United States of America v. Enyinna Onyewu , Also Known As Reggie Onyewu

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 26, 2026 Decided August 21, 2026
No. 22-3063
UNITED S TATES OF A MERICA,
APPELLEE
v.
ENYINNA O NYEWU , ALSO KNOWN AS R EGGIE ONYEWU ,
APPELLANT
Consolidated with 23-3216, 23-3217
Appeals from the United States District Court
for the District of Columbia
(No. 1:20-cr-00225-2)
Jerry R. Smith Jr., Robin M. Earnest, Steven M. Klepper,
all appointed by the court, argued the causes and filed the briefs
for appellants.
Thomas D. Hill, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jeanine Ferris Pirro,
U.S. Attorney, and Chrisellen R. Kolb and Daniel J. Lenerz,
Assistant U.S. Attorneys.

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Before: H ENDERSON, WILKINS and WALKER , Circuit
Judges.
Opinion for the Court filed P ER C URIAM.
Concurring opinion filed by Circuit Judge WILKINS .
Concurring opinion filed by Circuit Judge WALKER .
P ER C URIAM: Enyinna Onyewu, Emmanuel Sumo and
Quaysa Flumo were all convicted of robbery-related offenses
after a joint trial. They now appeal their convictions,
advancing numerous bases for remand, a new trial or outright
acquittal. They also raise ineffective assistance of counsel
claims for the first time. After considering each of their
arguments, we conclude that none succeeds. Accordingly, we
affirm the appellants’ convictions in full.
I. Background
A grand jury indicted Onyewu, Sumo and Flumo in
connection with the January 2018 robberies of ten commercial
establishments located in the District of Columbia, Maryland
and Virginia. The ten robberies involved
(1) BP Gas Station in Silver Spring, Maryland
on January 2, 2018;
(2) Lucky Seven in Arlington, Virginia on
January 3, 2018;
(3) Lucky’s Beer & Wine in Takoma Park,
Maryland on January 10, 2018;
(4) Delicias Market II in Washington D.C. on
January 10, 2018;

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(5) El Don Restaurant in Washington D.C. on
January 12, 2018;
(6) Sunoco Gas Station in Washington D.C. on
January 17, 2018;
(7) Las Placitas Restaurant in Washington D.C.
on January 22, 2018;
(8) Prime Beer & Wine in Silver Spring,
Maryland on January 27, 2018;
(9) Sheger International Market in Silver
Spring, Maryland on January 27, 2018; and
(10) Exxon Gas Station in Silver Spring,
Maryland on January 29, 2018.
J.A. 45–46.
The indictment principally charged the trio with
conspiracy to interfere with interstate commerce by means of
robbery under 18 U.S.C. § 1951, in short, conspiracy to commit
“Hobbs Act robbery.” Flumo and Sumo also faced two counts
of completed Hobbs Act robbery and two counts of brandishing
a firearm during a crime of violence under 18 U.S.C. § 924(c)
arising out of the fifth and sixth robberies.1
Security camera footage of the robberies depicts a
consistent scheme. In all but one robbery (in one, all three men
entered), two of the men entered the store while the third waited
nearby. They wore ski masks, dark clothes and gloves to
obscure their identities. One robber threatened employees and
patrons inside the store with a handgun and the other gathered
1 Flumo and Sumo had been indicted on three sets of these additional
counts but the Government dismissed one set related to the fourth
robbery at a pre-trial hearing.

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cash and valuables. Although the gun was never fired, it was
racked during several of the robberies.
The three also used physical force in several robberies.
For example, during the robbery of a Lucky Seven convenience
store—the one instance in which all three men entered—one
robber hit the cashier in the face with the handgun. Meanwhile,
another robber went to the back room, where he repeatedly
punched and kicked the store manager whom he found there.
Following a nine-day trial, the jury found the trio guilty on
all charges. The district court sentenced Onyewu to 166
months’ incarceration, Flumo to 234 months and Sumo to 204
months. All timely appealed. Because the three appeals raise
joint issues, they are consolidated for our review.
We have jurisdiction pursuant to 28 U.S.C. § 1291. The
Court reviews the district court’s evidentiary rulings for abuse
of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141
(1997) (citing Old Chief v. United States, 519 U.S. 172, 174 n.1
(1997)). Legal questions are reviewed de novo. See United
States v. Abou-Khatwa, 40 F.4th 666, 674 (D.C. Cir 2022).
II. Analysis
The three appellants challenge their convictions on several
grounds and raise ineffective assistance of counsel claims for
the first time. We address, and reject, each argument in turn.
A. Evidence of Missouri Traffic Stop
In 2020, Missouri police pulled over a car for speeding.
Sumo was driving the car, Onyewu was in the passenger seat

