Petition for Writ of Certiorari — Michael Dennis Williams, Petitioner v. United States

In the

Supreme Court of the United States

MICHAEL DENNIS WILLIAMS, Petitioner

Vv.

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 a Writ of Certiorari

CUAUHTEMOC ORTEGA

Federal Public Defender

KATHRYN A. YOUNG"

Deputy Federal Public Defender

321 East 2nd Street

Los Angeles, California 90012

Tel: 213-894-2863

Fax: 213-894-0081

Email: Kathryn_Young@fd.org

Counsel for Petitioner

“Counsel of Record

QUESTIONS PRESENTED

Petitioner Michael Williams was convicted of conspiracy to commit

Hobbs Act Robbery; Hobbs Act Robbery; and use and discharge of a firearm

during a crime of violence in violation of §924(c).

The jury returned a general verdict which did not identify the theory of

liability upon which the verdict rested. Williams therefore contends that his

§924(c) conviction must be reversed if any of the predicates is an invalid

predicate crime of violence. Alternatively, he contends that each of the three

potential predicates (conspiracy to commit Hobbs Act Robbery, Hobbs Act

Robbery as a principal, and Hobbs Act Robbery under a Pinkerton theory) are

invalid predicate crimes of violence.

The questions presented are:

1. Whether Hobbs Act Robbery under a Pinkerton theory is not a

predicate crime of violence under §924(c) because Pinkerton

requires only a negligence standard of reasonable foreseeability,

and this Court has held that a crime of violence requires a

greater mens rea than negligence.

2. Whether Hobbs Act Robbery is not a predicate crime of violence

under §924(c) because it does not categorically require the “use,

attempted use, or threatened use of physical force against the

person or property of another” as required by 18 U.S.C.

§924(c)(8)(A) (emphasis added).

Whether conspiracy to commit Hobbs Act Robbery is not a

predicate crime of violence under §924(c) because it does not

categorically require the “use, attempted use, or threatened use

of physical force.”

PARTIES TO THE PROCEEDING

Pursuant to this Court’s Rule 14.1(b)(i), petitioner submits that

there are no parties to the proceeding other than those named in the

caption of the case.

Petitioner Michael Dennis Williams was the defendant in the

district court and the appellant in the Ninth Circuit Court of Appeals.

Respondent United States of America was the plaintiff in the district

court and the appellee in the Ninth Circuit Court of Appeals.

RELATED PROCEEDINGS

United States Court of Appeals for the Ninth Circuit

United States v. Williams, No. 16-56640

Order denying petition for rehearing and rehearing en banc filed on

January 26, 2026 (App. 1)

Unpublished Memorandum disposition affirming the district court’s denial

of Williams’ 28 U.S.C. §2255 motion filed on June 3, 2025 (App. 2-4)

Johnson v. United States, No. 19-55717 (codefendant)

Opinion affirming the district court’s denial of Johnson’s 28 U.S.C. §2255

motion filed on June 8, 2025, Johnson v. United States, 139 F.4th 830 (9th

Cir. 2025) (App. 5-28)

United States District Court for the Central District of California

United States v. Williams, No.: 2:16-cv-02569-RSWL

Order denying Williams’ Motion to Vacate, Set Aside or Correct Sentence

Under 28 U.S.C. §2255 filed on October 31, 2016 (App. 29-51)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 00000... ceceeessnneeeeeeeecssnsaceeeeceseeesseaeesesesesssssaesoees 2

PARTIES TO THE PROCEEDING LW eeceeesssneceeeseesssssseeeesessensssseeeeees 4

RELATED PROCEEDINGS 2000... eeccccccccceessseseeeceeeeeessseeeeeeceecessceeeeeeeesessseeeees 5

OPINIONS BELOW 0000... ccssssseneceeeeseessreeeceeeeeessssaaaeeeecesssessaaeaecesessesaaeeees 1

JURISDICTION ..... ec ceccessserteceeeeesssseccceeeessssseeeeeseeessssaueeeeeeeesssaeeeeesoseseeaanees 1

CONSTITUTIONAL AND OTHER PROVISIONS INVOLVED....................04. 2

STATEMENT OF THE CASE... cece eeecceeeeeceeessscceeeeeesesssseeeeeeserserssneneesees 2

A. First Superseding Indictment ...............cccccssssseeececcceesseececseenessseccccsensnasesees 2

B. Trial Evidence 200... ccccccccceceeessseseseseccaneeeccececeeseeseeescseeessssansuneaaeeeseessesenens 2

C. Surry INstructions.............ccccccssscccesscccecsescccsecceessccsuscceescsensesceacecsaaecccsaeescs 3

D. Jury Arguments .0..........cccccccsseccccseccccsecccccsssceescccescceeeescsenescceeescsenssceseeeecees 5

FB, Conviction... ceeesssseecereeessssseeceeeeesssneeseeeeessssseaaeeeeesssssseeseecosoonseneeeees 5

