                     UNITED STATES COURT OF APPEALS                    FILED
                             FOR THE NINTH CIRCUIT                      JUN 24 2016
                                                                    MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS


 UNITED STATES OF AMERICA,                      No.   15-10042

              Plaintiff-Appellee,               D.C. No. 2:13-cr-00186-GMN-
                                                VCF-1
    v.                                          District of Nevada,
                                                Las Vegas
 ABDUL HOWARD, AKA Lesley Long,
                                                ORDER
              Defendant-Appellant.



Before: McKEOWN and FRIEDLAND, Circuit Judges and LEFKOW,* District

Judge.

         Filed concurrently with this order is an amended memorandum. The

petition for rehearing and rehearing en banc filed on June 6, 2016 remains pending.

No future petitions will be entertained.




         *
             The Honorable Joan Lefkow, District Judge for the U.S. District Court
for the Northern District of Illinois, sitting by designation.
                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                        JUN 24 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No.    15-10042

              Plaintiff-Appellee,                D.C. No. 2:13-cr-00186-GMN-
                                                 VCF-1
    v.
                                                 AMENDED
 ABDUL HOWARD, AKA Lesley Long,                  MEMORANDUM*

              Defendant-Appellant.

                    Appeal from the United States District Court
                             for the District of Nevada
                  Gloria M. Navarro, Chief District Judge, Presiding

                         Argued and Submitted May 11, 2016
                              San Francisco, California

Before: McKEOWN and FRIEDLAND, Circuit Judges and LEFKOW,** District
Judge.

         Defendant-Appellant Abdul Howard appeals his convictions for Hobbs Act

robbery, 18 U.S.C. § 1951, and possession of a firearm in furtherance thereof, 18

U.S.C. § 924(c). He argues that Hobbs Act robbery does not qualify as a “crime


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The Honorable Joan H. Lefkow, District Judge for the U.S. District
Court for the Northern District of Illinois, sitting by designation.
of violence” under § 924(c) and that therefore his convictions on the firearm counts

must be vacated. In addition, he argues that jury irregularities necessitated a

mistrial. We have jurisdiction under 28 U.S.C. § 1291. We disagree with

Howard’s arguments on appeal.

      Section 924(c)(3) defines a “crime of violence” as, inter alia, a felony that

“has as an element the use, attempted use, or threatened use of physical force

against the person or property of another.” 18 U.S.C. § 924(c)(3)(A) (the “force

clause”). The Hobbs Act defines “robbery” 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.” 18 U.S.C. § 1951(b)(1). Thus, if Hobbs Act

“robbery” “has as an element the use, attempted use, or threatened use of physical

force against the person or property of another,” it is a crime of violence.

      Focusing on the Hobbs Act’s “actual or threatened force, or violence”

language, we have previously stated that Hobbs Act “[r]obbery indisputably

qualifies as a crime of violence” under § 924(c). United States v. Mendez, 992

F.2d 1488, 1491 (9th Cir. 1993). Howard, however, argues that because Hobbs

Act robbery may also be accomplished by putting someone in “fear of injury,” 18

U.S.C. § 1951(b), it does not necessarily involve “the use, attempted use, or




                                          2
threatened use of physical force,” 18 U.S.C. § 924(c)(3)(A).1 Howard’s

arguments are unpersuasive and are foreclosed by United States v. Selfa, 918 F.2d

749 (9th Cir. 1990). In Selfa, we held that the analogous federal bank robbery

statute, which may be violated by “force and violence, or by intimidation,” 18

U.S.C. § 2113(a) (emphasis added), qualifies as a crime of violence under U.S.S.G.

§ 4B1.2,2 which uses the nearly identical definition of “crime of violence” as

§ 924(c). Selfa, 918 F.2d at 751. We explained that “intimidation” means

willfully “to take, or attempt to take, in such a way that would put an ordinary,

reasonable person in fear of bodily harm,” which satisfies the requirement of a



1
  This circuit has held that crimes that require only a de minimis use of force do
not qualify as crimes of violence under USSG § 2L1.2. See United States v.
Dominguez-Maroyoqui, 748 F.3d 918, 921 (9th Cir. 2014) (assault statute
criminalizing “any force whatsoever against a federal officer” does not
categorically require “violent force capable of causing physical pain or injury”);
United States v. Flores-Cordero, 723 F.3d 1085, 1088 (9th Cir. 2013) (resisting
arrest statute criminalizing even a “minor scuffle” did not qualify as a crime of
violence); see also United States v. Parnell, 818 F. 3d 974 (9th Cir. 2016)
(Massachusetts armed robbery statute criminalizing any level of force as long as
the victim is aware of the act did not qualify as a crime of violence under the
Armed Career Criminal Act, 18 U.S.C. § 924(e)). Howard does not argue that
Hobbs Act robbery may be accomplished through de minimis use of force, and we
take no position on that issue or the applicability of these precedents to Hobbs Act
robbery.
2
  “Crime of violence” is defined in U.S.S.G. § 4B1.2 as, inter alia, “any offense
under federal or state law, punishable by imprisonment for a term exceeding one
year, that . . . has as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G. § 4B1.2.


