In today’s United States v. Sheehan, the Second Circuit (Winter, Wesley, Lynch) affirmed a conviction for using a “destructive device” during a “crime of violence,” in violation of 18 U.S.C. § 924(c)(1)(B)(ii).
Wearing a wig, an arm sling and makeup, Sheehan planted an almost-complete pipe bomb in a Home Depot on Long Island. He sent a letter to the store, saying there was a bomb and demanding $2 million so he could “go to a warm climate with thin brown girls and drink [him]self to death.” He promised to repay the money in the form of a $2 million “life insurance policy naming Home Depot beneficiary.” The almost-complete bomb was recovered and no one was hurt.
Arrested and brought to trial, Sheehan conceded guilt on what was charged as the underlying “crime of violence” — Hobbs Act extortion in violation of 18 U.S.C. § 1951 — but denied guilt on the other charge, arguing the almost-complete bomb he planted wasn’t a “destructive device” under § 924(c)(1)(B)(ii). He was convicted and sentenced to 30 years (the mandatory minimum for the § 924(c) conviction) and one month (for the § 1951 conviction).
The Circuit affirmed, holding “a device that is capable of exploding,” as government experts testified the almost-complete bomb was, “is an ‘explosive bomb’ within the meaning of the statute.” Further, “the jury could rationally find that the device was objectively designed as a weapon even if it was missing a component required to enable it to explode in a specific way.” The Court also rejected Sheehan’s challenges to the jury instructions, holding among other things that an almost-complete bomb falls within the statute’s “combination of parts” language and that the jury needn’t have found Sheehan’s subjective intent because the statute allows for conviction where, as here, a device is objectively “designed” to function as an explosive.
Takeaway for the Defense Bar
Defendants charged with § 924(c) violations based on the underlying “crime of violence” being Hobbs Act extortion should consider challenging such § 924(c) charges. Sheehan did not make this challenge, but there are grounds for it.
To be a “crime of violence” under § 924(c), an offense must have “as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the “force clause”) or must, “by its nature, involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” (the “residual clause”).
Hobbs Act extortion is “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.” 18 U.S.C. § 1951(b)(2). This offense does not fit within the force clause, as extortion accomplished “under color of official right” does not require “the use, attempted use, or threatened use of physical force.” See, e.g., United States v. Kennedy, 133 F.3d 53, 57 (D.C. Cir. 1998) (“Because extortion under color of official right need not be effected through violence, not all crimes under the Hobbs Act need be violent crimes.”).
That leaves § 924(c)’s residual clause. In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held a similarly worded residual clause — and one subject to the same analytical approach as § 924(c)’s — was void for vagueness. If Johnson applies to § 924(c)’s residual clause, thus rendering that clause void as well, there would be no basis to deem Hobbs Act extortion a “crime of violence.” Though a panel of the Second Circuit recently held Johnson does not apply to § 924(c), see United States v. Hill, No. 14-3872 (2d Cir. Aug. 3, 2016), the defendant in that case has sought further review and there is a sharp split among the circuits over whether Johnson applies to 18 U.S.C. § 16’s residual clause (which is worded identically to § 924(c)’s residual clause). In short, there’s a fair chance the Supreme Court will decide this question. Defense lawyers should feel free to contact Federal Defenders of New York for further guidance.