Petition for Writ of Certiorari — Clifton McLean, aka Little Clif, Petitioner v. United States

Supreme Court briefDec 16, 2017

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IN THE

Cc itt, U.S.

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2017

C' ERK

SUPREME COURT OF THE UNITED STATES

Clifton Mclean

PETITIONER

(Your Name)

vs.

United States

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Third Circuit Court of Appeals

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

0ó1

afeb(

Clifton Mclean #70551-066

(Your Name)

14601 Burbridge Road SE

(Address)

Cumberland, Maryland 21502

(City, State, Zip Code)

N/A

(Phone Number)

QUESTION(S) PRESENTED

Under the Due Process Clause, did the trial court unconstitutionally

deny Petitioner's request/motion for an entrapment instruction when the

record contained evidence of lack of predisposition and inducement?

Whether Petitioner's Hobbs Act convictions in a reverse stash house

sting lacked sufficient evidence establishing that his conduct affected

interstate commerce, or would have affected interstate commerce, absent

governmental intervention and fictitious concoction?

Whether Petitioner's 18 U.S.C. § 924(c) convictions are in violation

of Johnson v. United States, 135 S. Ct. 2551 (2015), where two of the four

possible predicate offenses for the conviction, specifically Hobbs Act robbery

and Conspiracy, fail to qualify as a crime of violence or a drug trafficking

offense?

Whether Petitioner's 18 U.S.C. § 922(g)(1) conviction lacked evidence

that his intrastate possession of a firearm had a substantial effect on

interstate commerce?

LIST OF PARTIES

[*] All parties appear in the caption of the

case on the cover page.

[ ] All parties do not appear in the caption

of the

all parties to the proceeding in the court who case on the cover page. A list of

se judgment is the subject of this

petition is as follows:

TABLE OF CONTENTS

OPINIONSBELOW ............................

........................................................

....................

JURISDICTION........................................................

...........................................................2

CONSTITUTIONAL AND STATUTORY PROVISI

ONS INVOLVED .................................3

STATEMENT OF THE CASE ..............................

...........................................................6

REASONS FOR GRANTING THE WRIT ..................

......................................................9

CONCLUSION.........................................................

...........................................................30

INDEX TO APPENDICES

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

Opinion of the Third Circuit Appe

als Court affirming

Petitioner's conviction.

Order Denying Rehearing.

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Alderman v. United States, 131

Baptiste v. Att'y Gen., F.3

6595993 (3d Cir. Nov. 8, 201

S. Ct. 700 (2011)

Bond v. United States, 134 S.

No. 14-4476, 2016 WL

Ct. 2077 (2014)

d 188 (2d Cir. 2003)

Chrzonski v. Ashcroft, 327 F.3

Hamptan v. United States, 425

U.S

. 484 (1976)

Johnson v. United States, 135

S. Ct. 2551 (2015)

Jones v. United States, 529 U.S

. 848 (2000)

22, 23

16, 28

Cont'd., Next Page

STATUTES AND RULES

18 U.S.C. § 922

18 U.S.C. § 924

18 U.S.C. § 1951

21 U.S.C. § 841

4, 5

21 U.S.C. § 846

21 U.S.C. § 851

18 U.S.C. § 2

28 U.S.C. § 1254

OTHER

U.S. Constitutional Amendment

3, 9

Mathews v. United States, 485 U.S. 58 (1989)

National Federation of Independent Business (NFIB) v.

Sebelius, 132 S. Ct. 2566 (2012)

16, 18

Office of Senator Mark Dayton v. Hanson, 550 U.S. 511 (2007)

Sherman v. United States, 356 U.S. 369 (1958)

9, 10

United States v. Anthony Robinson, U.S.C.A. No. 15-1402

(3d Cir. Dec. 19, 2016)

23, 24

United States v. Cardena, No. 12-3680, 2016 WL 6819696

(7th Cir. Nov. 18, 2016)

United States v. Clausen, 328 F.3d 708 (3d Cir. 2003)

United States v. Dennis, 826 F.3d 683 (3d Cir. 2016)

9, 10, 12, 13

United States v. Fedroff, 874 F.2d 178 (3d Cir. 1989)

10, 12

United States v. Core, 636 F.3d 728 (5th Cir. 2011)

United States v. Jannotti, 673 F.3d 578 (3d Cir. 1982)

United States v. King, 979 F.3d 801 (10th Cir. 1992)

United States v. Lopez, 514 U.S. 549 (1995)

16, 18, 28

United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014)

United States v. Manzo, 636 F.3d 65 (3d Cir. 2011)

United States v. Morrison, 529 U.S. 598 (2000)

16, 18, 29

United States v. Russell, 411 U.S. 423 (1973)

9, 10

United States v. Salahuddin, 765 F.3d 329 (3d Cir. 2014)

United States v. Syme, 276 F.3d 131 (3d Cir. 2002)

United States v. Teamsters Local 560, 780 F.2d 267

(3d Cir. 1986)

United States v. Tyler, 732 F.3d 241 (3d Cir. 2013)

United States v. Walker, 657 F.3d 160 (3d Cir. 2011)

United States v. Watkins, 339 F.3d 167 (3d Cir. 2003)

United States v. White, 571 F.3d 365 (4th Cir. 2009)

United States v. Whitfield, 649 Fed. App'x 192 (3d Cir. 2016)

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue

to review the judgment below.

OPINIONS BELOW

[*] For cases from federal courts:

The opinion of the United States court of appeals appears

at Appendix

the petition and is

Ii I reported at

; or,

[I has been designated for publication but is not yet repo

rted; or,

[*J is unpublished.

