This column reports on several significant representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Brian M. Cogan held that an attempted Hobbs Act robbery was not a "crime of violence" under the "elements clause" of 18 U.S.C. §924(c). Judge Joseph F. Bianco held that criminal defendants could be jointly and severally liable under 18 U.S.C. §(a)(1) even if they did not personally benefit from the forfeitable property. And Judge Nicholas G. Garaufis denied motions for summary judgment by LIU College of Pharmacy against a professor's claims of retaliation.

Attempted Hobbs Act Robbery: Not a Crime of Violence

In United States v. Culbert, 19 CR 613 (EDNY, April 13, 2020), Judge Cogan dismissed Count 3 of the indictment, charging defendants with possessing and brandishing a firearm during a "crime of violence", 18 U.S.C. §924(c)(1)(A)(i), where the purported crime of violence was attempted Hobbs Act robbery. (Judge Nicholas G. Garaufis reached the same conclusion in another recent decision. United State v. Cheese, 18 CR 33-2 (EDNY, Feb. 12, 2020)).

As Cogan noted, Hobbs Act robbery qualifies as a crime of violence under the general "elements clause" of §924(c), relating to penalties, because the Hobbs Act "'has as an element the use, attempted use, or threatened use of physical force against the person or property of another.'" §924(c)(3)(A). The Hobbs Act proscribes the unlawful taking of personal property "by means of actual or threatened force, or violence, or fear of injury" in a manner that interferes with interstate commerce. 18 U.S.C. §1951(b)(1). But attempted Hobbs Act robbery is not a crime of violence.

In United States v Davis, 139 S. Ct. 2319, 2324, 2336 (2019), the Supreme Court invalidated as unconstitutionally vague the provision of §924(c) that defined as a crime of violence even one "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" (emphasis added.) The question here is whether the underlying conduct, attempted Hobbs Act robbery, "amounts to a categorical crime of violence under the elements clause—that is, one where the 'minimum conduct necessary for a conviction' involves violence." See United States v. Hill, 890 F. 3d 51, 55-56 (2d Cir. 2018). The required focus should be how the statute defines the elements of the offense, rather than either a case-by-case assessment of how violent the conduct was or a "more general inquiry" into the sort of conduct typical of the charged offense. If there is a "realistic probability" that the statute could be applied to non-violent conduct, there is no basis for a conviction under the elements clause of §924(c).

The Second Circuit applied a similar analysis to conspiracy to commit Hobbs Act robbery. United States v. Barrett, 937 F.3d 126 (2d Cir. 2019). An agreement to commit an unlawful act is not inherently violent, even if the act itself is violent. Slip op. 3. Cogan rejected any controlling distinction between conspiracy and attempt. The Hobbs Act forbids attempted robbery and conspiracy to commit robbery "in the same breath." While an attempt to commit that crime may more likely involve violence than a conspiracy to commit the crime, the attempt "need not admit of" a "violent scenario."

To prove an attempt, the government must show that defendant (1) intended to commit the crime, and (2) took a substantial step to do so. That intention "is no more violent than the shared intention to do the same, as is the case in a conspiracy." Slip op. 4. In a number of decisions the Second Circuit and other federal courts have upheld attempted robbery convictions where defendants took "substantial steps" towards committing the charged crimes but those steps were not violent. E.g., United States v. Jackson, 560 F.2d 112 (2d Cir. 1977) (defendants "reconnoitered" the contemplated scene of the crime and possessed the paraphernalia to be used in its commission). Section 5.01 of the Model Penal Code, cited with approval by the Second Circuit, lists examples of what can be a "substantial step" amounting to an attempt. These actions, alone or together, may be enough to show an attempted Hobbs Act robbery, but they "do not necessarily—or even commonly—involve force or violence or fear of injury[.]" Attempted Hobbs Act robbery is therefore not a categorical crime of violence under §924(c). Slip op. 6.

The contrary decisions on which the government relied were, in Cogan's view, unpersuasive. Slip op. 6-8.

Criminal Forfeiture: 18 U.S.C. §921(a)(1) and 'Honeycutt'

In United States v. Kenner, 13 CR 607 (EDNY, March 10, 2020), Judge Bianco held that Honeycutt v. United States, 137 S. Ct. 1626 (2017), prohibiting joint and several liability for forfeiture judgments under 21 U.S.C. §853(a)(1) against defendants who did not personally acquire or benefit from the forfeitable property, did not apply to forfeiture under 18 U.S.C. §982(a)(1).

21 U.S.C. §853(a)(1) concerns certain offenses involving controlled substances. It identifies three types of property that may be subject to forfeiture: (1) "property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as a result of" certain specified crimes; (2) "any of the person's property used, or intended to be used … to commit, or to facilitate commission of" the crime; and (3) "any of [the person's] interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise."

18 U.S.C. §982(a)(1) addresses forfeiture upon conviction of crimes involving (1) monetary transactions with proceeds derived from the broad array of specified criminal activity identified at 18 U.S.C. §1956(c)(7), or (2) the ownership or conduct of an unlicensed money transmitting business. It provides that, in imposing sentence, the court "shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property."

