United States v. Walker

• Decision Date: 05 March 2021
• Docket Number: No. 15-4062,15-4062
• Citation: 990 F.3d 316
• Parties: UNITED STATES of America v. Marcus WALKER, Appellant
• Court: U.S. Court of Appeals — Third Circuit

990 F.3d 316

UNITED STATES of America

v.Marcus WALKER, Appellant

No. 15-4062

United States Court of Appeals, Third Circuit.

ARGUED October 5, 2020

Filed: March 5, 2021

Linda D. Hoffa [ARGUED], Dilworth Paxson, 1500 Market Street – Suite 3500E, Philadelphia, PA 19102, Counsel for Appellant

Bernadette A. McKeon, Yvonne O. Osirim, Virginia P. Pratter, Robert A. Zauzmer [ARGUED], Office of United States Attorney, 615 Chestnut Street – Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Before: JORDAN, KRAUSE, and ROTH, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Does an attempt to commit a crime of violence categorically qualify as a crime of violence itself? That is the question we must answer in applying 18 U.S.C. § 924(c), which forbids the use or carrying of a firearm in relation to a crime of violence. Given the language of § 924(c) and the clear congressional intent behind it, we answer yes: an attempt to commit a crime of violence does categorically qualify as a crime of violence under that statute.

Appellant Marcus Walker challenges his conviction under § 924(c), as well as his convictions for conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951(a). Although we earlier issued a nonprecedential opinion affirming the District Court's judgment on all grounds, we vacated that opinion and granted Walker's request for panel rehearing following the Supreme Court's decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which, in pertinent part, held that one of the definitions of "crime of violence" in § 924(c) is unconstitutionally vague. Id. at 2336.

In light of Davis , the most significant questions remaining before us are whether attempted Hobbs Act robbery is categorically a crime of violence under the remaining definition, the so-called "elements" clause of § 924(c), 18 U.S.C. § 924(c)(3)(A), and therefore, whether Walker's conviction under § 924(c) can stand. Walker argues that his conviction must be vacated because a person can be convicted for attempted Hobbs Act robbery based on nothing more than an intent to complete the robbery and a non-violent substantial step – in other words, without actually committing a violent act and with only the intent to do so. Although that is true, we nevertheless join the majority of our sister circuits that have considered the issue and hold that, given the plain language of § 924(c), attempted Hobbs Act robbery is categorically a crime of violence. We also once more reject Walker's complaints about evidentiary rulings and the jury instructions. In short, we again affirm.

I. BACKGROUND

This case stems from a robbery in which Walker acted as the lookout.¹ While he waited in a car, two of his accomplices robbed a house, one holding a 12-year-old boy at gunpoint. All of Walker's codefendants pleaded guilty to various counts, and Walker alone went to trial.

At trial, the government presented testimony from three cooperating individuals who were involved in or knew about the robbery, as well as from Agent Patrick Henning, the lead investigator on the case. In addition to testifying about proffer sessions he had with two of the cooperating witnesses, Henning spoke at length about cell phone records and cell site location information ("CSLI") associated with cell phones used in furtherance of the crimes.²

With respect to the cell phone records, Henning testified that an analyst extracted data from cell phones seized from two of the cooperators, which yielded contact lists, call records, and text messages. In addition, the government obtained through subpoena "call detail records" from the phone companies for those same phones, which included "pages and pages of phone records that list, with timestamps, calls that are made in sequential order[,]" as well as subscriber information. (App. at 686.) From this information, Henning and an analyst organized certain data into slides depicting phone contacts between codefendants during the relevant time frame.