The opinion of the United States district court appears

at Appendix

the petition and is

[ ] reported at

; or,

{ I has been designated for publication but is not yet repo

rted; or,

II II is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the meri

ts appears at

Appendix

to the petition and is

[I reported at

; or,

[I has been designated for publication but is not yet repo

rted; or,

Ellis unpublished.

The opinion of the

court

appears at Appendix

to the petition and is

II] reported at

; or,

[I has been designated for publication but is not yet repo

rted; or,

[ ] is unpublished.

•

JURISDICTION

[*] For cases from federal courts:

The date on which the United States Court of Appeals decid

ed my case

was August 3, 2017

[] No petition for rehearing was timely filed in my case.

[*J A timely petition for rehearing was denied by the Unite

d States Court of

Appeals on the following date: September 21. 2017

, and a copy of the

order denying rehearing appears at Appendix B

[ I An extension of time to file the petition for a writ of

certiorari was granted

to and including

(date) on

(date)

in Application No. _A______

The jurisdiction of this Court is invoked under 28 U. S. C. §

1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case

was

A copy of that decision appears at Appendix

{ ] A timely petition for rehearing was thereafter denied on

the following date:

and a copy of the order denying rehearing

appears at Appendix

{ I An extension of time to ifie the petition for a writ of certio

rari was granted

to and including

(date) on

(date) in

Application No. _A______

The jurisdiction of this Court is invoked under 28 U. S. C. §

1257(a).

CONSTITUTIONAL AND STATUTORY PROVISI

ONS INVOLVED

Amendment V. Grand Jury Indictment for

Capital Crimes; Double Jeopardy;

Self—Incrimination; Due Process of Law;

Just Compensation for Property

No person shall be held to answer for

a capital, or otherwise infamous

crime, unless on a presentment or indi

ctment of a Grand Jury, except in

cases arising in the land or naval forc

es, or in the Militia, when in

actual service in time of War or publ

ic danger; nor shall any person be

subject for the same offence to be twic

e put in jeopardy of life or limb;

nor shall be compelled in any criminal

case to be a witness against

himself, nor be deprived of life, libe

rty, or property, without due process

of law; nor shall private property be

taken for public use, without just

compensation.

18 IJ.S.C.A. § 922

(g) It shall be unlawful for any person--

(1) who has been convicted in any cour

t of a crime punishable by

imprisonment for a term exceeding one

year;

to ship or transport in interstate of

foreign commerce, or possess in

or affecting commerce, any firearm or

ammunition; or to receive any

firearm or ammunition which has been

shipped or transported in interstate

or foreign commerce.

18 IJ.S.C.A. § 924

(c)(3) For purposes of this subsection

the term "crime of violence" means

an offense that is a felony and-(A) has as an element the use, attempte

d use, or threatened use of

physical force against the person or

property of another, or

(B) that by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the course of

committing the offense.

(e)(1) In the case of a person who violates section 922(g) of this title

and has three previous convictions by any court referred to in section

922(g)(1) of this title for a violent felony or a serious drug offense,

or both, committed on occasions different from one another, such person

shall be fined under this title and imprisoned not less than fifteen years,

and, notwithstanding any other provision of law, the court shall not

suspend the sentence of, or grant a probationary sentence to, such person

with respect to the conviction under section 922(g).

18 U.S.C.A. § 1951

Whoever in any way or degree obstructs, delays, or affects commerce

or the movement of any article or commodity in commerce, by robbery or

extortion or attempts or conspires so to do, or commits or threatens

physical violence to any person or property in furtherance of a plan or

purpose to do anything in violation of this section shall be fined under

this title or imprisoned not more than twenty years, or both.

As used in this section-(1) The term "robbery" means the unlawful taking or obtaining of personal

property from the person or in the presence of another, against his will,

by means of actual or threatened force, or violence, or fear of injury,

immediate or future, to his person or property in his custody or

possession, or the person or property of a relative or member of his family

or of anyone in his company at the time of the taking or obtaining.

21 U.S.C.A. § 841

Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any

person knowingly or intentionally-(1) to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance;

Penalties

Except as otherwise provided in section 859, 860, or 861 of this title,

any person who violates subsection (a) of this section shall be sentenced

as follows:

(1)(A) In the case of a violation of subsection (a) of this section

involving--(1) 5 kilograms or more of a mixture or substance containing a detectable

amount of-(II) cocaine, its salts, optical and geometric isomers, and salts of

isomers;

21 U.S.C.A. § 846

Any person who attempts or conspires to commit any offense defined in

this subchapter shall be subject to the same penalties as those prescribed

for the offense, the commission of which was the object of the attempt

or conspiracy.

18 U.S.C.A. § 2

(a) Whoever commits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is punishable

as a principal.

21 U.S.C.A. § 851

(a) Information filed by United States Attorney

(1) No person who stands convicted of an offense under this part shall

be sentence to increased punishment by reason of one or more prior

convictions, unless before trial, or before entry of a pleas of guilty,

the United States attorney files an information with the court (and serves

a copy of such information on the person or counsel for the person) stating

in writing the previous convictions to be relied upon. Upon a showing

by the United States attorney that facts regarding prior convictions could

not with due diligence be obtained prior to trial or before entry of a

plea of guilty, the court may postpone the trial or the taking of the

plea of guilty for a reasonable period for the purpose of obtaining such

facts. Clerical mistakes in the information may be amended at any time

prior to the pronouncement of sentence.

STATEMENT OF THE CASE

This case involves a fictitious stash house sting

a ruse that was

developed by the Bureau of Alcohol, Tobacco, and Firearms

(ATF) in which

a confidential informant and an undercover agent proposed

a robbery of a

non-existent drug stash house to Petitioner, who had no

prior convictions

for robberies or gun possession. The government in this

case determined the

type of drugs, the quantity, and described a situation

in which it appeared

guns and multiple participants would be necessary for the

robbery. Petitioner

and his co-defendant agreed to participate in this ficti

tious robbery and

were arrested when they appeared at a pre-determined meeti

ng location.

