United States v. Tuan Ngoc Luong, No. 16-10213 (9th Cir. 2020)
Annotate this Case
The Ninth Circuit affirmed defendant's convictions stemming from his robbery of a victim at gun point after luring him into a Bay Area Rapid Transit (BART) train station by posting an advertisement for a used car on a Craigslist site. The panel held that, because a rational juror could have concluded that defendant advertised a commercial transaction on Craigslist to facilitate the robbery, the evidence was sufficient to satisfy the interstate-commerce element of the Hobbs Act. The panel also held that, because there was sufficient evidence presented at defendant's first trial to sustain a conviction, there was a fortiori sufficient evidence presented at his retrial.
The court further held that there was no construction amendment of the indictment; the district court did not abuse its discretion in denying defendant's request for a specific unanimity instruction; any error in the Hobbs Act jury instruction was harmless; claims of prosecutorial misconduct rejected; Rehaif claim rejected; Hobbs Act robbery constitutes a predicate crime of violence and thus defendant's conviction on count 2 affirmed; but the district court erred by declining to give defendant a two-level downward adjustment for acceptance of responsibility. Accordingly, the panel vacated defendant's sentence and remanded for resentencing.