UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Durfee
v. Civil No. 16-cv-280-JD Opinion No. 2020 DNH 061 United States of America
O R D E R
Christopher Durfee was convicted in 1997 on multiple
charges of Hobbs Act robbery, attempted robbery, and conspiracy
to commit robbery. He was also convicted on two counts of using
or carrying a firearm during a crime of violence in violation of
18 U.S.C. § 924(c). He received a sentence of 437 months of
imprisonment, of which 300 months are attributable to his
convictions on Counts 8 and 15 under § 924(c). Durfee brings a
petition pursuant to 28 U.S.C. § 2255, challenging his
convictions and sentences on Counts 8 and 15.1
Background2
In 1995 and 1996, Durfee met with several others to plan
robberies of various targets, including supermarkets. In early
1 The First Circuit Court of Appeals granted Durfee permission to file a second or successive petition. See Doc. no. 5.
2 The background information is taken from United States v. LiCausi, 167 F.3d 36 (1st Cir. 1999), which affirmed Durfee’s conviction, along with the convictions of those charged and tried with him. January of 1996, Durfee and another member of the group, Bernie
Subocz, robbed a Vista Foods supermarket in Manchester, New
Hampshire. They used pistols to force the store manager to open
the safe and escaped with $66,000.00.
In March, Durfee joined other members of the group in two
attempts to rob a Market Basket supermarket in Portsmouth, New
Hampshire. Durfee was carrying a Beretta semi-automatic pistol
during those attempts. The group abandoned the planned
robberies because of equipment problems on the first attempt and
when the store manager noticed them the second time and made a
call on his cell phone.
Four of the robbers, including Durfee, were charged on
twenty-seven counts in a superseding indictment. Count 13,
which charged conspiracy to commit robbery of the Market Basket
supermarket in Portsmouth, was dismissed before trial.
Pertinent to the issues raised in this habeas petition, Durfee
was convicted of conspiracy to commit robbery of the Vista Foods
supermarket in violation of 18 U.S.C. § 371, Count 6; robbery of
the Vista Foods supermarket in violation of 18 U.S.C. § 1951
(“Hobbs Act”), Count 7; attempted robbery of Market Basket in
violation of § 1951, Count 14; and use of a firearm during a
crime of violence in violation of 18 U.S.C. § 924(c)(1); Counts
8 and 15. Durfee’s convictions were affirmed on appeal.
2 Discussion
Section 924(c)(1)(A) provides increased sentences for any
person who “during and in relation to any crime of violence or
drug trafficking crime . . . uses or carries a firearm, or who,
in furtherance of any such crime, possesses a firearm.” A
“crime of violence” for purposes of § 924(c)(1)(A) is a felony
that either “(A) has an element the use, attempted use, or
threatened use of physical force against the person or property
of another, or (B) that by its nature, involves a substantial
risk that physical force against the person or property of
another may be used in the course of committing the offense.”
§ 924(c)(3). Crimes of violence for purposes of § 924(c) are
known as predicate offenses.
Conspiracy to commit Hobbs Act robbery, the predicate
offense at issue in this case, is not a “crime of violence” as
defined by § 924(c)(3)(A) because it does not have “as an
element the use, or threatened use of physical force against the
person or property of another.” See Brown v. United States, 942
F.3d 1069, 1075-76 (11th Cir. 2019); United States v. Barrett,
937 F.3d 126, 127 (2d Cir. 2019); United States v. Simms, 914
F.3d 229, 233-34 (4th Cir. 2019); Kenney v. United States, 2020
WL 869791, at *3 (D.N.H. Feb. 21, 2020). For that reason, to
qualify as a predicate offense, a conspiracy to commit Hobbs Act
3 robbery would have to be a crime of violence under
§ 924(c)(3)(B).
The Supreme Court recently held that § 924(c)(3)(B), known
as the residual clause, is unconstitutionally vague. United
States v. Davis, 139 S. Ct. 2319, 2336 (2019). That new
substantive rule of constitutional law applies retroactively to
cases on collateral review. In re Franklin, 950 F.3d 909, 911
(6th Cir. 2020); Bufkin v. United States, --- F. App’x ---, 2020
WL 405389, at *2 (7th Cir. Jan. 24, 2020); United States v.
