United States v. Pena - 161 F. Supp. 3d 268 (S.D.N.Y. 2016)

Rule:

The most sound interpretation of the Hobbs Act is that the word "force" means power, violence, or pressure directed against a person or thing, just as it does in 18 U.S.C.S. § 924(c)(3). In the absence of a statutory definition of "force" in the Hobbs Act, the Court supplies the word with its ordinary meaning. In this case, the Second Circuit has already stated that the ordinary meaning of force is the power, violence, or pressure definition also relied on in Johnson v. United States (U.S. 2010). And this definition, Johnson explained, means that the word "force" alone normally connotes force strong enough to constitute power. 

Facts:

On August 18, 2015, the Government unsealed a two-count indictment charging Pena and six others with Hobbs Act Robbery, 18 U.S.C. § 1951 & 2, and brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii) & 2. The indictment alleges that Defendants took part in a violent home invasion robbery in the Bronx on January 20, 2014, and that firearms were brandished during the robbery. Pena and four other codefendants were arrested, while two remain at large. Trial for Pena is set to begin on February 29, 2016. On January 8, 2016, Pena moved to dismiss the firearms offense, Count II of the indictment. On January 28, 2016, the Government filed a superseding indictment, adding a count of conspiracy to commit Hobbs Act Robbery. 

Issue:

Does a Hobbs Act robbery meet the criterion of the Force Clause?

Answer:

Yes.

Conclusion:

Pena argues that the Court should instead interpret Hobbs Act force to mean "offensive touching," the common law definition used in battery that the Supreme Court rejected as inapplicable to the ACCA in Johnson. His textual justification is that Hobbs Act force should be read to have a meaning independent from "violence" in the same clause, and therefore Hobbs Act force should be understood as less-than-violent force. There are several problems with this argument. First, it does not make the two terms satisfactorily independent. Violence means "[t]he use of physical force, usu[ally] accompanied by fury, vehemence, or outrage; esp[ecially] physical force unlawfully exercised with the intent to harm." If "force" means any force, no matter how slight, that includes violence and makes "violence" surplus." Second, interpreting "force" to mean less-than-violent force is not the only or the best way to give force meaning beyond violence. The Second Circuit's definition of force offers two other meanings that go beyond what is encompassed by violence: power and pressure. Third, the most natural way to read the means of committing Hobbs Act robbery is not as a list of alternate elements with separate meanings (in which case the statute might well become divisible), but as a series of overlapping words meant to capture a range of conduct. The fact that the statute lists both force and violence does not establish that the lower bound of that range is mere "offensive touching."

Pena's next argument is that Hobbs Act robbery is a codification of common law robbery, and therefore force should be given its common law meaning—which he argues is the "offensive touching" definition used in common law battery. It is undoubtedly true that Hobbs Act robbery is based on the traditional definition of robbery. Specifically, its text was taken almost verbatim from the New York robbery statute in existence at the time the Hobbs Act was passed. But it does not follow from this history that Hobbs Act force shares the definition of force used in the common law offense of battery. The phrase "offensive touching" (nor its variations "mere" "intentional," or "unpermitted" touching) has never been adequate force for the purposes of robbery, and Pena presents no evidence or case law to establish such a connection. On the contrary, the force element of robbery has traditionally been identified with strong or violent force. Nor has this common law meaning changed in the intervening centuries. Accordingly, the Court concludes that the context of the Hobbs Act supports applying the plain meaning definition to Hobbs Act force, and does not support applying the common law battery "offensive touching" definition.