Petition for Writ of Certiorari — Edward Knight, Petitioner v. United States
Supreme Court briefApr 4, 2023
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No. _______
In the
Supreme Court of the United States
Edward Monet Knight,
Petitioner,
v.
United States of America,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
Petition for Writ of Certiorari
Rene Valladares
Federal Public Defender, District of Nevada
*Wendi L. Overmyer
Aarin Kevorkian
Assistant Federal Public Defenders
Office of the Federal Public Defender
411 E. Bonneville Ave., Ste. 250
Las Vegas, NV 89101
(702) 388-6577
Wendi_Overmyer@fd.org
Aarin_Kevorkian@fd.org
*Lead Counsel for Petitioner Edward M.
Knight
Questions Presented for Review
Petitioner Edward Knight asks this Court to address two questions:
1.
Whether allowing a seated juror to appear virtually via Zoom in a federal
felony trial is structural error violating the Fifth and Sixth Amendment rights to
public, in-person felony trials and due process.
2.
Whether Hobbs Act robbery, 18 U.S.C. § 1951(a), is a qualifying crime of
violence under 18 U.S.C. § 924(c).
ii
Related Proceedings
Petitioner Edward Knight was charged and convicted by a jury on four
counts: Interference with Commerce by Robbery (Counts 1, 3); and Brandishing a
Firearm During and in Relation to a Crime of Violence (Counts 2, 4). App. C, G.
The district court imposed a 169-month prison sentence on June 28, 2021. App. C.
The Ninth Circuit affirmed the convictions and sentence on January 4, 2023. App.
A, B. Knight remains in federal custody with an estimated release date of August
25, 2031.
iii
Table of Contents
Questions Presented for Review ................................................................................... ii
Related Proceedings...................................................................................................... iii
Petition for Writ of Certiorari ....................................................................................... 1
Opinions Below .............................................................................................................. 1
Jurisdiction .................................................................................................................... 1
Constitutional and Statutory Provisions ...................................................................... 2
Introduction ................................................................................................................... 3
Statement of the Case ................................................................................................... 4
Reasons for Granting the Petition ................................................................................ 7
I.
Certiorari review is necessary to preserve the integrity of felony trials by
ensuring verdict reliability through an in-person jury—an issue of
exceptional, national importance. ...................................................................... 7
A.
Violating the right to an in-person jury for felony trials is structural
error. .............................................................................................................. 11
B.
The fundamental right to an in-person jury for felony trials is nonwaivable. ........................................................................................................ 17
C.
The need to protect in-person criminal felony trials is of exceptional,
national importance. ..................................................................................... 20
II.
Certiorari is necessary to ensure predicates meet this Court’s requirements
of intentional, violent physical force under 18 U.S.C. § 924(c)(3)(A). ............. 21
A.
The Hobbs Act robbery statute does not require violent physical force,
and is categorically overbroad under Taylor. ............................................... 24
B.
The Hobbs Act robbery statute is indivisible, and thus categorically
overbroad under Taylor. ................................................................................ 26
C.
The proper application and interpretation of 18 U.S.C. § 924(c) is of
exceptional, national importance. ................................................................. 27
Conclusion .................................................................................................................... 29
iv
Appendix A ................................................................................................................. 1a
United States v. Knight, 56 F.4th 1231 (9th Cir. 2023) (opinion and
exhibit)
Appendix B .............................................................................................................. 112a
United States v. Knight, No. 21-10197, 2023 WL 34698 (9th Cir.
Jan. 4, 2023) (unpublished) (additional memorandum)
Appendix C ............................................................................................................... 121a
United States v. Knight, No. 3:19-cr-00038-MMD-CLB, Dkt. 187 (D.
Nev. June 28, 2021) (unpublished) (judgment)
Appendix D............................................................................................................... 130a
United States v. Knight, No. 3:19-cr-00038-MMD-CLB, Dkt. 208,
pp. 653, 718-724 (D. Nev. Mar. 15, 2021) (unpublished) (partial
jury instructions)
Appendix E ............................................................................................................... 138a
United States v. Knight, No. 3:19-cr-00038-MMD-CLB, Dkt. 205, pp. 1-11, 128136 (D. Nev. Mar. 10, 2021) (unpublished) (partial trial transcript)
Appendix F ............................................................................................................... 159a
United States v. Knight, No. 3:19-cr-00038-MMD-CLB, 2020 WL
2128659 (D. Nev. May 5, 2020) (unpublished) (order denying
dismissal)
Appendix G............................................................................................................... 161a
United States v. Knight, No. 3:19-cr-00038-MMD-CLB, Dkt. 14 (D.
Nev. Aug. 1, 2019) (unpublished) (indictment)
v
Table of Authorities
U.S. Constitution
Page(s)
U.S. Const. amend. V ................................................................................................... 2
U.S. Const. amend. VI ................................................................................................. 2
U.S. Const. art. III, § 2, cl. 3 .................................................................................... 2, 7
Federal Cases
Arizona v. Fulminante,
499 U.S. 279 (1991) ............................................................................................... 14
Baldwin v. New York,
399 U.S. 66 (1970) ................................................................................................. 20
Berghuis v. Thompkins,
560 U.S. 370 (2010) ............................................................................................... 18
Blackledge v. Perry,
417 U.S. 21 (1974) .................................................................................................. 20
Borden v. United States,
141 S. Ct. 1817 (2021) ........................................................................................... 23
Brown v. Louisiana,
447 U.S. 323 (1980) ................................................................................................. 7
Davenport v. United States,
No. 16-15939, Dkt 11 (11th Cir. Mar. 28, 2017) .................................................. 25
Descamps v. United States,
570 U.S. 254 (2013) ............................................................................................... 26
Duncan v. Walker,
533 U.S. 167 (2001) ............................................................................................... 26
Gideon v. Wainwright,
372 U.S. 335 (1963) ............................................................................................... 11
Green v. Bock Laundry Mach. Co.,
490 U.S. 504 (1989) ................................................................................................. 9
Greer v. United States,
141 S. Ct. 2090 (2021) ........................................................................................... 11
In re St. Fleur,
824 F.3d 1337 (11th Cir. 2016) ............................................................................. 22
vi
Irvin v. Dowd,
366 U.S. 717 (1961) ........................................................................................... 9, 10
Johnson v. Zerbst,
304 U.S. 458 (1938) ............................................................................................... 18
Leocal v. Ashcroft,
543 U.S. 1 (2004) ................................................................................................... 26
Mathis v. United States,
579 U.S. 500 (2016) ......................................................................................... 26, 27
McCullen v. Coakley,
