United States District Court, D. Nevada
REPORT AND RECOMMENDATION MOTION TO DISMISS COUNTS OF
THE INDICTMENT [ECF NOS. 88, 92]
FERENBACH, UNITED STATES MAGISTRATE JUDGE.
the Court is Defendants Jason Goldsby and Rudy Redmond's
Motions to Dismiss Counts Six, Eight, Ten, Twelve, and
Fourteen of the Indictment. (ECF Nos. 88, 92). For the
reasons discussed below, Defendants' motions should be
have been indicted on counts stemming from a string of armed
robberies targeting EZ Pawns. (ECF No. 88 at 2-3). Defendants
have been charged with Conspiracy to Interfere with Commerce
by Robbery under the Hobbs Act, Interference with Commerce by
Robbery under the Hobbs Act in violation of 18 U.S.C.
§1951, and five counts of Brandishing a Firearm During
and in Relation to a Crime of Violence in violation of 18
U.S.C. § 924(c)(1)(A) (Counts Six, Eight, Ten, Twelve,
and Fourteen). (Id.). Each count of Brandishing a
Firearm During and in Relation to a Crime of Violence cites a
robbery as the “crime of violence.”
filed two separate motions to dismiss. (ECF No. 88, 92). Both
argue the crime of robbery under the Hobbs Act does not
constitute a crime of violence, and therefore Defendants
cannot be convicted of brandishing a firearm in relation to a
crime of violence. (ECF No. 88 at 3, ECF No. 92 at 3).
Redmond also argues that the Government should be estopped
from bringing Count Twelve because an alleged co-conspirator,
Mendoza, has already been found not guilty of that specific
crime. (ECF No. 92 at 3).
Government argues that a Hobbs Act robbery is a crime of
violence, noting that co-defendant Mendoza made a similar
motion to dismiss in his case that the Court denied. (ECF No.
98 at 3). The Government also asserts collateral estoppel
does not apply to Count Twelve because the defendant and
evidence in this case are different than in Mendoza's
case. (Id. at 16-17).
Federal Rule of Criminal Procedure 12(b)(3)(B)(v), a
defendant may file a motion seeking to dismiss a count of the
indictment for “failure to state an offense.” The
court reviewing this motion evaluates the facial sufficiency
of the indictment rather than evidentiary issues. United
States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996). A
defendant may also challenge proceedings against them as
violating the doctrine of collateral estoppel if a jury could
not “reasonably find the defendant guilty beyond a
reasonable doubt” based on the outcome of a previous
proceeding. United States v. Bernhardt, 840 F.2d
1441, 1448 (9th Cir. 1988).
Hobbs Act Robbery as a Crime of Violence
assert that Counts Six, Eight, Ten, Twelve, and Fourteen fail
to state an offense. (ECF No. 88 at 3, ECF No. 92 at 3).
Defendants argue that they cannot be convicted of brandishing
a firearm in furtherance of a crime of violence because they
have not been charged with an applicable crime of violence.
were charged with brandishing a firearm in furtherance of a
crime of violence under 18 U.S.C. § 924(c)(1)(A). 18
U.S.C. 924(c)(3)(A) defines a crime of violence as a felony
that “has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” “[T]he ‘physical
force' used must be ‘violent force, ' or
‘force capable of causing physical pain or injury to
another person.'” United States v. Dixon,
805 F.3d 1193, 1197 (9th Cir. 2015) (quoting Johnson v.
United States, 559 U.S. 133, 140 (2010)). “[T]he
use of force must be intentional, not just reckless or
negligent.” Id. (quoting United States v.
Lawrence, 627 F.3d 1281, 1284 (9th Cir.2010)).
as charged in this case, “means the unlawful taking or
obtaining of personal property from the person or in the
presence of another, against his will, by means of actual or
threatened force, or violence, or fear of injury, immediate
or future, to his person or property.” 18 U.S.C. §
1951(b)(1). To determine whether Hobbs Act robbery is a crime
of violence, the Court must compare the elements of the
robbery statute with the necessary elements of a crime of
violence. United States v. Benally, 843 F.3d 350,
352 (9th Cir. 2016). “The defendant's crime cannot
categorically be a ‘crime of violence' if the
statute of conviction punishes any conduct not encompassed by
the statutory definition of a ‘crime of
argues that a Hobbs Act robbery is not a crime of violence
because (1) it can be committed with de minimis
force or no force at all and (2) it can be committed
recklessly. (ECF No. 88 at 8, ECF No. 92 at 9).
Defendants' arguments rest on the common law definition
of robbery and judicial interpretations of other
“similarly worded” statutes, which require only
general intent and the use of de minimis force. (ECF
No. 88 at 10-18, ECF No. 92 at 10-20). Defendants also argue
that reading “force” to mean “violent
force” would render the inclusion of
“violence” as redundant. (ECF No. 88 at 15).
there is no binding authority on point, Defendants have not
cited a single case from any jurisdiction where a court has
found that a Hobbs Act robbery can be committed recklessly or
with only de minimis force. Every case cited by the
Government and independently researched by the Court has
found that a Hobbs act robbery requires the intentional use,
attempted use, or threatened use of violent force. See
United States v. Hall, No. 2:12-cr-00132-JAD-CWH-3, 2017
WL 2174951, at *2 n.14 (D. Nev. May 17, 2017) (listing cases
finding a Hobbs Act robbery qualifies as a crime of
violence). Each of Defendants' arguments was raised,
examined, and rejected in United States v. Pena, 161
F.Supp.3d 268 (S.D.N.Y. 2016), a case that has been cited
with approval by courts throughout the country, including in
this district. See United States v. Mendoza, No.
2:16-cr-00324-LRH-GWF, 2017 WL 2200912, ...