United States v. Taylor

HOBBS ACT ROBBERY AND THE USE OF FORCE

Petitioner United States contends that, under the Hobbs Act, an attempted robbery and a completed robbery are treated no differently. Brief for Petitioner, United States at 18. The United States argues that Congress, in the elements clause of 18 U.S.C. § 924(c)(3) (“§ 924(c)(3)”), utilized the broad language of “use” “attempted use” and “threatened use” of force to cover all crimes involving the threat of violence, even incomplete attempts. Id. The United States maintains that the definition of “use” often includes cases where physical violence never occurred, such as pointing a gun at someone without ever pulling the trigger. Id. at 21. The United States also points out that it is well established that a person can be charged with an attempted use of violence. Id. Thus, the United States reasons that combining these two concepts means that attempted use of force includes any situation where a defendant tries to take a “substantial step” to “use” force, even if never intending for any physical contact to occur. Id.

If the “attempted use” element of § 924(c)(3) does not cover attempted robbery, the United States alternatively contends that the “threatened use” element of § 924(c)(3) clearly includes attempted Hobbs Act robbery because an attempt necessarily involves a threat. Brief for Petitioner at 23. The United States maintains that an action is considered a threat if it would be “objectively” threatening to a “reasonable person.” Id. at 16. The United States also highlights that the Supreme Court previously allowed a threat to be made without ever being communicated in United States v. Elonis (“Elonis”). Id. at 23–24. The United States notes that a jury must find a defendant acted in a way “that was sufficiently certain, if unchecked, to culminate in taking property through physical harm or the threat of it” to establish an attempted Hobbs Act robbery. Id. at 22. Therefore, the United States asserts that a reasonable person would find that any defendant who takes the substantial step required for an attempted robbery conviction necessarily has threatened the use of force. Id. at 23–24.

Respondent Taylor counters that an attempted Hobbs Act robbery does not require an act that constitutes the attempted or threatened use of force. Brief for Respondent, Taylor at 11. Taylor asserts that the Hobbs Act directly covers “attempted threats of force,” which do not meet any of the § 924(c)(3) requirements because a defendant can intend to threaten force while only taking a nonviolent substantial step towards the attempted act. Id. at 11–12. Since an attempted threat need not involve a violent substantial step, Taylor contends an attempted threat does not involve the use of force because statutory interpretation standards require “use” to be given a normal meaning: “the application of force.” Id. at 13. Taylor argues that the rule of interpretation that requires “constru[ing] language in its context” similarly supports “use” being interpreted as requiring actual physical contact, and not merely any possible use of force. Id. at 21. Additionally, Taylor argues that an attempted threat is not categorically the same as an attempted use of force given that a defendant can be convicted for a threat without planning on ever using physical force. Id. at 15. Taylor maintains that the anti-surplusage rule of interpretation, which holds no statutory section should be read redundantly, requires attempted threats to be distinguished from attempted use of force. Id. at 16.

Further, Taylor maintains that the court in Elonis interpreted a threat of force to require that the threat be communicated because the definitions of “threats” and the examples at issue in Elonis all involved communicated threats. Brief for Respondent at 26. Given an attempted threat may be made without any communication, Taylor asserts that an attempted threat may not involve any threat of force, such as if a defendant stopped in route to commit robbery. Id. at 17. Taylor further argues that the Model Penal Code specifically notes an attempted threat of force does not necessarily constitute a threat of force. Id. at 18.

THE HISTORY AND PURPOSE OF THE HOBBS ACT

The United States argues that Congress intended—and the legislative history supports—that the broad structure of the elements clause of § 924(c)(3) include attempted or threatened robberies. Brief for Petitioner at 26. The United States maintains that an attempted Hobbs Act robbery is naturally included as “crime of violence” because an attempted robbery often causes more violence than a successful robbery. Id. at 27. The United States asserts that violent confrontations with police and victims often cause robberies to fail, so while unsuccessful, the defendants must have at a minimum threatened force in the process. Id. at 30. Given the broad language of the elements clause of § 924(c)(3) and the focus on violence, the United States claims that Congress intended for defendants who were thwarted in the process of a violent crime to be included by the broad elements clause language, as opposed to being excluded, and thus rewarded, for their involvement in those situations that often cause greater violence. Id. at 32.