573 U.S. 464 (2014) ............................................................................................... 16
McKaskle v. Wiggins,
465 U.S. 168 (1984) ............................................................................................... 11
Neder v. United States,
527 U.S. 1 (1999) ................................................................................................... 11
Ratzlaf v. United States,
510 U.S. 135 (1994) ............................................................................................... 26
Smith v. Phillips,
455 U.S. 209 (1982) ................................................................................................. 9
Steele v. Nat’l RR Passenger Corp.,
599 F. Supp. 3d 1039 (W.D. Wash. 2022) ............................................................. 10
Stokeling v. United States,
139 S. Ct. 544 (2019) ....................................................................................... 23, 24
Sullivan v. Louisiana,
508 U.S. 275 (1993) ............................................................................................... 11
Taylor v. Illinois,
484 U.S. 400 (1988) ............................................................................................... 18
Tumey v. Ohio,
273 U.S. 510 (1927) ............................................................................................... 11
United States v. Baker,
49 F.4th 1348 (10th Cir. 2022) ............................................................................. 22
United States v. Buck,
847 F.3d 267 (5th Cir. 2017) ................................................................................. 22
vii
United States v. Carter,
907 F.3d 1199 (9th Cir. 2018) ............................................................................... 10
United States v. Davis,
139 S. Ct. 2319 (2019) ........................................................................................... 23
United States v. Dominguez,
48 F.4th 1040 (9th Cir. 2022) ............................................................................... 24
United States v. Dominguez,
954 F.3d 1251 (9th Cir. 2020),
vacated by 142 S. Ct. 2857 (2022) ................................................................... 22, 24
United States v. Fox,
878 F.3d 574 (7th Cir. 2017) ................................................................................. 22
United States v. García-Ortiz,
904 F.3d 102 (1st Cir. 2018) ........................................................................... 22, 24
United States v. Gonzalez-Lopez,
548 U.S. 140 (2006) ......................................................................................... 12, 13
United States v. Gooch,
850 F.3d 285 (6th Cir. 2017) ........................................................................... 22, 24
United States v. Hill,
890 F.3d 51 (2d Cir. 2016) .............................................................................. 22, 24
United States v. Hill,
-- F.4th --, 2023 WL 2596748 (5th Cir. Mar. 22, 2023) ........................................ 22
United States v. Ivey,
60 F.4th 99 (4th Cir. 2023) ................................................................................... 22
United States v. Jones,
919 F.3d 1064 (8th Cir. 2019) ............................................................................... 22
United States v. Josefik,
753 F.2d 585 (7th Cir. 1985) ................................................................................. 18
United States v. Knight,
56 F.4th 1231 (9th Cir. 2023) ................................................................................. 1
United States v. Knight,
No. 21-10197, 2023 WL 34698 (9th Cir. Jan. 4, 2023) ........................................... 1
United States v. Knight,
No. 3:19-cr-00038-MMD-CLB, 2020 WL 2128659 (D. Nev. May 5, 2020) ............. 1
viii
United States v. Local 560 of Int’l Bhd. of Teamsters,
780 F.2d 267 (3d Cir. 1985) .................................................................................. 25
United States v. Mathis,
932 F.3d 242 (4th Cir. 2019) ................................................................................. 22
United States v. McCoy,
58 F.4th 72 (2d Cir. 2023) ..................................................................................... 22
United States v. McKibbon,
878 F.3d 967 (10th Cir. 2017) ............................................................................... 27
United States v. Melgar-Cabrera,
892 F.3d 1053 (10th Cir. 2018) ............................................................................. 22
United States v. Mezzanatto,
513 U.S. 196 (1995) ............................................................................................... 17
United States v. Olano,
507 U.S. 725 (1993) ......................................................................................... 17, 18
United States v. Stoney,
62 F.4th 108 (3d Cir. 2023) ................................................................................... 22
United States v. Taylor,
142 S. Ct. 2015 (2022) ........................................................................... 3, 22, 24, 25
United States v. Walker,
990 F.3d 316 (3d Cir. 2021) .................................................................................. 22
United States v. Worthen,
60 F.4th 1066 (7th Cir. 2023) ............................................................................... 22
United States v. Yates, 438 F.3d
1307, 1315 (11th Cir. 2006) .................................................................................. 11
Vasquez v. Hillery,
474 U.S. 254 (1986) ............................................................................................... 11
Waller v. Georgia,
467 U.S. 39 (1984) ....................................................................................... 11, 13, 8
Weaver v. Massachusetts,
137 S. Ct. 1899 (2017) ......................................................................... 11, 12, 13, 14
ix
Federal Statutes
18 U.S.C. § 924 ........................................................ 2, 3, 4, 6, 21, 22, 23, 24, 26, 27, 28
18 U.S.C. § 1951 ............................................................................... 2, 3, 24, 26, 27, 28
18 U.S.C. § 3559 ......................................................................................................... 28
18 U.S.C. § 3583 ......................................................................................................... 28
28 U.S.C. § 1254 ........................................................................................................... 1
Federal Rules
Sup. Ct. R. 10(c) ......................................................................................................... 22
Sup. Ct. R. 13.1 ............................................................................................................ 1
State Cases
United States v. Louis,
No. 21-cr-20252, 2023 WL 2240544 (S.D. Fla. Feb. 27, 2023).................. 21, 22, 25
Secondary Sources
District Judge John C. Coughenour,
Opinion, What gets lost when Zoom takes over the courtroom,
THE SEATTLE TIMES (June 1, 2021) ....................................................................... 10
Margaret Colgate Love, Jenny Roberts, and Wayne A. Logan,
Collateral Consequences of Criminal Conviction: Law Policy and Practice
(Thomson Reuters Nov. 2021) ............................................................................. 20
Opening Brief of Appellant, United States v. Knight,
No. 21-10197, Dkt. 12, 2022 WL 533691 (9th Cir. filed Feb. 18, 2022) ............... 14
U.S. Sent. Comm’n,
Quick Facts: 18 U.S.C. § 924(c) Firearms Offenses, Fiscal Year 2021
(June 2022) ............................................................................................................ 21
U.S. Sent. Comm’n,
Quick Facts: Federal Offenders in Prison (Jan. 2022) ......................................... 21
U.S. Sent. Comm’n,
Sourcebook of Federal Sentencing Statistics 2022 (2023) .................................... 20
x
Petition for Writ of Certiorari
Edward M. Knight petitions for a writ of certiorari to review judgments of the
United States Court of Appeals for the Ninth Circuit.
Opinions Below
The opinion of the Ninth Circuit is published in the Federal Reporter at
United States v. Knight, 56 F.4th 1231 (9th Cir. 2023). App. A. An additional
memorandum of the Ninth Circuit is unpublished, but reprinted at United States v.
Knight, No. 21-10197, 2023 WL 34698 (9th Cir. Jan. 4, 2023) (unpublished). App. B.
The district court’s order denying dismissal is unpublished but reprinted at
United States v. Knight, No. 3:19-cr-00038-MMD-CLB, 2020 WL 2128659 (D. Nev.
May 5, 2020). App. E. The judgment, jury instructions, trial proceedings, and
indictment in the district court are unpublished. United States v. Knight, No. 3:19cr-00038-MMD-CLB, Dkts. 205, 187, 14 (D. Nev.). App. C, D, E, F, G.
