ATT HAR / HAR Crimes of Violence under Section 924(c); Good Faith Exception to Warrant Requirement; Confrontation Clause on Work involving Collaboration

United States v. Walker, 2021 WL 833994 (Mar. 5, 2021) (Jordan, Krause, Roth), 

https://www2.ca3.uscourts.gov/opinarch/154062p.pdf

          In Walker, the Third Circuit ruled that both Hobbs Act robbery and attempted Hobbs Act robbery are 924(c) predicates.  Although Walker itself involved only a question of attempted Hobbs Act robbery, the issue of substantive Hobbs Act robbery remained undecided after an earlier decision in United States v. Copes was issued unpublished.  The Court rejected Walker’s argument that  Hobbs Act robbery cannot be a crime of violence because it can be completed by taking money from a victim “through fear of injury to the victim's intangible property” without the use or threatened use of force.  Looking to the history of the statute, the Court found that a physical act is a key component of the offense, and that “a non-forcible taking based on fear of injury to intangible property would not be sufficient to satisfy the force requirement of Hobbs Act robbery, since Hobbs Act robbery is simply a common law robbery that affects interstate commerce.” 

          Next, the Court looked to the elements of attempt: 1. an act with the intent to violate the statute, and 2. an act believed to be a substantial step in the commission of the crime; and found those elements aligned with the force element of a 924(c) crime of violence, “an element the use, attempted use, or threatened use of physical force.”  Essentially the Court held that an attempted attempt at use of force, is an “attempted use” of force.  While agreeing that “an intent to act” is not the same as an “attempt to act,” the Court found that the Congressional intent behind the statute “meant for all attempted crimes of violence to be captured by the elements clause of § 924(c), and courts are not free to disregard that direction and hold otherwise.’

          Note: There remains a circuit split on whether attempted HAR is a 924(c) predicate.  See United States v. Taylor, 979 F.3d 203, 209-10 (4th Cir. 2020).

          Additionally, the Court held that cell site location information (CSLI) evidence obtained without warrant came within the “good faith” exception to exclusionary rule, where government agents obtained the evidence in reliance on then-valid judicial order, which was issued in accordance with then-valid statute and then-binding appellate authority, prior to Carpenter v. United States, 138 S. Ct. 2206 (2018), which held that compliance with the Stored Communications Act alone is not sufficient to legally access historical cell-site records because the showing required by the government does not meet the probable cause standard required for a warrant.

          Finally, the Court held that the testimony of an investigator regarding the CSLI did not violate the Confrontation Clause because 1. the witness was arguably discussing his own work, and 2. any error was not plain where there was no consensus concerning the bounds of the Confrontation Clause when multiple people collaborate to make a testimonial statement. 

Blog post written by: Christy Martin