F. Memorandum and Opinion on Appeal............cccccccsssssecccssscccceeeesecereeesesees 6

REASONS FOR GRANTING THE WRIT 0... eeeeeeeeesnereeeeeeeeessseeenees 7

A. Williams’ §924(c) Conviction Must Be Reversed Because Hobbs Act

Robbery Under a Pinkerton Theory Is Not a Valid §924(c) Predicate .... 7

B. Williams’ §924(c) Conviction Must Be Reversed Because Hobbs Act

Robbery Is Not a Valid §924(c) Predicate .............. cc eesccccseesseceeeeesseeeeeeees 12

i

C. Williams’ §924(c) Conviction Must Be Reversed Because Conspiracy

to Commit Hobbs Act Robbery Is Not a Valid §924(c) Predicate .......... 16

1. Conspiracy to Commit Hobbs Act Robbery Is Not a Valid §924(c)

PYreCiCAate ...........cccccececscecscscescccscscecscececscscscecscacascccscscscscscecssesetscscecceseccs 16

2. The Memorandum Erroneously Stated that the Jury Did Not

Rely Upon Conspiracy to Commit Hobbs Act Robbery (Count

One), an Invalid §924(c) Predicate ..............cccsccccessesccceeeeeeceteesesceeeeeees 17

a. The Memorandum Acknowledged that Conspiracy Is an

Invalid Crime of Violence Predicate..............cccccccseccscccscosscesccescoess 17

b. The Memorandum’s Conclusion that There Was No

Conspiracy Predicate for §924(c) Is Erroneous ...............cccccceeeeees 17

D. Williams’ §924(c) Conviction Must Be Reversed If Any One of the

Three Alleged Predicates Is Not a Valid §924(c) Predicate ................... 20

CONCLUSION 1.00.0... .cceccccccssssseccccecccessveccccceeusesscsceceseususeessssscescesessesecsecscssesseseees 23

APPENDICES

Appendix A: Order Denying Petition for Rehearing

United States v. Williams, 9th Cir. Case No. 16-56640

(January 26, 2026) oo... eeecccccccccsssssccccccsssssssssccesseesssssceseeees App. 1

Appendix B: Memorandum Disposition

United States v. Williams, 9th Cir. Case No. 16-56640

(JUNE 3, 2ZOQS)........cccccccsesesseeecccscecesesscesceseescecesscueessesessceeeenses App. 2

i

Appendix C:

Appendix D:

Appendix E:

Opinion

Johnson v. United States, 139 F.4th 830 (9th Cir. 2025)

(June 3, 2025)........ccccccccsssccccssscsccsssceessccessceceesceenecceeaesceeasescs App. 5

Judgment

United States v. Williams, C.D. Cal. Case No. 2:16-cv-02569-

RSWL

(October 31, 2ZO1G) 0... cece csscccescceeccccsscceesceeesceessceeeseeees App. 29

18 U.S.C. §924(c)(1)(A), (j)

18 U.S.C. §1951(a) c.cecccccssscecsssecseseceesececsecucsececseereaserceeeeeaee App. 52

lil

TABLE OF AUTHORITIES

Page(s)

Cases

Alfred v. Garland,

64 F.4th 1025 (9th Cir. 2023) cc esesssessesscssssscsssseeerssesecseeseseesesseseeeeesessensscesenees 11

Alvarez-Cerriteno v. Sessions,

899 F.3d 774 (Oth Cir. 2018)... cesessssseesesesesesssssesscseeeseeesnseeescscaeseeeeeseseeseneseseeeseesess 10

Borden v. United States,

593 U.S. 420 (2021) oe cccccsesessesssesscsesesssesessssesesesesesesssesesesseseseassesesecaseeseseacerseeseneees 8, 10

Brown v. United States,

942 F.3d 1069 (11th Cir. 2019)... cessssssssesesesssssseesesesesensceseensneseseaserseeeees 16, 17

Delligatti v. United States,

604 U.S. 423 (2025) wccececeesesesesesssesssssesssesesesescsssesesesesesenesesescsesesesssescessescesseenseeeseess 8,9

Gonzales v. Duenas-Alvarez,

549 U.S. 1883 (2007)... cccccccsccsesessssssesssssesessssssesesssssesssssessesesessseeeceseensasseseasaeseseensnesears 15

Johnson v. United States,

576 U.S. S91 (2015) w.eceecccssessssssssessssssssescsssescsessssessneceeseseceesessscseseveasseseeseaseseeneerseeseeves 6

Leocal v. Ashcroft,

543 US. 1 (2004)... eescsssssesesesssesscsesesssssesesecsesesssesssesscseseseseneseeececscscssnesessaesesecsesessesees 9

Parker v. Gladden,

385 U.S. 363 (1966) oc ececcssssssesssssssesscscsssssssssessesescseseseseceeseseseseseseesseevensacsessaseesesseseseavers 6