Petitioner never engaged in an actual robbery nor any

viole

nt behavior. There

was never a stash house, no drugs to steal, and no drug

dealers to threaten

nor rob.

Procedural History

On August 14, 2013, Petitioner was arrested and charged

in a complaint

and warrant filed in the Eastern District of Pennsylvan

ia.

On September 12, 2013, Petitioner was charged in an indic

tment with

conspiracy to commit Hobbs Act robbery, in violation of

18 U.S.C. § 1951(a)

(Count One); attempt to commit Hobbs Act robbery and aidin

g and abetting,

in violation of 18 U.S.C. §§ 1951(a) & 2 (Count Two); consp

iracy to possess

with intent to distribute five kilograms or more of cocai

ne, in violation

of 21 U.S.C. § 846 (Count Three); attempt to possess with intent to distribute

five kilograms or more of cocaine and aiding and abetting, in violation of

21 U.S.C. §§ 846 & 841(a)(1), (b)(1)(A) & 2 (Count Four); carrying a firearm

during and in relation to a crime of violence and a drug trafficking crime,

in violation of 18 U.S.C. § 924(c) (Count Five); and being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g) and 924(e) (Count

Six).

Prior to trial, Petitioner filed motions for discovery due to outrageous

government conduct and selective prosecution and motions to dismiss the

indictment due to outrageous government conduct and selective prosecution.

These motions were denied. Also prior to trial, the government filed a notice

of a prior felony drug conviction pursuant to 21 U.S.C. § 851(a).

A jury trial commenced on May 4, 2015. At trial, Petitioner made an

oral Rule 29 motion for judgment of acquittal based on insufficient evidence

that the conduct affected interstate commerce, and this motion was denied.

The court also denied Petitioner's request for an entrapment instruction.

On May 8, 2016, the jury returned a guilty verdict on all counts. The

jury also answered special interrogatories on counts three and four

determining that over five kilograms of cocaine were involved in count three

and over 500 grams of cocaine were involved in count four.

After trial, new counsel was appointed to represent Petitioner.

Petitioner filed post-trial motions on March 15, 2016, and April 29, 2016,

raising various arguments for new trial and/or judgment of acquittal.

a two-day sentencing hearing held on June 1 and June 2, 2016, the

district

court denied all of Petitioner's motions for new trial and/or judgme

nt of

acquittal. Upon concession by the government, the district court found

that

the predicate offenses necessary for a mandatory sentence under the

Armed

Career Criminal Act, 18 U.S.C. § 924(e), had not been proven. The distri

court also granted a sentencing entrapment argument allowing for a

sentence

below the 20-year mandatory minimum sentence on Count Three. The court

sentenced Petitioner to a total of 19 years' imprisonment followed

by 10

years of supervised release and a special assessment of $600.

Petitioner filed a timely notice of appeal on June 27, 2016, challe

nging

only the convictions and not the sentence. The government filed a

notice

of cross-appeal on July 26, 2016. The government moved to withdraw

its notice

of cross-appeal on September 14, 2016 and that appeal was dismissed

September 15, 2016.

REASONS FOR GRANTING THE PETITIO

I. UNDER THE DUE PROCESS CLAUSE, DID

THE TRIAL COURT UNCONSTITUTIONALL

DENY PETITIONER'S REQUEST/MOTION FOR

AN ENTRAPMENT INSTRUCTION WHEN

THE RECORD CONTAINED EVIDENCE OF LAC

K OF PREDISPOSITION AND INDUCEMENT?

Introduction/Discussion

The district court erred in denying

there was evidence of Petitioner's

an entrapment instruction where

lack of predisposition to commit arme

robberies of drug stash houses and

where there was evidence of governme

inducement. Entrapment occurs when

the criminal design originates with

government officials who implant in

the mind of an innocent person the

disposition to commit the alleged offe

nse and induce its commission in orde

that they may prosecute. United Stat

es v. Russell, 411 U.S. 423, 434-435

(1973); Mathews v. United States,

485 U.S. 58, 62-63 (1989); United

v. Dennis, 826 F.3d 683, 690 (3d Cir.

an entrapment instruction whenever

States

2016). The defendant is entitled to

there is sufficient evidence from whic

a reasonable jury could find entrapme

nt. Mathews, Id., at 62. A valid

entrapment defense has two related

crime, and a lack of predisposition

in the criminal conduct. Mathews,

elements: government inducement of

the

on the part of the defendant to enga

Id., at 62, citing Sherman v. Unit

ed States,

356 U.S. 369, 376-378 (1958); Russell,

id. at 435-436; Hamptan v. United

States, 425 U.S. 484, 489 (1976).

Petitioner's Lack of Predisposition

Predisposition may be defined as a

in the crime for which he was charged

to Commit Drug Stash House Robberie

defendant's inclination to engage

"measured before his initial exposure

to government agents." United States v. Fedroff, 874 F.2d 178, 182 (3d Cir.

1989)(emphasis added). Thus, a defendant's active participation after the

government's efforts to recruit him has limited bearing on his predisposition.

United States v. Mayfield, 771 F.3d 417, 442 (7th Cir. 2014). In considering

predisposition or lack thereof, one factor that can be considered is "evidence

showing that the suggestion of illegal activity was made by government

agents." Fedroff, 874 F.2d at 184. A defendant's criminal history is also

relevant to predisposition, but a court must distinguish between previous

convictions for the crime at hand rather than any crime at all. Mayfield,

771 F.3d at 438 ("'[T]he principal element in the defense of entrapment [i]s

the defendant's predisposition to commit the crime'--not just any crime."