Jurisdiction
The Ninth Circuit Court of Appeals entered its final order on January 4,
2023. App. A. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(a). This
petition is timely per Sup. Ct. R. 13.1.
1
Constitutional and Statutory Provisions
1. U.S. Const. art. III, § 2, cl. 3:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, . . .; nor shall any
person be subject for the same offence to be twice 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, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just
compensation.
2. U.S. Const. amend. VI:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
3. Title 18, United States Code, Section 924(c), provides in relevant part:
(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, attempted use, or threatened use of physical
force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing
the offense.
4. Title 18, United States Code, Section 1951, provides in relevant part:
(a) 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.
(b) As used in this section-2
(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, 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.
(2) The term “extortion” means 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.
Introduction
The Ninth Circuit is the first appellate court to allow a seated juror to
participate remotely from his home, via Zoom, in a felony trial. The opinion below
sets a dangerous path of moving the public jury trial system to a remote process,
undermining the reliance of jury verdicts and integrity of the criminal justice
system. To prevent erosion of the public trial right and protect the reliability of jury
verdicts, review is necessary.
Knight also asks this Court to clarify that Hobbs Act robbery (18 U.S.C. §
1951(a)) does not qualify as a crime of violence under 18 U.S.C. § 924(c). A district
court now holds Hobbs Act robbery does not qualify as a crime-of-violence under
§ 924(c), given United States v. Taylor, 142 S. Ct. 2015 (2022). This inter-district
split requires resolution by this Court.
Knight asks this Court to grant certiorari, vacate his convictions, and remand
for new trial.
3
Statement of the Case
Two retail stores were robbed in Sparks, Nevada in June 2019: PJ’s Discount
Liquor and Rainbow Market. No eyewitness ever identified Knight as a robbery
suspect in or out of court. Knight was nonetheless charged with the robbery in a
four-count indictment: Hobbs Act robbery of PJ Liquor (Count 1), Hobbs Act robbery
of Rainbow Market (Count 3), and two 18 U.S.C. § 924(c) counts for brandishing a
firearm during the robberies (Counts 2 and 4). App. G: 161a–163a.
Knight moved to dismiss the § 924(c) counts because Hobbs Act robbery fails
to qualify as a crime of violence. The district court denied the motion. App. F:
159a–160a. The district court later instructed the jury that Hobbs Act robbery
included “fear of future injury, immediate or future, to his person of property.” App.
D: 131a–134a. The district court also instructed the jury that Hobbs Act robbery
was a crime of violence. App. D: 132a–134a.
The first day of trial proceedings consisted of voir dire. Juror C. was seated
as a non-alternate juror, and later elected as the jury foreperson. The second day of
proceedings began with the district court stating that Juror C. called to report his
wife was experiencing COVID symptoms and he was possibly infected. App. E:
139a. The district court proposed several options, including permitting Juror C. to
attend remotely via the video conferencing platform Zoom. App. E: 139a–140a.
The government objected, asking that Juror C. be replaced with one of the
two alternate jurors, articulating several constitutional problems with remote juror
participation. App. E: 140a–141a; 150a–152a. Defense counsel agreed to Juror C.
4
attending via Zoom. App. 3: 141a–142a; 152a–155a. The court was unsure if
Knight’s consent was necessary, and the parties disputed whether consent would
preclude appellate review of remote juror participation. App. E: 143a; 152a–156a.
Deciding it “would like for Mr. Knight’s consent,” the court asked Knight if he
consented to Juror C. attending by Zoom, but failed to explain the panoply of
constitutional rights affected or whether consent waived appellate review. App. E:
143a–144a. Overruling the government’s objection, the district court permitted
Juror C. to attend trial via Zoom. App. E: 144a.
The parties reiterated concerns at the close of the first remote juror day.
App. E: 150a–158a. Defense counsel reiterated that Knight was not “waiving his
right to challenge the proceedings” on appeal “because of some defect that arises
because of remote participation by [Juror C.].” App. E: 154a. Defense counsel also
argued that the government, by seeking an appellate waiver, “is trying to . . .
insulate the proceedings entirely from appellate review.” App. E: 154a. The district
court conducted a second colloquy of Knight, but again did not require Knight to
provide an appellate waiver. App. E: 156a. In fact, the court noted that challenging
whether an in-person juror is “a right that cannot be waived” was a challenge that
“Mr. Knight may raise.” App. E: 155a.
Juror C. ultimately attended two days of trial remotely, during which the
government presented the core of its case. Saying his wife had recovered, Juror C.
attended the last four days of trial and deliberations in-person.
5
During his remote participation, the record does not evince that Juror C. was
able to adequately view or hear the witnesses or exhibits, except for one—a firearm.
The district court noted there had been connectivity issues during trial resulting in
“a pause” of the Zoom feed, and that the court only “periodically” checked the Zoom
screen. App. E: 157a–158a.
The jury convicted Knight of all counts, with Juror C. as the foreperson. The
district court sentenced Knight to: 30-day concurrent imprisonment on the Hobbs
Act robbery counts; an 84-month mandatory consecutive sentence on the first
§ 924(c) count; and an 84-month mandatory consecutive sentence on the second
§ 924(c) count, for a total 169-months of imprisonment, followed by a five-year
supervision term. App. D: 122a–123a.
Knight appealed his convictions and sentence, raising several issues,
including Juror C’s appearance by zoom as non-waivable structural error and that
Hobbs Act robbery is not a § 924(c) crime of violence. The Ninth Circuit affirmed
Knight’s convictions and sentence in a bifurcated opinion. First, in a published
opinion, the Ninth Circuit approved Juror C’s remote participation, attaching the
Ninth Circuit’s 2020 Annual Report as support, App. A: 1a–122a, which noted “five
remote civil trials” were well-received by participating attorneys. App. A: 44a
(emphasis added). Second, in an unpublished opinion, the Ninth Circuit summarily
found Hobbs Act robbery to be a § 924(c) crime of violence, relying on a prior Ninth
Circuit decision vacated by this Court. App. B: 117a.
Knight asks this Court to grant certiorari and reverse his convictions.
6
Reasons for Granting the Petition
I.
Certiorari review is necessary to preserve the integrity of felony
trials by ensuring verdict reliability through an in-person jury—
an issue of exceptional, national importance.
This case presents the first instance of a remote juror in a federal criminal
felony trial. The Constitution guarantees Knight’s right to public jury trial and due
process protections in criminal proceedings. U.S. Const. art. III, § 2, cl. 3; U.S.