Pinkerton v. United States,

328 U.S. 640 (1946) oc cecesesscsssssesesesssssssesesssssssesssesessnsseeeensesessassseeeteeseesesesseeeees passim

Rosemond v. United States,

572 US. 65 (2014). ccccsessssseesesssssssessssescsssssessseesesesssessssesaeesesesesesesseseecsenseeseseaceeseeees 8, 11

United States v. Barrett,

937 F.3d 126 (2d Cir. 2019)... cesessssssesesecssectesscseseeseeseeseassesessasseeeessessesesseeseesenseeaes 16

United States v. Bolden,

741 F.Supp.3d 280 (E.D. Penn. Jul. 23, 2024) oo essssesssesssesssscsseresseeseesseseeees 14

United States v. Brooks,

2020 WL 5984350 (E.D. Tenn. Oct. 8, 2020) os esesssssseseseeeceeseteteseseeseesteeeeees 14

lv

United States v. Culbert,

A435 U.S. 371 (1978) weecccsesesscssessssesssssscesessesssesesssesecsesesesescnssnescscsesesescaseeenenseasessasaeeneeeeeees 13

United States v. Davis,

588 U.S. 445 (2019) ne eececsssesscsssssessssssssesssssssssceesesenssssscsseesesenesesceceseeaensessessasstesesseseess 9

United States v. Johnson,

767 F.3d 815 (9th Cir. 2014)... cccsesssssessssssecssssessessesscsseseeseesessesesseasseseesensessenescseeseeees 8

United States v. Kepler,

74 F.Ath 1292 (LOth Cir. 2023) uo. sssecssssscssscsesessceseseesscsescesscseseesssssascsssssesseeseeseacaes 13

United States v. Plunkett,

2024 WL 4173806 (W.D. Va. Sept. 12, 2024)... ceseeeeenecsesesentesvensaseveneesens 14

United States v. Portee,

941 F.3d 263 (7th Cir. 2019)... scssssssssssecsscsseseeeessessescsesescasessecessesscssaseesesssseseasees 14

United States v. Reed,

48 F.4th 1082 (9th Cir. 2022) occ ccsssesessssesessesseseesessetesstetetseeeeneeeneees 17, 20, 21, 22

United States v. Rodriguez,

360 F.3d 949 (9th Cir. 2004)... esesscsssssssssessssesesesesssecessesescsessseesseevensessessasaeseeneseseers 14

United States v. Simms,

914 F.3d 229 (4th Cir. 2019)... ccsesscsssseesssescsesssesessenssssencaesesensesereeeceesescneneacseseesenes 16

United States v. Taylor,

596 U.S. 845 (2022) oo eececesesssssssssssssssseseseseesceceesetseeserenessueseeeeeseensesesneeseseesensees passim

Statutes

18 U.S.C. §2 viceescsesssssssssssssessssssesscssssscscstssesesecscsesesecaesesersesesesesseseasansuasesessseascssessussessssssesessssees 2

18 U.S.C. 9924 eeeeceesteneesterersneeesesesesessesecsessessesesssusessssssssssssseseseeeseseeeeesesseesenes passim

18 U.S.C. $1951 occ ecccsesssssssssesesssssssessssseecsessenseseeesseeseseeneeseeseuseeeeneeseenens 2,4, 12, 13, 15

28 U.S.C. §2255 i eecsesssesesssesecsesesssesescsesssesesesesesescsesssesessaeseseaesessaeseseneaeeacaesessessaeesessseesenseass 6

PETITION FOR WRIT OF CERTIORARI

Michael Dennis Williams petitions for a writ of certiorari to review the

judgment and Memorandum decision of the United States Court of Appeals

for the Ninth Circuit in his case.

OPINIONS BELOW

The Ninth Circuit's Memorandum decision in United States v.

Williams, No. 16-56640, was not published. (App. 2-4) In the Memorandum,

the Ninth Circuit relied upon the published Opinion issued in the appeal of

My. Williams’ codefendant, Johnson v. United States, 139 F4th 830 (9th Cir.