(emphasis in original)(quoting Russell, id., at 433)). Thus, the Third Circuit

has found that a defendant with a history of drug possession and distribution

could rely on his criminal history to show a lack of predisposition for

committing robbery and possessing a gun, but not a lack of predisposition

for drug trafficking crimes. See Dennis, 826 F.3d at 693; see also Mayfield,

771 F.3d at 442 (finding that Mayfield's prior conviction for armed carjacking

was not conclusive evidence that he was predisposed to commit an armed robbery

of a drug stash house). A court must also consider the age of the prior

criminal history. See Sherman v. United States, 356 U.S. 369, 373-377 (1958)

(holding that five and nine year old convictions for selling and possessing

drugs were insufficient to establish that defendant was predisposed to drug

10.

trafficking at the time the government agent approached the defendant).

In denying Petitioner's request for an entrapment instruction, the

district court stated that there was "compelling" evidence of predisposition

and it "would have been impossible" for the defense to produce evidence of

non-predisposition. However, the evidence of Petitioner's predisposition

was at the very least mixed, thereby requiring that the jury be instructed

on entrapment or the defense of entrapment.

Petitioner's criminal history served as evidence of lack of

predisposition. He had no prior convictions for robbery or gun possession.

Although Petitioner had prior drug trafficking convictions, he did not have

to demonstrate a lack of predisposition to commit any crime, only a lack

of predisposition to commit the crime of armed stash house robbery.

The testimony of co-defendant Leroy Winston offered evidence of both

predisposition and the lack thereof. Winston testified that Petitioner had

previously asked him to rob a marijuana dealer who was selling on Petitioner's

street/block. However, Winston also testified that he had never committed

any robberies with Petitioner. And Winston testified that Petitioner was

approached by others with a robbery proposal

evidence that government agents

or the confidential informant originated and proposed the illegal activity.

See Fedroff, 874 F.2d at 184.

Finally, text messages indicated that on the evening before the

fictitious robbery, Petitioner still did not possess a firearm and was trying

11.

to obtain one from another individual. These text messages served

as evidence

of lack of predisposition.

When evidence of predisposition or lack of predisposition "cuts both

ways," the district court should not invade the province of the jury

and

should allow the jury to consider the defense of entrapment. See Dennis

826 F.3d at 693. Petitioner's criminal history, the text messages

demonstrating lack of a gun, and portions of Winston's testimony provid

sufficient evidence of lack of predisposition to commit armed robber

y of

a drug stash house such that Petitioner met his burden of production

on this

element of entrapment.

C. Evidence of Government Inducement

To show inducement by the government, a defendant must show more than

"mere solicitation" or request by the government to participate in

a crime.

Dennis, 826 F.3d at 690. However, inducement does not require "extra

ordinary"

conduct nor "oppressive" inducement on the part of the government.

Fedroff,

874 F.2d at 185. The district court was mistaken in stating that Petiti

oner

had to produce evidence of something "highly extraordinary and unusua

l" in

order to show inducement. Rather, in order to produce enough eviden

ce to

warrant a jury instruction, Petitioner simply had to demonstrate someth

ing

more than mere solicitation of the crime plus some other government

conduct

that creates a risk that a person who would not commit the crime if

left

to his own devices will do so in response to the government's effort

s."

12.

Mayfield, 771 F.3d at 434-35. Such "other conduct" may be persuasion,

fraudulent representation, threats, coercive tactics, harassment,

promises

of reward or pleas based on need, sympathy or friendship. Dennis,

826 F.3d

at 690.

It is undisputed in reverse sting cases that a government agent first

proposes the crime. Additionally, Winston testified that Petitioner's

friend

first approached Petitioner about the robbery. Thus, the evidence

certainly

established that the government solicited the crime in this case.

There was also evidence of more than a simple solicitation on the

part

of the confidential informant or the ATF agent. The court may consid

er that

ATF had no knowledge of Petitioner prior to the confidential inform

ant

targeting Petitioner and bringing him to the attention of ATF. See

Dennis,

826 F.3d at 691 (in reversing district court's denial of an entrap

ment

instruction, noting that the defendant had no known connections to

the crimes

ATF was targeting prior to the Cl producing the defendant's name).

The court

should have also have considered phone records indicating that the

confidential informant initiated contact with Petitioner multiple

times in

the two to three days preceding law-enforcement-monitored communicatio

ns.

These calls, initiated by the confidential informant, support an infere

nce

of harassment and persuasion by the confidential informant.

In the first recorded conversation, the confidential informant promis

great rewards by proposing a job with "bricks" and "lots of joints

" of

13.

cocaine. There was testimony at trial that even one "brick" (a kilogram of

cocaine) could be sold, after cutting and repackaging the drug, for $100,000.

Thus, from the very first recorded conversation, there was the promise of

a great reward. This promise only increased after ATF Agent Edwards told

Petitioner there would be eight or nine kilograms of cocaine in the fictitious

stash house. Also, in this conversation, the confidential informant did not

merely propose a robbery, but suggested to Petitioner that he required a

"team" of individuals and the confidential informant is the first to raise

the need for "hammers"

meaning firearms. In later conversation, both the

confidential informant and Agent Edwards demanded that Petitioner demonstrate

that he was ready to do the job and insisted that Petitioner bring a

"professional" team.

The above-described government initiated interactions between the

confidential informant or the undercover agent and Petitioner constituted

more than mere solicitation. Rather, these interactions could be interpreted

by a jury as harassment, persuasion and promises of reward. Therefore,

Petitioner met his burden of production as to the element of inducement.