Bowen, 936 F.3d 1091, 1097-98 (10th Cir. 2019); In re Hammond,
931 F.3d 1032, 1038 (11th Cir. 2019). As a result, offenses
that depend on the residual clause to qualify as crimes of
violence can no longer serve as predicate offenses for purposes
of § 924(c) convictions.
In support of his amended § 2255 motion, Durfee contends
that the predicate offenses for the § 924(c) charges, Counts 8
and 15, included Hobbs Act robbery conspiracies that no longer
qualify as crimes of violence. Because the jury could have
found him guilty on the § 924(c) charges, Counts 8 and 15, based
on the conspiracy charges, he argues, his convictions on Counts
8 and 15 must be vacated, and he must be resentenced.3
3 To the extent Durfee intended to rely on structural error, he has not shown it applies here. Structural error is a rare type of constitutional mistake “affecting the framework within
4 In response, the government agrees that, under Davis,
conspiracy to commit Hobbs Act robbery no longer qualifies as a
crime of violence for purposes of § 924(c). The government
contends, however, that the change does not undermine Durfee’s
convictions. The government asserts that the only predicate
offense for Count 15, pertaining to the Market Basket
supermarket in Portsmouth, was the attempted Hobbs Act robbery
charge, Count 14. With respect to the § 924(c) conviction on
Count 8, pertaining to robbery of the Vista Foods supermarket in
Manchester, the government contends that the robbery conviction
on Count 7 provides a predicate offense and that the error in
the jury instruction on Count 8, which included the conspiracy
charge, is harmless.
which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). When structural error occurs, it is per se prejudicial. United States v. French, 904 F.3d 111, 119 (1st Cir. 2018). In contrast, an “error which occurred during the presentation of the case to the jury” is not structural. Fulminante, 499 U.S. at 307. For that reason, an error in jury instructions is not structural. United States v. Pelletier, 666 F.3d 1, 11 (1st Cir. 2011). More specifically, “[s]tructural error does not occur when a jury rendering a general verdict ‘was instructed on alternative theories of guilt and may have relied on an invalid one.’” United States v. Jones, 935 F.3d 266, 270 (5th Cir. 2019). Therefore, structural error is not implicated in this case.
5 A. Standard of Review
A motion under § 2255 may be granted if the petitioner
shows that his “sentence was imposed in violation of the
Constitution or laws of the United States.” § 2255(a).
Pertinent to this case, “constitutional error occurs when a jury
is instructed on alternative theories of guilt and returns a
general verdict that may rest on a legally invalid theory.”
Skilling v. United States, 561 U.S. 358, 404 (2010); Hedgpeth v.
Pulido, 555 U.S. 57, 61 (2008). On review under § 2255, the
harmless error standard applies to constitutional errors due to
flawed jury instructions. Neder v. United States, 527 U.S. 1,
9-10 (1999); Oriz-Graulau v. United States, 756 F.3d 12, 20 (1st
Cir. 2014); Sustache-Rivera v. United States, 221 F.3d 8, 18
(1st Cir. 2000). More specifically, the harmless error standard
applies in § 2255 cases where the petitioner challenges a
§ 924(c) jury instruction on the ground that it included an
invalid predicate offense. United States v. Black, 2020 WL
1445606, at *2 (N.D. Ill. Mar. 25, 2020); Acosta v. United
States, 2019 WL 4140943, at *3 (W.D.N.Y. Sept. 2, 2019); Johnson
v. United States, 2019 WL 1790218, at *5 (C.D. Ca. Apr. 23,
2019).