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and Flumo was in the back seat.2 Upon searching the vehicle,
officers recovered “fraudulent identification cards for . . .
Flumo and Sumo as well as instruments used in identity theft
crimes.” J.A. 153; accord id. at 332. All three men were
arrested but the charges were eventually dropped.
Before trial on the robbery-related offenses at issue here,
the Government filed a motion in limine seeking to introduce
evidence of the traffic stop. The district court granted the
motion over objection. It concluded the incident was relevant
to show “a criminal relationship between the conspirators” and
was not overly prejudicial. Id. at 198–99. The Missouri deputy
sheriff who conducted the traffic stop and made the arrests
provided testimony at trial.
All three appellants challenge the admission of the traffic
stop. They allege its introduction violated Federal Rule of
Evidence 404(b), which provides that “[e]vidence of any other
crime, wrong, or act is not admissible to prove a person’s
character in order to show that on a particular occasion the
person acted in accordance with the character[,]” Fed. R. Evid.
404(b)(1), i.e., “propensity evidence,” see United States v.
Green, 149 F.4th 733, 753 (D.C. Cir. 2025). Propensity
evidence may be admitted, however, if “it has any purpose
other than seeking to prove a criminal propensity.” Id. at 751.
Here, the district court did not abuse its discretion in
concluding the traffic stop evidence had a valid, non-
propensity purpose. The joint arrest established a criminal
association among Onyewu, Flumo and Sumo. See United
States v. McGill, 815 F.3d 846, 884 (D.C. Cir. 2016) (per
2 The robbery-related indictment of Onyewu, Flumo and Sumo sub
judice had not yet been filed at this time, explaining why they were
not already in custody for those offenses.

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curiam) (approving the admission of evidence “for the
nonpropensity purpose of proving the relationships among
coconspirators”). An association is highly relevant to the
charged offense of conspiracy to commit Hobbs Act robbery,
which requires an agreement among two or more persons. See
United States v. Tse, 375 F.3d 148, 155 (1st Cir. 2004) (“In a
conspiracy case, the district court may admit evidence of other
bad acts if they tend to suggest a criminal association between
the alleged conspirators.”); see also United States v. Graham,
83 F.3d 1466, 1473 (D.C. Cir. 1996). The appellants
themselves characterize the traffic stop’s “real value” as
“show[ing] that all three of the defendants collectively were the
members of the charged conspiracy.” Appellants’ Br. 40
(emphasis added). Because the traffic stop evidence had a
valid non-propensity purpose, its admission did not violate
Rule 404(b).
The appellants also argue the traffic stop is not relevant to
establish a criminal association at the time of the conduct
underlying their convictions because the traffic stop occurred
over two years after the robberies. Relevance, however, is a
low bar. Green, 149 F.4th at 755. If evidence has “any
tendency” to make a fact “of consequence” more or less
probable, it is relevant. Fed. R. Evid. 401. The existence of a
relationship at one point is circumstantial, even if weak,
evidence of that relationship’s existence at an earlier point. See
United States v. Procopio, 88 F.3d 21, 29 (1st Cir. 1996) (“A
later criminal association increases the likelihood of an earlier
one—which is all that ‘relevance’ requires[.]”).
The appellants also argue that even if the traffic stop was
admissible under Rule 404(b), Federal Rule of Evidence 403
required its exclusion. Rule 403 permits courts to exclude
otherwise admissible evidence “if its probative value is
substantially outweighed by a danger of” unfair prejudice. Fed.

