preparatory activity, to es tablish attempted burglary. Id. at 1594. The Court rea soned that, in those circumstances, attempted burglary posed the same kind of risk as a completed burglary: the risk that "an innocent person might appear while the crime is in progress," and that a violent confrontation might ensue. Id. at 1595. "Given that Florida law, as interpreted by that State's highest court, require[d] an overt act directed toward the entry of a structure," the Court noted that it "need not consider whether the more attenuated conduct" encompassed by attempt laws satis fied by preparatory conduct "presents a potential risk of serious injury under the ACCA." Id. at 1596.

This case presents no opportunity for this Court to consider that question. This case, unlike James, con cerns the definition of "crime of violence" under Section 924(c), and not the definition of "violent felony" under the ACCA; it involves a conspiracy offense, which is an offense that continues until the conspiracy succeeds or is abandoned, and not an attempt offense that can be established by mere preparatory conduct; and the rele vant substantive offense at issue is one that has as an element the use, attempted use, or threatened use of physical force, rather than merely raising a possibility that physical force might be used in the course of com mitting the offense.2

CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.

 

 

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
JOSEPH C. WYDERKO
Attorney

 

 

FEBRUARY 2008

1 The definition of "violent felony" under the ACCA differs in signi ficant respects from the definition of "crime of violence" in Section 924(c)(3). Under the ACCA, a "violent felony" is "any crime punishable by imprisonment for a term exceeding one year" that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. 924(e)(2)(B). The definition of "crime of violence" under Section 924(c)(3) does not contain a comparable provision for crimes that are not defined in terms of the use of force, but involve conduct that "presents a serious potential risk of physical injury" to others. Cf. 18 U.S.C. 924(c)(3)(B); Leocal, 543 U.S. at 10 n.7 (comparing 18 U.S.C. 16(b), which contains the same operative language as 18 U.S.C. 924(c)(3)(B), and Sentencing Guidelines _ 4B1.2(a)(2), which contains the same operative language as 18 U.S.C. 924(e)(2)(B)(ii)). On the other hand, the definition of "crime of violence" under Section 924(c)(3), unlike the definition of "violent felony" under the ACCA, includes offenses involving the use of force, or a substantial risk that force will be used, against property, as well as against persons.

2 For similar reasons, this case need not be held for Begay v. United States, No. 06-11543 (argued Jan. 15, 2008). The analysis of whether felony driving while intoxicated qualifies a "violent felony" under the ACCA entails questions that are quite distinct from whether the agreement to commit robbery qualifies as a "crime of violence" under 18 U.S.C. 924(c).