Because there was evidence of both lack of predisposition to commit

armed stash house robberies and government inducement, Petitioner was entitled

to an entrapment instruction. The district court's failure to give the

requested instruction requires that the Hobbs Act and gun possession

convictions be vacated and the case remanded for a new trial.

14.

II. WHETHER PETITIONER'S HOBBS ACT CONVICTIONS IN A REVERSE STASH

HOUSE

STING LACKED SUFFICIENT EVIDENCE ESTABLISHING THAT HIS CONDUCT AFFECT

INTERSTATE COMMERCE, OR WOULD HAVE AFFECTED INTERSTATE COMMERCE,

ABSENT

GOVERNMENTAL INTERVENTION AND FICTITIOUS CONCOCTION?

Introduction/Discussion

Petitioner's Hobbs Act convictions must be vacated because there was

insufficient evidence that his conduct substantially affected inters

commerce or would have affected interstate commerce in the absence

tate

of any

governmental intervention and fictitious concoction.

The Jurisdictional Element of Affecting Interstate Commerce Cannot

Met in an Entirely Fictitious Stash House Sting Case

Section 1951(a) provides, "Whoever in any way or degree obstructs,

delays, or affects commerce or the movement of any article or commod

ity in

commerce by robbery

.. ."

shall be punished according to the law. 18 U.S.C.

§ 1951(a). The effect-on-commerce requirement is a "jurisdictional element"

the absence of which prevents prosecution under the Hobbs Act. United

v. Clausen, 328 F.3d 708, 710 (3d Cir. 2003). This jurisdictional

States

element

of interstate commerce is not satisfied in cases involving entirely

stash house stings. In such cases, there is no possibility at all,

fictitious

neither

remote, potential, no de minimus, of any effect on interstate commer

ce.

A recent panel of the Third Circuit Court of Appeals rejected this

argument in a non-precedential opinion. See United States v. Whitfi

eld, 649

Fed. Appx. 192, 195-196 (3d Cir. 2016)(not precedential). The Whitfi

eld panel

relied on the Third Circuit's precedential decision in United States

Jannotti, 673 F.3d 578 (3dCir. 1982). The Jannotti court held that

15.

the

jurisdictional interstate commerce element of a Hobbs Act Extortion charge

was satisfied in the case of the fictitious ABSCAM sting operation run by

the FBI from approximately 1978 to 1980.

However, the continued validity of Jannotti is called into doubt by

this Court clarifying the limits on the federal government's Commerce Clause

jurisdiction. See United States v. Lopez, 514 U.S. 549 (1995) (statute

prohibiting gun possession in school zones fell outside the federal

government's Commerce Clause power); United States v. Morrison, 529 U.S.

598 (2000) (Commerce Clause did not provide the federal government with power

to regulate gender-motivated crimes of violence); Jones v. United States,

529 U.S. 848 (2000) (federal arson statute cannot extend to non-commercial

private residence under the Commerce Clause even if the residence used

utilities, was mortgaged, or was insured interstate); National Federation

of Independent Business (NFIB) v. Sebelius, 132 S. Ct. 2566 (2012) (federal

government cannot create commercial activity in order to regulate it and

thus the individual mandate under the Affordable Care Act was not a valid

exercise of the government's Commerce Clause power).

The reasoning behind Jannotti was also called into doubt by the Third

Circuit's decision in United States v. Manzo, 636 F.3d 65 (3d Cir. 2011).

Manzo was running for mayoral office accepted payments in exchange for future

favors when he entered office. He lost the election. Thus, it was impossible

for him to ever complete the crime. The Third Circuit rejected the

16.

government's argument that the conspiratorial agreement and the overt act

of accepting payments was a complete crime and was enough to sustain a

conviction for Hobbs Act Extortion. Although the Third Circuit facially did

not disturb the ruling of Jannotti, the Manzo court left open the question

of whether legal impossibility could be a defense to certain Hobbs Act

conspiracies. Id., at 67 n.10.

In light of the Manzo court's recognition that impossibility can be

a defense to conspiracy and attempt to commit Hobbs Act offenses and in light

of this Court's cases cabining the reach of the federal government under

the Commerce Clause, Petitioner wishes to raise before this Court the question

of whether legal impossibility could be a defense to certain Hobbs Act

conspiracies for review.

B. The Hobbs Act Requires Proof of Some Conceivable Harm to Interstate

Commerce in the Absence of Federal Intervention and Fictitious Concoction

Petitioner's Hobbs Act convictions must be vacated because the

jurisdictional element of affecting interstate commerce in a fictitious stash

house sting case requires proof that Petitioner's conduct would have affected

interstate commerce even in the absence of federal intervention.

The Hobbs Act's "required effect on interstate commerce is identical

with the requirements of federal jurisdiction under the Commerce Clause."

United States v. Walker, 657 F.3d 160, 179 (3d Cir. 2011) (citation omitted).

If conduct is beyond the power of Congress to regulate under the Commerce

Clause, it is necessarily beyond the reach of the Hobbs Act. In order to

17.

sustain a conviction under the Hobbs Act, there must be an actual

link

interstate commerce, not just a speculative possibility. The govern

ment cannot

"pile inference upon inference" to arrive at some hypothetical

connection

to interstate commerce. Lopez, 514 U.S. at 567; see also Id. at

583 (Kennedy,

J., concurring) (requiring a "strong[] connection or identificati

on with

commercial concerns"). Otherwise, Congress could "regulate not

only all

violent crime, but all activities that might lead to violent crime,

of how tenuously they relate to interstate commerce." Id. at 564;

regardless

see

Morrison, 529 U.S. at 617 ("We accordingly reject the argument

that Congress

may regulate noneconomic, violent criminal conduct based solely

on that

conduct's aggregate effect on interstate commerce.").