2025). (App. 5-28) The district court’s Order in United States v. Williams,

Central District of California Case No. 2:16-cv-02569-RSWL, was not

published. (App. 29-51)

JURISDICTION

The Ninth Circuit issued its Memorandum decision affirming the

district court judgment on June 8, 2025. (App. 2) The Ninth Circuit issued its

order denying rehearing and rehearing en banc on January 26, 2026. (App. 1)

This Court has jurisdiction pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL AND OTHER PROVISIONS INVOLVED

18 U.S.C. §924(c)(1)(A), 6)

18 U.S.C. §1951(a)

These provisions are included in Appendix D. (App. 52-61)

STATEMENT OF THE CASE

A. First Superseding Indictment

In 2007, Williams, along with Johnson and two other defendants, was

charged with conspiracy to commit Hobbs Act Robbery, in violation of 18

U.S.C. §1951(a) (Count One); (2) Hobbs Act Robbery, aiding and abetting, in

violation of 18 U.S.C. §1951(a), 18 U.S.C. §2(a) (Count Two); and (8) use of,

carrying, brandishing and discharge of a firearm during a crime of violence,

namely, the armored truck robbery charged in Counts One and Two, causing

death, aiding and abetting, in violation of 18 U.S.C. §924(c)(1)(A)Gi), G)(),

and 18 U.S.C. §2(a) (Count Three). (ER-244-50) The charges arose from the

2004 robbery by four men of an armored truck making a cash delivery toa

bank branch, in which one of the armored truck guards was fatally shot.

B. Trial Evidence

Despite numerous witnesses observing the robbers as they grabbed

bags of money from the armored truck and ran down the street, no

2

eyewitness identified Williams as one of the robbers. Although Williams’

DNA was identified on a glove found under debris down the street from the

bank (in the neighborhood where Williams hung out), no eyewitness saw the

robbers wear or drop gloves. The gloves were not tested for gunshot residue.!

The remaining evidence connecting Williams to the offense was the

testimony of two snitches, gang members with significant criminal histories.

The snitches’ credibility was impeached by numerous inconsistencies,

contradictions, errors, and self-interested bias. For example, the district

court denied codefendant Johnson’s ineffective assistance of counsel claims

concerning one of the snitches, on the ground, inter alia, that there was no

prejudice since the snitch’s credibility had been thoroughly impeached at

trial. The snitch admitted to lying under oath, suborning perjury, and being

involved in multiple murders for which he was not prosecuted.

C. Jury Instructions

As to Count One, the Hobbs Act conspiracy count, the court instructed

that the jury had to find three elements:

' Since the gloves were not otherwise connected to the robbery or to the use of

a firearm, the fact that Williams’ DNA was found on a glove covered with

debris in the street did not establish any involvement in the robbery.

3

“First, beginning on or about at least February 27, 2004, and

ending on or about at least March 1, 2004, there was an agreement

between two or more persons to interfere with commerce by robbery, in

violation of Title 18, United States Code, Section 1951(a);

“Second, the defendant became a member of the conspiracy

knowing of its object and intending to help accomplish it; and

“Third, if successful, the robbery would have affected interstate

or foreign commerce.” (ER-158)

The jury was then instructed that there were two ways that the

government could prove that Williams was guilty of Count Two: “first, by

committing the crime himself, or, second, by being part of a conspiracy as

charged in Count One, during or in furtherance of which the reasonably

foreseeable crime of robbery affecting interstate commerce was committed.”

(ER-227)

The court further instructed the jury that it could find Williams guilty

of Count Two, the substantive crime of robbery, first on the ground that he

committed the crime himself, or second on an alternate theory:

“The second way in which a defendant may be found guilty of

robbery affecting interstate commerce is if you find that the defendant

entered into the conspiracy as charged in Count One of the Indictment,

and that the robbery affecting interstate commerce as charged in Count

4

Two of the Indictment was foreseeable as a natural or necessary

consequence of that conspiracy.”

Similarly, the jury was instructed that there were two ways for the

government to prove Williams guilty of Count Three, §924(c)(1)(A)(iii), “first,

by committing the crime himself, or, second, by being part of a conspiracy as

charged in Count One, during or in furtherance of which occurred the

reasonably foreseeable crime of robbery and the knowing use of the firearm

during and in relation to that crime.” (ER-234)

D. Jury Arguments

The government’s Answering Briefs in Johnson’s and Williams’ appeals

acknowledged that the government and the district court assumed that the

jury was instructed that the conspiracy charged in Count One was a

predicate crime of violence for the §924(c) count, and that the §924(c)

conviction rested on Hobbs Act conspiracy as well as Hobbs Act Robbery.

(GAB-27-28) That was the position taken by the government in its argument

to the jury.

E. Conviction

The jury returned a general verdict of guilt on all counts; the verdict

form did not specify whether the jury convicted Williams of violating §924(c)

based on having been a principal in a Hobbs Act Robbery or having been a

participant in a conspiracy. (ER-216-18)

Notably, the jury required “nearly four days of deliberation” to reach its

verdict. United States v. Johnson, 767 F.3d 815, 820 (9th Cir. 2014).?

Williams was sentenced to 480 months on Counts One and Two, and

Life on Count Three, to be served concurrently.

F. Memorandum and Opinion on Appeal

Williams’ convictions were affirmed on appeal and he filed a §2255

motion challenging his §924(c) conviction, which was denied by the district

court. The Ninth Circuit granted a Certificate of Appealability on the

following issues: whether Williams’ §924(c) conviction must be vacated in

light of Johnson v. United States, 576 U.S. 591 (2015); whether Hobbs Act

Robbery is a crime of violence; and whether Hobbs Act Robbery under a

Pinkerton theory of liability qualifies as a crime of violence (App.-2).