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R. Evid. 403. “A district court is accorded a wide discretion”
in making evidentiary rulings, which is “particularly true with
respect to Rule 403.” Sprint/United Mgmt. Co. v. Mendelsohn,
552 U.S. 379, 384 (2008) (citation modified).
We have no issue with the district court’s exercise of
discretion here. Granted, the traffic stop had limited probative
value due to its date and a potential for prejudice given the
involvement of other crimes. Nonetheless, it is far from clear
any potential prejudice “substantially outweighed” the
probative value. Fed. R. Evid. 403. For one thing, the criminal
conduct uncovered during the traffic stop was nonviolent,
unlike the conduct in issue at trial. See United States v.
Burwell, 642 F.3d 1062, 1067–68 (D.C. Cir. 2011) (finding low
potential for prejudice when other conduct is less violent than
the defendants’ charged offense), vacated in part en banc, No.
06-3070, 2011 U.S. App. LEXIS 20699 (D.C. Cir. Oct. 12,
2011) (mem.), reinstated en banc, 690 F.3d 500 (D.C. Cir.
2012). The appellants’ trial counsel had the opportunity to
attack the timing of the evidence on cross examination but none
did so. Moreover, the jury twice heard a limiting instruction
explaining proper use of the evidence. J.A. 346–47, 588–89.
Overall, the district court carefully weighed the evidence and
determined admission was warranted. That is enough to satisfy
Rule 403. See United States v. Gartmon, 146 F.3d 1015, 1022
(D.C. Cir. 1998) (“As long as it appears from the record as a
whole that the trial judge adequately weighed the probative
value and prejudicial effect . . . the demands of Rule 403 have
been met.” (citation modified)). Accordingly, the district court
did not abuse its discretion in admitting this “other acts”
evidence.

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B. Evidence from Onyewu’s Car
One month after the robberies underlying the appellants’
convictions, police responded to an apparently unrelated 9-1-1
call about a home invasion at 8802 36th Avenue in College
Park, Maryland. The victims reported being held at gunpoint
by three men who “made demands for marijuana and money.”
J.A. 67. The robbers fled without taking anything from the
residence once police arrived. Two of the robbers were
apprehended after a foot chase and were identified as Onyewu
and Sumo. The third suspect escaped.3
Police proceeded to canvas the “streets surrounding” the
invaded residence. Id. During the search, Detective Ken Lin
discovered a blue 2008 Buick Lucerne registered to Onyewu.
Police seized the vehicle and Lin then applied for a search
warrant that identified the car as having been found “parked in
an alley between 36th [A]venue and 37th Avenue.” Id.
However, no such alley exists. Instead, the car was parked on
Crystral Springs Road, a street perpendicular to 36th Avenue.
A Maryland judge approved the warrant without knowing of
this error. Police searched the vehicle and uncovered, among
other things, a jacket and ski mask shown to be worn by one of
the perpetrators in the robbery security camera footage,
multiple cell phones and a box of ammunition.
Onyewu moved to suppress all evidence found in his car
as fruit of an allegedly unlawful seizure, which motion Flumo
and Sumo joined. The district court denied the motion after an
evidentiary hearing. Onyewu then renewed the motion to
suppress and additionally requested a hearing to interrogate the
veracity of Detective Lin’s warrant application for the vehicle,
3 The Government ultimately dropped the charges arising out of this
home invasion.

