UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Durfee

v. Civil No. 16-cv-280-JD Opinion No.

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

(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

, 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,

(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

, Count 6; robbery of

the Vista Foods supermarket in violation of

(“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

(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,

(11th Cir. 2019); United States v. Barrett,

(2d Cir. 2019); United States v. Simms,

(4th Cir. 2019); Kenney v. United States,

, 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,

(2019). That new

substantive rule of constitutional law applies retroactively to

cases on collateral review. In re Franklin,

(6th Cir. 2020); Bufkin v. United States, --- F. App’x ---,

, at *2 (7th Cir. Jan. 24, 2020); United States v.

Bowen,

, 1097-98 (10th Cir. 2019); In re Hammond,

(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,

(1991). When structural error occurs, it is per se prejudicial. United States v. French,

(1st Cir. 2018). In contrast, an “error which occurred during the presentation of the case to the jury” is not structural. Fulminante,

. For that reason, an error in jury instructions is not structural. United States v. Pelletier,

(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,

(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,

, 404 (2010); Hedgpeth v.

Pulido,

(2008). On review under § 2255, the

harmless error standard applies to constitutional errors due to

flawed jury instructions. Neder v. United States,

(1999); Oriz-Graulau v. United States,

(1st

Cir. 2014); Sustache-Rivera v. United States,

(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,

, at *2 (N.D. Ill. Mar. 25, 2020); Acosta v. United

States,

, at *3 (W.D.N.Y. Sept. 2, 2019); Johnson

v. United States,

, 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,

(quoting Brecht v. Abrahamson,

(1993)). The burden is on the government to show that the trial

error was harmless. Sustache-Rivera,

. “[T]rial

error is deemed harmless ‘if it is highly probable that the

challenged action did not affect the judgment.’”

(quoting

Singleton v. United States,

(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,

(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,

(5th Cir. 2019); United States v. Rodriguez,

, 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,

. 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.

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,

, 190 (4th Cir. 2019);

United States v. Walker,

, 244-45 (2d Cir.

11 2019); United States v. Vasquez,

(2d Cir.

2016); United States v. Black,

, at *6 (N.D. Ill.

Mar. 25, 2020); United States v. Francies,

, 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,

, 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,

, 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,

, 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.

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.

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,

.

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,

. 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.

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.”

(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,

(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.

17