On June 3, 2025, the Court issued a Memorandum disposition

affirming the district court’s order denying Williams’ §2255 motion. First,

This Court has acknowledged that lengthy deliberations establish that the

jury struggled to convict, meaning that an error was not harmless. See, e.g.,

Parker v. Gladden, 385 U.S. 368, 365 (1966) (fact that jurors deliberated for

26 hours indicated a difference among them as to petitioner’s guilt).

6

the Memorandum held that its Opinion in Johnson’s appeal controlled the

outcome of Williams’ appeal. The Memorandum stated that like Johnson’s

§924(c) conviction, Williams’ §924(c) conviction remained lawful because it

was based on one of two valid predicate offenses: Hobbs Act Robbery or Hobbs

Act Robbery under a Pinkerton theory of liability. (App.-2)

Second, the Memorandum held that even if the jury could have

interpreted the district court’s instructions to mean that the §924(c) charge

could be predicated on the conspiracy charged in Count One of the

Indictment, any such error would have been harmless. Relying again upon its

Opinion in Johnson, the Memorandum stated that the jury could not have

reasonably concluded that Williams used a firearm in the course of the

conspiracy but not in the course of the Hobbs Act Robbery. (App.-2-3)

REASONS FOR GRANTING THE WRIT

A, Williams’ §924(c) Conviction Must Be Reversed Because Hobbs Act

Robbery Under a Pinkerton Theory Is Not a Valid §924(c)

Predicate

The jury was instructed that it could convict Williams on Counts Two

and Three on a Pinkerton’ theory: to wit, that Williams could be found guilty

if a person named in Count Three committed the crime of robbery and

3 Pinkerton v. United States, 328 U.S. 640 (1946).

7

knowingly used the firearm during and in relation to that crime; the person

was a member of the conspiracy charged in Count One; the person committed

the crime of robbery and knowingly used the firearm in furtherance of the

conspiracy; the defendant was a member of the conspiracy when the offense

in Count Three was committed; and the offense fell within the scope of the

agreement and could reasonably have been foreseen to be a necessary or

natural consequence of the unlawful agreement. (ER-236-37; see also 14-

SER-2969-76)

A conviction of Hobbs Act robbery under a Pinkerton theory is not a

valid §924(c) predicate. (GAB-28) The Memorandum’s decision that

Pinkerton is a valid predicate for a §924(c) conviction is irreconcilable with

this Court’s precedents, including Rosemond v. United States, 572 U.S. 65

(2014); Borden v. United States, 593 U.S. 420 (2021); United States v. Taylor,

596 U.S. 845 (2022), and Delligatti v. United States, 604 U.S. 423 (2025).

In Taylor, the Supreme Court held that attempted Hobbs Act robbery

does not qualify as a “crime of violence” under §924(c)(3)(A). Taylor

established that the court must employ a categorical approach in determining

whether a conviction is a valid predicate crime of violence. The categorical

approach examines whether the government is always required to prove

beyond a reasonable doubt, as an element of its case, that the defendant

used, attempted to use or threatened the use of force. Id. at 850, citing

8

Borden v. United States, 593 U.S. 420 (2021) (the facts of a given case are

irrelevant; the least culpable act criminalized must involve the level of force

described in the crime of violence definition; offense that “requires only a

mens rea of recklessness—a less culpable mental state than purpose or

knowledge” cannot qualify as violent); United States v. Davis, 588 U.S. 445

(2019); Leocal v. Ashcroft, 543 U.S. 1, 7, 9-11 (2004) (crimes of violence

require a higher degree of intent than negligent conduct). To obtain a

conviction, the government must prove that the defendant engaged in the

unlawful taking or obtaining of personal property from the person of another,

against his will, by means of actual or threatened force. Id. at 850. The

Taylor Court held that attempted Hobbs Act robbery does not satisfy the

elements clause because “it does not require the government to prove that the

defendant used, attempted to use, or even threatened to use force against

another person or his property.” Id. at 851.

In Delligatti, this Court reiterated that it applies the “categorical

approach” to determine whether an offense falls within the elements clause.

Under that approach, the Court does not examine the defendant’s actual

conduct. Instead, the Court asks whether the offense in question “always”

involves the use, attempted use, or threatened use of force. If the offense can

be committed without the use, attempted use, or threatened use of force, it is

not a crime of violence under the elements clause. Delligatti, 604 U.S. at 426.

9

Here the Pinkerton instructions did not require the government to

prove that Williams used, attempted to use or even threatened to use force,

but only that it was reasonably foreseeable. Under the Pinkerton

instructions, Williams could have been convicted under §924(c) based solely

on the use of a firearm by a conspirator, simply if such use was foreseeable.