Const. amends. V, VI. “It is difficult to envision a constitutional rule that more
fundamentally implicates the fairness of the trial—the very integrity of the factfinding process.” Brown v. Louisiana, 447 U.S. 323, 334 (1980) (retroactively
applying jury unanimity rule) (citation omitted). These trial rights serve “the
determination of truth, and it is the jury to whom we have entrusted the
responsibility for making this determination in serious criminal cases. Any practice
that threatens the jury’s ability properly to perform that function poses a similar
threat to the truth-determining process itself.” Id. at 334. The Ninth Circuit’s
determination that Zoom criminal trials are inherently constitutional undermines
the integrity and reliability of felony trials.
The jury foreperson in Knight’s trial, Juror C., attended the first two days of
the government’s case-in-chief remotely via Zoom, over the government’s objection,
because his wife was experiencing COVID symptoms. App. E: 156a–158a. As the
jury foreperson, the remote juror controlled deliberations and ultimately issued the
verdict. Permitting a remote juror, as the government argued below, threatens the
heightened “constitutional issues and concerns” in “criminal trials” and may
amount to “structural error.” App. E: 150a–152a. This Court recognizes the
7
fundamental importance of public jury trials, finding the denial of a public trial is
structural error. Waller v. Georgia, 467 U.S. 39, 50 (1984) (finding denial of publictrial guarantee is structural error). Upholding the integrity of criminal felony trials
is essential to maintaining public trust of judicial proceedings. Remote juror
participation in Knight’s trial undermined certainty in the jury’s integrity and
fairness, constituting structural error.
The Ninth Circuit affirmed, however, relying on a handful of civil trials
conducted remotely in the Western District of Washington, summarily noted in the
Ninth Circuit’s 2020 Annual Report, which the panel attached to its opinion. App.
A: 11a; 44a. The incorporated note states in full:
The district has completed five remote civil jury trials. After each
trial, the district debriefs jurors, who consistently praise the process
and note their relief in not having to travel to the courthouse or appear
in person in the midst of the pandemic. Anecdotally, the court noted
an increase in participation and fewer requests to be excused. Juror
age or economic status do not appear to have factored into juror
participation.
The attorneys participating in remote trials largely commend the
process. They also report favorable cost savings relative to in-person
trials. Lawyers are now accepting the process without objection. The
judges report that the ZoomGov platform allows them to see the
witness up close and to assess body language and demeanor. Unlike
an in-person trial, the judge can actually see the face of a witness. The
district has shared its work by sponsoring a nationwide seminar for
federal judges and staff.
App. A: 11a; 44a.
An annual report describing anecdotal experiences in civil trials does not
override a criminal defendant’s constitutional protections. And a defendant’s
constitutional right simply cannot depend on whether jurors prefer appearing
8
virtually. Courts must ensure the reliability and integrity of the felony trial process
as protected by the Constitution, not abandon a centuries-proven process to new,
untested technology.
Much of this Court’s precedent reiterates the constitutional protections
afforded criminal felony trials, but not civil trials. See, e.g., Green v. Bock Laundry
Mach. Co., 490 U.S. 504 (1989) (discussing differing rights to remain silent, due
process protections, discovery rules). Here, however, the Ninth Circuit failed to
recognize that civil trials are afforded far less protection than criminal jury trials—
never discussing this distinction. App. A: 10a–11a. The criminal felony trial
safeguards include, but are not limited to: right to public trial by jury; right to a fair
and impartial jury; right to be present for trial; right to effective counsel; Sixth
Amendment right to a fair and impartial jury; right to in-person confrontation of
witnesses; right to a representative cross-section of the community on the jury;
right to equal protection of the laws; and right to unanimous verdict based solely on
the evidence presented at trial beyond a reasonable doubt. Smith v. Phillips, 455
U.S. 209, 217 (1982) (“Due process means a jury capable and willing to decide the
case solely on the evidence before it, and a trial judge ever watchful to prevent
prejudicial occurrences and to determine the effect of such occurrences when they
happen.”); Irvin v. Dowd, 366 U.S. 717, 721 (1961) (“In essence, the right to jury
trial guarantees to the criminally accused a fair trial by a panel of impartial,
‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the
9
minimal standards of due process . . . [a juror’s] verdict must be based upon the
evidence developed at the trial.”).
Even the Western District of Washington, which the Ninth Circuit cited as
support, did not conduct remote criminal trials during the pandemic: “criminal
trials were being held live.” Steele v. Nat’l RR Passenger Corp., 599 F. Supp. 3d
1039, 1043 (W.D. Wash. 2022) (denying motion for new trial where civil trial was
held remotely); see also id. at 1042 n.1 (describing live criminal jury trial held in
2021, while civil trials were held remotely). And not all participants in the Western
District agree with remote trials. A sitting judge and former chief judge for the
Western District of Washington opposes remote trials due their inherent unreliable
nature. See District Judge John C. Coughenour, Opinion, What gets lost when Zoom
takes over the courtroom, THE SEATTLE TIMES (June 1, 2021).1
The Ninth Circuit failed to heed its own warning of the dangers in remote
proceedings. United States v. Carter, 907 F.3d 1199, 1207 (9th Cir. 2018). Carter
held a defendant’s right to “physical, face-to-face confrontation at trial” may be
compromised by a remote video procedure only upon a “case-specific finding” that:
the denial of physical confrontation “is necessary to further an important public
policy,” and “the reliability of the testimony is otherwise assured.” Id. at 1205–06.
Neither requirement was met here. While Carter addressed Confrontation Clause
rights where a witness testifies remotely, its reasoning is instructive for remote
1 Available at https://www.seattletimes.com/opinion/what-gets-lost-when-
zoom-takes-over-the-courtroom/.
10
jurors. Other Circuits agree that “a video monitor is not the same as physical faceto-face confrontation. As sister circuits have recognized, the two are not
constitutionally equivalent.” United States v. Yates, 438 F.3d 1307, 1315 (11th Cir.
2006) (citing cases). Thus, remote juror participation violates the inalienable right
to in-person felony trials.
A.
Violating the right to an in-person jury for felony trials is
structural error.
The structural error doctrine insists on certain basic, constitutional
guarantees that define the framework of any criminal trial. Weaver v.
Massachusetts, 137 S. Ct. 1899, 1907 (2017); Neder v. United States, 527 U.S. 1, 8
(1999). Errors that compromise either the jury process or the adjudicator’s
impartiality undermine trial mechanisms intended to ensure reliability, resulting in
structural error. Neder, 527 U.S. at 8 (citing Sullivan v. Louisiana, 508 U.S. 275
(1993) (defective reasonable-doubt instruction); Vasquez v. Hillery, 474 U.S. 254
(1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465
U.S. 168 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S.
39 (1984) (denial of public trial); Gideon v. Wainwright, 372 U.S. 335 (1963)
(complete denial of counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (biased trial
judge)).
