Monday, April 20, 2020

Case o' The Week: C.O.V. (without the "V") - Dominguez and Attempted Hobbs Act Robbery as Crime of Violence

  Dissent's cordial contempt, for attempt, attempt.

United States v. Monico Dominguez, 2020 WL 1684084 (9th Cir. Apr. 7, 2020), decision available here.

Players: Decision by Judge Silverman, joined by visiting S.D. District Judge Anello.
  Compelling dissent by Judge Nguyen.
  Hard-fought appeal by ND Cal CJA attorney Gene Vorobyov.  

Facts: Dominguez and a co-conspirator robbed a “Garda” armored car warehouse and made off with nearly a million dollars. Id. at *1. They were not caught.
  About a year later, an informant tipped the FBI off to Dominguez’s plans to pull off another armored car robbery. Id. at *2. The FBI set up a fake crime scene, to make it difficult for Dominguez to drive near the warehouse.
  Armed with a pistol, Dominguez drove to the warehouse to commit the robbery – but called the snitch and nixed the caper after getting within a block, and encountering the FBI “crime scene.” Id.
  He was arrested the next day, and charged with – among other things – attempted Hobbs Act robbery of the warehouse, and a Section 924(c) charge based on that attempt. Id.

Issue(s): Is attempted Hobbs Act robbery a “crime of violence” that will support a Section 924(c) charge?

Held: “We hold that attempted Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *8.

Of Note: With a polite tone and brutal logic, Judge Nguyen’s dissent tears apart the reasoning of the majority’s “attempt” holding. Id. at *9 (Nguyen, J., dissenting). She starts with the obvious: an attempted Hobbs Act robbery can be committed without any actual use, attempted, use, or threatened use of physical force. Id. A defendant can go down for attempted Hobbs Act robbery even if a “substantial step” towards that crime does not involve “physical force” acts necessary for a “crime of violence” designation. Id. at *10. Judge Nguyen then explains how the majority’s analysis “impermissibly bootstraps a defendant’s intent to commit a violent crime into categorizing all attempts of crimes of violence as violent crimes themselves.” Id. at *11.
  Judge Nguyen’s analysis is spot on: this decision should go en banc. Efforts underway for a PFREB.

How to Use: The majority conspicuously avoids deciding whether “[c]onspiracy to [c]omit Hobbs Act robbery is also a crime of violence under 18 U.S.C. § 924(c)(1)(A).” Id. at *8. (Judge Nguyen insinuates the majority’s dodge allowed it to avoid an irreconcilable conflict: the government conceded that conspiracy to commit Hobbes Act robbery is not a crime of violence. She rightly asks, “If conspiracy and attempt have the same intent requirement, how, under the majority’s approach, could the result be different? The majority doesn’t say.” Id. at *11.)
  In any event, seize the government’s concession in Dominguez: conspiracy to commit Hobbs Act robbery is not a crime of violence supporting a Section 924(c) charge.
For Further Reading: Over two thousand inmates have tested positive for COVID-19 in Ohio prisons. See article here. Over 1,800 inmates have tested positive in one Ohio prison alone. Id. Why has California generally, and Santa Rita Jail specifically, not seen Ohio’s numbers of positive tests? Because Ohio is “testing everyone -- including those who are not showing symptoms – [and is] getting positive test results on individuals who otherwise would have never been tested because they were asymptomatic.” Id. (emphasis added).

   Santa Rita Jail, by marked contrast, is not testing its entire inmate population: its report of positive cases is therefore radically under-inclusive. See Santa Rita Jail COVID-19 website here. (reporting 33 positive inmate and staff cases); see also “Asymptomatic coronavirus cases at Boston homeless shelter raise red flags, available here
  For graphs showing the alarming rates of (underreported) positive tests in Santa Rita, see ND Cal APFD’s Candis Mitchell’s analysis here

Steven Kalar, Federal Public Defender, N.D. Cal. Website at

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