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GENERAL VERDICT DOOMS HOBBS ACT CONSPIRACY/ ATTEMPT CONVICTION
Defendant Stacy Berry was found guilty of a using a gun in a crime of violence (an 18 USC § 924(c) offense) based on both an underlying conspiracy to commit Hobbs Act and an attempted Hobbs Act robbery. A § 924(c) violation, of course, carries a mandatory additional sentence of at least five years.
Time was, the government liked attaching § 924(c) counts to conspiracies, because conspiracies are so long-lived and squishy that essentially, a defendant’s possession of a gun at any time during a months-long or years-long conspiracy was enough to ensure the § 924 conviction. It was may, prove that during a robbery on a particular date and at a particular location, the defendant knew that his accomplice was going to pull his .44 Klutzman and pistol-whip a store clerk.
Prior to the Supreme Court’s United States v. Davis decision in June 2019, courts generally held that if a crime was violent, then, ipso facto, a conspiracy to commit the crime was violent, too, and any attempt to commit the crime had to be violent. That made securing the § 924(c) conviction a cinch.
Sow the wind, reap the whirlwind. Last month, a district court granted the defendant’s post-conviction 28 USC § 2255 motion, because the government had cleverly attached a § 924(c) count to both a Hobbs Act conspiracy and an attempted Hobbs Act robbery. By now, everyone knows that a Hobbs Act conspiracy is not a crime of violence, and courts are coming around to the view that an attempted crime of violence is not necessarily a crime of violence, either.
Stacy argued that neither the conspiracy nor the attempted robbery was a crime of violence. The government argued that while the conspiracy was not, the attempt certainly was.
The district court held that “it need not rule whether attempted Hobbs Act robbery qualifies as a crime of violence… The parties acknowledge that the jury instructions allowed for a conviction on either conspiracy or attempted Hobbs Act robbery, and the jury verdict was a general verdict which does not specify which was the basis of the conviction.” For that reason, the § 924(c) conviction was thrown out.
United States v. Berry, 2020 U.S.Dist. LEXIS 20380 (W.D.Va. Feb 6, 2020)
– Thomas L. Root