The federal government cannot create commerce-affecting activi

ty in

order to regulate it. In National Federation of Independent Busine

ss (NFIB)

v. Sebelius, 132 S. Ct. 2566 (2012), this Court explained that

Congress does

not have "the power to bring the subject of the regulation into

existence."

Id. at 2586. Instead, "the power to regulate assumes there is

already

something to be regulated." Id. In NFIB, this Court held that

the Commerce

Clasue did not permit the creation of commerce through the Afford

able Care

Act's individual mandate, which required that individuals buy

health insurance

or pay a penalty. "The individual mandate," the Court explained,

"does not

regulate existing commercial activity." Id. at 2587. Instead,

it induce

individuals "to become active in commerce by purchasing a produc

t." Id. at

18.

2587 (emphasis in original). The government defended the mandate based on

the prediction that most individuals would eventually enter the healthcare

market anyway; the Court rejected this attempt to regulate based on

"prophesied future activity." Id. at 2590; see Id. (noting that "we have

never permitted Congress to anticipate that activity itself in order to

regulate individuals not currently engaged in commerce," and instead requiring

some showing of "preexisting economic activity"). The holding was categorical:

Congress can only regulate activity that is already occurring absent federal

intervention; it cannot create that activity in the first place.

Likewise, the federal government lacks power to create conspiracies

that would have never occurred in the absence of federal intervention. When

a person is not engaged in commerce-impairing conduct, and never will be,

the government's creation and punishment of that conduct does not protect

interstate commerce in any conceivable way. There is no federal interest

in punishing a person who would never, on their own, have committed the feared

conduct. Therefore, to justify the imposition of federal criminal law, the

government must prove to the fact-finder that the defendant was otherwise

engaged in the type of conduct at issued. Without that showing, the government

has not proven the interstate nexus element of the Hobbs Act, because it

has not shown that the Commerce Clause reaches the proscribed conduct.

At trial, the government implicitly acknowledged that a proper

prosecution through a reverse stash house sting operation requires proof

19.

that an individual was otherwise engaged in Hobbs Act robberies

actual

behavior affecting interstate commerce instead of just fictitious behavio

(stating "the purpose of this technique is to target specifically people

who are engaged in this type of activity"). However, the government was

required to prove that Petitioner was a habitual, or even a potential,

never

stash

house robber independent of governmental intervention and fictitious

concoction. That omission contravened the requirement that the government

prove every element of the offense in every case. See, e.g., Bond v. United

States, 134 S. Ct. 2077, 2089 (2014) (describing the need, when applyin

federal criminal statutes, to "require proof of a connection to interst

ate

commerce in every case, thereby 'preserv[ing] as an element of all the

offenses a requirement suited to federal criminal jurisdiction alone."

)

(internal citations omitted).

Lower courts must interpret the Hobbs Act to fit within the bounds of

the Commerce Clause. It would raise grave constitutional doubts to relieve

the government of it obligation to prove some conceivable connection to

interstate commerce. Lower courts must therefore read that element to require

proof that the commerce-affecting crime would reasonably have happened

the absence of government intervention. See Office of Senator Mark Dayton

v. Hanson, 550 U.S. 511, 514 (2007) (describing "our established practic

of interpreting statutes to avoid constitutional difficulties").

20.

C. The Government Failed to Prove That Petitioner Would Have

Engaged in

a Hobbs Act Robbery in the Absence of Federal Intervention and

Fictitious Concoction

Even though the government at trial insisted that the purpose

stash house stings was to target individuals who were already

of reverse

engaged in

robbing drug stash houses, they failed to provide sufficient eviden

ce to

prove beyond a reasonable doubt that Petitioner was one such indivi

dual.

Thus, they failed to prove that Petitioner would have engaged

in a Hobbs

Act violation absent the action and intervention of the confid

ential informant

and Agent Edwards.

Petitioner was not part of a professional crew of drug stash house

robbers that the ATF was ätt.emitin to infiltrate. Indeed, ATF

had no

knowledge of Petitioner's existence until the paid confidential

informant

brought Petitioner to the attention of ATF. There was evidence

that the

confidential informant first approached Petitioner about a possib

Petitioner's criminal history failed to establish that he would

robbery.

have engaged

in a Hobbs Act robbery without ATF's actions, as he had no prior

convictions

for gun possession or for robbery. Leroy Winston, who admitted

to previously

robbing drug dealers, testified that he had never committed an

armed robbery

with Petitioner. Finally, text messages from the day before Petiti

oner's

arrest showed that he did not possess a gun at the time the ATF

targeted

him and only obtained a gun for the purpose of going through with

fictitious robbery.

21.

the ATF's

Because the government failed to provide sufficient evidence that

Petitioner would have engaged in a Hobbs Act violation in the absence of

governmental intervention and fictitious concoction, it failed to prove the

jurisdictional requirement of affecting interstate commerce. Petitioner's

Hobbs Act convictions should therefore be vacated.

III. WHETHER PETITIONER'S 18 U.S.C. § 924(c) CONVICTIONS ARE IN VIOLATION

OF JOHNSON V. UNITE]) STATES, 135 S. CT. 2551 (2015), WHERE TWO OF THE

FOUR POSSIBLE PREDICATE OFFENSES FOR THE CONVICTION, SPECIFICALLY

HOBBS ACT ROBBERY AND CONSPIRACY, FAIL TO QUALIFY AS A CRIME OF

VIOLENCE OR A DRUG TRAFFICKING OFFENSE?