Under the harmless error standard, “the inquiry is whether
any trial error had a ‘substantial and injurious effect or
6 influence in determining the jury's verdict.’” Oritz-Graulau,
756 F.3d at 20 (quoting Brecht v. Abrahamson, 507 U.S. 619, 638
(1993)). The burden is on the government to show that the trial
error was harmless. Sustache-Rivera, 221 F.3d at 18. “[T]rial
error is deemed harmless ‘if it is highly probable that the
challenged action did not affect the judgment.’” Id. (quoting
Singleton v. United States, 26 F.3d 233, 237 (1st Cir. 1994)).
B. Jury Instructions on the § 924(c) Charges
The jury was instructed that the indictment charged Durfee
and others “with using and carrying a firearm during and in
relation to a crime of violence” and then quoted § 924(c). Jury
Instruction Transcript at 49. The instruction continued as
follows:
[T]here are two material elements of this offense, each of which the government must prove beyond a reasonable doubt: First, that the defendant conspired to commit, attempted to commit, or committed the crime of obstructing interstate commerce by robbery. And second, during and in relation to that crime, the defendant knowingly used or carried a firearm. The first element that the government must prove beyond a reasonable doubt is that the defendant committed a crime of violence for which he might be prosecuted in a court of the United States. You will note that Counts 8 . . . [and] 15 each refer back to other counts in which the defendant is accused of committing a crime, which will be referred to as the “predicate crime.” You are instructed that the crimes charged in Count 6, 7 . . . [and] 14 . . . of the indictment are crimes of violence. However, it is for you to determine whether or not the government has
7 proved beyond a reasonable doubt that the defendant committed the predicate crime of violence with which he has been charged. If you have found that the defendant did not commit the predicate crime of violence with which he has been charged, then you must find the defendant not guilty of the charge of using or carrying a firearm during the commission of a violent crime. The second element the government must prove beyond a reasonable doubt is that the defendant knowingly used or carried a firearm during and in relation to the commission of a crime of violence.
Jury Instruction Transcript, at 49-51.4
C. Vista Foods – Count 8
1. Indictment
As a preliminary matter, Durfee argues, based on the
indictment, that “the jury must have found that [he] committed
both the robbery as well as the conspiracy in order to convict
[him] of count Eight of the indictment as the government used
the conjunctive ‘and’ in the indictment as opposed to a
disjunctive ‘or’.” Doc. no. 11, at 5. Count 8 charged Durfee
with using firearms during crimes of violence, “namely robbery
and conspiracy to commit robbery,” at Vista Food. Doc no. 84,
at *13. Contrary to Durfee’s interpretation, Count 8 charged
that firearms were used during both crimes but did not require
the jury to find that both crimes were predicate offenses. In
fact, in the jury instruction, the court used “predicate crime
4 The counts omitted pertain to the other defendant.
8 of violence” in the singular. The jury was instructed that they
were to determine whether the government had proved beyond a
reasonable doubt that Durfee had committed the charged predicate
crime not more than one charged predicate crimes. Therefore,
Durfee’s interpretation of the indictment lacks merit.5
2. Jury Instruction
The jury was instructed that the charges of conspiracy to
rob, Count 6, and robbery of the Vista Foods supermarket, Count
7, were both predicate crimes of violence for purposes of the §
924(c) offense charged in Count 8. The parties agree that only
robbery, as charged in Count 7, is a valid predicate crime of
violence. For that reason, the instruction that Count 6 was a
predicate crime of violence was error. The jury found Durfee
guilty on Count 8 but was not asked to and did not identify the
predicate offense or offenses found.
5 Durfee’s reliance on United States v. Berry, 2020 WL 591569 (W.D. Va. Feb. 6, 2020), is misplaced. There, Berry sought § 2255 relief from his § 924(c) conviction and sentence because the predicate charges were both combined charges of attempt or conspiracy to commit Hobbs Act robbery. The government conceded that the general verdicts on the attempt or conspiracy charges could not be predicate offenses for the § 924(c) conviction. Id. at *3. That is a different circumstance than the two alternative predicate offense convictions here, where Hobbs Act robbery is a valid predicate offense.
9 For the instruction to be harmless, despite the error, the
government must show that the instruction did not have a
substantial and injurious effect or influence in determining the
jury's verdict. In this context, the government must show that
it is highly probable that the jury did not find that conspiracy
was the only predicate offense for Count 8. The government
contends that is the case here.
