NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. ABDUL HOWARD, AKA Lesley Long,

Defendant

- Appellant. No. 15

- 10042
D.C. No. 2:13

- cr - 00186

- GMN

VCF

- 1

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, Chief District Judge, Presiding Argued and Submitted May 11, 2016 San Francisco, California Before: McKEOWN and FRIEDLAND, Circuit Judges and LEFKOW, ** District Judge. Defendant

- Appellant Abdul Howard appeals his convictions for Hobbs Act robbery, 18 U.S.C. § 1951, and possession of a firearm in furtherance thereof, 18 U.S.C. § 924(c). He argues that Hobbs Ac t robbery does not qualify as a “crime

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Joan H. Lefkow, District Judge for the U.S. District Court for the Northern District of Illinois, sitting by designation. 

# FILED

MAY 23 2016 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

of violence” under § 924(c) and that therefore his convictions on the firearm counts must be vacated. In addition, he argues that jury irregularities necessitated a mistrial. We have jurisdiction under 2 8 U.S.C. § 1 2 91

. We disagree with Howard’s arguments on appeal

. Section 924(c)(3) defines a “crime of violence” as, inter alia , a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A) (the “force clause”). The Hobbs Act defines “robbery” 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

. ” 18 U.S.C. § 1951(b)(1). Thus, if Hobbs Act “robbery” “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” it is a crim e of violence. Focusing on the Hobbs Act’s “actual or threatened force, or violence” language, we have previously stated that Hobbs Act “[r]obbery indisputably qualifies as a crime of violence” under § 924(c). United States v. Mendez , 992 F.2d 1488, 1491 (9th Cir. 1993). Howard, however, argues that because Hobbs Act robbery may also be accomplished by putting someone in “fear of injury ,” 18 U.S.C. § 1951(b), it does not necessarily involve “the use, attempted use, or threatened use of physical force,” 18 U.S.C. § 924(c)(3)(A). Howard’s argument s3

are unpersuasive and are foreclosed by United States v. Selfa , 918 F.2d 749 (9th Cir. 1990). In Selfa , we held that the analogous federal bank robbery statute, which may be violated by “for ce and violence, or by intimidation ,” 18 U.S.C. § 2113(a) (emphasis added), qualifies as a crime of violence under U.S.S.G. § 4B1.2, 1 which uses the nearly identical definition o f “crime of violence” as § 924(c). Selfa , 918 F.2d at 751. We explained that “intimidation” means wil l fully “ to take, or attempt to take, in such a way that would put an ordinary, reasonable person in fear of bodily harm ,” which satisfies the requirement of a “threatened use of physical force” under § 4B1.2. Id. (emphasis added) (quoting United States v. Hopkins , 703 F.2d 1102, 1103 (9th Cir. 1983))

. Because bank robbery by “intimidation”

— which is defined as instilling fear of injury

— qualifies as a crime of violence, Hobbs Act robbery by means of “fear of injury” also qualifies as crime of violence. 2
We also disagree with Howard’s arguments regarding the alleged jury irregularities. The district judge reasonably found, after questioning Jurors 3 and

1 “Crime of violence” is defined in U.S.S.G. § 4B1.2 as, inter al ia , “ any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that

. . . has as an element the use, attempted use, or threatened use of physical force against the person of another .” U.S.S.G. § 4B1.2

. 2 Because we c onclude that Hobbs Act robbery qualifies as a crime of violence under § 924(c)’s force clause, we need not consider Howard’s arguments regarding § 924(c)’s alternative “ residual clause ” definition of “crime of violence.”4

13, that Juror 3 ’ s request for dismissal was motivated by a serious health issue

. The district court reasonably interpreted Juror 3’s remark that she felt like a “lone
ranger ” on certain things referred to her insistence on following procedural rules, rather than the merits of the case. Even if her comments touched on the merits,

s uch a “passing reference , ” United States v. Christensen , 801 F.3d 970, 1017 (9th Cir. 2015), may be “properly ignored” and does not bar dismissal for other legitimate reasons when the concerns expressed in United States v. Symington , 195 F.3d 1080 (9th Cir . 1999), are not present

. United States v. Vartanian , 476 F.3d 1095, 109 8

- 9 9 (9th Cir. 2007) (holding that where “questions of juror bias or competence . . . focus on some event . . . that is both easily identifiable and subject to investigation and findings without intrusion into the deliberative process,” Symington ’s rule mandating a finding of er ror where th ere is a “reasonable possibility ” that the dismissal stemmed from “the quality and coherence of the juror’s views on the merits” is not triggered (quoting Symington , 195 F.3d at 1087
& n.6 (emphasis omitted) )). Furthermore, Juror 3 gave no indication that the phone call she received from someone who knew Juror 13 was threatening , and the district court did not abuse its discretion in refusing to dismiss Juror 13. Juror 3 stated that she was troubled by the call because (1) her belief that Juror 13 had dis cussed deliberations with a third party even though the jurors had been instructed not to do so, and (2)5

her (incorrect) belief that Juror 13 had not disclosed to the court her nephew’s shooting

. After questioning Juror 13, it was not unreasonable to conc lude that she could continue to serve on the jury. With respect to Howard’s contention that the district court failed to apply a presumption of pr ejudice stemming from the third

- party phone call, 3 we conclude that a lthough the district court did not addres s the presumption issue, it ultimately does not matter because regardless of who bore the burden to show prejudice, the district court reasonably found that there was none. See United States v. Armstrong , 654 F.2d 1328, 1332 (9th Cir. 1981) (“ [W] hether or not we speak in terms of the rebuttable presumption of prejudice or of the fairness of the defendants’ trial, we reach the same result.” ). Finally, we conclude that the district court did not abuse its discretion in
l imiting as it did the hearing on jur or issues. A district court has “considerable discretion” in determining such a hearing’s “nature and extent,” United States v. Simtob , 485 F.3d 1058, 1064

- 65 (9th Cir. 2007) (quoting United States v. Soulard , 730 F. 2d 1292, 1305 (9th Cir. 1984)) , based on “the content of the allegations,

3 This circuit has recognized “a br ight

- line rule: any external contact with a juror is subject to a presumption that the contact prejudiced the jury’s verdict, but the government may overcome that presumption by showing that the contact was harmless.” Tarango v. McDaniel , 815 F.3d 1211, 1 221 (9th Cir. 2016). This rule applies when an unauthorized communication “ raises a risk of influencing the verdict.” Caliendo v. Warden of Cal

. Men’s Colony , 365 F.3d 691, 697 (9th Cir. 2004)

.6

including the seriousness of the alleged misconduct or bias, and the credibility of the source , ” United States v. Hendrix , 549 F.2d 1225, 1227

- 28 (9th Cir. 1977)

. The district court here questioned Jurors 3 and 13 with the participation of both the government and defense counsel, who were present at all times. T he hearing was “reasonably calculated to resolve the doubt s raised about the allegations of juror misconduct, and the process ensured that all parties were fairly represented.”
Price v. Kramer , 200 F.3d 1237, 1254 (9th Cir. 2000).
AFFIRMED.