United States v. Enyinna Onyewu

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 26, 2026 Decided August 21, 2026

No. 22-3063

UNITED STATES OF AMERICA,

APPELLEE

v.

ENYINNA ONYEWU, ALSO KNOWN AS REGGIE ONYEWU,

APPELLANT

Consolidated with 23-3216, 23-3217

Appeals from the United States District Court

for the District of Columbia

(No. 1:20-cr-00225-2)

Jerry R. Smith Jr., Robin M. Earnest, Steven M. Klepper,

all appointed by the court, argued the causes and filed the briefs

for appellants.

Thomas D. Hill, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Jeanine Ferris Pirro,

U.S. Attorney, and Chrisellen R. Kolb and Daniel J. Lenerz,

Assistant U.S. Attorneys.

2

Before: HENDERSON, WILKINS and WALKER, Circuit

Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge WILKINS.

Concurring opinion filed by Circuit Judge WALKER.

PER CURIAM: Enyinna Onyewu, Emmanuel Sumo and

Quaysa Flumo were all convicted of robbery-related offenses

after a joint trial. They now appeal their convictions,

advancing numerous bases for remand, a new trial or outright

acquittal. They also raise ineffective assistance of counsel

claims for the first time. After considering each of their

arguments, we conclude that none succeeds. Accordingly, we

affirm the appellants’ convictions in full.

I. Background

A grand jury indicted Onyewu, Sumo and Flumo in

connection with the January 2018 robberies of ten commercial

establishments located in the District of Columbia, Maryland

and Virginia. The ten robberies involved

(1) BP Gas Station in Silver Spring, Maryland

on January 2, 2018;

(2) Lucky Seven in Arlington, Virginia on

January 3, 2018;

(3) Lucky’s Beer & Wine in Takoma Park,

Maryland on January 10, 2018;

(4) Delicias Market II in Washington D.C. on

January 10, 2018;

3

(5) El Don Restaurant in Washington D.C. on

January 12, 2018;

(6) Sunoco Gas Station in Washington D.C. on

January 17, 2018;

(7) Las Placitas Restaurant in Washington D.C.

on January 22, 2018;

(8) Prime Beer & Wine in Silver Spring,

Maryland on January 27, 2018;

(9) Sheger International Market in Silver

Spring, Maryland on January 27, 2018; and

(10) Exxon Gas Station in Silver Spring,

Maryland on January 29, 2018.

J.A. 45–46.

The indictment principally charged the trio with

conspiracy to interfere with interstate commerce by means of

robbery under 18 U.S.C. § 1951, in short, conspiracy to commit

“Hobbs Act robbery.” Flumo and Sumo also faced two counts

of completed Hobbs Act robbery and two counts of brandishing

a firearm during a crime of violence under 18 U.S.C. § 924(c)

arising out of the fifth and sixth robberies. 1

Security camera footage of the robberies depicts a

consistent scheme. In all but one robbery (in one, all three men

entered), two of the men entered the store while the third waited

nearby. They wore ski masks, dark clothes and gloves to

obscure their identities. One robber threatened employees and

patrons inside the store with a handgun and the other gathered

1

Flumo and Sumo had been indicted on three sets of these additional

counts but the Government dismissed one set related to the fourth

robbery at a pre-trial hearing.

4

cash and valuables. Although the gun was never fired, it was

racked during several of the robberies.

The three also used physical force in several robberies.

For example, during the robbery of a Lucky Seven convenience

store—the one instance in which all three men entered—one

robber hit the cashier in the face with the handgun. Meanwhile,

another robber went to the back room, where he repeatedly

punched and kicked the store manager whom he found there.

Following a nine-day trial, the jury found the trio guilty on

all charges. The district court sentenced Onyewu to 166

months’ incarceration, Flumo to 234 months and Sumo to 204

months. All timely appealed. Because the three appeals raise

joint issues, they are consolidated for our review.

We have jurisdiction pursuant to 28 U.S.C. § 1291. The

Court reviews the district court’s evidentiary rulings for abuse

of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141

(1997) (citing Old Chief v. United States, 519 U.S. 172, 174 n.1

(1997)). Legal questions are reviewed de novo. See United

States v. Abou-Khatwa, 40 F.4th 666, 674 (D.C. Cir 2022).

II. Analysis

The three appellants challenge their convictions on several

grounds and raise ineffective assistance of counsel claims for

the first time. We address, and reject, each argument in turn.

A. Evidence of Missouri Traffic Stop

In 2020, Missouri police pulled over a car for speeding.

Sumo was driving the car, Onyewu was in the passenger seat

5

and Flumo was in the back seat. 2 Upon searching the vehicle,

officers recovered “fraudulent identification cards for . . .

Flumo and Sumo as well as instruments used in identity theft

crimes.” J.A. 153; accord id. at 332. All three men were

arrested but the charges were eventually dropped.

Before trial on the robbery-related offenses at issue here,

the Government filed a motion in limine seeking to introduce

evidence of the traffic stop. The district court granted the

motion over objection. It concluded the incident was relevant

to show “a criminal relationship between the conspirators” and

was not overly prejudicial. Id. at 198–99. The Missouri deputy

sheriff who conducted the traffic stop and made the arrests

provided testimony at trial.

All three appellants challenge the admission of the traffic

stop. They allege its introduction violated Federal Rule of

Evidence 404(b), which provides that “[e]vidence of any other

crime, wrong, or act is not admissible to prove a person’s

character in order to show that on a particular occasion the

person acted in accordance with the character[,]” Fed. R. Evid.

404(b)(1), i.e., “propensity evidence,” see United States v.

Green, 149 F.4th 733, 753 (D.C. Cir. 2025). Propensity

evidence may be admitted, however, if “it has any purpose

other than seeking to prove a criminal propensity.” Id. at 751.

Here, the district court did not abuse its discretion in

concluding the traffic stop evidence had a valid, non-

propensity purpose. The joint arrest established a criminal

association among Onyewu, Flumo and Sumo. See United

States v. McGill, 815 F.3d 846, 884 (D.C. Cir. 2016) (per

2

The robbery-related indictment of Onyewu, Flumo and Sumo sub

judice had not yet been filed at this time, explaining why they were

not already in custody for those offenses.

6

curiam) (approving the admission of evidence “for the

nonpropensity purpose of proving the relationships among

coconspirators”). An association is highly relevant to the

charged offense of conspiracy to commit Hobbs Act robbery,

which requires an agreement among two or more persons. See

United States v. Tse, 375 F.3d 148, 155 (1st Cir. 2004) (“In a

conspiracy case, the district court may admit evidence of other

bad acts if they tend to suggest a criminal association between

the alleged conspirators.”); see also United States v. Graham,

83 F.3d 1466, 1473 (D.C. Cir. 1996). The appellants

themselves characterize the traffic stop’s “real value” as

“show[ing] that all three of the defendants collectively were the

members of the charged conspiracy.” Appellants’ Br. 40

(emphasis added). Because the traffic stop evidence had a

valid non-propensity purpose, its admission did not violate

Rule 404(b).

The appellants also argue the traffic stop is not relevant to

establish a criminal association at the time of the conduct

underlying their convictions because the traffic stop occurred

over two years after the robberies. Relevance, however, is a

low bar. Green, 149 F.4th at 755. If evidence has “any

tendency” to make a fact “of consequence” more or less

probable, it is relevant. Fed. R. Evid. 401. The existence of a

relationship at one point is circumstantial, even if weak,

evidence of that relationship’s existence at an earlier point. See

United States v. Procopio, 88 F.3d 21, 29 (1st Cir. 1996) (“A

later criminal association increases the likelihood of an earlier

one—which is all that ‘relevance’ requires[.]”).

The appellants also argue that even if the traffic stop was

admissible under Rule 404(b), Federal Rule of Evidence 403

required its exclusion. Rule 403 permits courts to exclude

otherwise admissible evidence “if its probative value is

substantially outweighed by a danger of” unfair prejudice. Fed.

7

R. Evid. 403. “A district court is accorded a wide discretion”

in making evidentiary rulings, which is “particularly true with

respect to Rule 403.” Sprint/United Mgmt. Co. v. Mendelsohn,

552 U.S. 379, 384 (2008) (citation modified).

We have no issue with the district court’s exercise of

discretion here. Granted, the traffic stop had limited probative

value due to its date and a potential for prejudice given the

involvement of other crimes. Nonetheless, it is far from clear

any potential prejudice “substantially outweighed” the

probative value. Fed. R. Evid. 403. For one thing, the criminal

conduct uncovered during the traffic stop was nonviolent,

unlike the conduct in issue at trial. See United States v.

Burwell, 642 F.3d 1062, 1067–68 (D.C. Cir. 2011) (finding low

potential for prejudice when other conduct is less violent than

the defendants’ charged offense), vacated in part en banc, No.

06-3070, 2011 U.S. App. LEXIS 20699 (D.C. Cir. Oct. 12,

2011) (mem.), reinstated en banc, 690 F.3d 500 (D.C. Cir.

2012). The appellants’ trial counsel had the opportunity to

attack the timing of the evidence on cross examination but none

did so. Moreover, the jury twice heard a limiting instruction

explaining proper use of the evidence. J.A. 346–47, 588–89.

Overall, the district court carefully weighed the evidence and

determined admission was warranted. That is enough to satisfy

Rule 403. See United States v. Gartmon, 146 F.3d 1015, 1022

(D.C. Cir. 1998) (“As long as it appears from the record as a

whole that the trial judge adequately weighed the probative

value and prejudicial effect . . . the demands of Rule 403 have

been met.” (citation modified)). Accordingly, the district court

did not abuse its discretion in admitting this “other acts”

evidence.

8

B. Evidence from Onyewu’s Car

One month after the robberies underlying the appellants’

convictions, police responded to an apparently unrelated 9-1-1

call about a home invasion at 8802 36th Avenue in College

Park, Maryland. The victims reported being held at gunpoint

by three men who “made demands for marijuana and money.”

J.A. 67. The robbers fled without taking anything from the

residence once police arrived. Two of the robbers were

apprehended after a foot chase and were identified as Onyewu

and Sumo. The third suspect escaped. 3

Police proceeded to canvas the “streets surrounding” the

invaded residence. Id. During the search, Detective Ken Lin

discovered a blue 2008 Buick Lucerne registered to Onyewu.

