United States District Court, D. Alaska
ORDER REGARDING MOTION TO DISMISS COUNTS 1, 3, 4, 5,
6, 9, 11, 13, AND 15
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE.
Before
the Court at Docket 523 is defendant John Pearl Smith,
II's Motion to Dismiss Counts 1, 9, 13 and those Counts
that Depend Upon the Claim that Smith Committed [] Hobbs Act
Robberies-Counts 3, 4, 5, 6, 11, and 15. The government
responded in opposition at Docket 524. Mr. Smith replied at
Docket 527 and filed supplemental materials at Docket 529. On
November 18, 2019, the Court heard oral arguments on the
motion. After oral arguments, Mr. Smith submitted
supplemental authority at Docket 593, to which the government
replied at Docket 594.
Mr.
Smith has been charged with three counts of Hobbs Act robbery
(Counts 1, 9, and 13) and six counts that are based on a
requisite crime of violence, which here are the Hobbs Act
robberies (Counts 3, 4, 5, 6, 11, and 15).[1] Mr.
Smith's motion asserted that the grand jury was not
properly instructed on the elements of Hobbs Act robbery and
instead was instructed on the elements of Hobbs Act
extortion. Specifically, Mr. Smith maintained that the
government conflated the elements of Hobbs Act robbery and
extortion and incorrectly instructed the grand jury as to the
elements of extortion while asking for an indictment for
robbery.[2]
In the
course of further briefing and argument on the motion, the
defense focus has instead shifted to asserting that the grand
jury was inadequately instruction on the elements of a Hobbs
Act robbery.[3]
As
relevant here, there are three differences between the
definition of a Hobbs Act robbery and the grand jury
instruction in this case. First, the grand jury instruction
did not require a finding that the obtaining of property
occurred from the person or in the presence of a third
person, instead requiring that the property be obtained
“from another.” Second, the grand jury
instruction did not expressly require the obtaining of
property to occur against the person's will, instead
requiring that the property be obtained “without that
person's consent.” Third, the grand jury
instruction did not require a fear of injury, instead
requiring “wrongful use of actual or threatened force,
violence or fear.”
At oral
argument, the defense acknowledged that each of the Hobbs Act
robbery counts in the First Superseding Indictment in this
case adequately pleads a Hobbs Act robbery. Thus, the
question is not whether the First Superseding Indictment is
flawed; the issue is whether there was a flaw in the grand
jury proceeding that led to the First Superseding Indictment,
specifically whether the three deviations in the instructions
from the statutory definition of Hobbs Act robbery warrant
dismissal of the First Superseding Indictment.[4] An erroneous
charge to the grand jury is not a structural error that
necessarily requires dismissal of the
indictment.[5] Rather, for grand jury instructional
errors that are “brought to the district court's
attention ‘prior to the conclusion of the trial,'
dismissal of the indictment ‘is appropriate only if it
is established that the violation substantially influenced
the grand jury's decision to indict or if there is grave
doubt that the decision to indict was free from the
substantial influence of such violations.'”6 The standard
“requires the defendant to suffer
prejudice.”[7]
I.
“From the person or in the presence of
another”
Mr.
Smith asserts that “the Government's instruction
leaves out the requirement that the victim of the robbery or
another person must be present at the time of the
robbery.”[8] A Hobbs Act robbery requires that
property be taken “from the person or in the presence
of another, ” but the grand jury was instructed only
that it must find that property was “obtained from
another.” At least one Ninth Circuit district court has
found that failing to allege that property was taken from the
person or in the presence of another contradicted a claim of
Hobbs Act robbery, [9] and another has described it as a
“crucial element.”[10]
However,
Mr. Smith has not pointed to any evidence from the grand jury
proceedings or elsewhere in the record that demonstrates that
the government's failure to instruct on this element
substantially influenced the grand jury's decision to
indict him for the Hobbs Act robberies. The deviation between
the grand jury instruction and the Hobbs Act robbery statute
is harmless.
II.
“Against the person's will”
Mr.
Smith asserts that the grand jury instructions are flawed
because they only require that the property be taken
“without consent” instead of expressly requiring
the obtaining of property to occur “against the
person's will” as required by the Hobbs
Act.[11] The government responds that the
critical distinguishing element between robbery and extortion
is consent, and thus “the United States clearly
instructed the grand jury correctly when it directed that in
order to find the defendant culpable for robbery, the
property must have been taken without
consent.”[12]
The
Ninth Circuit Model Criminal Jury Instructions mirror the
Hobbs Act statutory language by defining robbery as an
unlawful taking from a person “against his
will.”[13] However, the parties have
acknowledged that the Tenth Circuit's model jury
instruction for Hobbs Act robbery uses the phrase
“without that person's
consent.”[14] Other federal courts have used
phrasing similar to “without consent” when
discussing Hobbs Act robbery.[15] The Supreme Court has
stated that “[a]s used in the Hobbs Act, the phrase
‘with his consent' is designed to distinguish
extortion (‘obtaining of property from another,
with his consent, ') from robbery
(‘obtaining of personal property from the person or in
the presence of another, against his will,
').”[16]
The
Court finds that in the context of the grand jury
instructions given in this case, the phrase “without
that person's consent” is not so dissimilar from
the meaning of “against the person's will”
that it would have “substantially influenced the grand
jury's decision to indict” or that it “raises
grave doubt that the decision to indict was free from the
substantial influence” of such deviation from the
statutory language. As such, the deviation was harmless.
III.
“Fear ...