But simple foreseeability -- a negligence standard? -- is not a mens rea that

constitutes a crime of violence under this Court’s precedents.

A conviction based upon a Pinkerton theory has impermissibly diluted

the elements of the offense so that it no longer encompasses the requisite

mens rea. As Taylor instructs, in performing the categorical analysis, the

court must examine the elements that the government is required to prove to

obtain a conviction, and determine whether such elements comprise a crime

of violence. The court must consider the elements of accomplice liability in its

4The states of mind that give rise to criminal liability are, “in descending

order of culpability: purpose, knowledge, recklessness, and negligence.”

Borden v. United States, 593 U.S. 420, 426 (2021). Notably, Borden held that

recklessness is insufficient. The Pinkerton standard of reasonable

foreseeability is a negligence standard, Alvarez-Cerriteno v. Sessions, 899

F.3d 774, 782 (9th Cir. 2018), which is an even lesser standard than the

recklessness standard found deficient in Borden.

10

categorical analysis. Alfred v. Garland, 64 F.4th 1025, 1033 (9th Cir. 2023).

A conviction premised upon a Pinkerton theory does not include the requisite

elements of a crime of violence.

In Rosemond v. United States, 572 U.S. 65 (2014), this Court held that

"knowledge"—not just reasonable foreseeability—is required for aiding-andabetting liability. Under Rosemond, use of a gun during a crime by a coconspirator that was reasonably foreseeable to the defendant is not sufficient

to sustain a conviction as an aider or abettor. Rosemond requires proof of the

defendant’s advance knowledge that a firearm would be present.

Thus the Pinkerton instruction, which requires only foreseeability, does

not comply with Rosemond. The jury instructions did not require the element

of knowledge or intent. The Pinkerton instructions only required the jury to

find foreseeability, not knowledge: “the offense fell within the scope of the

unlawful agreement and could reasonably have been foreseen to be a

necessary or natural consequence of the unlawful agreement.” (ER-236-27;

see also ER-226, ER-227, ER-229, ER-30, ER-234)

The requisite categorical approach inquiry is whether the elements

that the government must prove to convict the defendant comprise a crime of

violence. Since under Pinkerton the government no longer need prove the

necessary mens rea, then Hobbs Act Robbery under a Pinkerton theory is not

a crime of violence.

11

B. Williams’ §924(c) Conviction Must Be Reversed Because Hobbs Act

Robbery Is Not a Valid §924(c) Predicate

Hobbs Act Robbery is not categorically a crime of violence because it

can be committed through threats of self-harm.

Hobbs Act Robbery may be committed by the means of actual or

threatened force, violence, or fear of injury to the person or property of a

relative or member of the victim’s family or of anyone in his company at the

time of the taking or obtaining. §1951(b)(1). Where the victim of the Hobbs

Act Robbery is a member of the perpetrator’s family, the actual or threatened

force or violence can be directed against the perpetrator himself or his

property. This would not constitute actual or threatened use of force against

the person or property of another. Likewise, if the perpetrator is in the

company of the victim at the time of the taking or obtaining, as will nearly

always be the case, the actual or threatened force or violence could be

directed against the perpetrator himself or his property. This, also, would not

constitute actual or threatened use of force against the person or property of

another. Force directed at oneself is not force against another. For this

reason, Hobbs Act Robbery is not categorically a crime of violence.

As discussed above, the categorical approach requires the court to:

“Look at the elements of the underlying crime and ask whether they require

the government to prove the use, attempted use, or threatened use of force”

12

against the person or property of another. Taylor, 596 U.S. at 860. Because

“another” means “one other than oneself,” ‘the person [or property] of another

in § 924(c)(8)(A) means a person ‘other than’ the perpetrator of the crime of

violence.” United States v. Kepler, 74 F.4th 1292, 1305 n. 15 (10th Cir. 2023)

(citing dictionaries). Hobbs Act Robbery does not require the government to

prove the use or threat of force against a person other than the perpetrator.

Rather, Hobbs Act Robbery may be committed by means of actual or

threatened force, or violence, or fear of injury to (1) the person or property of

the individual from whom the personal property is taken; (2) the person or

property of a relative or member of his family; or (8) the person or property of

anyone in his company. §1951(b)(1).