Police seized the vehicle and Lin then applied for a search

warrant that identified the car as having been found “parked in

an alley between 36th [A]venue and 37th Avenue.” Id.

However, no such alley exists. Instead, the car was parked on

Crystral Springs Road, a street perpendicular to 36th Avenue.

A Maryland judge approved the warrant without knowing of

this error. Police searched the vehicle and uncovered, among

other things, a jacket and ski mask shown to be worn by one of

the perpetrators in the robbery security camera footage,

multiple cell phones and a box of ammunition.

Onyewu moved to suppress all evidence found in his car

as fruit of an allegedly unlawful seizure, which motion Flumo

and Sumo joined. The district court denied the motion after an

evidentiary hearing. Onyewu then renewed the motion to

suppress and additionally requested a hearing to interrogate the

veracity of Detective Lin’s warrant application for the vehicle,

3

The Government ultimately dropped the charges arising out of this

home invasion.

9

which motion Flumo joined. The district court again denied

the motion and all three appellants now challenge these denials

on appeal. Because the police’s seizure of the car was lawful

and the mistake in the warrant application was neither material

nor intentional, we reject both claims.

1. Probable Cause

The Fourth Amendment prohibits “unreasonable searches

and seizures.” U.S. Const. amend. IV. “[A] warrant must

generally be secured” for a search or seizure to be reasonable.

Kentucky v. King, 563 U.S. 452, 459 (2011). But there are

several exceptions to the warrant requirement. One

exception—the automobile exception—provides that “if a car

is readily mobile and probable cause exists to believe it

contains contraband, the Fourth Amendment permits police to

search the vehicle without more.” United States v. Maynard,

615 F.3d 544, 567 (D.C. Cir. 2010) (citation modified). If the

exception applies, “[o]fficers have the option of either

‘carrying out an immediate search without a warrant’ or

‘seizing and holding a car before presenting the probable cause

issue to a magistrate.’” United States v. Jenkins, 984 F.3d

1038, 1041 (D.C. Cir. 2021) (quoting Chambers v. Maroney,

399 U.S. 42, 52 (1970)). Here, police seized Onyewu’s car

before obtaining a warrant but later acquired one before

conducting a search. The district court held that the automobile

exception justified the car’s seizure. The appellants now

advance two theories to undermine the exception’s application.

First, they argue that Onyewu’s car was not mobile at the

time of its seizure. 4 In particular, they note that two of the

4

This argument was not made in the district court and, thus, it is

subject to plain error review. Fed. R. Crim. P. 52(b); Greer v. United

States, 593 U.S. 503, 507 (2021).

10

home invasion suspects were in custody and could not access

the vehicle. But this argument ignores the fact that the third

suspect remained at large. Regardless, a car need not be

“immediately mobile” to fall within the automobile exception.

California v. Carney, 471 U.S. 386, 391 (1985). Mobility is

inherent in all operable vehicles. See United States v. Williams,

773 F.3d 98, 105–06 (D.C. Cir. 2014) (“All that is required for

an automobile to be readily mobile within the meaning of the

automobile exception is that it is used on the highways, or is

readily capable of such use.” (citation modified)); United

States v. Howard, 489 F.3d 484, 494 (2d Cir. 2007) (“The mere

inherent mobility of the vehicle is sufficient to constitute the

‘ready mobility’ the automobile exception [re]cognizes.”).

Thus, the mobility of the car does not turn on the appellants’

access to it.

Second, and principally, the appellants argue police lacked

probable cause to seize and search the car. We determine the

existence of probable cause de novo. Ornelas v. United States,

517 U.S. 690, 699 (1996). Our analysis requires determining

whether police had probable cause to believe the car contained

“contraband or evidence of a crime” at the time they discovered

it, Florida v. Harris, 568 U.S. 237, 243 (2013),

notwithstanding their decision to obtain a warrant before

conducting the search, see Jenkins, 984 F.3d at 1041. 5

We conclude that police had probable cause to seize

Onyewu’s vehicle. “The test for probable cause is not

reducible to precise definition or quantification,” Harris, 568

U.S. at 243 (citation modified), and courts instead look to the

“totality of the circumstances,” id. at 244. Here, the

5

The appellants challenge the seizure of the vehicle as violative of

the Fourth Amendment and any evidence discovered during the

subsequent search as so-called “fruit of the poisonous tree.”

11

combination of the car’s proximity to the home invasion and

its registration to an apprehended suspect suffice to meet this

standard. There need not be “certainty that contraband or

evidence of a crime will be found—only a ‘fair probability.’”

United States v. Washington, 775 F.3d 405, 409 (D.C. Cir.

2014) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

We think it is fairly probable that such evidence will be found

in a suspect’s car when it is parked near the scene of the crime.

The appellants also assert that, because Sumo and Onyewu

were unsuccessful in taking anything from the residence and

were quickly apprehended, they could not have stashed any

contraband in the car. This argument again ignores the fact that

the third suspect remained at large. It also too narrowly

characterizes what can establish probable cause. As Detective

Lin noted in the warrant application, robbers often leave

instrumentalities of crime—including weapons or

identification—in their vehicles. And a likelihood of finding

such instrumentalities is enough for probable cause. See

United States v. Lawson, 410 F.3d 735, 740–41 (D.C. Cir.

2005).

2. Franks Hearing

The appellants further argue that the mistaken description

of the car’s location in Detective Lin’s affidavit invalidated the

corresponding search warrant. As noted supra, the affidavit

described Onyewu’s car as “parked in an alley between 36th

[A]venue and 37th Avenue,” J.A. 67, although no such alley

exists and the car was in fact parked on Crystal Springs Road

They assert the district court erroneously denied their request

for an evidentiary hearing (a Franks hearing) on the matter.

We disagree.

This Court has not resolved which standard applies when

reviewing the denial of a Franks hearing and our sister circuits

12

are split on the issue. Maynard, 615 F.3d at 551; see United

States v. Dale, 991 F.2d 819, 843 n.44 (D.C. Cir. 1993) (per

curiam) (collecting cases). We need not decide the matter in

this case as the claim fails under either de novo or clear error

review. See United States v. Becton, 601 F.3d 588, 594 (D.C.

Cir. 2010).

There is usually a “presumption of validity with respect to

the affidavit supporting [a] search warrant.” Franks v.

Delaware, 438 U.S. 154, 171 (1978). An evidentiary hearing

into the warrant’s veracity, known as a Franks hearing, will not

be granted unless the challenger makes “allegations of

deliberate falsehood or of reckless disregard for the truth, and

those allegations must be accompanied by an offer of proof.”

Id. Moreover, if there is sufficient evidence to support

probable cause without the disputed material, no hearing is

required. Id. at 171–72.

Because Lin’s misrepresentation was neither material nor

intentional, a Franks hearing was not necessary. Although the

proximity of Onyewu’s car to the home invasion was crucial,

the precise location of the car is immaterial for probable cause.

The warrant affidavit adequately established that Onyewu’s car

was nearby, even without using that precise word. It noted the

car was discovered during a canvas of “the streets surrounding

8802 36th Avenue, College Park, Prince George’s County,

Maryland.” J.A. 67. “Surrounding” implies proximity. See

Surround, Oxford Eng. Dictionary,

https://www.oed.com/dictionary/surround_v?tab=meaning_an

d_use [https://perma.cc/SK94-EMZN] (last visited June 5,

2026) (“To enclose, encompass, or beset on all sides[.]”). As

noted supra, this location together with the car’s registration to

Onyewu was enough to support probable cause. See Transcript

of Oral Arg. at 57 (appellants’ counsel conceding that the

13

warrant application would have supported probable cause if the

location were accurate).

Moreover, there is no evidence that Detective Lin

deliberately misrepresented the car’s location. Although the

appellants allege Lin lied about the car’s location to justify

seizure of the car under local towing regulations, this is sheer

speculation. The affidavit made no mention of any such

regulations and instead focused entirely on the nearby home

invasion as the basis of probable cause. Also, Detective Lin

explained that he tried to identify the street when he initially

found the car but was unable to do so because he could not see

any street signs and was unable to find any street name on the

map on his phone. Thus, it appears the address included was

“believed or appropriately accepted by the affiant as true.”

Franks, 438 U.S. at 165. That is not the type of deliberate

misstatement or “reckless disregard for the truth” that a Franks

hearing aims to address. Id. at 155.

C. Whether Hobbs Act Robbery is a “Crime of Violence”

Appellants Flumo and Sumo then argue that the district

court erred in not dismissing the § 924(c) counts against them

because Hobbs Act robbery does not qualify as a predicate

“crime of violence.” We disagree. Under 18 U.S.C. § 924(c),

criminal defendants who are convicted of a “crime of violence”

receive a mandatory-minimum sentencing enhancement of five

years. That mandatory-minimum sentencing enhancement

applies to Hobbs Act robbery.

1. The Modified Categorical Approach

To determine whether a crime is a “crime of violence,” one

must determine whether to apply the categorical approach or

the modified categorical approach. So we start by explaining

those two approaches.

14

First some background. Some statutes, like § 924(c),

prescribe punishment based on the defendant’s commission of

an underlying crime, or “predicate offense.” For example,

§ 924(c) adds a five-year minimum enhancement to the

sentence of any defendant who has committed a “crime of

violence,” which is defined as a felony that “has as an element

the use, attempted use, or threatened use of physical force

against the person or property of another.” Id. § 924(c)(3)(A).

Thus, to apply that five-year minimum enhancement, the

underlying crime the defendant committed—his predicate

offense—must have had “as an element” the actual, attempted,

or threatened use of force.

Elements are necessary features of crimes. See Mathis v.

United States, 579 U.S. 500, 504 (2016). So to qualify as a

“crime of violence,” the predicate offense must necessarily, or

“always[,] require[] the [G]overnment to prove . . . the use,

attempted use, or threatened use of force.” United States v.

Taylor, 596 U.S. 845, 850 (2022). Otherwise, the actual,

attempted, or threatened use of force would not be an element,

or necessary feature, of the predicate offense. Or to use the

Supreme Court’s language, the predicate offense must

categorically involve the actual, attempted, or threatened use

of force. Id.

That, in a nutshell, is the categorical approach. But notice

the upshot of this focus on the elements of the offense. “[T]he

defendant’s actual conduct” does not matter. Mathis, 579 U.S.

at 504. So suppose a defendant bludgeons someone to death.

An ordinary speaker of English would likely say the defendant

committed a “crime of violence.” But the defendant might not

have done so as § 924(c) uses that term. It would depend on

the elements of the crime of which the defendant is convicted.

Only when one knows the elements of the crime of conviction

can one determine whether that crime necessarily, or

15

categorically, involves the actual, attempted, or threatened use

of force so as to qualify as a “crime of violence.”

The logic of the categorical approach naturally gives rise

to another approach: the modified categorical approach. The

modified categorical approach rests on a basic reality.

Sometimes, a single statute provides two alternative elements,

thereby creating two separate crimes. Mathis, 579 U.S. at 505.

In that case, courts applying the categorical approach must

figure out which of the two separate crimes the defendant has

committed in order to apply the categorical approach to that

particular crime. See id. at 506.

One must be careful, though, in determining whether a

statute creates alternative elements, and therefore multiple

crimes, or merely spells out “various factual means of

committing a single” crime. Id. For example, a statute that

proscribes “murder, including with a gun, knife, bat, or other

dangerous object” should probably not be divided into separate

crimes of gun murder, knife murder, bat murder, and other-

dangerous-object murder. See id. (discussing a similar

example). Instead, the statute is better thought of as spelling

out various factual means for committing a single offense:

murder. (Because that statute cannot be so divided, courts call

it “indivisible.”)

Moreover, to convict under that indivisible statute, “a jury

need not find (or a defendant admit) any particular item: A jury

could convict even if some jurors ‘conclude[d] that the

defendant used a knife’ while others ‘conclude[d] he used a

gun[.]’” Id. (quoting Richardson v. United States, 526 U.S.

813, 817 (1999)). On the other hand, a statute that proscribes

“‘the lawful entry or the unlawful entry’ of a premises with the

intent to steal,” and provides for greater punishment if the entry

were unlawful, should probably be divided into “two different

16

offenses.” Id. at 505. (Because that statute can be so divided,

courts term it “divisible.”) To convict under that divisible

statute, every juror would need to agree either that the entry

was unlawful or that it was lawful. See Ramos v. Louisiana,

590 U.S. 83, 90 (2020) (“A jury must reach a unanimous

verdict in order to convict” consistent with the Constitution).

Whether a statute is divisible makes a difference for

purposes of the categorical approach. To see why, consider an

example. Imagine a defendant points a gun at his landlord

while taking the landlord’s crystal statue of a horse’s head. The

defendant is then convicted under a statute that proscribes

“taking another’s property under threat of violence or slander.”

If that statute is divisible—i.e., if “threat of violence” and

“threat of slander” are understood as alternative elements of

separate crimes—the defendant presumably committed a

“crime of violence” under § 924(c). He committed the crime

of “taking another’s property under threat of violence,” and that

would seem to have “as an element the . . . threatened use of

physical force.” See 18 U.S.C. § 924(c)(3) (so defining “crime

of violence” under § 924(c)). But if the statute is indivisible—

i.e., “threat of violence” and “threat of slander” are different

factual means of committing a single crime—the defendant

probably did not commit a “crime of violence.” A hypothetical

defendant could commit that crime by taking his landlord’s

horse-head statue while threatening to lie to the other tenants

that the landlord spends his weekends at the racetrack gambling

away the tenants’ security deposits. Spewing that sort of

malicious falsehood, of course, would not appear to involve the

actual, attempted, or threatened use of force. So the crime the

defendant committed would not qualify as a “crime of

violence” under § 924(c).

17

2. The Modified Categorical Approach as Applied to Hobbs

Act Robbery

Because it can be difficult to determine when a statute

provides different factual means of committing a single crime

(i.e., is indivisible) instead of different elements of different

crimes (i.e., is divisible), courts have developed tools for

drawing the distinction.

Some tools are textual. For example, if the statute “itself

identif[ies] which things must be charged,” those things are

elements. Mathis, 579 U.S. at 518. But if the statute identifies

which things “need not be” charged, those things are means.

Id. Additionally, when “statutory alternatives carry different

punishments,” the alternatives are elements, whereas when “a

statutory list is drafted to offer ‘illustrative examples,’” the

examples are factual means for committing a single offense.

Id. (quoting United States v. Howard, 742 F.3d 1334, 1348

(11th Cir. 2014)).

Sometimes, textual clues alone leave something to be

desired. In that case, courts may look to the record of prior

conviction to help determine whether the statutory alternatives

are separate elements of separate crimes or various means to

commit a single crime. See id.

a. Hobbs Act Robbery Is a Divisible Offense

The statute at issue in this case, the Hobbs Act, is divisible.

It may be divided into the separate crimes of Hobbs Act

robbery and Hobbs Act extortion. 6 Thus, the modified

categorical approach applies.

6

The Hobbs Act may be further divided. For instance, the Hobbs

Act also creates separate offenses of Hobbs Act robbery and

18

We begin with the text of the statute. The Hobbs Act

imposes criminal penalties on “[w]hoever in any way or degree

obstructs, delays, or affects commerce . . . by robbery or

extortion or attempts or conspires so to do.” 18 U.S.C

§ 1951(a).

The text suggests robbery and extortion are separate

elements of separate crimes. The Hobbs Act offers separate

legal definitions for robbery and extortion, listing a series of

requirements for a crime to qualify as “robbery” and different

requirements for a crime to qualify as “extortion.” Compare

id. § 1951(b)(1) (defining “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”), with

§ 1951(b)(2) (defining “extortion” as “the obtaining of

property from another, with his consent, induced by wrongful

use of actual or threatened force, violence, or fear, or under

color of official right”). Moreover, those legal definitions

come in two distinct paragraphs. See id. § 1951(b)(1)

(“robbery”), (b)(2) (“extortion”). That reaffirms that robbery

and extortion are not just separate factual means to commit a

single crime. Instead, “robbery” and “extortion” are different

legal elements of different crimes.

The text is also reaffirmed by other tools of analysis. For

instance, the jury instructions labeled one of the Hobbs Act

offenses as “Interference with Interstate Commerce by

Robbery.” J.A. 594. The jury was instructed to determine

whether each defendant took money or property “by robbery.”

attempted Hobbs Act robbery. See Taylor, 596 U.S. at 851

(distinguishing the two); see also United States v. States, 72 F.4th

778, 787 (7th Cir. 2023) (“[B]ecause attempts and completed

offenses are distinct crimes, . . . a statute that prohibits a crime and

the attempt to commit it is likely to be divisible[.]”).

19

Id. No other “means” were listed in the alternative. So to

convict, the jury had to find the defendant committed

“robbery.”

The separate instruction for the crime of “Conspiracy to

Interfere with Interstate Commerce by Robbery” is of a piece.

It required the jury to find that there was an agreement to

commit robbery. Id. at 592. It did not instruct the jury that the

defendant could be convicted of conspiracy if some jurors

found he had committed conspiracy to rob and others found he

committed conspiracy to extort.

Our reading of the Hobbs Act accords with precedent.

“[C]ourts across the country . . . have long held that Hobbs Act

robbery and Hobbs Act extortion are separate and distinct

crimes[.]” United States v. Armstrong, 122 F.4th 1278, 1287

(11th Cir. 2024) (collecting cases). Moreover, the Supreme

Court itself has referred to “the substantive offense of Hobbs

Act extortion,” Ocasio v. United States, 578 U.S. 282, 292

(2016), in addition to the separate offense of “Hobbs Act

robbery,” Taylor, 596 U.S. at 848.

b. Burwell Is Not to the Contrary

In United States v. Burwell, our court interpreted 18 U.S.C.

§ 2113(a), which generally “criminalizes bank robbery

completed ‘by force and violence, or by intimidation,’ or ‘by

extortion.’” 122 F.4th 984, 986 (D.C. Cir. 2024) (quoting 18

U.S.C. § 2113(a)). The question presented was whether

extortion was a separate factual means for committing federal

bank robbery or whether extortion was an alternative element

of a separate crime. Burwell concluded that extortion was a

separate factual means for committing the single crime of

federal bank robbery.

20

Burwell’s logic depended in part on the fact that within the

subsection criminalizing federal bank robbery, Congress had

provided a paragraph break. In the first paragraph, Congress

had proscribed federal bank robbery. In the second paragraph,

Congress had proscribed federal bank burglary. From that,

Burwell reasoned that if Congress wanted to create separate

crimes, it knew to use separate paragraphs. See Burwell, 122

F.4th at 990; cf. United States v. Butler, 949 F.3d 230, 235 (5th

Cir. 2020) (“a paragraph break often signals that a new idea is

coming,” thus it is “logical to conclude that a paragraph break

in a statute signals a new offense”). Thus, according to

Burwell, “force and violence,” “intimidation,” and

“extortion”—all contained within the same paragraph—had to

be separate factual means to commit the singular crime of

federal bank robbery. Burwell, 122 F.4th at 990.

Here, though, the relevant subsection of the Hobbs Act

contains a single paragraph. There is no separate paragraph

denoting a separate crime from which one can infer

Congressional intent to create separate crimes for extortion and

robbery.

Indeed, if anything, Burwell’s reasoning bolsters our

holding that the Hobbs Act makes extortion and robbery

separate elements of separate crimes. Burwell said that

paragraph divisions within a statute may mark different crimes.

The Hobbs Act divides robbery and extortion, placing them in

distinct paragraphs. Thus, Burwell reinforces that the Hobbs

Act makes robbery and extortion different crimes.

3. Hobbs Act Robbery Is a Crime of Violence

Hobbs Act robbery is a “crime of violence” under

§ 924(c). Assuming Hobbs Act robbery is not further divisible,

it requires “an unlawful taking . . . of personal property”

against an individual’s “will, by means of actual or threatened

21

force, or violence, or fear of injury . . . to his person or

property.” 18 U.S.C. § 1951(b)(1). Regardless of whether the

robbery is committed by force, violence, or fear of injury, it

necessarily requires the “use, attempted use, or threatened use

of physical force.” Id. § 924(c)(3)(A).

Even presuming § 924(c) requires “violent force,”

Johnson v. United States, 559 U.S. 133, 140 (2010) (so

interpreting § 924(e)(2)(B)(i)’s similar language), a robbery

committed by “force” or “violence” naturally involves violent

force. In the context of a robbery statute like the Hobbs Act,

terms like “force” or “violence” typically refer to physical

force. See Delligatti v. United States, 604 U.S. 423, 431

(2025). So the only question in § 1951(b)(1)—which requires

force, violence, or fear of injury—is whether “fear of injury”

involves “violent force.”

It does. The “fear of injury” prong, whether to one’s

“person or property,” does not appear in isolation. 18 U.S.C.

§ 1951(b)(1). It is preceded by the terms “force” and

“violence,” both of which are inherently physical. See Third

Nat’l Bank in Nashville v. Impac Ltd., 432 U.S. 312, 322 (1977)

(counseling that several “words grouped in a list should be

given related meaning”); Yates v. United States, 574 U.S. 528,

543 (2015) (“[A] word is known by the company it keeps[.]”).

In that context, the term “fear of injury” is best understood to

mean “fear of physical injury,” i.e., the “violent force”

contemplated by 18 U.S.C. § 924(c). See Johnson, 559 U.S. at

140.

Yet again, we are not alone in our understanding of the

statute. Every court of appeals that has addressed this issue has

reached the same conclusion: Hobbs Act robbery is a crime of

violence. See United States v. García-Ortiz, 904 F.3d 102,

107–09 (1st Cir. 2018); United States v. Hill, 890 F.3d 51, 60

22

(2d Cir. 2018); United States v. Stoney, 62 F.4th 108, 114 (3d

Cir. 2023); United States v. Mathis, 932 F.3d 242, 266 (4th Cir.

2019); United States v. Buck, 847 F.3d 267, 275 (5th Cir.

2017); United States v. Gooch, 850 F.3d 285, 291–92 (6th Cir.

2017); United States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017);

United States v. Jones, 919 F.3d 1064, 1072 (8th Cir. 2019);

United States v. Eckford, 77 F.4th 1228, 1236–37 (9th Cir.

2023), cert. denied, 144 S. Ct. 521 (2023), overruled on other

grounds by United States v. Gomez, 165 F.4th 1199 (9th Cir.

2026); United States v. Melgar-Cabrera, 892 F.3d 1053, 1066

(10th Cir. 2018); United States v. Wiley, 78 F.4th 1355, 1363–

64 (11th Cir. 2023); see Armstrong, 122 F.4th at 1287–88 (11th

Cir. 2024). Today, we join our sister circuits in that conclusion.

D. Onyewu’s Due Process Claim

Onyewu individually advances an argument that the

Government deprived him of due process when it wired his

plea offer to his co-defendants’ offers. We hold that it did not.

When the Government wires a plea offer—i.e., conditions one

defendant’s plea offer on other defendants’ acceptance of their

respective plea offers—it “does not, per se, offend due

process.” United States v. Pollard, 959 F.2d 1011, 1020 (D.C.

Cir. 1992). So long as “the government had probable cause to

arrest and prosecute” all the “defendants in a related crime,”

and the Government did not “conduct[] itself in bad faith . . .

to generate additional leverage over the defendant,” the “wired

plea is constitutional.” Id. at 1021. Under that test, the wiring

of Onyewu’s plea was constitutional.

Onyewu does not argue there was no probable cause nor

that the crimes were unrelated. He argues only that the

Government acted “in bad faith . . . to generate additional

leverage over” him. Id. That fails.

23

Onyewu has not proven that the Government made a bad-

faith attempt to assert additional leverage over him. Indeed,

nothing Onyewu has asserted shows “improper . . . pressure to

force him to plead guilty.” Id. at 1020; see also id. at 1021

(“The question, of course, is whether the practice of plea wiring

is so coercive as to risk inducing false guilty pleas.”). On the

contrary, the more likely explanation for the Government’s

wiring of the plea deal was efficiency. The goal was that either

all three defendants would enter plea deals, or the Government

would just take all three to trial. See United States v. Williams,

827 F.3d 1134, 1165 (D.C. Cir. 2016) (finding that the

Government’s preference to either accept guilty pleas from

both defendants or trying both “provides no basis to conclude

that the Government’s offer was coercive or made in bad

faith”). Moreover, it is somewhat challenging to find coercion

on this record given that Onyewu did not even accept the plea

offer. Cf. Pollard, 959 F.2d at 1021 (“To say that a practice is

‘coercive’ or renders a plea ‘involuntary’ means only that it

creates improper pressure that would be likely to overbear the

will of some innocent persons and cause them to plead

guilty.”).

Consider Onyewu’s main argument. 7 Onyewu argues the

plea deal was too onerous for Flumo given the “severe

immigration consequences” it would impose. Appellants’ Br.

120. Thus, Onyewu argues, he was guaranteed to face trial,

and as a result, he was sentenced to 166 months incarceration,

well above the forty-six–month maximum his plea offer

7

Onyewu also suggests the Government used his young age and his

relative inexperience in the criminal process against him. See

Appellants’ Br. 119; Reply Br. 67. But he offers no evidence of that,

nor any reason to think it used his age and inexperience to coerce him

into pleading guilty.

24

contemplated. Even if we were to credit Onyewu’s allegation, 8

his complaint boils down to the fact that the Government did

not offer him a plea deal he could end up accepting: Per

Onyewu, Flumo was guaranteed to reject the plea offer, thereby

nullifying Onyewu’s own deal. See Reply Br. 4. But Onyewu

had “‘no right to be offered a plea’ at all, much less the

particular plea of his choosing.” Williams, 827 F.3d at 1165

(quoting Missouri v. Frye, 566 U.S. 134, 148 (2012)).

If anything, Onyewu’s argument would seem to cut against

his position. At worst, the Government threatened to impose

an onerous condition on Flumo if Onyewu accepted the plea

deal. Perhaps, that could impose some pressure on Onyewu to

reject the deal. Cf. Pollard, 959 F.2d at 1021 (noting that a

defendant might feel pressure to avoid an onerous condition

upon “a loved one, particularly a spouse” while still holding

such pressure did not amount to coercion). But the question for

coercion is whether the Government improperly pressured

Onyewu to plead guilty, not whether Onyewu might have felt

some pressure to refuse to plead guilty. See id. (“The question,

of course, is whether the practice of plea wiring is so coercive

as to risk inducing false guilty pleas.”).

E. Flumo’s Individual Claims

Flumo appeals a number of issues independently of his co-

defendants. We consider—and reject—each of them below,

8

We would hesitate to do so. Onyewu does not offer any evidence

that Flumo placed much weight on any immigration consequences

involved in accepting the deal. Moreover, one doubts immigration

consequences would bear much weight in Flumo’s decision given the

potential eighteen-year sentence under the plea offer. Compare Lee

v. United States, 582 U.S. 357, 371 (2017) (“deportation [was] the

‘determinative issue’ for an individual in plea discussions” when he

risked only “a year or two more of prison time”).

25

and ultimately decline to vacate Flumo’s convictions on those

grounds raised.

1. Admission of All Evidence from Flumo’s Cell Phone

As described in Part II.B, law enforcement officers seized

Onyewu’s vehicle and subsequently searched it pursuant to a

warrant. During that search, Detective Lin recovered three cell

phones—a pink Apple iPhone 6s Plus, a gold Apple iPhone 6s,

as well as a silver Samsung Galaxy S7 Edge that was later

linked to Flumo. To determine the phone number associated

with the Samsung device, Detective Lin used the cell phone’s

emergency call feature, dialed 9-1-1 from the lock screen, and

then asked the 9-1-1 dispatcher to relay to him the “telephone

number on the other side.” J.A. 236–37. Detective Lin then

included the cell phone number provided by the dispatcher, the

IMEI number (a number identifying the physical device), as

well as a general description of the Samsung phone in the

search warrant affidavit for the device, which was signed on

February 20, 2018. Pursuant to the search warrant, Agent

Kaori Tahan of the FBI conducted a partial extraction of the

Samsung device, and the Government admitted six

photographs obtained from that extraction through Agent

Tahan’s testimony at trial.

Flumo argued in the proceeding below that the Detective’s

decision to dial emergency services from the lock screen of

Flumo’s phone constituted an unlawful search under the Fourth

Amendment. Asserting that no exception would apply to the

default rule of exclusion, Flumo further argued that any

evidence from the phone—including all six admitted

photographs—should have been suppressed because the “later-

obtained warrant for the phone was tainted by the evidence

Detective Lin illegally obtained from it.” Appellants’ Br. 33,

92; see also Wong Sun v. United States, 371 U.S. 471 (1963)

26

(establishing that evidence obtained in violation of the Fourth

Amendment must be suppressed absent exception). The

district court disagreed with Flumo, first finding that Detective

Lin’s call to emergency services did not constitute a Fourth

Amendment search, and second, that even if it did, the good-

faith exception—which allows the admission of unlawfully

seized evidence so long as the officer reasonably believed that

the affidavit established probable cause—applied.

We review “a district court’s legal rulings on a suppression

motion de novo . . . and its factual findings for clear error.”

United States v. Holmes, 505 F.3d 1288, 1292 (D.C. Cir. 2007).

Although the question of whether Detective Lin’s dialing of 9-

1-1 from Flumo’s phone constituted a search under the Fourth

Amendment is a complex—and novel—one, we need not reach

it. Even assuming that the call constituted a Fourth

Amendment search for which Detective Lin should have

obtained a warrant, the inevitable discovery exception to the

exclusionary rule clearly applies here and obviates the need to

suppress the evidence.

The inevitable discovery exception to the exclusionary

rule permits the admission of seemingly unlawfully obtained

evidence if the Government can establish by “a preponderance

of the evidence that the information ultimately or inevitably

would have been discovered by lawful means.” Nix v.

Williams, 467 U.S. 431, 444 (1984). Here, as the district court

found, the phone number associated with the Samsung device

was “not a material element of the warrant” and thus, “not

required to secure” it. J.A. 288. Further, while Detective Lin

testified that when initially drafting the affidavit, he believed

that “it was necessary to have some sort of telephone number,”

he later learned that it was not required so long “as you describe

the phone really well with a photograph attachment.” Id. at

246. And Agent Tahan, who conducted an extraction of the

27

Samsung device, indicated that the phone number was not

necessary for her to be able to extract the data from the phone.