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which motion Flumo joined. The district court again denied
the motion and all three appellants now challenge these denials
on appeal. Because the police’s seizure of the car was lawful
and the mistake in the warrant application was neither material
nor intentional, we reject both claims.
1. Probable Cause
The Fourth Amendment prohibits “unreasonable searches
and seizures.” U.S. Const. amend. IV. “[A] warrant must
generally be secured” for a search or seizure to be reasonable.
Kentucky v. King, 563 U.S. 452, 459 (2011). But there are
several exceptions to the warrant requirement. One
exception—the automobile exception—provides that “if a car
is readily mobile and probable cause exists to believe it
contains contraband, the Fourth Amendment permits police to
search the vehicle without more.” United States v. Maynard,
615 F.3d 544, 567 (D.C. Cir. 2010) (citation modified). If the
exception applies, “[o]fficers have the option of either
‘carrying out an immediate search without a warrant’ or
‘seizing and holding a car before presenting the probable cause
issue to a magistrate.’” United States v. Jenkins, 984 F.3d
1038, 1041 (D.C. Cir. 2021) (quoting Chambers v. Maroney,
399 U.S. 42, 52 (1970)). Here, police seized Onyewu’s car
before obtaining a warrant but later acquired one before
conducting a search. The district court held that the automobile
exception justified the car’s seizure. The appellants now
advance two theories to undermine the exception’s application.
First, they argue that Onyewu’s car was not mobile at the
time of its seizure.4 In particular, they note that two of the
4 This argument was not made in the district court and, thus, it is
subject to plain error review. Fed. R. Crim. P. 52(b); Greer v. United
States, 593 U.S. 503, 507 (2021).

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home invasion suspects were in custody and could not access
the vehicle. But this argument ignores the fact that the third
suspect remained at large. Regardless, a car need not be
“immediately mobile” to fall within the automobile exception.
California v. Carney, 471 U.S. 386, 391 (1985). Mobility is
inherent in all operable vehicles. See United States v. Williams,
773 F.3d 98, 105–06 (D.C. Cir. 2014) (“All that is required for
an automobile to be readily mobile within the meaning of the
automobile exception is that it is used on the highways, or is
readily capable of such use.” (citation modified)); United
States v. Howard, 489 F.3d 484, 494 (2d Cir. 2007) (“The mere
inherent mobility of the vehicle is sufficient to constitute the
‘ready mobility’ the automobile exception [re]cognizes.”).
Thus, the mobility of the car does not turn on the appellants’
access to it.
Second, and principally, the appellants argue police lacked
probable cause to seize and search the car. We determine the
existence of probable cause de novo. Ornelas v. United States,
517 U.S. 690, 699 (1996). Our analysis requires determining
whether police had probable cause to believe the car contained
“contraband or evidence of a crime” at the time they discovered
it, Florida v. Harris, 568 U.S. 237, 243 (2013),
notwithstanding their decision to obtain a warrant before
conducting the search, see Jenkins, 984 F.3d at 1041.5
We conclude that police had probable cause to seize
Onyewu’s vehicle. “The test for probable cause is not
reducible to precise definition or quantification,” Harris, 568
U.S. at 243 (citation modified), and courts instead look to the
“totality of the circumstances,” id. at 244. Here, the
5 The appellants challenge the seizure of the vehicle as violative of
the Fourth Amendment and any evidence discovered during the
subsequent search as so-called “fruit of the poisonous tree.”

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combination of the car’s proximity to the home invasion and
its registration to an apprehended suspect suffice to meet this
standard. There need not be “certainty that contraband or
evidence of a crime will be found—only a ‘fair probability.’”
United States v. Washington, 775 F.3d 405, 409 (D.C. Cir.
2014) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
We think it is fairly probable that such evidence will be found
in a suspect’s car when it is parked near the scene of the crime.
The appellants also assert that, because Sumo and Onyewu
were unsuccessful in taking anything from the residence and
were quickly apprehended, they could not have stashed any
contraband in the car. This argument again ignores the fact that
the third suspect remained at large. It also too narrowly
characterizes what can establish probable cause. As Detective
Lin noted in the warrant application, robbers often leave
instrumentalities of crime—including weapons or
identification—in their vehicles. And a likelihood of finding
such instrumentalities is enough for probable cause. See
United States v. Lawson, 410 F.3d 735, 740–41 (D.C. Cir.
2005).
2. Franks Hearing
The appellants further argue that the mistaken description
of the car’s location in Detective Lin’s affidavit invalidated the
corresponding search warrant. As noted supra, the affidavit
described Onyewu’s car as “parked in an alley between 36th
[A]venue and 37th Avenue,” J.A. 67, although no such alley
exists and the car was in fact parked on Crystal Springs Road
They assert the district court erroneously denied their request
for an evidentiary hearing (a Franks hearing) on the matter.
We disagree.
This Court has not resolved which standard applies when
reviewing the denial of a Franks hearing and our sister circuits