Introduction/Discussion

Petitioner was convicted in Count Five of using and carrying a firearm

in furtherance of a crime of violence or a drug trafficking crime in violation

of 18 U.S.C. § 924(c). Because Hobbs Act robbery and conspiracy to commit

Hobbs Act robbery categorically fail to qualify as "crimes of violence" under

§ 924(c)(3)(A)'s "force" clause, and because § 924(c)(3)(B)'s residual clause

is unconstitutionally vague, Petitioner's convictions on Counts One and Two

cannot be used to support his conviction on Count Five and that conviction

must be vacated.

Petitioner's Hobbs Act Convictions Cannot Be Considered Crimes of

Violence Under § 924(c)(3)(B)'s Residual Clause Because the Residual

Clause Is Void for Vagueness

After Johnson v. United States, 135 S. Ct. 2551 (2015), the "residual"

definition of "crime of violence" at § 924(c)(3)(B) is void for vagueness,

and therefore may not be relied upon to classify any offense as a predicate

22.

for purposes of the mandatory consecutive sentence. See United States v.

Cardena, No. 12-3680, 2016 WL 6819696, at *24_25 (7th Cir. Nov. 18, 2016)

(invalidating § 924(c)(3)(B) as unconstitutionally vague); see Baptiste v.

Att'y Gen.,

F.3d

--,

No. 14-4476, 2016 WL 6595943, at *1 (3d Cir. Nov.

8, 2016) (invalidating identical language at 18 U.S.C. § 16(b)). Recently,

in United States v. Anthony Robinson, U.S.C.A. No. 15-1402, slip. op. at

6 (3d Cir. Dec. 19, 2016), the Third Circuit was presented with and did not

reach the issue of whether the residual clause contained in § 924(c)(3)(B)

is void for vagueness.

Hobbs Act robbery and conspiracy to commit Hobbs Act robbery no longer

qualify as crimes of violence unless they meet the alternative statutory

definition, i.e., unless they have "as an element the use, attempted use,

or threatened use of physical force against the person or property of

antoher." 18 U.S.C. § 924(c)(3)(A). In this context, "physical force means

violent force." Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis

in original) (internal citations omitted).

C. The Substantive Offense of Hobbs Act Robbery Does Not Qualify as a Crime

of Violence Under § 924(c)(3)(A) Because It Can Be Violated Without the

Use, Attempted Use, or Threatened Use of Violent Physical Force

The substantive offense of Hobbs Act robbery as defined by 18 U.S.C.

§ 1951(a) does not categorically require the use of violent force. Rather,

a person may commit Hobbs Act robbery by such non-forcible means as placing

a person in fear of future injury or even by threatening to cause the

23.

devaluation of an investment (say, by tearing up a promissory note). 18

U.S.C.

§ 1951(b) (providing that Hobbs Act robbery can be committed by means of

force or "fear of injury, immediate or future, to [a person's] person or .

property"). See, e.g., United States v. Teamsters Local 560, 780 F.2d 267,

281 (3d Cir. 1986); See, e.g., Chrzanoski v. Ashcroft, 327 F.3d 188, 195

(2d Cir. 2003) (explaining that physical harm can be caused by "guile [or]

deception" rather than force). Recently, the Third Circuit acknowledged

certain scenarios, albeit "far-fetched," which did not involve the use

that

threat of physical force, such as "throwing paint on someone's house, pouring

chocolate syrup on someone's passport, or spray painting someone's car,

"could provide a basis for conviction under 18 U.S.C. § 1951(a)," United

States v. Anthony Robinson, TJ.S.C.A. No. 15-1402, slip. op. at 13-14 (3d

Cir. Dec. 19, 2016) (emphasis added).

The court in Robinson found that the defendant's combined convictions

for a substantive Hobbs Act robbery offense and for brandishing a firearm

necessarily required a finding of "actual or threatened force, or violenc

or fear of injury" because a brandishing conviction requires the jury to

find that the firearm be shown to another person in order to intimidate

that

person. Robinson, slip. op. at 14; 18 U.S.C. § 924(c)(4). Therefore, the

court concluded that a Hobbs Act robbery "committed while brandishing a

firearm" is a crime of violence. Robinson, slip. op. at 13. Robinson is

not

applicable or controlling here because Petitioner's § 924(c) conviction

24.

was

not based on brandishing a firearm. Rather, his § 924(c) conviction was based

on simply possessing the firearm. Indeed, Petitioner never brandished,

pointed, showed, or even mentioned a firearm to any alleged victim because

no victim existed in this case.

Because the substantive offense of Hobbs Act robbery does not have as

an element the use, attempted use, or threatened use of violent physical

force, neither categorically nor as necessarily found by the jury here,

Petitioner's conviction in Count Two cannot serve as the predicate offense

for his § 924(c) conviction.

D. Conspiracy to Commit Hobbs Act Robbery Does Not Qualify as a Crime of

Violence Under 18 U.S.C. §924(c)(3)(A) Because It Can be Violated

Without the Use, Attempted Use, or Threatened Use of Violent Physical

Force

According to the jury instructions in this case, to be convicted of

conspiracy to commit Hobbs Act robbery, the government had to prove (1) that

two or more people entered into an agreement to commit the robbery, (2) that

the defendant joined that agreement, (3) that the defendant knew of the

conspiracy's objective and joined in order to achieve the objective, and

(4) that at some point during the existence the conspiracy, at least one

member of the conspiracy performed an overt act to further the objective

of the conspiracy. (While proof of an overt act is not necessarily required

to obtain a conviction for Hobbs Act conspiracy in the Third Circuit, see

United States v. Salahuddin, 765 F.3d 329, 338 (3d Cir. 2014), Petitioner

addresses the overt act element here because the jury was so instructed.)

25.