                                          3
“threatened use of physical force” under § 4B1.2. Id. (emphasis added) (quoting

United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983)). Because bank

robbery by “intimidation”—which is defined as instilling fear of injury—qualifies

as a crime of violence, Hobbs Act robbery by means of “fear of injury” also

qualifies as crime of violence.3

      We also disagree with Howard’s arguments regarding the alleged jury

irregularities. The district judge reasonably found, after questioning Jurors 3 and

13, that Juror 3’s request for dismissal was motivated by a serious health issue.

The district court reasonably interpreted Juror 3’s remark that she felt like a “lone

ranger” on certain things referred to her insistence on following procedural rules,

rather than the merits of the case. Even if her comments touched on the merits,

such a “passing reference,” United States v. Christensen, 801 F.3d 970, 1017 (9th

Cir. 2015), may be “properly ignored” and does not bar dismissal for other

legitimate reasons when the concerns expressed in United States v. Symington, 195

F.3d 1080 (9th Cir. 1999), are not present. United States v. Vartanian, 476 F.3d

1095, 1098-99 (9th Cir. 2007) (holding that where “questions of juror bias or

competence . . . focus on some event . . . that is both easily identifiable and subject

to investigation and findings without intrusion into the deliberative process,”


3
  Because we conclude that Hobbs Act robbery qualifies as a crime of violence
under § 924(c)’s force clause, we need not consider Howard’s arguments regarding
§ 924(c)’s alternative “residual clause” definition of “crime of violence.”

                                           4
Symington’s rule mandating a finding of error where there is a “reasonable

possibility” that the dismissal stemmed from “the quality and coherence of the

juror’s views on the merits” is not triggered (quoting Symington, 195 F.3d at 1087

& n.6 (emphasis omitted))).

      Furthermore, Juror 3 gave no indication that the phone call she received

from someone who knew Juror 13 was threatening, and the district court did not

abuse its discretion in refusing to dismiss Juror 13. Juror 3 stated that she was

troubled by the call because (1) her belief that Juror 13 had discussed deliberations

with a third party even though the jurors had been instructed not to do so, and (2)

her (incorrect) belief that Juror 13 had not disclosed to the court her nephew’s

shooting. After questioning Juror 13, it was not unreasonable to conclude that she

could continue to serve on the jury.

      With respect to Howard’s contention that the district court failed to apply a

presumption of prejudice stemming from the third-party phone call,4 we conclude

that although the district court did not address the presumption issue, it ultimately

does not matter because regardless of who bore the burden to show prejudice, the


4
  This circuit has recognized “a bright-line rule: any external contact with a juror is
subject to a presumption that the contact prejudiced the jury’s verdict, but the
government may overcome that presumption by showing that the contact was
harmless.” Tarango v. McDaniel, 815 F.3d 1211, 1221 (9th Cir. 2016). This rule
applies when an unauthorized communication “raises a risk of influencing the
verdict.” Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691, 697 (9th Cir.
2004).

                                          5
district court reasonably found that there was none. See United States v.

Armstrong, 654 F.2d 1328, 1332 (9th Cir. 1981) (“[W]hether or not we speak in

terms of the rebuttable presumption of prejudice or of the fairness of the

defendants’ trial, we reach the same result.”).

      Finally, we conclude that the district court did not abuse its discretion in

limiting as it did the hearing on juror issues. A district court has “considerable

discretion” in determining such a hearing’s “nature and extent,” United States v.

Simtob, 485 F.3d 1058, 1064-65 (9th Cir. 2007) (quoting United States v. Soulard,

730 F. 2d 1292, 1305 (9th Cir. 1984)), based on “the content of the allegations,

including the seriousness of the alleged misconduct or bias, and the credibility of

the source,” United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir. 1977).

The district court here questioned Jurors 3 and 13 with the participation of both the

government and defense counsel, who were present at all times. The hearing was

“reasonably calculated to resolve the doubts raised about the allegations of juror

misconduct, and the process ensured that all parties were fairly represented.”

Price v. Kramer, 200 F.3d 1237, 1254 (9th Cir. 2000).

      AFFIRMED.




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