If the perpetrator is a relative or member of the victim’s family, or if

the perpetrator is in the company of the victim, the threat could be directed

at the perpetrator himself. For example, the perpetrator robs his brother, a

drug dealer, of drugs with the threat that if the drug dealer does not hand

over his drugs, the perpetrator will kill himself. Or go to a competitor drug

dealer, whose drugs are known to be contaminated with deadly toxins. The

perpetrator may be convicted of Hobbs Act Robbery because he has obtained

his brother’s property through the threatened use of force against the

perpetrator himself or through causing his brother fear that the perpetrator

will injure himself. See United States v. Culbert, 435 U.S. 371, 380 (1978)

13

(“Congress intended to make criminal all conduct within the reach of the

statutory language”); United States v. Rodriguez, 360 F.3d 949, 955-56 (9th

Cir. 2004) (robbery of drug dealers is Hobbs Act Robbery). This is true even

though the perpetrator has not used, attempted to use, or threatened to use

physical force against the person or property of another. And that is because

Hobbs Act Robbery does not have as an element the use, or attempted use, or

threatened use of physical force against the property of another. As a result,

Hobbs Act Robbery does not satisfy the requirements of §924(c)(3)(A).5

>See United States v. Portee, 941 F.3d 268, 271-73 (7th Cir. 2019) (holding

that a defendant’s conviction for felony intimidation under state law did not

qualify as a violent felony under elements clause of ACCA since the plain

language of the intimidation statute encompassed situations involving selfharm or threats of self-harm); United States v. Bolden, 741 F.Supp.3d 280,

286 (B.D. Penn. Jul. 23, 2024) (holding that federal attempted armed bank

robbery is not a crime of violence for §924(c) because it could be committed

through threats of self-harm); United States v. Plunkett, 2024 WL 4173806,

*7 (W.D. Va. Sept. 12, 2024) (holding that federal interstate stalking is not a

crime of violence for §924(c)(8)(A) because it could be committed by threats of

self-harm); United States v. Brooks, 2020 WL 5984350 (E.D. Tenn. Oct. 8,

2020) (holding state felony of riot-in-a-penal-institution did not qualify as a

violent felony under the elements clause of the ACCA because it could

involve, inter alia, acts of self-harm); cf. United States v. Gamez, 2025 45377

(N.D Indiana Jan. 7, 2025) (certifying question to Indiana Supreme Court

14

Finally, Gonzales v. Duenas-Alvarez, 549 U.S. 1883, 193 (2007),

notwithstanding, because §1951(b)(1) is facially overbroad, Mr. Williams need

not identify an actual case where the government has prosecuted Hobbs Act

Robbery based on a threat of self-harm. As the Supreme Court held in Taylor,

596 U.S. at 859, Duenas-Alvarez is inapposite for “at least two reasons.” Id. at

858. First, the Supreme Court explained, “the immigration statute at issue in

Duenas-Alvarez required a federal court to make a judgment about the

meaning of a state statute,” and therefore the decision reflected a “federalism

concern” that was not present in Taylor because the Hobbs Act is a federal

statute. Id. at 858-59. Second, the Court explained that “in Duenas-Alvarez

the elements of the relevant state and federal offenses clearly overlapped and

the only question the Court faced was whether state courts also ‘appl[ied] the

statute in [a] special (nongeneric) manner.’ ” Id. at 859 (quoting Duenas-

Alvarez, 549 U.S. at 193). The Court did not need to “reach that question” in

Taylor because the “[a]ttempted Hobbs Act robbery does not require proof of

any of the elements § 924(c)(8)(A) demands.” Id. “That ends the inquiry, and

nothing in Duenas-Alvarez suggests otherwise.” Id. Where, as here, the

elements of §1951(a) do not require the government to prove the use,

whether Indiana robbery can be committed by using or threatening self-

harm).

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attempted use, or threatened use of force against the person of another, there

is no categorical match, and the court does not reach Duenas-Alvarez’

“realistic probability” standard.

Because Hobbs Act Robbery does not have as an element the use,

attempted use, or threatened use of force against the person of another, it is

not a “crime of violence” for the purposes of 18 U.S.C. §924(c).

C. Williams’ §924(c) Conviction Must Be Reversed Because

Conspiracy to Commit Hobbs Act Robbery Is Not a Valid §924(c)

Predicate

1. Conspiracy to Commit Hobbs Act Robbery Is Not a Valid

§924(c) Predicate

In United States v. Taylor, 596 U.S. 845, 869 (2022), this Court

observed that “the Government conceded that conspiracy to commit Hobbs

Act robbery—the predicate crime for the defendants’ §924G) convictions—was

not a crime of violence under this Court’s elements-clause precedents.”

Various Circuit Courts have held that under this Court’s precedents,

conspiracy to commit Hobbs Act Robbery is not a valid predicate crime of

violence. That is because conspiracy to commit Hobbs Act Robbery does not

categorically "necessitate[] the existence of a threat or attempt to use force."

Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019); see also United

States v. Barrett, 937 F.3d 126 (2d Cir. 2019); United States v. Simms, 914

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F.3d 229, 233 (4th Cir. 2019). In United States v. Reed, 48 F.4th 1082, 1087-

1088 (9th Cir. 2022), the Ninth Circuit held that Reed's conspiratorial

cooperation to commit a Hobbs Act Robbery could, in theory, "manifest itself

in any one of countless non-violent ways." Brown, 942 F.3d at 1075. Thus,

applying the categorical approach in the wake of Davis, the Ninth Circuit

concluded that that conspiracy to commit Hobbs Act Robbery is not a "crime

of violence."

