UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CAUSE NO.: 1:16-CR-19-TLS

)

LATWON FORD )

OPINION AND ORDER

The 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]. 

Pursuant 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.
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STANDARD OF REVIEW

To be 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). 

A 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).
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ANALYSIS

The 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). 

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 section.

18 U.S.C. § 1951(a). “Robbery,” in turn, is defined as:

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).

Section 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 
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substantial risk that physical force against the person or property of another may be used in the 

course of committing the offense.” Section 924(c)(3)(A) is referred to as the “force clause,” 

while § 924(c)(3)(B) is called the “residual clause.”

The Defendant argues that the holding in Johnson necessarily rendered the residual 

clause of § 924(c)(3)(B) unconstitutionally vague. That argument has merit. See United States v. 

Cardena, 842 F.3d 959, 996 (7th Cir. 2016) (holding that the residual clause in 18 U.S.C. 

§ 924(c)(3)(B) is unconstitutionally vague). However, it is not necessary to rely on the residual 

clause in this case because Hobbs Act robbery under § 1951(a) is a crime of violence under the

force clause. 

Recent authority from the Seventh Circuit is controlling. In United States v. Anglin, 846 

F.3d 954 (7th Cir. 2017), the Seventh Circuit joined an “unbroken consensus of other circuits” 

when it ruled that “Hobbs Act robbery is a ‘crime of violence’ within the meaning of 

§ 923(c)(3)(A).” 846 F.3d at 965 (citing United States v. Hill, 832 F.3d 135, 140–44 (2d Cir. 

2016); In re St. Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016); United States v. Howard, 650 F. 

App’x 466, 468 (9th Cir. 2016); United States v. Robinson, 844 F.3d 137, 141–44 (3d Cir. 

2016)). The Defendant argues that Hobbs Act robbery can be achieved at least in some 

circumstances through a threat to cause bodily injury that does not require “violent force,” such 

as poisoning. Thus, he argues, “fear of injury” does not satisfy the definition because it is not 

equivalent to using or threatening to use force.

The Defendant’s arguments are foreclosed by the decision in Anglin and the precedent on 

which it relies. There, the Seventh Circuit noted that the relevant definition of Hobbs Act 

robbery, the Defendant’s predicate offense, is the “taking of personal property ‘by means of 

actual or threatened force, or violence, or fear of injury, immediate or future, to his person or 
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property.’” 846 F.3d at 965 (quoting 18 U.S.C. § 1951(b)). The court found that “[c]ommitting 

such an act necessarily requires using or threatening force.” Id. The Seventh Circuit has 

explicitly rejected the argument that putting a person in fear of injury does not involve the use, 

attempted use, or threatened use of physical force against the person of another. See, e.g., Rivera, 

847 F.3d at 849; Anglin, 856 F.3d at 865; United States v. Armour, 840 F.3d 904, 907 (7th Cir. 

2016).

Other federal courts have reached the same conclusion even in light of the “fear of 

injury” prong and all its accompanying arguments. See, e.g., United States v. McNeal, 818 F.3d 

141, 157 (4th Cir. 2016) (“[B]ank robbery under 18 U.S.C. § 2113(a) is a ‘crime of violence’ 

within the meaning of the force clause of 18 U.S.C. § 924(c)(3), because it ‘has as an element the 

use, attempted use, or threatened use of physical force’—specifically, the taking or attempted 

taking of property ‘by force and violence, or by intimidation.’ Because bank robbery is a lesserincluded offense of § 2113(d) armed bank robbery, armed bank robbery is also a crime of 

violence under the force clause.”); Johnson v. United States, 779 F.3d 125, 128–30 (2d Cir. 

2015) (identifying bank robbery and armed bank robbery as “crimes of violence” that may serve 

as a predicate for a § 924(c) conviction); see also United States v. Crawford, No. 3:15-CR-70, 

2016 WL 320116, at *3 (N.D. Ind. Jan. 27, 2016) (collecting cases and holding post-Johnson

that federal bank robbery is a crime of violence under the force clause); United States v. 

Carpenter, No. 13 CR 930, 2016 WL 878631, at *1–3 (N.D. Ill. Mar. 8, 2016) (same); United 

States v. Mitchell, No. 15-CR-47, 2015 WL 7283132, at *2–3 (E.D. Wis. Nov. 17, 2015) (same).

The Court, having reviewed the opinions in these cases, agrees with their reasoning and 

conclusions and likewise finds that Hobbs Act robbery categorically meets the definition of a 
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crime of violence under 18 U.S.C. § 924(c)(3)(A). Having made this determination, the Court 

need not address the residual clause.

CONCLUSION

For the reasons stated above, the Court DENIES the Defendant’s Motion to Dismiss 

Count 3 Pursuant to Fed. R. Crim. P. 12(b)(3)(B)(v) [ECF No. 58].

SO ORDERED on September 22, 2017.

s/ Theresa L. Springmann 

CHIEF JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT