from the United States District Court for the Southern
District of Texas
WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
WIENER, Circuit Judge
Clarence Bernard Buck and Kendall Allen (collectively
"defendants") were charged with various crimes,
including robbery in violation of the Hobbs Act, 18 U.S.C.
§ 1951(a). They proceeded to jury trial, but three days
into it the district court granted their motions for a
mistrial. At the conclusion of the second jury trial, Buck
and Allen were convicted on all counts. Buck was sentenced to
1, 846 months of imprisonment, and Allen was sentenced to 1,
435 months. They now appeal, contending that the retrial of
their case violated their constitutional rights and that the
classification of Hobbs Act robbery as a crime of violence
was error. In addition, Buck asserts that the Hobbs Act
robbery jury instruction was flawed, the abduction
enhancement to his sentence was error, and his restitution
obligation should be shared with others; and Allen appeals
his 119-year sentence as a violation of the Eighth Amendment
and the introduction of his statements to a government
witness as reversible error. We affirm.
FACTS AND PROCEEDINGS
and Allen, along with other individuals, were accused of
participated in armed robberies of various T-Mobile stores
and a flea market jewelry store in the Houston area between
November 2012 and July 2013. The robberies followed similar
patterns, including forcing store employees from the front of
the store to the back, where cellular phones were stored. All
of the robberies in question included defendants or their
co-conspirators brandishing firearms during the commission of
March 2015, defendants entered pleas of not guilty and
proceeded to trial by jury. Three days into the trial, it
came to light that the government had not turned over all of
the required discovery materials, including witness
statements, a police interview with Buck, and two police
lineups. The district court held a hearing in which it
admonished the government for its failure to turn over such
materials. The court then granted defendants' motions for
mistrial, but it denied their motions for dismissal of the
case with prejudice.
second jury trial took place some five months later, in
August 2015. Between the first and second trials, defendants
again filed motions to dismiss the case with prejudice, which
the court denied in a summary order. The jury convicted Buck
and Allen of conspiracy to interfere with commerce by
robbery, in violation of the Hobbs Act, 18 U.S.C. §
1951(a). Buck was also convicted of (1) seven counts of
committing, or aiding and abetting, Hobbs Act robbery, (2)
seven counts of using and carrying, or aiding and abetting
the use of and carrying of a firearm during and in relation
to a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A), and (3) being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Allen
was convicted of six counts of Hobbs Act robbery and six
counts of using and carrying a firearm during and in relation
to a crime of violence, in violation of 18 U.S.C. §
district court sentenced Buck to concurrent sentences of 240
months of imprisonment on the robbery counts; a consecutive
22-month term on the charge of being a felon in possession of
a firearm; a mandatory consecutive 84-month term of
imprisonment on one firearm count; and five additional
consecutive terms of 300 months of imprisonment on the
remaining firearm counts, for a total of 1, 846 months of
imprisonment. The court sentenced Allen to 151 months for the
robberies; a mandatory consecutive term of 84 months; and
four additional consecutive terms of 300 months of
imprisonment on the firearms counts for a total of 1, 435
months of imprisonment. Both defendants appeal their
convictions and sentences.
THE SECOND TRIAL
challenge the second jury trial for different reasons. Allen
insists that the second trial amounts to double jeopardy and
that his constitutional rights under Brady v.
Maryland were violated.
Buck asserts that the district court should have sanctioned
the government for discovery violations by dismissing the
case against him with prejudice.
Standard of Review
Fifth Amendment protects individuals from "repeated
prosecutions for the same offense." We review challenges to the prohibition
against double jeopardy de novo. We review sanctions imposed by the
district court for discovery-related violations for abuse of
discretion. We only reverse the trial
court's factual findings related to double jeopardy
challenges and discovery-related violations if they are
government may not use a jury as a focus group; neither may
it use a jury trial as a discovery tool. When a trial is terminated over defense
objection, retrial is prohibited absent "manifest
necessity." Retrial of a case
following a motion for mistrial by the defense is allowed,
however, unless government conduct that was "intended to
'goad' the [defense] into moving for a mistrial"
prompted the defense's motion.
case, it was not until the third day of the initial trial
that it came to light that the government had failed to turn
over some discovery materials, including various interviews
with witnesses - including Buck - and records of police
line-ups. When that matter was brought to the attention of
the district court, it held a hearing and granted
defendants' motion for mistrial, but denied
defendants' motions for dismissal of the case with
Allen's Claim of Double Jeopardy
contends that the government "goaded" him into
seeking a mistrial because the trial was "not going
well" for the government and defense counsel had pointed
out weaknesses in the government's case.
"Goading" is narrowly defined, and "[g]ross
negligence by the prosecutor, or even intentional conduct
that seriously prejudices the defense, is insufficient"
to be characterized as "goading." "Instead, there must be 'intent
on the part of the prosecutor to subvert the protections
afforded by the Double Jeopardy
government counters that it had no prior knowledge of the
missing items of discovery. It says that it asked the state
agencies that initially investigated defendants' crimes
if they had turned over "everything" in their
possession, to which the state agencies responded
affirmatively. The government also relies on its open-file
discovery policy and on the fact that it continued to produce
materials promptly as it received them.
true that in the first trial, the government heard
defendants' opening statements and their
cross-examination of government witnesses, and had the
opportunity to gauge jury reactions to their own witnesses.
