ORDER REGARDING MOTION TO DISMISS COUNTS 1, 3, 4, 5, 6, 9, 11, 13, and 15

SHARON L. GLEASON, District Judge.

Before the Court at Docket 523 is defendant John Pearl Smith, II's Motion to Dismiss Counts 1, 9, 13 and those Counts that Depend Upon the Claim that Smith Committed [ ] Hobbs Act Robberies—Counts 3, 4, 5, 6, 11, and 15. The government responded in opposition at Docket 524. Mr. Smith replied at Docket 527 and filed supplemental materials at Docket 529. On November 18, 2019, the Court heard oral arguments on the motion. After oral arguments, Mr. Smith submitted supplemental authority at Docket 593, to which the government replied at Docket 594.

Mr. Smith has been charged with three counts of Hobbs Act robbery (Counts 1, 9, and 13) and six counts that are based on a requisite crime of violence, which here are the Hobbs Act robberies (Counts 3, 4, 5, 6, 11, and 15).1 Mr. Smith's motion asserted that the grand jury was not properly instructed on the elements of Hobbs Act robbery and instead was instructed on the elements of Hobbs Act extortion. Specifically, Mr. Smith maintained that the government conflated the elements of Hobbs Act robbery and extortion and incorrectly instructed the grand jury as to the elements of extortion while asking for an indictment for robbery.2

In the course of further briefing and argument on the motion, the defense focus has instead shifted to asserting that the grand jury was inadequately instruction on the elements of a Hobbs Act robbery.3

As relevant here, there are three differences between the definition of a Hobbs Act robbery and the grand jury instruction in this case. First, the grand jury instruction did not require a finding that the obtaining of property occurred from the person or in the presence of a third person, instead requiring that the property be obtained "from another." Second, the grand jury instruction did not expressly require the obtaining of property to occur against the person's will, instead requiring that the property be obtained "without that person's consent." Third, the grand jury instruction did not require a fear of injury, instead requiring "wrongful use of actual or threatened force, violence or fear."

At oral argument, the defense acknowledged that each of the Hobbs Act robbery counts in the First Superseding Indictment in this case adequately pleads a Hobbs Act robbery. Thus, the question is not whether the First Superseding Indictment is flawed; the issue is whether there was a flaw in the grand jury proceeding that led to the First Superseding Indictment, specifically whether the three deviations in the instructions from the statutory definition of Hobbs Act robbery warrant dismissal of the First Superseding Indictment.4 An erroneous charge to the grand jury is not a structural error that necessarily requires dismissal of the indictment.5 Rather, for grand jury instructional errors that are "brought to the district court's attention `prior to the conclusion of the trial,' dismissal of the indictment `is appropriate only if it is established that the violation substantially influenced the grand jury's decision to indict or if there is grave doubt that the decision to indict was free from the substantial influence of such violations.'"6 The standard "requires the defendant to suffer prejudice."7

I. "From the person or in the presence of another"

Mr. Smith asserts that "the Government's instruction leaves out the requirement that the victim of the robbery or another person must be present at the time of the robbery."8 A Hobbs Act robbery requires that property be taken "from the person or in the presence of another," but the grand jury was instructed only that it must find that property was "obtained from another." At least one Ninth Circuit district court has found that failing to allege that property was taken from the person or in the presence of another contradicted a claim of Hobbs Act robbery,9 and another has described it as a "crucial element."10

However, Mr. Smith has not pointed to any evidence from the grand jury proceedings or elsewhere in the record that demonstrates that the government's failure to instruct on this element substantially influenced the grand jury's decision to indict him for the Hobbs Act robberies. The deviation between the grand jury instruction and the Hobbs Act robbery statute is harmless.

II. "Against the person's will"

Mr. Smith asserts that the grand jury instructions are flawed because they only require that the property be taken "without consent" instead of expressly requiring the obtaining of property to occur "against the person's will" as required by the Hobbs Act.11 The government responds that the critical distinguishing element between robbery and extortion is consent, and thus "the United States clearly instructed the grand jury correctly when it directed that in order to find the defendant culpable for robbery, the property must have been taken without consent."12

The Ninth Circuit Model Criminal Jury Instructions mirror the Hobbs Act statutory language by defining robbery as an unlawful taking from a person "against his will."13 However, the parties have acknowledged that the Tenth Circuit's model jury instruction for Hobbs Act robbery uses the phrase "without that person's consent."14 Other federal courts have used phrasing similar to "without consent" when discussing Hobbs Act robbery.15 The Supreme Court has stated that "[a]s used in the Hobbs Act, the phrase `with his consent' is designed to distinguish extortion (`obtaining of property from another, with his consent,') from robbery (`obtaining of personal property from the person or in the presence of another, against his will,')."16

The Court finds that in the context of the grand jury instructions given in this case, the phrase "without that person's consent" is not so dissimilar from the meaning of "against the person's will" that it would have "substantially influenced the grand jury's decision to indict" or that it "raises grave doubt that the decision to indict was free from the substantial influence" of such deviation from the statutory language. As such, the deviation was harmless.

III. "Fear of injury"

The third difference between the statutory language of the Hobbs Act and the grand jury instructions is that the grand jury instruction did not require a fear of injury, instead requiring only "wrongful use of actual or threatened force, violence or fear." As one district court has noted, "[f]ear without the follow-up, `of injury,' suggests extortion, not robbery" and the use of the word "`wrongful' is crucial in distinguishing legal from illegal inducements in extortion."17

However, the First Superseding Indictment charges Mr. Smith with Hobbs Act robberies as follows: "the defendant knowingly and unlawfully attempted to take from the person and presence of another, by means of actual and threatened force and violence . . . ."18 Thus, although the grand jury was instructed with the "fear" alternative, it indicted Mr. Smith only based on "actual or threatened force or violence."19 The government's failure to instruct the grand jury as to "fear of injury" was thus harmless because the grand jury did not rely on "fear" to return its indictment.

Dismissal of the First Superseding Indictment would be "appropriate only if it is established that the violation substantially influenced the grand jury's decision to indict or if there is grave doubt that the decision to indict was free from the substantial influence of such violations."20 The Court finds that although the Hobbs Act robbery instructions given to the Grand Jury deviated from the statutory language of the Hobbs Act, Mr. Smith has not shown how these deviations "substantially influenced" the decision to indict Mr. Smith; nor has he demonstrated a "grave doubt" that the grand jury's indictment was substantially influenced by the deviations. Thus, Mr. Smith has not shown that his Fifth Amendment rights were violated during the grand jury proceedings. Additionally, because Mr. Smith was indicted for Hobbs Act robberies, the robberies constitute the predicate crimes of violence to support Counts 3, 4, 5, 6, 11, and 15.21

In light of the foregoing, IT IS ORDERED that the motion to dismiss at Docket 523 is denied.