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are split on the issue. Maynard, 615 F.3d at 551; see United
States v. Dale, 991 F.2d 819, 843 n.44 (D.C. Cir. 1993) (per
curiam) (collecting cases). We need not decide the matter in
this case as the claim fails under either de novo or clear error
review. See United States v. Becton, 601 F.3d 588, 594 (D.C.
Cir. 2010).
There is usually a “presumption of validity with respect to
the affidavit supporting [a] search warrant.” Franks v.
Delaware, 438 U.S. 154, 171 (1978). An evidentiary hearing
into the warrant’s veracity, known as a Franks hearing, will not
be granted unless the challenger makes “allegations of
deliberate falsehood or of reckless disregard for the truth, and
those allegations must be accompanied by an offer of proof.”
Id. Moreover, if there is sufficient evidence to support
probable cause without the disputed material, no hearing is
required. Id. at 171–72.
Because Lin’s misrepresentation was neither material nor
intentional, a Franks hearing was not necessary. Although the
proximity of Onyewu’s car to the home invasion was crucial,
the precise location of the car is immaterial for probable cause.
The warrant affidavit adequately established that Onyewu’s car
was nearby, even without using that precise word. It noted the
car was discovered during a canvas of “the streets surrounding
8802 36th Avenue, College Park, Prince George’s County,
Maryland.” J.A. 67. “Surrounding” implies proximity. See
Surround, Oxford Eng. Dictionary,
https://www.oed.com/dictionary/surround_v?tab=meaning_an
d_use [https://perma.cc/SK94-EMZN] (last visited June 5,
2026) (“To enclose, encompass, or beset on all sides[.]”). As
noted supra, this location together with the car’s registration to
Onyewu was enough to support probable cause. See Transcript
of Oral Arg. at 57 (appellants’ counsel conceding that the

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warrant application would have supported probable cause if the
location were accurate).
Moreover, there is no evidence that Detective Lin
deliberately misrepresented the car’s location. Although the
appellants allege Lin lied about the car’s location to justify
seizure of the car under local towing regulations, this is sheer
speculation. The affidavit made no mention of any such
regulations and instead focused entirely on the nearby home
invasion as the basis of probable cause. Also, Detective Lin
explained that he tried to identify the street when he initially
found the car but was unable to do so because he could not see
any street signs and was unable to find any street name on the
map on his phone. Thus, it appears the address included was
“believed or appropriately accepted by the affiant as true.”
Franks, 438 U.S. at 165. That is not the type of deliberate
misstatement or “reckless disregard for the truth” that a Franks
hearing aims to address. Id. at 155.
C. Whether Hobbs Act Robbery is a “Crime of Violence”
Appellants Flumo and Sumo then argue that the district
court erred in not dismissing the § 924(c) counts against them
because Hobbs Act robbery does not qualify as a predicate
“crime of violence.” We disagree. Under 18 U.S.C. § 924(c),
criminal defendants who are convicted of a “crime of violence”
receive a mandatory-minimum sentencing enhancement of five
years. That mandatory-minimum sentencing enhancement
applies to Hobbs Act robbery.
1. The Modified Categorical Approach
To determine whether a crime is a “crime of violence,” one
must determine whether to apply the categorical approach or
the modified categorical approach. So we start by explaining
those two approaches.