Regardless, the "objective facts and circumstances"
in this case do not suggest that the prosecutors engaged in
"conduct . . . intended to provoke the defendant[s] into
moving for a mistrial." We are satisfied that the government did
not goad Allen into seeking a mistrial and that his double
jeopardy rights thus were not violated.
Allen's Brady Claim
also urges that the government failed to meet its
constitutional obligations imposed by
Brady, "the individual prosecutor has a duty to
learn of any favorable evidence known to the others acting on
the government's behalf in this case, including the
Brady violation requires that the evidence withheld
by the government be either exculpatory or impeaching, and
that prejudice ensued. Allen has not identified any exculpatory
or impeaching evidence that was withheld by the prosecution.
The retrial of the criminal case against Allen did not
violate his constitutional rights under Brady and
acknowledges that his being retried is not barred by the
double jeopardy clause. Instead, Buck contends that, given
the concerns underlying double jeopardy and the rules of
procedure,  the district
court erred by allowing the retrial. We have held that, with
regard to the imposition of sanctions for discovery
violations, district courts should consider: "1) the
reasons why disclosure was not made; 2) the amount of
prejudice to the opposing party; 3) the feasibility of curing
such prejudice with a continuance of the trial; and 4) any
other relevant circumstances."
the first factor, the government again asserts that the
failure to disclose the evidence in question was not
intentional. Generally, a district court will not impose
severe sanctions in the absence of bad faith. As discussed above, nothing in the
record suggests that the government's failure to disclose
evidence was intentional. Thus, this factor weighs against
dismissal with prejudice as a sanction.
the second factor, Buck - like Allen - argues that by hearing
his opening statement and his defense theory in the first
trial, the government was given a significant advantage.
However, there is no evidence that defendants were prejudiced
by the first trial. Thus, this factor is neutral.
third factor weighs against dismissal with prejudice as a
sanction because Buck had almost five months to prepare a new
strategy based on the new discovery.
the fourth factor, Buck does not address other relevant
circumstances, but relies exclusively on policy arguments
that his case should be dismissed with prejudice as a
sanction for the government's discovery violations. Even
if we were persuaded that such policy arguments weigh in
favor of dismissal, the district court did not abuse its
discretion in refusing to dismiss the case based on the
government's discovery violations.
HOBBS ACT ROBBERY AS A CRIME OF VIOLENCE
insist that their Hobbs Act robbery convictions do not
qualify as crimes of violence under 18 U.S.C. §
924(c)(3)(A) and that they cannot qualify under §
924(c)(3)(B) because the clause is vague and crediting it
would violate due process.
Standard of Review
this challenge is asserted for the first time on appeal, we
review it for plain error.
924(c) punishes "any person who, during and in relation
to any crime of violence uses or carries a firearm. . .
." When the firearm is
brandished during and in relation to any crime of violence
the statutory minimum becomes seven years'
924(c) contains two definitions of a crime of violence. Under
§ 924(c)(3)(A), a crime of violence is a felony that
"has an element the use, attempted use, or threatened
use of physical force against the person or property of
another." Under §
924(c)(3)(B), which is referred to as the "residual
clause, " a crime of violence is a felony that "by
its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense."
a particular offense is a crime of violence is a question of
law for the court to resolve. The Supreme Court applies a categorical
approach, looking only to the statutory definitions - i.e.,
the elements - of a defendant's offense, and not to the
particular facts underlying the convictions. The Hobbs Act defines robbery, in
pertinent part, as "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." Allen argues that because an individual could be
convicted under the Hobbs Act for nothing more than
threatening some future injury to the property of a person
who is not present, this cannot be a crime of violence under
United States v. Hill, the Second Circuit concluded
that the Hobbs Act's reference to actual or threatened
force or violence "would appear, self-evidently, to
satisfy" the standard needed for a crime of violence
under § 924(c)(3)(A). In addition, the Third, Eighth, and
Eleventh Circuits have held that the Hobbs Act definition of
robbery describes a crime of violence under §
924(c)(3)(A), and the Ninth Circuit has reached the same
conclusion in an unpublished opinion. It was not error - plain or otherwise -
for the district court to classify a Hobbs Act robbery as a
crime of violence.
HOBBS ACT ROBBERY JURY INSTRUCTION
also objects to the district court's use of the Fifth
Circuit pattern jury instruction on the Hobbs Act to the extent that it
does not require the jury to find that he had a culpable
mental state regarding the effect of his conduct on
Standard of Review
review the use of a particular jury
instruction for abuse of discretion. We ask "whether the instruction,
taken as a whole, is a correct statement of law and whether
it clearly instructs jurors as to the principle of the law