Summary
The United States Court of Appeals for the Third Circuit holds that attempted murder of a federal witness under 18 U.S.C. § 1512(a)(1)(C) is a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A). The court distinguishes the Supreme Court's decision in United States v. Taylor concerning attempted Hobbs Act robbery and concludes that Smith's § 924(c) conviction remains valid despite the jury's general verdict permitting solicitation or attempted murder as the predicate. The court affirms the denial of Smith's motion for post-conviction relief.
Topics
Practice areas
Questions Presented
- Whether attempted murder of a federal witness under 18 U.S.C. § 1512(a)(1)(C) is categorically a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A).
- Whether Smith's § 924(c) conviction must be vacated because the jury was instructed that it could rely on either solicitation, an invalid predicate, or attempted murder of a federal witness as the predicate crime of violence.
Holdings
- Attempted murder of a federal witness categorically qualifies as a crime of violence under § 924(c)(3)(A) because every conviction requires proof of an intent to use physical force and a substantial step toward using that force.
- Any error in instructing the jury that it could predicate the § 924(c) conviction on either solicitation or attempted murder was harmless because there was no reasonable possibility that the jury relied only on solicitation.
Key quotations
“Therefore, the “attempted use . . . of physical force” is (1) having an intent to use physical force and (2) taking a substantial step toward using physical force.” (at 13)
“We join our sister courts in that conclusion: because the Government must always prove an intent to use physical force and a substantial step toward that end, attempted murder of a federal witness always includes an attempted use of force and therefore is a crime of violence under the elements clause.” (at 14)
“Attempted murder of a federal witness is a crime of violence because the government must necessarily prove that the defendant at least attempted to use physical force.” (at 22)
Factual background
Smith, an IRS tax examining clerk, robbed a restaurant employee and later learned that she was cooperating with authorities. He obtained the witness's personal information, threatened that something might happen to her, and told others he intended to kill her before she testified. Smith drove to the witness's home with a firearm, gave the gun to an accomplice, and repeatedly solicited the accomplice to enter the home and kill the witness, but the accomplice refused.
Procedural history
A jury convicted Smith of solicitation to murder a federal witness, attempted murder of a federal witness, and a § 924(c) firearm offense predicated on either solicitation or attempted murder. The District Court denied Smith's § 2255 motion after Davis and again denied relief after Taylor. The Third Circuit granted a certificate of appealability, held the case pending Delligatti and Vines, and affirmed the denial of collateral relief.