The CSLI evidence was obtained pursuant to a court order, issued under the Stored Communications Act, 18 U.S.C. § 2703.³ With that information in hand, Henning created a series of maps that identified "points of interest" in the case, such as the location of the robbery target and the latitude and longitude of the cell towers to which Walker's and a codefendant's cell phones had connected at pertinent times. (App. at 707.) When asked how CSLI worked, Henning explained what he knew, but he began by acknowledging that he is not an expert in the technology. Defense counsel promptly objected on the ground that Henning was not an expert witness.⁴ At side bar, the parties agreed that "just transposing [onto a map] the latitude and longitude" of a cell phone tower to which a phone had connected – information provided by the phone companies – did not require expert analysis, and the District Court allowed Henning to proceed. (App. at 710-11.) Henning went on to explain how the CSLI placed Walker and an accomplice in locations that were consistent with their involvement in the robbery.

The jury convicted Walker on all three counts, those counts being, again, conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). The District Court sentenced him to a combined 72 months’ imprisonment on the conspiracy and attempt counts and a consecutive term of 60 months on the § 924(c) count.

Walker timely appealed, arguing that the District Court erred in four ways: (1) admitting CSLI obtained without a search warrant as required by Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018) ; (2) permitting Agent Henning to vouch for cooperating witnesses’ testimony and to violate the Sixth Amendment right to confrontation by testifying to information in a report Henning did not create; (3) allowing conviction on the § 924(c) count when, according to Walker, neither conspiracy to commit Hobbs Act robbery nor attempted Hobbs Act robbery are categorically crimes of violence under § 924(c) ; and (4) allowing the § 924(c) conviction despite ambiguity as to whether the jury relied on attempted robbery or conspiracy to commit robbery as the predicate crime of violence.

As already noted, we had issued a nonprecedential opinion affirming the District Court's judgment and the sentence it imposed, but following the Supreme Court's decision in Davis , Walker filed a petition for panel rehearing or for rehearing en banc . He argued that Davis abrogates United States v. Robinson , 844 F.3d 137 (3d Cir. 2016), a case we had relied upon in denying him relief in the earlier appeal of his § 924(c) conviction. We agreed that Robinson is no longer controlling and granted his petition for panel rehearing. Having vacated the original opinion and judgment, we now address all four of Walker's arguments again.

II. DISCUSSION ⁵

A. Admissibility of the CSLI

We first consider the arguments related to CSLI. Walker's primary argument begins with the Supreme Court's decision in Carpenter v. United States . In Carpenter , the Court held that compliance with the Stored Communications Act alone is not sufficient to legally access historical cell-site records because the showing required of the government by the Stored Communications Act "falls well short of the probable cause required for a warrant." 138 S. Ct. at 2221. According to Walker, the District Court thus plainly erred when it allowed the government to introduce CSLI obtained without a warrant. Although it is now true that law enforcement must generally secure a search warrant based on probable cause to obtain CSLI, see id. , Walker's argument is foreclosed by our decision in United States v. Goldstein , which holds that the exclusionary rule does not apply when the government "had an objectively reasonable good faith belief that its conduct was legal when it acquired [the] CSLI." 914 F.3d 200, 202 (3d Cir. 2019). As in Goldstein , the agents here obtained the CSLI evidence in good faith reliance on a then-valid judicial order, a then-valid statute, and then-binding appellate authority. See id. at 204. The District Court, therefore, did not commit any error, much less plain error, by admitting the CSLI into evidence.

B. Agent Henning's Testimony

Walker next argues that the District Court committed plain error by permitting Henning to testify about the phone records and CSLI because that testimony was based on a report Henning did not create and therefore the testimony violated Walker's Confrontation Clause rights under the Sixth Amendment. Walker also argues that Henning improperly vouched for the testimony of the cooperating witnesses.

The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]" U.S. Const. amend. VI. It generally bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington , 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Although Walker asserts that Henning was testifying about what another investigator did, it is at least arguable that he was speaking about his own work. The record contains evidence that Henning personally reviewed the data at issue, even though he worked "[i]n conjunction with an ... analyst." (App. at 695.)⁶ Thus, it appears that Henning had an independent basis on which to testify about both the phone records and the CSLI.⁷ Cf. Bullcoming v. New Mexico , 564 U.S. 647, 662, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) (finding relevant to its conclusion that a Confrontation-Clause violation occurred that the State...