In support, the government contends that the Vista Foods
supermarket conspiracy and robbery were intertwined offenses.
In other words, the conspiracy to rob and the robbery of the
Vista Foods supermarket encompassed the same criminal activity.
The government contends that based on the evidence the jury
could not have found that Durfee used or carried a gun in
furtherance of the conspiracy, but not the robbery.
Courts that have considered the effect of alternative
predicate offense instructions on a § 924(c) charge, when one or
more of the potential predicate offenses was invalid, have
applied that reasoning.6 When the valid and invalid predicate
offenses were not coextensive and instead involved different
criminal activities, a reasonable probability exists that the
6 Durfee misunderstands Davis to hold that the court cannot consider the evidence underlying a conviction to determine whether harmless error occurred. The Supreme Court made no such ruling.
10 jury would not have found a crime of violence absent the invalid
predicate offense. United States v. Jones, 935 F.3d 266, 273-74
(5th Cir. 2019); United States v. Rodriguez, 2020 WL 1878112, at
*17 (S.D.N.Y. Apr. 15, 2020).
For example, when the two potential predicate offenses were
a RICO conspiracy, not a valid predicate, and a controlled-
substance conspiracy, a valid predicate, the two offenses were
not coextensive because the RICO conspiracy included a “broader
range of conduct” than the controlled-substance conspiracy.
Jones, 935 F.3d at 273. Specifically, while the RICO conspiracy
included a conspiracy to distribute controlled substances, it
also included conspiracies to commit murder, aggravated battery,
use of stolen vehicles, and other criminal conduct. Id. In
that case, the court concluded that a reasonable probability
existed that the jury would not have convicted the defendants on
the § 924(c) charges but for the invalid predicate offense of
the RICO conspiracy. Id. at 274. The erroneous instruction was
not harmless.
On the other hand, when the valid and invalid predicate
offenses are coextensive, a reasonable probability does not
exist that the jury convicted based only on the invalid offense.
United States v. Steward, 793 F. App’x 188, 190 (4th Cir. 2019);
United States v. Walker, 789 F. App’x 241, 244-45 (2d Cir.
11 2019); United States v. Vasquez, 672 F. App’x 575, 578 (2d Cir.
2016); United States v. Black, 2020 WL 1445606, at *6 (N.D. Ill.
Mar. 25, 2020); United States v. Francies, 2019 WL 4120444, at
*7 (N.D. Ill. Aug. 28, 2019). Under those circumstances, the
erroneous instruction was harmless.
In Black, the petitioner was convicted of crimes related to
a “drug conspiracy and extortion scheme facilitated by rogue
Chicago police officers,” including two convictions under
§ 924(c). Black, 2020 WL 1445606, at *1 (internal quotation
marks omitted). He sought habeas corpus relief under § 2255 as
to one of the § 924(c) convictions on the ground that one of the
predicate offenses in the jury instructions was conspiracy to
commit Hobbs Act robbery and extortion, which was invalid in
light of Davis. The government agreed that Hobbs Act conspiracy
was an invalid predicate offense but argued that the instruction
was harmless error because the petitioner was also convicted of
a drug-trafficking conspiracy, which was a valid predicate.
Black, 2020 WL 1445606, at *2. The court concluded that the
drug-trafficking conspiracy and the Hobbs Act conspiracy
convictions were based on the same evidence and that the jury
would have convicted on the § 924(c) charge even if the invalid
predicate had been omitted. Id. at *6.
12 When the evidence shows that firearms were used to commit a
Hobbs Act robbery and there is no evidence that the Hobbs Act
conspiracy included any additional use of firearms or other
criminal activity, the conspiracy is “inextricably intertwined
with, and in furtherance of, the substantive Hobbs Act robbery.”
Johnson v. United States, 2019 WL 1790218, at *6 (C.D. Calif.
