United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN UNITED STATES DISTRICT JUDGE
Government charged the Defendant, Latwon Ford, with two
Counts of Hobbs Act robbery, in violation of 18 U.S.C.
§§ 1951(a) and (b) (Counts 1 and 2) and a Count of
brandishing a firearm during a robbery, in violation of 18
U.S.C. § 924(c) (Count 3). Count 2 serves as the
underlying offense for Count 3. The Defendant entered into a
Plea Agreement [ECF No. 27] on January 10, 2017, and is now
awaiting sentencing [ECF No. 63].
to Federal Rule of Criminal Procedure 12(b)(3)(B)(v), this
matter is before the Court on the Defendant's Motion to
Dismiss [ECF No. 58] Count 3 of the Indictment, filed on
August 3, 2017, for failure to state an offense. He brings
this Motion notwithstanding the Seventh Circuit's
decision in United States v. Rivera, 847 F.3d 847
(7th Cir. 2017) and this Court's March 15, 2016 decision
in United States v. Smith, No. 1:15-CR-42, ECF No.
80 (N.D. Ind. Mar. 15, 2016), addressing the same issues. The
Defendant maintains that Hobbs Act robbery, 18 U.S.C. §
1951(a), cannot be a predicate offense for a § 924(c)
conviction because the statute does not have as an element
the use, attempted use, or threatened use of force and
because the residual clause of § 924(c)(3)(B) is
unconstitutionally vague under Johnson v. United
States, 135 S.Ct. 2551 (2015). The Court disagrees and
denies the Defendant's Motion to Dismiss.
sufficient, an indictment must “be a plain, concise,
and definite written statement of the essential facts
constituting the offense charged.” Fed. R. Crim. P.
7(c)(1). It must also cite to the applicable statute.
Id. The Seventh Circuit has stated that an
indictment “must fulfill three distinct functions.
First, the indictment must state all of the elements of the
crime charged; second, it must adequately apprise the
defendant of the nature of the charges so that he may prepare
a defense; and third, it must allow the defendant to plead
the judgment as a bar to any future prosecutions for the same
offense.” United States v. Smith, 230 F.3d
300, 305 (7th Cir. 2000).
defendant may allege that an indictment is defective for
“failure to state an offense.” Fed. R. Crim. P.
12(b)(3)(B)(v). “Challenging an indictment is not a
means of testing the strength or weakness of the
government's case, or the sufficiency of the
government's evidence.” United States v.
Moore, 563 F.3d 583, 586 (7th Cir. 2009) (quoting
United States v. Todd, 446 F.3d 1062, 1067 (10th
Cir. 2006)). “To successfully challenge the sufficiency
of an indictment, a defendant must demonstrate that the
indictment did not satisfy one or more of the required
elements and that he suffered prejudice from the alleged
deficiency.” United States v. Vaughn, 722 F.3d
918, 925 (7th Cir. 2013) (citing United States v.
Dooley, 578 F.3d 582, 589-90 (7th Cir. 2009)).
Ultimately, the question on a motion to dismiss is not
whether the indictment alleges sufficient facts from which a
jury could find guilt, but rather whether the government
conceivably could produce such evidence at trial. United
States v. Castor, 558 F.2d 379, 384 (7th Cir. 1977).
substantive crime of violence for which a person may be
prosecuted is identified in the Defendant's § 924(c)
charge. See Davila v. United States, 843 F.3d 729,
731 (7th Cir. 2016) (noting that a § 924(c) offense is a
stand-alone crime for which no underlying conviction needs to
be obtained). Here, the Indictment identifies the predicate
crime of violence as a Hobbs Act robbery, in violation of 18
U.S.C. § 1951(a).
defendant commits Hobbs Act robbery if he:
obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens
physical violence to any person or property in furtherance of
a plan or purpose to do anything in violation of this
18 U.S.C. § 1951(a). “Robbery, ” in turn, is
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, or
property in his custody or possession, or the person or
property of a relative or member of his family or of anyone
in his company at the time of the taking or obtaining.
18 U.S.C. § 1951(b)(1).
924(c) requires the imposition of one of a series of
mandatory minimum terms of imprisonment upon conviction for
misconduct involving a firearm and the commission of a
federal crime of violence or a federal drug trafficking
crime. As it relates to this case, to sustain a conviction
under 18 U.S.C. § 924(c), the Government must prove that
(1) during and in relation to a “crime of
violence” (2) the Defendant used or carried a firearm,
or possessed a firearm in furtherance of the “crime of
violence.” Section 924(c)(3) defines a “crime of
violence” as “an offense that is a felony and (1)
has as an element the use, attempted use, or threatened use
of physical force against the person or property of another,
or (2) that by its nature, involves a substantial risk that
physical force against the person ...