However, none of these elements required the use, attem

pted use, or threatened

use of physical force.

There mere act of intentionally joining an agreement with

a certain

objective, an act which encompasses the first three eleme

nts, is a wholly

mental act which requires no physical actions at all and

certainly does not

require the use, attempted use, or threatened use of physi

cal force.

Nor does the performance of an overt act, the fourth eleme

nt, necessarily

require the use, attempted use or threatened use of physi

cal force. An overt

act is any step taken in furtherance of the conspiracy

, regardless of whether

it involved the use of physical force. For example, here,

alleged as an overt act that "defendant Clifton McLean

the government

met Person #1 in a

pre-arranged meeting location in the Eastern District of

Pennsylvania." There

was no element of physical force contained in this overt

act. The jury was

instructed that the government need only prove one of

the overt acts alleged,

that the overt act itself did not have to be an illegal

act, and that

Petitioner did not even have to be the one who committed

the overt act.

Furthermore, to obtain a conspiracy conviction, the gover

nment did not have

to prove that anyone actually committed the object offen

se of conspiracy.

See United States v. Watkins, 339 F.3d 167, 178 (3d Cir.

2003). Thus, one

could be convicted of conspiracy to commit Hobbs Act robbe

ry simply for

entering into an agreement and meeting at a location

indeed, that was all

Petitioner did in this case. Such behavior does not requi

re any use of

26.

physical force.

Consistent with the analysis here, other courts have found that

the

inchoate offense of conspiracy to commit a robbery does not requir

e the use,

attempted use, or threatened use of physical force. See United

States

Gore, 636 F.3d 728, 731 (5th Cir. 2011) (finding that conspiracy

to commit

aggravated robbery was not a "violent felony" under ACCA's force

clause

but was included in ACCA's residual clause); United States v.

White, 571

F.3d 365, 369 (4th Cir. 2009) (holding that a conviction under

North Carolina

law for conspiracy to commit robbery with a dangerous weapon "does

not have

'as an element the use, attempted use, or threatened use of physic

al force

against the person of another"); United States v. King, 979 F.3d

(10th Cir. 1992) (holding that a conviction under New Mexico law

801, 802

for

conspiracy to commit armed robbery was not a violent felony within

the meaning

of ACCA's force clause).

Because Petitioner's conviction for conspiracy to commit Hobbs

Act

robbery does not require the use, attempted use, or threatened

use of physical

force, it cannot serve as a predicate offense for his § 924(c)

conviction.

Petitioner's § 924(c) Conviction Must Be Vacated Because at Least

One

or More of the Possible Grounds for Conviction is Legally Invali

The jury here was instructed that it could convict Petitioner

Five of the basis of the Hobbs Act offenses (Counts One and Two)

trafficking counts (Counts Three and Four). When "one of two

of Count

or the drug

or more

alternative theories supporting a count of conviction is either

(1)

unconstitutional, or (2) legally invalid, then the reviewing court

vacate the jury verdict and remand for a new trial without the

27.

should

invalid or

unconstitutional theory." United States v. Tyler, 732 F.3d 241, 253 (3d

Cir. 2013) (quoting United States v. Syme, 276 F.3d 131, 144 (3d Cir. 2002)).

As half the theories supporting the § 924(c) conviction were legally invalid,

that conviction should be vacated and a new trial ordered.

IV. WHETHER PETITIONER'S 18 U.S.C. § 922(g)(1) CONVICTION LACKED EVIDENCE

THAT HIS INTRASTATE POSSESSION OF A FIREARM HAD A SUBSTANTIAL EFFECT

ON INTERSTATE COMMERCE?

A. Introduction/Discussion

Petitioner's conviction for being a felon in possession of a firearm

must be vacated because the evidence failed to establish that his simple

intrastate possession of a firearm substantially affected interstate commerc

The conviction must also be vacated because Congress lacked the power to

regulate under the Commerce Clause the simple possession of a firearm.

This Court has made clear that there are only three categories of

activity that Congress may regulate under the Commerce Clause: (1) the

use

of the channels of interstate commerce; (2) the instrumentalities of

interstate commerce or persons or things in interstate commerce; and (3)

activities that substantially affect interstate commerce. Lopez, 514 U.S.

549; see Alderman v. United States, 131 S. Ct. 700, 701 (2011) (Thomas,

J.,

joined by Scalia, J., dissenting from denial of certiorari).

Section 922(g)(1), prohibiting the simple possession of a firearm by

a convicted felon, does not properly relate to either of the first two

categories. See Jones, 529 U.S. 848 (2000) (holding that owner-occupied

28.

residence was not actively used in commerce, nor property "in" interstate

commerce, despite premises' present mortgage to out—of—state lender, coverage

under policy issued by out—of—state insurer, and consumption of fuel

transported from out of state).

The statute therefore must be evaluated in terms of the third category,

providing for regulation of economic activity that substantially affects

interstate commerce. The intrastate possession of a firearm is not econonmic

activity substantially affecting interstate commerce. See, e.g., Morrison,

529 U.S. 598 (Holding that federal statute providing civil remedy for victims

of gender—motivated violence exceeded Congress's Commerce Clause powers).

Such possession is therefore beyond the power Congress to regulate.

Accordingly, Petitioner's conviction under § 922(g)(1) must be vacated

both because the trial evidence failed to show that his simple intrastate

possession of a firearm substantially affected interstate commerce and because

the very enactment of § 922(g)(1) exceeded Congress's lawmaking authority

and the district court lacked jurisdiction over Count Six of the indictment.

IN CLOSING

The questions presented here are substantial and reoccurring.

Clarification of the law pertaining to four questions presented would assist

all parties.

29.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date: J. ec &77 év- I

400

30.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.