Apr. 23, 2019). If the jury convicted the petitioner of the
Hobbs Act robbery, it does not make sense that the jury could
find the petitioner used a firearm in the conspiracy but not the
robbery. Id. Further, strong evidence of the petitioner’s
involvement in the robbery itself supports a conclusion that the
Hobbs Act robbery was the predicate offense found by the jury.
Id. In those circumstances, an erroneous jury instruction that
included conspiracy as a predicate offense was harmless error.
Id. at 7.
To find Durfee guilty on the § 924(c) charge, the jury had
to find that Durfee knowingly used or carried a firearm during
the predicate crime of violence. The evidence at trial was that
Durfee and Subocz carried guns during the Vista Foods robbery
and used them to threaten the manager of the store in order to
get him to open the safe. The evidence in support of the
robbery charge was strong. LiCausi, 167 F.3d at 47.
13 Durfee argues that the evidence of his possession of a
firearm during the conspiracy and during the robbery were
separate and distinct activities with a long break between them.
Durfee does not provide citations to the record to support his
theory. Instead, as described by the First Circuit, the
conspiracy and the robbery involved the same actors and actions.
Subocz “cased” the Vista Foods supermarket and then got
Durfee involved. LiCausi, 167 F.3d at 42. Durfee and Subocz
carried guns that other members of the group had obtained
previously. Durfee has not shown there was evidence at trial
that Durfee used that gun or any other gun or engaged in other
activity in furtherance of the Vista Foods robbery conspiracy
that was separate from the robbery itself. Id. For that
reason, the Hobbs Act robbery of the Vista Foods supermarket was
the likely predicate offense, and the jury could not have found
that conspiracy alone was the predicate offense for Count 8.
Therefore, the erroneous jury instruction on Count 8 was
harmless and does not provide grounds for § 2255 relief.
D. Market Basket – Count 15
Durfee argues that his § 924(c) conviction on Count 15 must
be vacated because it too was based on both a conspiracy
predicate offense and a substantive offense. The record,
however, does not support Durfee’s claim.
14 Durfee was charged with both conspiracy to rob the Market
Basket supermarket in Manchester, Count 13, and attempted Hobbs
Act robbery of the supermarket, Count 14. The conspiracy
charge, Count 13, was dismissed before trial. The jury was not
instructed that conspiracy, as charged in Count 13, was a crime
of violence that could be a predicate offense for the § 924(c)
charge in Count 15. Instead, the only predicate offense in the
jury instructions was Count 14, attempted Hobbs Act robbery.7
Therefore, no error occurred.
E. Relief Based on Co-Defendant
Durfee also contends that his convictions and sentences
under § 924(c) should be vacated because a co-defendant, John
LiCausi, obtained § 2255 relief from his § 924(c) convictions
and sentences. He concedes that LiCausi was charged with and
convicted of different crimes and raised different grounds for
relief in his § 2255 proceeding. He argues, nevertheless, that
it would be unfair for him to be denied relief when LiCausi was
granted relief.
Durfee has not provided persuasive grounds to show that he
is entitled to relief simply because his co-defendant was
resentenced.
7 Durfee does not challenge Count 14 as a valid predicate offense for Count 15.
15 F. Certificate of Appealability
Under Rule 11(a) of the Rules Governing § 2255 Proceedings,
a “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” A certificate of appealability may be issued “only
if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).
In this case, the parties agree that the jury instruction
on Count 8 included a potential predicate offense that no longer
qualifies as such under Davis. That constitutes a
constitutional error that triggers a harmless error review.
Because the First Circuit has not addressed that analysis and
few courts have, Durfee has made a substantial showing of the
denial of a constitutional right to support issuing a
certificate of appealability.
Conclusion
For the foregoing reasons, Durfee’s amended motion for
relief under § 2255 (document no. 8) is denied.
The court issues a certificate of appealability as to
whether the jury instruction on Count 8 violated Durfee’s right
not to be convicted based on an unconstitutionally vague law,
16 § 924(c)(3)(B), as determined by United States v. Davis, 139 S.
Ct. 2319 (2019).
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge
April 20, 2020
cc: Counsel of Record.