NOT FOR PUBLICATION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-GMNVCF-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 Act 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, CLERK

U.S. COURT OF APPEALS
 2 

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 28 U.S.C. § 1291. 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 crime 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 arguments 
 3 

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 “force 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 of “crime of violence” as 

§ 924(c). Selfa, 918 F.2d at 751. We explained that “intimidation” means 

willfully “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 alia, “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 conclude 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, 

such 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, 1098-99 (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 error where there 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 discussed 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 conclude 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 prejudice stemming from the third-party phone call,3 we conclude 

that although the district court did not address 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 

limiting as it did the hearing on juror 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 bright-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, 1221 (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. The hearing was 

“reasonably calculated to resolve the doubts 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.