Thursday, June 24th, 2021

Challenging § 924(c) convictions based on multiple predicates after Davis.

Since the Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019), lower courts have grappled with pre-Davis § 924(c) convictions predicated on both a valid crime of violence and a predicate offense that no longer categorically qualifies (for example, a § 924(c) conviction predicated on both a substantive Hobbs Act robbery and a Hobbs Act conspiracy). In United States v. Eldridge, No. 18-3294-cr (2d Cir. June 22, 2021), the Second Circuit provides guidance on this issue.

In Eldridge, one defendant was convicted at trial of a § 924(c) offense with three possible predicate crimes of violence: (1) kidnapping in aid of racketeering; (2) conspiracy to commit Hobbs Act robbery; and (3) attempted Hobbs Act robbery. The trial was conducted before Davis was decided, so there was no dispute about these predicates. Following Davis, however, both parties agreed that the kidnapping and Hobbs Act conspiracy offenses were not valid predicates. (The Circuit did not opine on whether kidnapping was still a crime of violence.) The government nonetheless argued that the § 924(c) conviction should stand based on the remaining predicate, attempted Hobbs Act robbery. The question was whether the § 924(c) conviction should be invalidated under the rule of Yates v. United States, 354 U.S. 298 (1957), which held that there is constitutional error when “disjunctive theories of culpability are submitted to a jury that returns a general verdict of guilty,” and one or more of the theories was legally insufficient.

Because the defense did not object to the predicates prior to trial, the Circuit applied a plain error standard—emphasizing that it was the defendant’s burden to establish each of the requirements for plain error relief.

Thus, while the Circuit agreed there was an error that was “plain,” the Circuit further required the defendant to show that his substantial rights were violated. Because there was “overwhelming” and “strong evidence” supporting an attempted Hobbs Act robbery predicate for the § 924(c) conviction, the Circuit found the defendant could not meet this standard: the defendant could not show that he was prejudiced by the error “because the jury would have returned a guilty verdict on [the § 924(c) count] even if it had been instructed that only attempted Hobbs Act robbery was a valid predicate.” In so holding, the Circuit rejected the defendant’s argument that this was actually a structural error.

Eldridge also features a discussion of when a defendant’s shackling at trial violates his right to a fair trial, although the defendants in that case ultimately were not shackled. Instead, the judge hung “a waist-high black curtain around the defense tables” in anticipation of the possible need for shackling. While finding that this curtain did not infringe the defendants’ right to a fair trial, the Circuit noted that where a court does find such a curtain justified “it might be well advised to place curtains symmetrically,” either directly down the middle of the courtroom or around both defense and prosecution tables.

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Categories: 924(c), Davis, plain error
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