This Court holds that violations of the right to public jury trial and a fair and
impartial jury are structural errors. Neder, 527 U.S. at 8; Greer v. United States,
141 S. Ct. 2090, 2100 (2021). Structural errors share “at least three broad
rationales,” depending on the right involved: (1) “the right at issue is not designed
11
to protect the defendant from erroneous conviction but instead protects some other
interest *** Because harm is irrelevant to the basis underlying the right, the Court
has deemed a violation of that right structural error” (listing the “defendant’s right
to conduct his own defense” as an example); (2) “the effects of the error are simply
too hard to measure[,] *** the precise ‘effect of the violation cannot be ascertained,’”
(listing denial of choice of counsel as an example); or (3) “the error always results in
fundamental unfairness,” although “[a]n error can count as structural even if the
error does not lead to fundamental unfairness in every case. Weaver, 137 S. Ct.
1907–908; see also United States v. Gonzalez-Lopez, 548 U.S. 140, 148–49 (2006)
(discussing common structural error features). These common features “are not
rigid” however, and “more than one of these rationales may be part of the
explanation for why an error is deemed to be structural.” Weaver, 137 S. Ct. at
1908.
Despite this case presenting an issue of national first impression to the Ninth
Circuit, the Ninth Circuit denied relief because Knight could not provide matching
caselaw or prejudice: “Knight asks us to presume that the remote participation of a
juror will always render a trial unfair and the judgment unreliable, but there is no
case law or record evidence to support such a presumption.” App. A: 10a–11a. The
Ninth Circuit’s demand for an error to “always” render a trial unreliable to be
structural, and that the record show prejudice, gravely ignores this Court’s
structural error precedent.
12
This Court rejects the Ninth Circuit’s assertion that structural errors must
“always render a trial unfair and unreliable.” App. A: 10a–11a. In Gonzalez-Lopez,
this court rejected as “inconsistent with the reasoning of our precedents” the idea
that structural errors “always or necessarily render a trial fundamentally unfair
and unreliable.” Gonzalez-Lopez, 548 U.S. at 149 n.4. In Weaver, this Court
specifically clarified that for structural error purposes “one point is critical: An
error can count as structural even if the error does not lead to fundamental
unfairness in every case.” Weaver, 137 S. Ct. at 1908.
Not having a juror present in open court not only raises due process concerns,
but also violates the public-trial right. This Court has explained the unique nature
of public-trial violations, which is structural error despite not “render[ing] a trial
fundamentally unfair in every case.” Weaver, 137 S. Ct. at 1910. First, in a publictrial violation there is “difficulty of assessing the effect of the error.” Id. Second, the
“public-trial right also protects some interests that do not belong to the defendant . .
. [such as] the rights of the public at large, and the press, as well as the rights of the
accused.” Id. Third, the constitutional and historical importance of public trials is
fundamental to the criminal justice system: “while the benefits of a public trial are
frequently intangible, difficult to prove, or a matter of chance, the Framers plainly
thought them nonetheless real.” Waller, 467 U.S. at 50 (finding denial of publictrial guarantee is structural error).
13
In contrast, non-structural errors can readily be assessed for harm by
examining the overall strength of the evidence and do not affect adjudicator
impartiality. Arizona v. Fulminante, 499 U.S. 279, 307–08 (1991). That is not the
case here. The evidence presented when Juror C. was present in court was
inextricably intertwined with the evidence presented when Juror C. appeared
remotely, precluding quantitative assessment. This alone warrants deeming Juror
C.’s remote participation structural error. See Weaver, 137 S. Ct. at 1908.
Moreover, the remote juror was never questioned about his remote
participation. The government identified several unique factors of video
conferencing that undermine remote juror reliability. App. E: 150a–152a. These
factors include, but are not limited to: credibility assessments; missing information;
extraneous information; distraction and “Zoom fatigue;” and connectivity problems.
The record does not establish the internet capability, size, or quality of the video
conferencing program, or the equipment Juror C. used for Knight’s trial. Opening
Brief of Appellant, United States v. Knight, No. 21-10197, Dkt. 12 p. 22, 2022 WL
533691 (9th Cir. filed Feb. 18, 2022) (“Op. Br.”). We do not know if Juror C.
watched Knight’s trial from a small iPhone screen or a large computer screen. And
regardless of the equipment Juror C. used, a typical Zoom video call only shows the
participant from the shoulders up, hindering the ability to see broader nonverbal
communication of the witnesses and parties in the courtroom. Thus, remote juror
participation undermines the jury’s uniquely important role of assessing credibility.
The record also does not establish that Knight or defense counsel could see Juror C.
14
on a remote screen thereby restricting the defense’s ability to observe the juror for
inattention or misbehavior. And though the district court appears to have
presumed, without support, that Juror C. had a confidential, private personal space
in which to observe trial, Op. Br. at 23, multiple screens and other sources of
information may be visible at one time, permitting a remote juror to easily access
extrinsic material during trial proceedings.
Thus, while prejudice is not required for structural errors, Knight still
established (in the alternative) prejudice. During the two days of remote juror
participation, the parties presented opening statements, and the government
presented the bulk of its case-in-chief: nine witnesses and 72 exhibits. Op. Br. at
15. Several of these witnesses were key to the government’s case, including the two
robbery victims; Knight’s girlfriend whose testimony contradicted her earlier
statements to police; the first responding officers; the officers who conducted
searches and interviews; and the officer who allegedly saw a black male adult with
dreadlocks driving a car near a robbery. Op. Br. at 15. The 72 exhibits published
on these days were critical to the government’s case, consisting of surveillance
video, audio, and photograph exhibits. Op. Br. at 15.
The district court did not note on the record how the exhibits were relayed to
Juror C. via Zoom, nor whether Juror C. was able to properly view and hear these
witnesses and exhibits. The record brings this ability into question, as the court
twice asked Juror C. whether he wanted to be shown the firearm before Juror C.
nodded in assent. Op. Br. at 7. While no trial judge can ensure jurors are always
15
paying attention, the difficulty of this task is multiplied several times over by
remote juror participation—particularly where the district court admitted it only
“periodically” checked the Zoom screen. Op. Br. at 24.
Remote juror participation also risks interruption by technical errors and
glitches, including freezing, buffering, imperfect audio, and pixelated video, with
varying internet connection strength. Here, for example, the district court noted
“there was a pause when [Juror C.] indicated that his battery was running out and
he replaced the battery.” Op. Br. at 25. And at least once during trial neither the
court nor the clerk could see Juror C. on the screen. Op. Br., at 25. When the court
finally saw Juror C. reappear, it failed to find out whether Juror C. could see and
hear the proceedings when he was offscreen. Op. Br. at 25. Instead, the court
erroneously placed the onus on Juror C. to proactively inform the clerk of “any
technology issue occur[ing] that interferes with his viewing and his participation
remotely to this trial.” Op. Br. At 25. The record thus confirms defects in the
remote juror process.
The Ninth Circuit failed to analyze whether permitting remote juror
participation was the least restrictive burden on the defendant’s trial rights. In
considering whether a burden imposed on a constitutional right is narrowly
tailored, this Court considers “different methods that other jurisdictions have found
effective” in addressing the problem “with less intrusive tools.” McCullen v.