Taylor counters that the legislative history shows that the elements clause of § 924(c)(3) never included all violent attempts. Brief for Respondent at 28. Rather, Taylor claims Congress included the separate residual clause of § 924(c)(3), which was struck down by the Supreme Court in United States v. Davis for vagueness, to cover certain violent crimes that may not meet the specific requirements of the elements clause. Id. Since the residual clause was invalidated for lack of clear guidelines, Taylor maintains that the United States’ interpretation of the elements clause should be discarded because it would involve the same level of unpredictable judicial analysis to determine the risk of violence in robberies. Id. at 30. Taylor claims this is merely an erroneous attempt by the United States to use the Supreme Court to recover the residual clause by broadening the elements clause, which is a problem that should instead require Congressional action to resolve. Id. at 32–33. Also, Taylor asserts that the legislative history does not support an interpretation of the elements clause to include all attempts because such language was expressly rejected in the Armed Career Criminal Act (“ACCA”), nor is it referred to in Congressional reports on § 924(c)(3). Id. at 35, 37.

SUBSTANCE OF ATTEMPTED THREAT

The United States asserts that, while the Fourth Circuit agreed that attempted common law robbery fulfills the ACCA’s elements clause for a violent felony, it misunderstood the requirements of attempted Hobbs Act robbery as substantially different from a common law robbery. Brief for Petitioner at 33. Contrary to the opinion of the Fourth Circuit, the United States asserts that a Hobbs Act robbery is merely a common law robbery that also affects interstate commerce and requires the defendant to take action against the victim’s wishes. Id. The United States thus maintains that an attempted Hobbs Act robbery requires an act that would satisfy the § 924(c)(3) elements clause requirement of “physical force” because a completed Hobbs Act robbery, similarly to common law robbery, involves “physical force.” Id. at 34.

Further, the United States contends that the Fourth Circuit improperly imagined situations where the Hobbs Act covers situations of attempted threats which would not meet the elements clause requirements under a categorical approach. Brief for Petitioner at 35. The United States argues, and notes other Circuits have also acknowledged, that a defendant essentially threatens the use of force in all cases where their actions were substantial enough to lead to an attempted Hobbs Act robbery conviction. Id. The United States thus contends that, even if the Fourth Circuit could imagine an attempted threat that did not satisfy the elements clause, these narrow possibilities do not satisfy the “realistic probability” requirement such that attempted Hobbs Act robbery could be excluded from the coverage of § 924(c)(3). Id. at 37.

Taylor counters that, even if one finds that the elements clause of § 924(c)(3) covers common law robbery, the elements clause does not include some forms of attempted robbery that were directly excluded in the ACCA language and in § 924(c)(3). Brief for Respondent at 25. Contrary to the United States’ position, Taylor asserts that the ACCA elements clause, as with the § 924(c)(3) elements clause, requires “violent force” to constitute a crime of violence. Id. at 38. Thus, Taylor argues that the broad coverage proposed by the United States would undercut numerous decisions of previous courts requiring actual violent contact. Id. Given that an attempted threat does not involve any physical force like an assault, Taylor contends that an attempted threat does not categorically constitute a “crime of violence” because this minimum conduct would not satisfy the § 924(c)(3) elements clause. Id. at 13, 37.

Taylor further maintains that attempted threats do not meet the elements analysis regardless of whether they actually involve violence because the Hobbs Act criminalizes nonviolent attempted threats too. Brief for Respondent at 40. Taylor argues that past cases requiring a significant probability of the crime involved statutes that did not expressly criminalize the act. Id. at 43. Here, Taylor contends the Hobbs Act is clearly broader than the elements clause because it criminalizes mere attempted threats of force. Id. Contrary to the United States’ claims, Taylor argues that nonviolent attempted threats occur frequently. Id. at 45. Furthermore, Taylor contends that the Hobbs Act is ambiguous enough to be subject to the rule of lenity, and thus must be interpreted in the defendant’s favor. Id. at 49.