Id. at 438–39. The above thus leads to the conclusion that if

one were to excise the phone number from the affidavit, the

warrant would still have been granted, the phone number still

inevitably discovered, and the Samsung device itself still

inevitably searched.

Flumo contests the district court’s conclusion by arguing

that without the phone number, the warrant would have been

deficient because it lacked the particularity required under the

Fourth Amendment. This too we find unavailing. The Fourth

Amendment requires that a warrant must “particularly describe

the place to be searched” so that the “officer will not mistakenly

search the wrong place.” United States v. Scurry, 821 F.3d 1,

15 (D.C. Cir. 2016) (citation modified). Here, the search

warrant not only contained a precise description of the phone,

detailing the color, but it also underscored that the device was

a “Samsung Galaxy S7 Edge,” which was notably distinct from

the other devices recovered from the vehicle. J.A. 204. Even

without the phone number in the affidavit, there cannot be any

reasonable risk that the officer would mistakenly have searched

an entirely different phone upon the warrant being granted.

In sum, although we decline to opine on whether the 9-1-

1 call, dialed to determine the number connected to the

Samsung device, constituted an unlawful search for which the

Detective should have obtained a warrant, we hold that the

evidence obtained from the phone would have been inevitably

discovered because the phone number itself was ultimately

immaterial to whether the search warrant would have been

granted. Flumo’s first argument thus fails.

28

2. Admission of a Photograph of Flumo Holding a

Handgun

In addition to moving to suppress all evidence from his

phone, Flumo also moved to exclude a specific photograph

extracted from his mobile device of him holding a handgun.

Flumo argued to the district court that the photograph was

improper propensity evidence under Federal Rule of Evidence

404(b) and prejudicial under Rule 403. The district court

denied Flumo’s motion and admitted the photograph, finding

that although the photograph was extrinsic to the charged

conspiracy, and thus, subject to Rule 404(b), it was still

admissible to establish Flumo’s “opportunity to have access to

a firearm” and his “identity.” J.A. 323. Under Rule 403, the

district court found that although it was “hard . . . to make out”

what the photo was depicting, see id. at 314, and that there was

“obviously . . . prejudicial value,” such value was “certainly

not substantially outweighed by the probative value of the

evidence,” id. at 324. As noted in Part II.A, we review the

district court’s decision to admit evidence under Rule 403 and

404(b) for an abuse of discretion and are “extremely wary of

second-guessing the legitimate balancing of interests taken by

the trial judge in this context.” McGill, 815 F.3d at 932–33

(citation modified); United States v. Sheffield, 832 F.3d 296,

307 (D.C. Cir. 2016).

We decline to disturb the balancing of those interests here.

Flumo’s main argument on appeal is that “opportunity to

access firearms was irrelevant” because he “was not the

gunman in any of the robberies, and there was no evidence that

[he] supplied a gun to either of his codefendants.” Appellants’

Br. 96. But Flumo was charged with aiding and abetting the

use of a firearm. The photograph of Flumo holding the gun

could thus demonstrate not that Flumo was “predisposed to

possessing firearms,” see id. at 97, but instead that Flumo had

29

access to guns and that he could have supplied the use of the

gun during the robberies, even if he was not the individual who

ultimately wielded it, accord United States v. Lauria, 541 F.

Supp. 3d 311, 314, 317–18 (S.D.N.Y. 2021) (finding that

evidence of photos and videos demonstrating that defendant

possessed a gun was admissible to establish that defendant had

opportunity and access firearms, even when defendant only

served as the getaway driver).

Flumo also contests the district court’s finding that the

photo could be admitted because it would “show his identity.”

Appellants’ Br. 96. Flumo’s argument is mainly premised on

the fact that the “photograph was ‘hard’ to interpret” and that

the object in the photograph “could not be identified as the

firearm allegedly used in the robberies.” Id. at 96–97 (quoting

J.A. 314). Accordingly, the photograph could not have been

admitted for the purpose of identifying Flumo as one of the

robbers. But the District Court acknowledged that the picture

was hard to discern and that the evidence was a “little weaker

on identity.” J.A. 323. Yet it still found that the photo could

be admitted because it provided probative value as to “whether

[the defendants] were the ones who committed these offenses.”

Id. at 324 Such acknowledgment of the varying factors, as well

as the “legitimate balancing” of those factors demonstrates that

the district court did not abuse its discretion in admitting the

photograph for purposes of showing identity under Rule

404(b). McGill, 815 F.3d at 932–33 (citation modified)

The same goes for Flumo’s argument that the district court

should not have admitted the photo under Rule 403 because any

probative value of the evidence was substantially outweighed

by the risk of prejudice. Flumo would have us believe that the

photograph had no probative value at all, but as explained

above, this is patently untrue. The district court properly

recognized both the prejudicial weight of the evidence, as well

as its probative value, and carefully balanced those interests.

30

Additionally, the district court also issued a limiting

instruction immediately after the testimony admitting the

photograph. It instructed the jury to only use the evidence “for

the limited purpose of evaluating whether [Flumo was] one of

the persons who committed the crimes charged in” the case,

and prohibited them from using the “evidence for any other

purpose,” such as “conclud[ing] that [Flumo] has a bad

character or has a criminal personality.” J.A. 457–58. When

a district court “instruct[s] the jury that it was only to consider

the evidence for the limited and proper purpose[] . . . . This is

the type of instruction that can sufficiently protect a

defendant’s interest in being free from undue prejudice.”

United States v. Cassell, 292 F.3d 788, 796 (D.C. Cir. 2002)

(citation modified). The district court’s limiting instruction

here thus further weighs in favor of affirming its ruling, and we

hold that the district court did not abuse its discretion in

rejecting Flumo’s Rule 403 arguments.

3. Testimony Regarding the Handgun Depicted in the

Photograph

Recall that the Government admitted six photographs

extracted from Flumo’s phone through FBI Agent Tahan,

including the photograph of Flumo holding a gun. During her

direct examination, Agent Tahan was asked to opine on this

photo, with the Government first asking whether she was

“familiar with firearms.” J.A. 451. This drew a general

objection from the defense, which the district court overruled.

Agent Tahan responded that she was familiar with firearms and

that the gun “depicted in the picture appear[ed] to be consistent

with firearms that are real.” Id. at 451–52. The district court

then called for a bench conference, noting that this was a “lay

opinion issue,” and that at that point in the testimony, the

Government needed to lay “a little bit more foundation.” Id. at

452. Once trial resumed, the Government did so, and asked

Agent Tahan “how many times . . . [she] encountered

31

firearms,” to which Agent Tahan responded, “[a] couple

hundred times.” Id. at 453. When asked to explain how the

photograph of the gun was “consistent with a functional real

gun,” Agent Tahan noted that “toy guns or the training

guns that [the FBI] use[d] would have an orange tip on the very

front of the barrel,” which was missing from the gun in the

photograph. Id. at 454. Agent Tahan further testified that the

metallic-looking texture of the gun in the photograph, as well

as the visible magazine, also contributed to her conclusion that

the gun was consistent with a real firearm. Id. at 454–55. After

Agent Tahan completed her direct examination, the district

court found that “foundation was laid” for Agent Tahan’s

testimony of whether “the image in the photograph [was]

consistent with a real weapon,” highlighting that the testimony

only “bolster[ed] the nature of the lay testimony.” Id. at 456–

57. The defense noted that they were “continuing the

objection.” Id. at 457. At no point was Agent Tahan ever

qualified as an expert.

Flumo argues on appeal that the district court

impermissibly admitted Agent Tahan’s testimony as lay

opinion testimony in violation of Federal Rule of Evidence

701, which mandates that such testimony should not be “based

on scientific, technical, or other specialized knowledge within

the scope of Rule 702.” Fed. R. Evid. 701(c). The force of

Flumo’s argument is premised on his assertion that because

Agent Tahan relied on her previous professional experience

with guns in her testimony, she could have only been properly

admitted as an expert witness under Rule 702. The

Government disagrees, arguing that because the basis of Agent

Tahan’s testimony arose from her “common, but not universal”

experience with guns, see Appellee Br. 93, Agent Tahan’s

testimony was properly admitted as lay opinion testimony.

Although we agree that the district court erred in admitting

32

Agent Tahan’s testimony as lay opinion rather than expert, 9 we

hold that the error was ultimately harmless.

While Rule 701 governs the admission of lay opinion

testimony, Rule 702 governs the admission of expert opinion

testimony. The distinction between the two is important

because of the reliability requirements set forth in Rule 702 that

do not exist in Rule 701. Indeed, Rule 702 requires that an

expert witness be qualified “by knowledge, skill, experience,

training, or education,” with the judge playing a “gatekeeping”

role in ensuring that such testimony will help the “trier of fact

to understand the evidence or to determine a fact in issue,” “is

based on sufficient facts or data,” “is the product of reliable

principles and methods,” and “reflects a reliable application of

the principles and methods to the facts of the case.” Daubert

9

The parties contest what standard of review properly applies. The

Government argues that this Court should review for plain error

because Flumo’s challenge was unpreserved, as Flumo only

provided a general objection to Agent Tahan’s testimony. See

Appellee Br. 90 (citing United States v. Guerrero, 665 F.3d 1305,

1309 (D.C. Cir. 2011)). The Government further contends that the

question of whether the objection was properly preserved also

impacts the harmless error analysis. According to the Government,

when an error is preserved, “the government must show that the error

did not have ‘substantial and prejudicial effect,’” see Appellee Br. 94

(quoting United States Bostick, 791 F.3d 127, 147 (D.C. Cir. 2015),

and when the error is unpreserved, the defendant “must show that

‘the error effected his substantial rights.’” Id. (quoting Guerrero,

665 F.3d at 1309); see also Fed. R. Crim. P. 52. In contrast, Flumo

asserts that we should review for abuse of discretion because it was

“abundantly clear that the district court understood that [Flumo’s]

counsel objected to Agent Tahan’s testimony because it was

improper ‘lay opinion testimony.’” Reply Br. 56; see also United

States v. Pole 741 F.3d 120, 124 (D.C. Cir. 2013). Ultimately, there

is no need to decide what standard of review should apply because

Flumo’s arguments would fail under either standard.