Coakley, 573 U.S. 464 (2014). The district court itself noted other options were
available, such as social distancing, reasonable mask precautions, or dismissing
16
Juror C. and replacing him with an alternate juror as the government requested.
App. E: 140a–141a.
The error compromised the jury mechanism constitutionally mandated to
ensure a fair and reliable trial, and its effect cannot be quantitatively analyzed.
Due to the inherent limitations of video conferencing, permitting remote juror
attendance in a criminal trial undermines a fair and reliable trial, requiring
clarification from this Court that such error is structural.
B.
The fundamental right to an in-person jury for felony trials
is non-waivable.
While the law generally presumes the availability of waiver, some protections
“are so fundamental to the reliability of the factfinding process that they may never
be waived without irreparably discrediting the federal courts.” United States v.
Mezzanatto, 513 U.S. 196, 204 (1995) (cleaned up); see also United States v. Olano,
507 U.S. 725, 732–74 (1993). This Court has not addressed whether a defendant
may waive the in-person presence of a juror during criminal trial. Here, it is not
just the defendant’s rights that are affected. The integrity and public confidence of
the criminal jury system is at stake. And jurors have the right and the obligation to
fully participate in person to fulfill their civic duties under the Constitution.
Without resolving the issue, the district court noted that Knight “may raise”
on appeal whether an impartial adjudicator is “a right that cannot be waived.” App.
E: 155a. The Ninth Circuit found the error non-structural and thus waivable,
without discussing whether structural errors can be waived. App. A: 11a. Other
circuit courts note the right is likely not waivable: “No doubt there are limits to
17
waiver; if the parties stipulated to trial by 12 orangutans the defendant’s conviction
would be invalid notwithstanding his consent, because some minimum of civilized
procedure is required by community feeling regardless of what the defendant wants
or is willing to accept.” United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985).
“Whether a particular right is waivable; whether the defendant must
participate personally in the waiver; whether certain procedures are required for
waiver; and whether the defendant’s choice must be particularly informed or
voluntary, all depend on the right at stake.” Olano, 507 U.S. at 733. It is an affront
on our criminal justice system to permit waiver of the right to a present, impartial
jury. Nor can defense counsel waive this right for a criminal defendant. Taylor v.
Illinois, 484 U.S. 400, 417 n.24 (1988).
Knight did not waive his right to challenge remote juror participation on
appeal. See also Olano, 507 U.S. at 733 (Waiver is the “intentional relinquishment
or abandonment of a known right.”). “[C]ourts indulge every reasonable
presumption against waiver of fundamental constitutional rights” and must “not
presume acquiescence in the loss of fundamental rights.” Johnson v. Zerbst, 304
U.S. 458, 464 (1938). For fundamental constitutional rights, the defendant must
personally make an express, informed waiver. Taylor, 484 U.S. at 417–18 n.24.
The government bears a “heavy burden” to prove waiver of constitutional rights.
Berghuis v. Thompkins, 560 U.S. 370, 383–84 (2010).
Here, the Ninth Circuit inexplicably found waiver, App. A: 12a–13a, despite
noting in its factual recitation that the district court declined to seek the explicit
18
waiver of appellate rights to challenge remote juror participation. App. A: 12a–13a.
For instance, the opinion notes “[defense counsel] declined to waive his client’s right
to attempt to vitiate that consent on appeal,” App. A: 7a, thens find Knight’s
argument that he preserved appellate rights “unavailing.” App. A: 12a. The Ninth
Circuit undermined its waiver holding by acknowledging: “The district court
recognized that there might be challenges raised on appeal, such as an assertion
that the waiver was not knowing and voluntary or an argument that the asserted
right to an in-person jury cannot be waived.” App. A: 7a.
The parties disputed the need for appellate waiver, with the government
requesting appellate waiver and defense counsel declining to “waive[] any right to
challenge [juror] participation by video.” App. E: 154a. The district court canvassed
Knight for his consent but did not include a waiver of appellate challenge in its
colloquy. App. E: 143a–144a. The parties reiterated concerns at the close of the
day. App. E: 150a–156a. Objecting to any attempt to “insulate the proceedings
entirely from appellate review,” defense counsel stated Knight’s consent to remote
juror participation did not include waiver of appellate review. App. E: 154a–155a.
Defense counsel also argued that the government, by seeking an appellate waiver,
“is trying to . . . insulate the proceedings entirely from appellate review.” App. E:
154a. The district court conducted a second colloquy of Knight, but again did not
require Knight to provide an appellate waiver. App. E: 156a. Instead, the court
noted that challenging whether an in-person juror is “a right that cannot be
waived” was one that “Mr. Knight may raise.” App. E: 155a. Knight did not
19
expressly waive the right to appeal this issue; he affirmatively objected to such
waiver, and the district court did not ask for or require such a waiver.
Review is necessary to preserve the integrity of felony trials by ensuring
verdict reliability through an in-person jury. Knight asks this Court to grant
review, reverse his convictions, and remand for new trial.
C.
The need to protect in-person criminal felony trials is of
exceptional, national importance.
Felony convictions are the most serious deprivation of liberty, and in many
cases life, that law imposes. These convictions result in lengthy prison sentences, or
even a death sentence. And felony convictions have far-reaching collateral
consequences, as this Court has often emphasized. See, e.g., Blackledge v. Perry,
417 U.S. 21, 28 n.6 (1974) (“conviction of a ‘felony’ often entails more serious
collateral consequences than those incurred through a misdemeanor conviction.”)
(citing study); Baldwin v. New York, 399 U.S. 66, 69 n.8 (1970) (listing loss of civil
rights such as the right to vote and the right to hold public office). The staggering
amount of collateral consequences for felony convictions now has its own treatise.
Margaret Colgate Love, Jenny Roberts, and Wayne A. Logan, Collateral
Consequences of Criminal Conviction: Law Policy and Practice (Thomson Reuters
Nov. 2021).
While the Ninth Circuit’s opened door to remote trials will no doubt affect
state trials, the impact on federal felony trials alone is of national importance. Over
1,600 federal criminal trials took place in fiscal year 2022. U.S. Sent. Comm’n,
Sourcebook of Federal Sentencing Statistics 2022, p. 56, Table 11 (2023). For
20
offenders with multiple charges under § 924(c), the average sentence is over 20
years in prison. U.S. Sent. Comm’n, Quick Facts: 18 U.S.C. § 924(c) Firearms
Offenses, Fiscal Year 2021 (June 2022) (average sentence for those convicted of
multiple § 924(c) counts is 256 months). In the federal system, nearly 30% of all
cases carry a mandatory minimum. U.S. Sent. Comm’n, Quick Facts: Federal
Offenders in Prison (Jan. 2022). In cases with multiple charges carrying mandatory
minimum sentences, the prosecution may opt not to accept a plea to lesser charges,
thus forcing the defendant to trial to avoid pleading to a life-equivalent sentence
and waiving appellate rights.