Here, one of the defendants who was subject to a joint and several forfeiture judgment concerning property that he did not personally acquire and contended he did not personally benefit from, argued that Honeycutt's analysis of 21 U.S.C. §853(a)(1) should be applied to prohibit a joint and several forfeiture judgment under §982(a)(1). Bianco rejected this argument for three reasons.

First, Honeycutt had "found it highly significant that 21 U.S.C. §853's 'obtained' language clearly indicated that forfeitable property was defined 'solely in terms of personal possession or use'." Slip op. 12, quoting Honeycutt, 137 S. Ct. at 1632. 18 U.S.C. §982(a)(1), in contrast, calls for forfeiture of property "involved in such offense", and this "much broader" scope "provides a compelling reason to conclude that Honeycutt's holding does not apply to the money-laundering statute." Id.

Second, Bianco relied on other provisions of the two statutes. Honeycutt's discussion of the "substitute assets" provisions in 21 U.S.C. §853(p) confirmed "that 'Congress contemplated situations where the tainted property itself would fall outside the Government's reach' and thus set forth procedures for confiscation of property 'only from the defendant who initially acquired the property and who bears responsibility for its dissipation.'" Slip op. 12, quoting Honeycutt, 137 S. Ct. at 1634. "Furthermore, the Honeycutt court's concern about the liability of low-level conspirators is addressed by the safe harbor provision in §982(b)(2) …. Congress would not have needed to enact this protective provision for certain individuals who 'handled but did not retain the property' unless §982 actually reached such property." Slip op. 13.

Third, 18 U.S.C. §982 was amended in 1988, just two years after its passage, to change the scope of forfeiture from "'gross receipts the person obtained' from the conduct or 'which is traceable to such gross receipts'" to "funds 'involved in [the] offense' or 'property traceable to such property.'" This "further indicates congressional intent to broaden §982's scope," Slip op. 13.

Family Medical Leave Act Violations

In Patel v. Long Island University, 17 CV 2170 (EDNY, Feb. 20, 2020), Judge Garaufis denied defendant's motion for summary judgment on plaintiff's claims of retaliation and interference under the Family Medical Leave Act (FMLA) as well as his claims of retaliation under Title VII, the New York State Human Rights Law and the New York City Human Rights Law. The claims arose from the denial of plaintiff's reappointment as a tenure-track professor and eventual firing based on his unpaid leave under the FMLA following the birth of his baby.

Plaintiff began teaching at LIU College of Pharmacy in September 2012. LIU has both a Family & Medical Leave Act Policy and Procedure and an Anti-Harassment/Discrimination Policy & Complaint Procedure. The Anti-Harassment/Discrimination Policy prohibits retaliation against a faculty member who complains of discrimination or engages in other protected activity, while the Family Leave Policy and Procedure sets out steps for seeking family or medical leave. Although plaintiff had a tenure-track position, he was required to apply for reappointment every year until after his sixth year, when he could apply for tenure. To apply, plaintiff was required to submit a reappointment file to the division director, who reviewed it and made a recommendation for or against reappointment. LIU granted plaintiff's first and second reappointment applications.

Plaintiff followed the procedures by requesting leave to care for his baby in November 2014. In February 2015, his leave began. The division director told him that the leave could affect plaintiff's reappointment and tenure, and plaintiff felt forced to return early from his leave because he was worried about his job.

Plaintiff timely filed for his third reappointment in March 2015. The division director recommended against reappointing plaintiff based on his "substandard performance." Plaintiff had, however, received the highest possible rating on most categories of his peer review, and his average student evaluation score was 3.41 out of 4. Plaintiff also presented evidence that, against customary practice, the Dean of the College of Pharmacy, the Vice President of Academic Affairs and LIU counsel were all involved in drafting the recommendation against reappointment.

Under the test set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973), plaintiff had presented sufficient evidence to create an inference that defendant's non-discriminatory reasons for denying his reappointment application were pretextual and his exercise of his FMLA rights was a negative factor in defendant's decision. Plaintiff also provided sufficient facts to support his claim of interference with his rights under the FMLA. If a jury credited plaintiff's allegation that the division director told him the leave could affect his reappointment and tenure, "it could reasonably find that Plaintiff 'tried to assert [his] FMLA rights and was thereafter discouraged from taking FMLA leave.'" Slip op 11, quoting De Figueroa v. New York, 403 F. Supp. 3d 133, 155 (E.D.N.Y. 2019).

Plaintiff's Title VII retaliation claim was based on his submission of an affidavit in support of a colleague's discrimination action. The final decision maker on his reappointment application was aware of the affidavit. Defendant proffered legitimate, non-retaliatory reasons for denying plaintiff's reappointment. But plaintiff met his resulting obligation to provide enough evidence to raise a question of material fact as to whether this justification was pretextual by citing evidence that the division director included inaccurate information regarding plaintiff's academic achievement and teaching qualifications in his review of plaintiff's reappointment application.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.