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First some background. Some statutes, like § 924(c),
prescribe punishment based on the defendant’s commission of
an underlying crime, or “predicate offense.” For example,
§ 924(c) adds a five-year minimum enhancement to the
sentence of any defendant who has committed a “crime of
violence,” which is defined as a felony that “has as an element
the use, attempted use, or threatened use of physical force
against the person or property of another.” Id. § 924(c)(3)(A).
Thus, to apply that five-year minimum enhancement, the
underlying crime the defendant committed—his predicate
offense—must have had “as an element” the actual, attempted,
or threatened use of force.
Elements are necessary features of crimes. See Mathis v.
United States, 579 U.S. 500, 504 (2016). So to qualify as a
“crime of violence,” the predicate offense must necessarily, or
“always[,] require[] the [G]overnment to prove . . . the use,
attempted use, or threatened use of force.” United States v.
Taylor, 596 U.S. 845, 850 (2022). Otherwise, the actual,
attempted, or threatened use of force would not be an element,
or necessary feature, of the predicate offense. Or to use the
Supreme Court’s language, the predicate offense must
categorically involve the actual, attempted, or threatened use
of force. Id.
That, in a nutshell, is the categorical approach. But notice
the upshot of this focus on the elements of the offense. “[T]he
defendant’s actual conduct” does not matter. Mathis, 579 U.S.
at 504. So suppose a defendant bludgeons someone to death.
An ordinary speaker of English would likely say the defendant
committed a “crime of violence.” But the defendant might not
have done so as § 924(c) uses that term. It would depend on
the elements of the crime of which the defendant is convicted.
Only when one knows the elements of the crime of conviction
can one determine whether that crime necessarily, or

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categorically, involves the actual, attempted, or threatened use
of force so as to qualify as a “crime of violence.”
The logic of the categorical approach naturally gives rise
to another approach: the modified categorical approach. The
modified categorical approach rests on a basic reality.
Sometimes, a single statute provides two alternative elements,
thereby creating two separate crimes. Mathis, 579 U.S. at 505.
In that case, courts applying the categorical approach must
figure out which of the two separate crimes the defendant has
committed in order to apply the categorical approach to that
particular crime. See id. at 506.
One must be careful, though, in determining whether a
statute creates alternative elements, and therefore multiple
crimes, or merely spells out “various factual means of
committing a single” crime. Id. For example, a statute that
proscribes “murder, including with a gun, knife, bat, or other
dangerous object” should probably not be divided into separate
crimes of gun murder, knife murder, bat murder, and other-
dangerous-object murder. See id. (discussing a similar
example). Instead, the statute is better thought of as spelling
out various factual means for committing a single offense:
murder. (Because that statute cannot be so divided, courts call
it “indivisible.”)
Moreover, to convict under that indivisible statute, “a jury
need not find (or a defendant admit) any particular item: A jury
could convict even if some jurors ‘conclude[d] that the
defendant used a knife’ while others ‘conclude[d] he used a
gun[.]’” Id. (quoting Richardson v. United States, 526 U.S.
813, 817 (1999)). On the other hand, a statute that proscribes
“‘the lawful entry or the unlawful entry’ of a premises with the
intent to steal,” and provides for greater punishment if the entry
were unlawful, should probably be divided into “two different

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offenses.” Id. at 505. (Because that statute can be so divided,
courts term it “divisible.”) To convict under that divisible
statute, every juror would need to agree either that the entry
was unlawful or that it was lawful. See Ramos v. Louisiana,
590 U.S. 83, 90 (2020) (“A jury must reach a unanimous
verdict in order to convict” consistent with the Constitution).
Whether a statute is divisible makes a difference for
purposes of the categorical approach. To see why, consider an
example. Imagine a defendant points a gun at his landlord
while taking the landlord’s crystal statue of a horse’s head. The
defendant is then convicted under a statute that proscribes
“taking another’s property under threat of violence or slander.”
If that statute is divisible—i.e., if “threat of violence” and
“threat of slander” are understood as alternative elements of
separate crimes—the defendant presumably committed a
“crime of violence” under § 924(c). He committed the crime
of “taking another’s property under threat of violence,” and that
would seem to have “as an element the . . . threatened use of
physical force.” See 18 U.S.C. § 924(c)(3) (so defining “crime
of violence” under § 924(c)). But if the statute is indivisible—
i.e., “threat of violence” and “threat of slander” are different
factual means of committing a single crime—the defendant
probably did not commit a “crime of violence.” A hypothetical
defendant could commit that crime by taking his landlord’s
horse-head statue while threatening to lie to the other tenants
that the landlord spends his weekends at the racetrack gambling
away the tenants’ security deposits. Spewing that sort of
malicious falsehood, of course, would not appear to involve the
actual, attempted, or threatened use of force. So the crime the
defendant committed would not qualify as a “crime of
violence” under § 924(c).