Given the vast number of criminal trials, felony convictions, and the central
legal importance of reliable and just public trials to our criminal justice system, this
Court’s intervention is necessary. Knight asks this Court to grant review, vacate
his convictions, and remand for further proceedings.
II.
Certiorari is necessary to ensure predicates meet this Court’s
requirements of intentional, violent physical force under 18
U.S.C. § 924(c)(3)(A).
At least one district court finds the Hobbs Act robbery statute is categorically
overbroad and is not a crime of violence under 18 U.S.C. § 924(c) because its plain
language includes inducing fear of injury to intangible property, such as financial
loss. United States v. Louis, No. 21-cr-20252, 2023 WL 2240544, * 2. (S.D. Fla. Feb.
27, 2023). Knight’s jury received a jury instruction similar to that presented in
Louis, allowing commission of Hobbs Act robbery through “fear of injury, immediate
or future, to [another’s] person or property, or to property in [another’s] custody or
possession.” App. D: 131a; 133a. Thus, the Hobbs Act robbery statute permits
21
conviction via “the fear of financial loss as well as fear of physical violence.”
Louis, 2023 WL 2240544, at *1 (emphasis in original).
In United States v. Taylor, 142 S. Ct. 2015 (2022), this Court clarified that
categorical analysis of § 924(c) is restricted to a statute’s plain elements. Before
Taylor, circuits misinterpreted Hobbs Act robbery, which used to be caged within
the residual clause, to make the offense “fit” within the elements clause.2 Now,
post-Taylor, the few Circuits issuing published opinions as to Hobbs Act robbery
continue their misinterpretations without new analysis.3 This Court should grant
review to resolve the important federal question of whether the Hobbs Act robbery
statute, by its plain language, qualifies as a crime of violence under § 924(c). Sup.
Ct. R. 10(c).
2 See United States v. García-Ortiz, 904 F.3d 102, 106–09 (1st Cir. 2018);
United States v. Hill, 890 F.3d 51, 60 (2d Cir. 2016); United States v. Walker, 990
F.3d 316, 325–26 (3d Cir. 2021), vacated and remanded by 142 S. Ct. 2858 (2022);
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, 292 (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. Dominguez, 954 F.3d
1251, 1260 (9th Cir. 2020), vacated by 142 S. Ct. 2857 (2022); United States v.
Melgar-Cabrera, 892 F.3d 1053, 1060–66 (10th Cir. 2018); In re St. Fleur, 824 F.3d
1337, 1340–41 (11th Cir. 2016)
3 See United States v. McCoy, 58 F.4th 72, 74–75 (2d Cir. 2023) (reinstating
pre-Taylor ruling Hobbs Act robbery qualifies as a § 924(c) crime of violence,
erroneously holding defendant must present “hypothetical case” in which “fear of
injury” could not be violent physical force); United States v. Stoney, 62 F.4th 108,
113 (3d Cir. 2023) (adopting pre-Taylor ruling Hobbs Act robbery qualifies without
new analysis of fear of injury); United States v. Ivey, 60 F.4th 99, 117 (4th Cir. 2023)
(same); United States v. Hill, -- F.4th --, 2023 WL 2596748, at *19 (5th Cir. Mar. 22,
2023) (same); United States v. Worthen, 60 F.4th 1066, 1068–69 (7th Cir. 2023)
(same); United States v. Baker, 49 F.4th 1348, 1360 (10th Cir. 2022) (same).
22
Section 924(c) provides for graduated, mandatory, consecutive sentences for
using a firearm during and in relation to a crime of violence or a drug trafficking
offense. The term “crime of violence” is defined by two clauses: the elements clause
and the residual clause. 18 U.S.C. § 924(c)(3)(A) and (B). But the residual clause in
§ 924(c)(3)(B) is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319
(2019). Thus, an offense may only qualify as a crime of violence under the
remaining elements clause.
The elements clause requires the offense to have “as an element the use,
attempted use, or threatened use of physical force against the person or property of
another.” 18 U.S.C. § 924(c)(3)(A). This means the offense must require (1) violent
physical force capable of causing physical pain or injury to another person or
property, Stokeling v. United States, 139 S. Ct. 544, 554 (2019); and (2) the use of
force must be intentionally directed at another and cannot merely be reckless or
negligent, Borden v. United States, 141 S. Ct. 1817 (2021).
Hobbs Act robbery fails to qualify under § 924(c)’s force clause for at least two
reasons: (1) the Hobbs Act robbery statute’s plain language categorically fails to
require violent physical force because it can be committed by invoking fear of future
injury to intangible property; and (2) the Hobbs Act robbery statute is indivisible as
to completed and attempted Hobbs Act robbery, with this Court finding in Taylor
that attempted Hobbs Act robbery does not qualify as a § 924(c) crime of violence.
23
A.
The Hobbs Act robbery statute does not require violent
physical force, and is categorically overbroad under
Taylor.
A § 924(c) crime of violence must require the use, attempted use, or
threatened use of violent physical force whether its object is a person or property.
Stokeling, 139 S. Ct. at 554. Hobbs Act robbery lacks the violent physical force
required because it can be committed by future fear of injury to property—including
intangible property such as economic harm. 18 U.S.C. § 1951(b)(1). Hobbs Act
robbery thus fails to qualify as a § 924(c) “crime of violence.”
Before Taylor, several circuit decisions, including the now-vacated Ninth
Circuit decision in Dominguez, 954 F.3d at 1260,4 rejected defendants’ intangible
property argument, holding no realistic probability exists the government would
prosecute a Hobbs Act robbery case based on threats to intangible property. GarcíaOrtiz, 904 F.3d at 106–09; Hill, 890 F.3d at 60; Gooch, 850 F.3d at 292. But Taylor
squarely foreclosed reliance on the realistic probability test to determine whether
statutes qualify as § 924(c) crimes of violence. Taylor, 142 S. Ct. at 2024–25. The
realistic probability test contravenes the categorical approach, which is limited to
4 This Court vacated and remanded Dominguez, which held attempted Hobbs
Act robbery was a crime of violence, in light of Taylor’s holding abrogating the
Ninth Circuit’s decision. United States v. Dominguez, 954 F.3d 1251, 1254 (9th Cir.
2020) (“Dominguez I”), vacated by, 142 S. Ct. 2857 (2022).
On remand, the Ninth Circuit issued a new opinion, United States v.
Dominguez, 48 F.4th 1040 (9th Cir. 2022) (unpublished) (“Dominguez II”). The
Dominguez II opinion vacated the § 924(c) charges based on conspiracy or attempted
Hobbs Act robbery, but reaffirmed a § 924(c) conviction based on completed Hobbs
Act robbery “for the reasons explained in [Dominguez I].” Id. at 1040. The Ninth
Circuit did not revisit its categorical analysis of Hobbs Act robbery given Taylor’s
rejection of the “reasonable probability” standard Dominguez I employed.
