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.
Court Description: Criminal Law. The panel affirmed a defendant’s convictions, vacated his sentence, and remanded for resentencing in a case in which the defendant robbed a victim at gun point after luring him to a train station by posting an advertisement for a used car on Craigslist. At the defendant’s first trial, a jury found the defendant guilty of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)), but did not reach a unanimous verdict on a Hobbs Act robbery count (18 U.S.C. § 1951(a)) and a dependent count of brandishing a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)(1)(A)(ii)). At retrial, a second jury convicted the defendant on the Hobbs Act robbery and brandishing counts. The panel held that there was sufficient evidence at the first trial to satisfy the interstate-commerce element of the Hobbs Act because a rational jury could have concluded that the defendant advertised a commercial transaction on Craigslist, a website that facilitates interstate commerce, to facilitate the robbery. Because there was sufficient evidence presented at the first trial to sustain a conviction, there was a fortiori sufficient evidence presented at the retrial. Rejecting the defendant’s argument that the indictment was constructively amended during his second trial when the UNITED STATES V. LUONG 3 government presented additional theories to satisfy the interstate-commerce element of Hobbs Act robbery, the panel wrote that the indictment was not required to allege facts specifically outlining how the defendant’s use of Craigslist or a stolen credit card affected interstate commerce. The panel held that because the jury was unanimous in concluding that the defendant’s robbery affected interstate commerce, and the government’s theories supporting the interstate-commerce element were based in law, a specific unanimity instruction was not warranted. The panel held that the district court did not err in giving an instruction that an effect on interstate commerce can be established by proof of a probable or potential impact, which can be slight but not speculative. The panel added that any error would have been harmless. Assuming that the defendant is correct that the prosecution incorrectly stated the law when it argued to the jury that the defendant’s robbery had an effect on interstate commerce based upon “the use of interstate commerce,” the panel held that the district court did not abuse its discretion in concluding that this did not rise to the level of incurable misconduct. The panel held that the prosecutor’s statements attacking the credibility of defense counsel and telling the jury that it could only carry out its duty by siding with the government were plainly improper, but do not warrant reversal, in the context of both attorneys’ arguments, the district court’s directive to follow the instructions, the jury instructions themselves, and the government’s statements at other times during the argument that the jury must weigh all of the evidence to reach its conclusion. 4 UNITED STATES V. LUONG Reviewing for plain error, the panel held that it was clear error under Rehaif v. United States, 139 S. Ct. 2191 (2019), for the jury to not have been instructed that knowledge of felon status was an element of felon-in-possession count, but even if the district court had so instructed the jury, there is no reasonable probability that the jury would have reached a different verdict, and the error therefore did not affect the defendant’s substantial rights, nor the fairness, integrity, or public reputation of the first trial. Following United States v. Dominguez, 954 F.3d 1251 (9th Cir. 2020), the panel held that Hobbs Act robbery constitutes a predicate crime of violence under 18 U.S.C. § 924(c)(3)(A). The panel held that insofar as the district court declined to give the defendant a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a) based on his counsel’s challenges to the federal government’s jurisdiction to prosecute the alleged offense and to the evidence going to that question at trial, the district court erred as a matter of law. Noting that the district court would have acted according to law by denying the adjustment for the defendant’s lack of contrition, the panel vacated the sentence and remanded for resentencing, leaving it for the district court to make a factual finding on contrition in the first instance.