33

v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993);

accord Fed. R. Evid. 702. There are no such admission

requirements for lay opinion testimony. Additionally, lay

opinion testimony does not require the same disclosures as

required for expert testimony. See, e.g., Fed. R. Evid. 705. The

rules committee was keenly aware of these distinctions, and the

heightened burden imposed on expert testimony, and the

committee amended the evidence rules in 2000 to “eliminate

the risk that the reliability [and disclosure] requirements set

forth in Rule 702 will be evaded through the simple expedient

of proffering an expert in lay witness clothing.” Fed. R. Evid.

701 advisory committee’s notes to 2000 amendment.

The line between lay opinion and expert testimony can

sometimes be far from bright. However, one illuminating

distinction is that lay opinion testimony “results from a process

of reasoning familiar in everyday life, while expert testimony

results from a process of reasoning which can be mastered only

by specialists in the field.” Id. (citation modified). Further to

this point, this Court has expressly held that “knowledge

derived from previous professional experience falls squarely

within the scope of Rule 702 and thus by definition outside of

Rule 701.” United States v. Smith, 640 F.3d 358, 365 (D.C.

Cir. 2011) (citation modified).

In light of the above guidance, it is clear that Agent Tahan’s

testimony falls within the purview of expert, rather than lay

opinion. The Government would have us decide that Agent

Tahan’s testimony, which it claims was grounded in “common,

but not universal” experiences with guns, is of the type that is

from a “process of reasoning familiar in everyday life.”

Appellee Br. at 89, 93 (citation omitted). But Agent Tahan’s

testimony was grounded in her experience not as a lay citizen,

but as both a police officer and an FBI agent, because she

compared the gun in the photograph to the “toy and training

34

guns” used in her profession to explain her conclusion that the

photographed gun was consistent with a “real functioning

gun.” J.A. 454–55. Such testimony is clearly within the realm

of an individual who is a “specialist[] in the field,” see Fed. R.

Evid. 701 advisory committee’s notes to 2000 amendment, and

further, “derived from previous professional experience,”

Smith, 640 F.3d at 365. Accordingly, the district court erred in

admitting Agent Tahan’s testimony under Rule 701.

That said, we further hold that the district court’s error is

harmless because it is clear that it could not have “a substantial

and injurious effect on the jury’s verdict.” McGill, 815 F.3d at

880 (citations omitted). Flumo raises two arguments

contesting this: (1) “[T]here was no direct evidence of [his]

involvement in the robberies”; and (2) “Agent Tahan was the

only witness who linked [him] to a firearm at any point in

time.” Appellants’ Br. 104–05. Both arguments are

unpersuasive.

The record clearly belies Flumo’s assertions. While Flumo

is right that there was no “direct evidence” of his involvement

in the robberies, there was a plethora of circumstantial evidence

that connected him to the scene of the crimes. See United

States v. Gates, 807 F.2d 1075, 1080 (D.C. Cir. 1986) (“As a

general rule, circumstantial evidence is as pertinent as direct

evidence to the establishment of guilt or innocence in a

criminal case.” (citations omitted)). This included cell phone

location evidence that placed Flumo near the scene of the

robbery at the BP Gas station that occurred on January 2, 2018,

near the El Don Restaurant that occurred on January 12, 2018,

near the Sunoco Gas station on January 17, 2018, as well as

near four additional robbery locations. Other evidence

included Flumo’s arm tattoo that was partly visible during

multiple robberies, including the El Don robbery. And further

supporting evidence involved a recorded jail call, wherein

35

Flumo instructed his co-defendant, Sumo, to trash an orange-

and-black jacket, which matched the clothing that Flumo

presumably wore to three robberies. Such evidence clearly

demonstrates that there was circumstantial evidence of

Flumo’s involvement in the robberies, such that Agent Tahan’s

testimony, if wrongly admitted, would not have affected his

“substantial rights.” Fed. R. Crim. P. 52(a).

Similarly, Flumo is incorrect that Agent Tahan’s testimony

was the only evidence that established that the appellants used

a real firearm during the robberies. While the weapon was

never fired, video evidence showed a gun being brandished at

all of the robberies. That same video evidence showed that the

weapon was repeatedly racked. And an unfired cartridge was

found at one of the scenes, which matched a box of ammunition

found in Onyewu’s car. In the face of such overwhelming

evidence, Agent Tahan’s testimony regarding the photograph

of the gun was a marginal piece of a much larger puzzle, and

her testimony alone could not have reasonably impacted the

jury’s verdict. Accordingly, we hold that the district court’s

error in admitting Agent’s Tahan’s testimony as lay opinion

testimony was harmless and we further reject Flumo’s

argument to vacate his conviction on these grounds.

4. Sufficiency of Evidence for Flumo’s § 924(c)

Convictions

Finally, Flumo asserts that the district court erred in

denying his motion for judgment of acquittal as to his 18 U.S.C.

§ 924(c) charge, arguing that “[t]he evidence presented [was]

insufficient to support a § 924(c) conviction” under an aiding-

and-abetting theory. Appellants’ Br. 107. Reviewing the

challenge to the sufficiency of the evidence de novo, and

“asking whether, viewing the evidence in the light most

favorable to the verdict, any rational trier of fact could have

36

found the essential elements of the crime beyond a reasonable

doubt,” we affirm the decision of the district court. United

States v. Brock, 94 F.4th 39, 46 (D.C. Cir. 2024) (citation

modified).

18 U.S.C § 924(c) prohibits using or carrying a firearm

during a crime of violence. One can be guilty of violating

§ 924(c) under an aiding-and-abetting theory of liability.

Flumo was charged under § 924(c) for aiding and abetting only

the fifth and sixth robberies (out of a total of ten) at the El Don

Restaurant and Sunoco Gas Station.

The Supreme Court set forth the standard for determining

whether the Government has proven its § 924(c) case under

such a theory in Rosemond v. United States, which held that the

Government had to prove two things: that the “defendant

actively participated in the underlying . . . violent crime” and

that he did so “with advance knowledge that a confederate

would use or carry a gun during the crime’s commission.” 572

U.S. 65, 67 (2014). We conclude that the Government met its

burden and the evidence is clearly sufficient to uphold Flumo’s

charge.

Flumo claims that the Government has failed to prove that

he “actively participated in the underlying” crime because it

had not demonstrated that he “performed some act that directly

facilitated or encouraged the use or carrying of a firearm.”

Appellants’ Br. 108 (quoting United States v. Medina, 32 F.3d

40, 45 (2d Cir. 1994)). Flumo’s contention is patently wrong

under Rosemond, which held that the defendant “could assist

in § 924(c)’s violation by facilitating either the [violent crime]

or the firearm use [or both].” 572 U.S. at 74 (emphasis added).

In other words, the Government is not required to prove that

the defendant “performed some act that directly facilitated or

encouraged the use or carrying of a firearm,” see Appellants’

37

Br. 108, so long as it instead proved that the defendant assisted

in facilitating the underlying violent crime more generally,

Rosemond, 572 U.S. at 74–75 (noting that it is

“inconsequential . . . that [the defendant’s] acts did not

advance each element of the offense; all that matters is that they

facilitated one component.”). Accordingly, here, the

Government meets its burden under the affirmative act

requirement if “any rational trier of fact could have found” that

Flumo participated in the robbery. Brock, 94 F.4th at 46.

And indeed, here, any rational trier of fact could find that

he participated, given the plethora of evidence presented to the

jury demonstrating that Flumo participated in the robbery. As

highlighted on supra Part II.E.3, cell site location data placed

Flumo near the scene of multiple robberies, Flumo’s arm tattoo

was visible in the surveillance footage from the scenes of the

crimes, and a jail call between Flumo and Sumo demonstrated

that a certain jacket that one of the robbers was wearing during

the course of multiple robberies belonged to Flumo. Further,

some of the video evidence partly showed what appeared to be

Flumo’s face. Appellee Br. 14 (citing Prime Beer & Wine Co.

Robbery [PBW002.mp4], Suppl. App. (Box, filed July 3, 2025)

(on file with D.C. Circuit)). In light of this robust record, the

Government clearly met the first prong of the Rosemond test.

Turning now to whether the Government proved that

Flumo undertook the underlying offense “with advance

knowledge that a confederate would use or carry a gun during

the crime’s commission,” Rosemond, 572 U.S. at 67, we hold

that it did. Under Supreme Court and D.C. Circuit precedent,

to fulfill this intent requirement, the Government must show

that the defendant had “advance knowledge” that a firearm

would be used in furtherance of the underlying crime of

violence, see id. at 79, and he must know to a “practical

certainty that those . . . commit[ting] the crime of violence

38

would use a firearm in continuing that crime,” McGill, 815

F.3d at 932–33 (citation modified).

Importantly here, Flumo was charged under § 924(c) for

aiding and abetting only the fifth and sixth robberies, which

were the fourth and fifth in which Flumo directly

participated. 10 All the robberies preceding the El Don and

Sunoco robberies involved the use of a gun. Those earlier

robberies also happened in close succession, taking place either

on the same day or only a few days apart. 11 Additionally,

robberies one through four also had a consistent scheme, with

at least two of the men entering the store while wearing ski

masks, dark clothes, and gloves, one tasked with threatening

employees and patrons inside the store with a weapon—always

a gun—and the other tasked with gathering cash and valuables.

Finally, as outlined above, there were numerous pieces of

evidence connecting Flumo to those earlier robberies.

We have held that “evidence of the prevalence of guns in a

particular context” can be used as a factor to allow the jury to

infer that a certain defendant “knew to a practical certainty”

that a firearm would be used in the underlying violent crime.

McGill, 815 F.3d at 933 (quoting United States v. Powell, 929

F.2d 724, 729 (D.C. Cir. 1991)). Here, the record is replete

with evidence of the “prevalence of [a] gun[]” in the scheme

10

While Flumo’s cell site data placed him near the scene of the first

robbery, he did not appear in the video evidence.

11

Indeed, the entirety of the ten robberies was completed within the

month of January. The BP Gas Station was robbed on January 2,

2018, Lucky Seven on January 3, Lucky’s Beer & Wine on January

10, Delicias Market II on January 10, El Don Restaurant on January

12, Sunoco Gas Station on January 17, Las Placitas Restaurant on

January 22, Prime Beer & Wine on January 27, Sheger International

Market on January 27, and Exxon Gas Station on January 29. J.A.

45–46.