24
analyzing statutory elements. Id. It is an error to look beyond the elements and
“say[] that a defendant must present evidence about how his crime of conviction is
normally committed or usually prosecuted.” Id.
The federal circuits have long been in accord with the overbroad
interpretation of Hobbs Act robbery, unanimously interpreting Hobbs Act
“property” to include “intangible, as well as tangible, property.” United States v.
Local 560 of Int’l Bhd. of Teamsters, 780 F.2d 267, 281 (3d Cir. 1985) (collecting
cases and describing the Circuits as “unanimous” on this point). But threats to
intangible property do not require violent physical force, and thus fail the
categorical analysis required by Taylor. Louis, 2023 WL 2240544, at *2.
The district court in Louis explained “the categorically overbroad nature of
Hobbs Act robbery” stemmed from “allowing the jury to convict Mr. Louis for ‘fear of
financial loss as well as fear of physical violence.’” Id. at *1. The Eleventh Circuit
had already noted the “potential infirmity” of the Hobbs Act robbery instruction. Id.
at *2 (citing Davenport v. United States, No. 16-15939, Dkt 11, pp. 6–8 (11th Cir.
Mar. 28, 2017) (putting future litigants on notice that the Eleventh Circuit’s pattern
jury instructions may overextend the elements of Hobbs Act robbery under the
categorial approach)). Knight’s jury received a similar instruction as the Louis case
by allowing the commission of Hobbs Act robbery by “fear of injury, immediate or
future, to his person or property, or to property in his custody or possession,” App.
D: 131a; 133a, rendering the offense categorically overbroad.
25
In addition, the Hobbs Act robbery statute expressly provides alternative,
indivisible means of committing the offense that encompass violent force: “actual or
threatened force, or violence.” 18 U.S.C. § 1951(b)(1). Canons of statutory
interpretation require giving each word meaning: “Judges should hesitate . . . to
treat statutory terms [as surplusage] in any setting, and resistance should be
heightened when the words describe an element of a criminal offense.” Ratzlaf v.
United States, 510 U.S. 135, 140–41 (1994); Duncan v. Walker, 533 U.S. 167, 174
(2001) (“It is our duty to give effect, if possible, to every clause and word of a
statute.” (cleaned up)). “When interpreting a statute, we must give words their
‘ordinary or natural’ meaning.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). To
interpret “fear of injury” as requiring the use or threat of violent physical force
would render superfluous the other means of committing Hobbs Act robbery—
“actual or threatened force or violence.”
Because Hobbs Act robbery can be committed non-violently by fear of future
injury to intangible property—conduct which is not a threat of physical force
required under § 924(c)’s elements clause—it fails to qualify as a crime of violence.
B.
The Hobbs Act robbery statute is indivisible, and thus
categorically overbroad under Taylor.
Hobbs Act robbery at 18 U.S.C. § 1951(a) is an indivisible offense with
alternative means—attempted Hobbs Act robbery and completed Hobbs Act
robbery. See Mathis v. United States, 579 U.S. 500, 518 (2016) (distinguishing
between the elements and means of a crime for divisibility analysis); Descamps v.
United States, 570 U.S. 254, 258 (2013) (setting divisibility test). Because this
26
Court holds one of these means—attempted Hobbs Act robbery—is not a § 924(c)
crime of violence, Taylor, 142 S. Ct. at 2025, and the Hobbs Act statute is
indivisible, the statute categorically fails to qualify as a crime of violence.
By bundling alternative means within a single sentence, the Hobbs Act
statute is indivisible. See United States v. McKibbon, 878 F.3d 967, 975 (10th Cir.
2017). Section § 1951(a) is a “one sentence proscription” that joins several acts as a
disjunctive series. Id.
(a) 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 commit 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.
18 U.S.C. § 1951(a). Besides the bundling, the penalty is the same for all means of
violating the Hobbs Act statute—whether by completed robbery or attempted
robbery. This bundling and same penalty combination confirm the statute is
indivisible with alternative means. Mathis, 579 U.S. at 518.
Because Taylor held that one of the means within this indivisible statute—
attempted Hobbs Act robbery—is not a crime of violence under 18 U.S.C. § 924(c),
the whole of § 1951(a) categorically fails to qualify as a § 924(c) crime of violence,
and Knight’s § 924(c) convictions are void. Taylor, 142 S. Ct. at 2025.
C.
The proper application and interpretation of 18 U.S.C. §
924(c) is of exceptional, national importance.
Because of the Ninth Circuit’s failure to correctly apply categorical analysis
per Taylor, Knight will serve over 14 years in prison including consecutive
27
mandatory sentences under 18 U.S.C. § 924(c). App. C, p. 122a. After completion of
the prison terms, Knight will also serve a longer supervised release term than
would otherwise be imposed, only because of the § 924(c) convictions.5 App. C, p.
123a.
Knight is just one of the thousands of defendants currently serving
consecutive mandatory minimum sentences for § 924(c) convictions. Over 17,000
individuals (12.9% of the federal prison population) are serving a § 924(c)
mandatory sentence. U.S. Sent. Comm’n, Quick Facts: Federal Offenders in Prison
(Jan. 2022). In Fiscal Year 2021, nearly 2500 individuals were convicted of a
§ 924(c) offense, at least 25% of which involved a robbery offense, with an average
sentence of 136 months (about 11½ years) in prison. U.S. Sent. Comm’n, Quick
Facts: 18 U.S.C. § 924(c) Firearms Offenses, Fiscal Year 2021 (June 2022).
Given the vast number of defendants’ lives affected by the Circuits’
misinterpretation of Hobbs Act robbery and 18 U.S.C. § 924(c), this Court’s
intervention is necessary. Knight asks this Court to review the Ninth Circuit’s
misapplication of the categorical approach to ensure compliance with the
Constitution and this Court’s precedent.
5 Without the § 924(c) convictions, Knight would be subject to a 3-year
supervision term, rather than a 5-year supervision term. Because 18 U.S.C.
§ 924(c) carries a statutory imprisonment maximum of life imprisonment, it is a
Class A felony with a 5-year maximum supervised release term. In contrast, Hobbs
Act robbery carries a 20-year imprisonment statutory maximum, a Class C felony,
thus carrying a 3-year maximum supervised release term. See 18 U.S.C. § 1951(a);
18 U.S.C. § 3559(a) (felony classifications); 18 U.S.C. § 3583(b) (authorized terms of
supervised release).
28
Conclusion
For these reasons, this petition for a writ of certiorari should be granted.
Dated: April 4, 2023.
Respectfully submitted,
RENE L. VALLADARES
Federal Public Defender
/s/ Wendi L. Overmyer
Wendi L. Overmyer
Assistant Federal Public Defender
Counsel of Record for Edward Knight
29
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.