2. The Memorandum Erroneously Stated that the Jury Did

Not Rely Upon Conspiracy to Commit Hobbs Act Robbery

(Count One), an Invalid §924(c) Predicate

a. The Memorandum Acknowledged that Conspiracy Is

an Invalid Crime of Violence Predicate

The Opinion correctly held that conspiracy to commit Hobbs Act

Robbery could not have served as a valid predicate crime of violence for the

§924(c) charge. (App.-22) However, the Opinion held that conspiracy was not

in fact a predicate; instead, according to the Opinion, the instructions

required the jury to find guilt only on one of two alternative theories: either

direct or Pinkerton culpability. (App.-22)

b. The Memorandum’s Conclusion that There Was No

Conspiracy Predicate for §924(c) Is Erroneous

However, the Memorandum erred in concluding that there was no

conspiracy predicate. The jury was instructed by the district court and told

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by the government that conspiracy in Count One was a predicate crime of

violence for Count Three. As the Opinion acknowledged, the government and

the district court assumed that the jury was instructed that the conspiracy

charged in Count One was a predicate crime of violence for the §924(c) count,

and that the §924(c) conviction rested on Hobbs Act conspiracy as well as

Hobbs Act Robbery. (App.-23 n.8) The government additionally

acknowledged that it similarly contended in codefendant Johnson's appeal

that both Hobbs Act Robbery and conspiracy were §924(c) predicates in this

case. (GAB-29 n.8) After over 14 years of litigation, the government’s 2024

Answering Brief for the first time took the position that the only predicate for

the §924(c) count was Hobbs Act Robbery, and that the jury was not

instructed on a conspiracy predicate. (GAB-29, citing ER-172)

However, the government’s acknowledgement that it proceeded in the

district court, and through 2024, as though conspiracy was a §924(c)

predicate is fatal to the Court’s conclusion. The government charged

conspiracy as a predicate, proceeded at trial as if conspiracy was a predicate,

and told the jury that conspiracy was a predicate. Thus, in its closing

argument, the government told the jury to convict Williams of Count Two,

robbery, and Count Three, §924(c), on a simple conspiracy theory. For

example, the government told the jury that it could convict Williams of

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robbery merely by finding that a member of the conspiracy (not even

Williams) committed robbery, without more. (14-SER-2805)

The government then similarly told the jury that it could convict

Williams on the §924(c) count, Count Three, again merely if a member of the

conspiracy (not necessarily Williams) committed a crime of violence and that

conspirator used a firearm in relation thereto. (14-SER-2806)

The government’s direction to the jury that it could convict on Counts

Two and Three on a simple conspiracy basis was reinforced by a paragraph in

the court’s jury instructions which instructed the jury that it could convict on

a conspiracy theory:

“Each member of the conspiracy is responsible for the actions of

the other conspirators performed during the course and in furtherance

of the conspiracy. If one member of a conspiracy commits a crime in

furtherance of a conspiracy, the other members have also, under the

law, committed that crime." (ER-174)

Additionally, Count Three of the indictment, which the jury was told to

look at, charged defendants with use of firearms during and in relation to a

crime of violence "as charged in Counts One [conspiracy] and Two [robbery] of

this first superseding indictment." (ER-250)

Accordingly, the indictment, the jury instructions and the government

repeatedly told the jury that it could convict Williams of Hobbs Act Robbery

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and §924(c) on a simple conspiracy theory, which is not a valid predicate. If,

as the government acknowledges, the district court and the government

believed that conspiracy was a predicate, the less-experienced jury could not

have believed otherwise.

D. Williams’ §924(c) Conviction Must Be Reversed If Any One of the

Three Alleged Predicates Is Not a Valid §924(c) Predicate

Since the jury returned a general verdict which did not identify the

theory of liability upon which the verdict rested, Williams’ §924(c) conviction

must be reversed if any of the predicates is an invalid predicate crime of

violence. United States v. Reed, 48 F.4th 1082, 1090 (9th Cir. 2022). The

Memorandum erred in holding that even if the instructions allowed the jury

to predicate the §924(c) charge on conspiracy as charged in Count One, any

such error would have been harmless. (App.-2) The Memorandum held that

the evidence presented against Williams demonstrated his participation in

the robbery. (App.-2) The Memorandum further held that evidence

supporting the Hobbs Act Robbery and conspiracy charges was so coextensive

and inextricably intertwined that no rational juror could have found that

Williams carried a firearm in relation to the conspiracy charge and not in

relation to the robbery charge. (App.-3)

The Memorandum further misconstrued the application of the principle

in Reed that an instruction error is harmless when an invalid predicate is

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