39

that appellants created. Accordingly, a rational trier of fact

could find that because Flumo participated in some way in

robberies one through four—where appellants operated the

same scheme with only days in between each of the crimes—

in which a firearm had been utilized, then he had to have had

“advance knowledge” “to a practical certainty” that a firearm

would be used for the fifth and sixth robberies as well. See also

United States v. Harrington, 108 F.3d 1460, 1471 (D.C. Cir.

1997) (holding that the defendant knew to a practical certainty

that his partner would use a gun when the defendant previously

knew nothing of the firearm, but still acted as the getaway

driver after seeing said partner fire a gun at pursuing officers).

Accordingly, we affirm the district court’s denial of Flumo’s

motion for judgment of acquittal as to Flumo’s § 924(c) charge.

F. Ineffective Assistance of Counsel Claims

There have been a number of ineffective assistance of

counsel (“IAC”) claims lodged in this case, one claim filed

jointly by all appellants and then multiple others filed

individually by Flumo. All of them fail under D.C. Circuit and

Supreme Court precedent because the trial record is clear that

none of the appellants can demonstrate prejudice.

When a defendant alleges that their counsel has been

ineffective, they must successfully demonstrate: (1) that their

counsel made errors that are “so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment” and (2) “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland

v. Washington, 466 U.S. 668, 687, 694 (1984). Given the “fact-

intensive nature of the Strickland inquiry . . . this court’s

general practice is to remand the claim for an evidentiary

hearing unless the trial record alone conclusively shows that

40

the defendant either is or is not entitled to relief.” United States

v. Rashad, 331 F.3d 908, 909 (D.C. Cir. 2003) (citation

modified). Here, because the trial record conclusively shows

that even if counsel were deficient in the ways appellants

contend, appellants still cannot show a reasonable probability

of a different outcome, we decline to remand the claims, and

instead hold that all the IAC claims fail. We interrogate those

claims below and explain our holding as to each.

1. Joint IAC Claim

We begin with appellants’ joint IAC claim. This claim is

premised on the police’s search of Onyewu’s vehicle. The

police seized Onyewu’s vehicle on February 8, 2018, but they

did not execute the search warrant for the car until February 15.

Appellants allege that the phone records from a phone within

the vehicle demonstrate that the police accessed the car without

a warrant in between February 8 and 15 because those phone

records show outgoing activity between the aforementioned

dates. Because appellants’ counsel failed to file any motions

to suppress the evidence found in Onyewu’s car on the basis of

those phone records, appellants allege that their attorneys were

ineffective. Additionally, appellants’ assert that counsels’

failure to call any witnesses to interpret the phone records was

likewise ineffective.

We find this joint IAC claim unavailing. Even assuming

that appellants are correct—that the phone records did

demonstrate that police accessed the car prior to the issuance

of the search warrant and that their counsels were deficient in

not moving to suppress the evidence found in the car based on

those grounds or in admitting witnesses who could testify to

those records—appellants’ joint IAC claim still fails because

there is no “colorable” argument for suppression, which means

that there is no “colorable” argument for prejudice. See United

41

States v. Sitzmann, 893 F.3d 811, 831–32 (D.C. Cir. 2018); see

also Strickland, 466 U.S. at 697 (“If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed.”).

Even if the police unlawfully searched the car, the

independent source doctrine—which allows for the admission

of unlawfully obtained evidence “if officers independently

acquired it from a separate, independent source”—would still

have rendered the subsequent search of the car lawful. Utah v.

Strieff, 579 U.S. 232, 238 (2016). For the doctrine to apply, the

police’s decision to seek the warrant for the car must not have

been prompted by what they had seen through the unlawful

search of the phone and no information related to the allegedly

illegal search of the phones can have been presented to the

magistrate judge issuing the warrant. Murray v. United States,

487 U.S. 533, 542 (1988). Additionally, a finding that the

police would have sought a warrant regardless of the illegal

search bolsters the application of the independent source

doctrine. Id. at 543.

All of these factors are met here. The police obtained a

search warrant for Onyewu’s car that did not say anything

about any phone (other than a quick reference to “cellular

phones” as one of the items to be seized). See J.A. 68. Because

no information related to the phones was in the warrant, it is

reasonable to assume—and appellants have put forward no

argument suggesting otherwise—that the magistrate judge was

not made aware of any information the police gleaned from the

alleged illegal search of the phone (assuming it happened).

Additionally, the record also supports a finding that the police

would have sought a search warrant even without having

performed the alleged unlawful search, as the police had

already seized the car prior to the outgoing activity in the phone

records. Because the independent source doctrine would have

42

rendered the alleged illegal search of Onyewu’s car lawful,

there can be no colorable argument of prejudice connected to

counsels’ failure to file motions to suppress premised on these

grounds. Appellants’ joint IAC claim is thus denied.

2. Flumo’s Individual IAC Claims

Flumo also raises a number of IAC claims against his

attorney, alleging that his counsel was deficient because: (1)

they failed to investigate the case; (2) they provided Flumo

insufficient access to his discovery; and (3) they failed to

challenge certain government testimony. We likewise do not

find any of those claims to be colorable, again because the trial

record “conclusively shows that the defendant” is not entitled

to relief. Rashad, 331 F.3d at 910 (citation modified).

First, Flumo contends that his counsel was ineffective for

failing to properly investigate his case. Flumo raises three

points to demonstrate his counsel’s deficiencies as to this

specific IAC claim: (1) that Flumo had to file his own pro se

motion to suppress evidence recovered from the Samsung

Galaxy phone and a Rule 33 motion for a new trial based on

newly discovered evidence; (2) that his counsel failed to

investigate AT&T evidence that would have demonstrated that

Flumo “never had an AT&T account in his name”; and (3) that

his counsel failed to “introduce into evidence call detail record

from the Samsung phone,” the number of which was tied to

“5566.” Appellants’ Br. 13, 111–13. Even assuming that

Flumo’s counsel was deficient for failing to do these things,

there is again no “colorable” argument for prejudice.

On Flumo’s contention that he had to file his own pro se

motions, there is no “colorable” argument for prejudice

because those motions were filed and considered by the district

court. Flumo has not put forward any arguments—and the trial

43

record does not show—how the outcome of Flumo’s case

would have been different if counsel had made these motions

rather than Flumo.

On Flumo’s contention that his counsel failed to

investigate AT&T evidence, there is no “colorable” argument

for prejudice because AT&T had submitted a certified business

record that tied a phone number ending in “8846” to Flumo.

Although Flumo alleges that he had disclosed to the district

court in an ex parte proceeding that his girlfriend had obtained

exculpatory records showing that the number was never linked

to Flumo, he never sought to present that information to the

court or to his attorney. Flumo’s argument of prejudice is thus

conclusory, “fault[ing] his . . . attorney[] for not finding” the

AT&T records, without providing any reason for believing that

the records exist. United States v. Tucker, 12 F.4th 804, 817

(D.C. Cir. 2021). This claim can thus present no colorable

argument for prejudice either.

Finally, on Flumo’s contention that his counsel failed to

investigate the “5566” number and call records associated with

that number, Flumo again presents no colorable argument for

prejudice. As noted above, AT&T had submitted a certified

business record linking the “8846” number to Flumo. The cell

site location data that placed Flumo near the location of several

of the robberies was conducted using this number. However,

the Samsung Galaxy phone discovered during the search of

Onyewu’s car was associated with a number ending in “5566.”

Flumo’s theory of prejudice is that if his counsel had

investigated the “5566” number, counsel would have found

that the device associated with that phone was never in the

vicinity of any of the robberies. But even if we take all

inferences in favor of Flumo and accept that the records

associated with the “5566” number would have shown that this

phone was nowhere near the robberies during the time that they

44

occurred, there was still a certified business record from AT&T

tying the “8846” number to Flumo, and that phone was linked

to the robbery locations. In other words, even if Flumo’s

attorney had presented evidence that the “5566” phone was

never in the vicinity of the robberies, there is no reasonable

probability that such evidence would have changed the

outcome, given the evidence that the “8846” phone was near

the robbery locations and was associated with Flumo.

Accordingly, we deny Flumo’s IAC claim that his counsel was

ineffective for failing to investigate the case.

Second, Flumo asserts that his counsel was ineffective

because they did not provide Flumo with sufficient access to

the discovery. It is clear, however, that Flumo’s real contention

is that he was not provided timely access to certain documents,

including the warrant associated with the “8846” number and

the AT&T call detail records for the same. Indeed, Flumo

admits in his briefing that he viewed these records after trial

began. Flumo alleges that the delay in receiving his discovery

prejudiced him because it deprived him “of the opportunity to

litigate issues, including moving for suppression.” Appellants’

Br. 116. But nowhere does Flumo allege that his counsel did

not review the discovery that Flumo presumably saw very late

into his trial or that his counsel was deficient for not utilizing

that discovery in a motion to suppress. In fact, the trial record

is clear that counsel saw both the warrant and the call detail

records. Flumo has made no colorable argument as to what

theory of suppression he would have asked his lawyer to pursue

or why any such motion to suppress would likely have been

successful. Consequently, we deny Flumo’s second IAC

claim.

Flumo’s final assertion is that his counsel was ineffective

for “failing to challenge and subsequently eliciting improper

lay opinion testimony” from an officer named Detective Dyer.

45

Appellants’ Br. 116. Detective Dyer had testified that the word

“twelve,” as used in a jail call between Flumo and Sumo, was

slang for “police.” J.A. 392. Flumo claims that his counsel

should have objected to such testimony as improper lay

testimony. Even assuming that his counsel was deficient for

not objecting, Flumo has, yet again, failed to raise a colorable

prejudice argument. Flumo states that “Detective Dyer’s

interpretation of the jail call” was prejudicial because it was

referenced multiple times in the Government’s closing.

Appellants’ Br. 117. But while the Government referenced the

jail call between Flumo and Sumo on multiple occasions, none

of those references relied upon Detective Dyer’s interpretation

of the word “twelve” as slang for “police.” Indeed, this

particular testimony had “minimal impact,” see United States

v. Glover, 872 F.3d 625, 635 (D.C. Cir. 2017), because what

was important about the jail call was not whether Flumo was

referring to police in his conversation with Sumo but instead

that Flumo told Sumo to destroy a certain jacket. There is thus

no “colorable” argument for prejudice. Along the same lines,

Flumo also briefly raises that his counsel’s performance was

ineffective because they “elicited additional improper [lay]

testimony on cross-examination,” and that such performance

was deficient and prejudicial. Appellants’ Br. 17. Such

conclusory assertions present no “colorable” arguments,

especially as Flumo has identified no “specific statements” for

this Court to analyze. Sitzmann, 893 F.3d at 832.