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2. The Modified Categorical Approach as Applied to Hobbs
Act Robbery
Because it can be difficult to determine when a statute
provides different factual means of committing a single crime
(i.e., is indivisible) instead of different elements of different
crimes (i.e., is divisible), courts have developed tools for
drawing the distinction.
Some tools are textual. For example, if the statute “itself
identif[ies] which things must be charged,” those things are
elements. Mathis, 579 U.S. at 518. But if the statute identifies
which things “need not be” charged, those things are means.
Id. Additionally, when “statutory alternatives carry different
punishments,” the alternatives are elements, whereas when “a
statutory list is drafted to offer ‘illustrative examples,’” the
examples are factual means for committing a single offense.
Id. (quoting United States v. Howard, 742 F.3d 1334, 1348
(11th Cir. 2014)).
Sometimes, textual clues alone leave something to be
desired. In that case, courts may look to the record of prior
conviction to help determine whether the statutory alternatives
are separate elements of separate crimes or various means to
commit a single crime. See id.
a. Hobbs Act Robbery Is a Divisible Offense
The statute at issue in this case, the Hobbs Act, is divisible.
It may be divided into the separate crimes of Hobbs Act
robbery and Hobbs Act extortion.6 Thus, the modified
categorical approach applies.
6 The Hobbs Act may be further divided. For instance, the Hobbs
Act also creates separate offenses of Hobbs Act robbery and

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We begin with the text of the statute. The Hobbs Act
imposes criminal penalties on “[w]hoever in any way or degree
obstructs, delays, or affects commerce . . . by robbery or
extortion or attempts or conspires so to do.” 18 U.S.C
§ 1951(a).
The text suggests robbery and extortion are separate
elements of separate crimes. The Hobbs Act offers separate
legal definitions for robbery and extortion, listing a series of
requirements for a crime to qualify as “robbery” and different
requirements for a crime to qualify as “extortion.” Compare
id. § 1951(b)(1) (defining “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”), with
§ 1951(b)(2) (defining “extortion” as “the obtaining of
property from another, with his consent, induced by wrongful
use of actual or threatened force, violence, or fear, or under
color of official right”). Moreover, those legal definitions
come in two distinct paragraphs. See id. § 1951(b)(1)
(“robbery”), (b)(2) (“extortion”). That reaffirms that robbery
and extortion are not just separate factual means to commit a
single crime. Instead, “robbery” and “extortion” are different
legal elements of different crimes.
The text is also reaffirmed by other tools of analysis. For
instance, the jury instructions labeled one of the Hobbs Act
offenses as “Interference with Interstate Commerce by
Robbery.” J.A. 594. The jury was instructed to determine
whether each defendant took money or property “by robbery.”
attempted Hobbs Act robbery. See Taylor, 596 U.S. at 851
(distinguishing the two); see also United States v. States, 72 F.4th
778, 787 (7th Cir. 2023) (“[B]ecause attempts and completed
offenses are distinct crimes, . . . a statute that prohibits a crime and
the attempt to commit it is likely to be divisible[.]”).

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19
Id. No other “means” were listed in the alternative. So to
convict, the jury had to find the defendant committed
“robbery.”
The separate instruction for the crime of “Conspiracy to
Interfere with Interstate Commerce by Robbery” is of a piece.
It required the jury to find that there was an agreement to
commit robbery. Id. at 592. It did not instruct the jury that the
defendant could be convicted of conspiracy if some jurors
found he had committed conspiracy to rob and others found he
committed conspiracy to extort.
Our reading of the Hobbs Act accords with precedent.
“[C]ourts across the country . . . have long held that Hobbs Act
robbery and Hobbs Act extortion are separate and distinct
crimes[.]” United States v. Armstrong, 122 F.4th 1278, 1287
(11th Cir. 2024) (collecting cases). Moreover, the Supreme
Court itself has referred to “the substantive offense of Hobbs
Act extortion,” Ocasio v. United States, 578 U.S. 282, 292
(2016), in addition to the separate offense of “Hobbs Act
robbery,” Taylor, 596 U.S. at 848.
b. Burwell Is Not to the Contrary
In United States v. Burwell, our court interpreted 18 U.S.C.
§ 2113(a), which generally “criminalizes bank robbery
completed ‘by force and violence, or by intimidation,’ or ‘by
extortion.’” 122 F.4th 984, 986 (D.C. Cir. 2024) (quoting 18
U.S.C. § 2113(a)). The question presented was whether
extortion was a separate factual means for committing federal
bank robbery or whether extortion was an alternative element
of a separate crime. Burwell concluded that extortion was a
separate factual means for committing the single crime of
federal bank robbery.