In sum, we decline to remand any of Flumo’s ineffective

assistance of counsel claims as none present a colorable

argument of prejudice. 12

12

Flumo additionally raises a flurry of IAC claims near the end of

appellants’ brief, cursorily claiming that his counsel was deficient for

failing to call Detective Lin as a witness in the motion to suppress

hearing, not objecting to hearsay testimony during the suppression

hearing, and not obtaining or introducing call records from the jail

46

III. Conclusion

For the foregoing reasons, the rulings of the District Court

are affirmed.

So ordered.

that would have allegedly “contradicted the government’s

interpretation” of a jail call introduced at trial. Appellants’ Br. 117–

18. As to prejudice, Flumo tersely states that the Government cannot

meet its burden to “‘conclusively demonstrate’ that [Flumo] cannot

show prejudice at an evidentiary hearing.” Id. at 118 (quoting

Rashad, 331 F.3d at 909, 912). Flumo has merely mentioned these

arguments “in the most skeletal way,” leaving the court to “put flesh

on its bones”; accordingly, Flumo has forfeited these arguments. Al-

Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019); see also Tucker,

12 F.4th at 816 (holding that when claims are presented in a “vague

or conclusory manner,” we deny those claims without remand).

WILKINS, J., concurring:

Judge Walker’s concurring opinion questions the wisdom

of our holding in United States v. Burwell, 122 F.4th 984, 986

(D.C. Cir. 2024) that, at common law, robbery could

sometimes be accomplished by taking property without a threat

of physical force, specifically by using a threat to accuse the

victim of sodomy. See Walker Op. at 1–3. I write separately

to respond to Judge Walker’s doubts.

First, Judge Walker observes that our holding in Burwell

is in tension with dictum in Delligatti v. United States, 604 U.S.

423, 430–33 (2025) that, in turn, quoted from Stokeling v.

United States, 586 U.S. 73, 78–86 (2019). But Stokeling is

inapposite, and therefore so too is Delligatti. In Stokeling, the

Court addressed a Florida robbery conviction pursuant to a

state statute that had been construed by Florida’s highest court

to “require[] ‘resistance by the victim that is overcome by the

physical force of the offender.’” See Stokeling, 586 U.S. at 86

(quoting Robinson v. State, 692 So. 2d 883, 886 (Fla. 1997));

see also id. at 76. Thus, the Court had no occasion to ascertain

whether common law robbery required physical force—the

case turned on the meaning of the Florida robbery statute.

Moreover, the question before the Court in Stokeling was

whether the particular quantum of physical force mandated by

the Florida robbery statute met the standard of 18 U.S.C.

§ 924(e)(2). See id. at 75 (“This case requires us to decide

whether a robbery offense that has as an element the use of

force sufficient to overcome a victim’s resistance necessitates

the use of ‘physical force’ within the meaning of the Armed

Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e)(2)(B)(i).”). Stokeling had nothing to say about the

question of whether all common law robberies require the use

of such force. Finally, Stokeling was also a case construing

Section 924(e), rather than Section 924(c), the applicable

provision here. Perhaps for these reasons, none of the parties

even cited Stokeling to us in any of the briefing in Burwell.

2

Judge Walker also suggests that perhaps common law

robbery did require the use of physical force because Rex v.

Donnally, an old English case dating to 1779, could be

construed as supporting the proposition that an accusation of

sodomy “carried an implied threat of personal violence —

potentially including violence from those who encountered the

publicly accused person.” Walker Op. at 2 (citing Rex v.

Donnally, 1 Leach 193, 194, 197–99, 168 Eng. Rep. 199, 200–

02 (1779)). Lest there be any doubt, the same judges who

decided Donnally clarified their holding later in a case called

Hickman:

[T]he true definition of Robbery is the stealing,

or taking from the person, or in the presence of

another, property of any amount, with such a

degree of force or terror, as to induce the party

unwillingly to part with his property;

and whether the terror arises from real or

expected violence to the person, or from a sense

of injury to the character, the law makes no kind

of difference; for to most men the idea of losing

their fame and reputation is equally, if not more

terrific than the dread of personal injury. The

principal ingredient in robbery is a man’s being

forced to part with his property; and the Judges

are unanimously of [the] opinion, [t]hat upon

the principles of law, and the authority of

former decisions, a threat to accuse a man of

having committed the greatest of all crimes, is,

as in the present case, a sufficient force to

constitute the crime of robbery by putting in

fear.

3

Rex v. Hickman, 1 Leach 278, 280, 2 East P. C. 728 (1784)

(emphasis added). See also, e.g., Simmons v. State, 25 So. 881,

882 (Fla. 1899) (“The rule is well settled that property obtained

by trick or artifice, or by threats of illegal arrest or criminal

prosecution, or insinuations against character, except they

relate to sodomitical practices, is not taken by ‘putting in fear,’

within the common-law definition of robbery[.]”); Long v.

State, 12 Ga. 293, 318–19 (1852) (“[T]hreats of a prosecution

amount to that violence by construction, which constitutes the

offence of robbery, only in one instance, and that is when the

threat is to prosecute for an unnatural crime; and it will

be robbery, whether the party is guilty or not. So abominable

is the crime, and so destructive is even the accusation of it, of

all social right and privilege, that the law considers that the

accusation is a coercion which men cannot resist.”) (emphasis

in original); Britt v. State, 7 Humph. 45, 46–47 (Tenn. 1846)

(describing why sodomy is the exception to the rule that taking

by use of accusation of a crime does not constitute robbery:

“The reasoning on which the single admitted exception is made

to rest turns upon the over-whelming and withering character

of the charge and its damning infamy, so well calculated to

unman and subdue the will and alarm the fears of the falsely

accused.”); Houston v. Commonwealth, 12 S.E. 385, 387 (Va.

1890) (“The demonstrations or fear must be of a physical

nature, with the single exception that, if one parts with his

goods through fear of a threatened charge of sodomy, the

taking is robbery.”). We cited seven different treatises for the

same proposition in Burwell, see 122 F.4th at 992–93, and I

refer any other doubters to that opinion rather than belaboring

the point further here.

WALKER, J., concurring:

Today, we join our sister circuits in holding that Hobbs Act

robbery is a crime of violence. That holding does not rely on

an analogy to common-law robbery. I mention this because, in

an opinion holding that federal bank robbery is not a crime of

violence, United States v. Burwell said that common-law

robbery did not require force or violence. See 122 F.4th 984,

992–93 (D.C. Cir. 2024).

I have great respect for Burwell’s author. And so long as

Burwell is a binding precedent, I will of course follow its

holding when it controls. But for two reasons, when Burwell’s

holding does not directly control the answer to an open legal

question that depends on the historical understanding of

common-law robbery, I will be reluctant to expand it.

First, Burwell said that “the government’s premise that

common law robbery ‘embraced only threats of immediate

bodily harm to the victim’ is flat wrong.” Id. at 992 (quoting

Government Br. at 15). But Burwell’s statement may be in

some tension with statements by the Supreme Court. See, e.g.,

Delligatti v. United States, 604 U.S. 423, 431–32 (2025)

(“[V]iolent force encompasses ‘the “force” required for

common-law robbery,’ which is ‘the quintessential [Armed

Career Criminal Act]-predicate crime.’ Common-law robbery

requires only the force needed to overcome the victim’s

slightest physical resistance, even if it results in ‘minimal pain

or injury.’” (quoting Stokeling v. United States, 586 U.S. 73,

78, 80, 83–84 (2019))).

Second, Burwell said that extorting money through

“accusations of sodomy or an infamous crime” was considered

robbery at common law even though it included no threat of

violence:

2

As Blackstone explained, robbery 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.”

4 William Blackstone, Commentaries *241 (emphasis

added).

And multiple treatises, including Blackstone’s, make clear

that the fear element of common law robbery could be

induced by threats of something other than violence. As

Blackstone explained, “extorting money or [any] other

thing of value by means of a charge of sodomy may

be robbery.” Id. at *244 n.14; see also [other treatises].

Burwell, 122 F.4th at 992–93.1 However, that analysis may be

in some tension with authorities suggesting that the threat of

that particular allegation carried an implied threat of personal

violence — potentially including violence from those who

encountered the publicly accused person. See, e.g., Rex v.

Donnally, 1 Leach 193, 194, 197–99, 168 Eng. Rep. 199, 200–

02 (1779) (rejecting the argument that the conduct was merely

1

This quote regarding “a charge of sodomy” appears in an annotation

of Blackstone’s Commentaries by Thomas Cooley, who called the

charge a sole exception to the rule that common-law robbery requires

at least a threat of violence: “That extorting money or other thing of

value, by means of a charge of sodomy, may be robbery, see People

v. McDaniels, 1 Park. Cr. R., 198. But this is an exceptional case,

and it is held not robbery to extort money by means of the charge of

any other offense, as for instance, forgery. Long v. State, 12 Geo.,

293; Britt v. State, 7 Humph., 45. Obtaining money from a woman

under a threat to accuse her husband of an indecent assault, was held

not to be robbery, in Rex v. Edwards, 5 C. & P., 518; 1 Moo. & R.,

257.” 4 William Blackstone, Commentaries *244 (Thomas M.

Cooley ed., 3d rev. ed. 1884) (emphases added); cf. 4 William

Blackstone, Commentaries *244 (Edward Christian ed., 1818) (does

not include the quote).

3

“a fraudulent extorting, and not a taking by violence”; noting

that the jury found that the victim surrendered his money

“under an apprehension that his life was in danger”; and

reasoning that the threat to take him before a magistrate

presented “a threat of personal violence,” because he had

“every thing to fear in being dragged through the streets as a

culprit charged with an unnatural crime”); cf. Chen Yehudai,

Informational Blackmail: Survived by Technicality?, 92 Marq.

L. Rev. 779, 805 n.158 (2009) (“In Donnally, the victim

testified that he thought that not complying with the

defendant’s demands would cost him his life.”).