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20
Burwell’s logic depended in part on the fact that within the
subsection criminalizing federal bank robbery, Congress had
provided a paragraph break. In the first paragraph, Congress
had proscribed federal bank robbery. In the second paragraph,
Congress had proscribed federal bank burglary. From that,
Burwell reasoned that if Congress wanted to create separate
crimes, it knew to use separate paragraphs. See Burwell, 122
F.4th at 990; cf. United States v. Butler, 949 F.3d 230, 235 (5th
Cir. 2020) (“a paragraph break often signals that a new idea is
coming,” thus it is “logical to conclude that a paragraph break
in a statute signals a new offense”). Thus, according to
Burwell, “force and violence,” “intimidation,” and
“extortion”—all contained within the same paragraph—had to
be separate factual means to commit the singular crime of
federal bank robbery. Burwell, 122 F.4th at 990.
Here, though, the relevant subsection of the Hobbs Act
contains a single paragraph. There is no separate paragraph
denoting a separate crime from which one can infer
Congressional intent to create separate crimes for extortion and
robbery.
Indeed, if anything, Burwell’s reasoning bolsters our
holding that the Hobbs Act makes extortion and robbery
separate elements of separate crimes. Burwell said that
paragraph divisions within a statute may mark different crimes.
The Hobbs Act divides robbery and extortion, placing them in
distinct paragraphs. Thus, Burwell reinforces that the Hobbs
Act makes robbery and extortion different crimes.
3. Hobbs Act Robbery Is a Crime of Violence
Hobbs Act robbery is a “crime of violence” under
§ 924(c). Assuming Hobbs Act robbery is not further divisible,
it requires “an unlawful taking . . . of personal property”
against an individual’s “will, by means of actual or threatened

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21
force, or violence, or fear of injury . . . to his person or
property.” 18 U.S.C. § 1951(b)(1). Regardless of whether the
robbery is committed by force, violence, or fear of injury, it
necessarily requires the “use, attempted use, or threatened use
of physical force.” Id. § 924(c)(3)(A).
Even presuming § 924(c) requires “violent force,”
Johnson v. United States, 559 U.S. 133, 140 (2010) (so
interpreting § 924(e)(2)(B)(i)’s similar language), a robbery
committed by “force” or “violence” naturally involves violent
force. In the context of a robbery statute like the Hobbs Act,
terms like “force” or “violence” typically refer to physical
force. See Delligatti v. United States, 604 U.S. 423, 431
(2025). So the only question in § 1951(b)(1)—which requires
force, violence, or fear of injury—is whether “fear of injury”
involves “violent force.”
It does. The “fear of injury” prong, whether to one’s
“person or property,” does not appear in isolation. 18 U.S.C.
§ 1951(b)(1). It is preceded by the terms “force” and
“violence,” both of which are inherently physical. See Third
Nat’l Bank in Nashville v. Impac Ltd., 432 U.S. 312, 322 (1977)
(counseling that several “words grouped in a list should be
given related meaning”); Yates v. United States, 574 U.S. 528,
543 (2015) (“[A] word is known by the company it keeps[.]”).
In that context, the term “fear of injury” is best understood to
mean “fear of physical injury,” i.e., the “violent force”
contemplated by 18 U.S.C. § 924(c). See Johnson, 559 U.S. at
140.
Yet again, we are not alone in our understanding of the
statute. Every court of appeals that has addressed this issue has
reached the same conclusion: Hobbs Act robbery is a crime of
violence. See United States v. García-Ortiz, 904 F.3d 102,
107–09 (1st Cir. 2018); United States v. Hill, 890 F.3d 51, 60

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(2d Cir. 2018); United States v. Stoney, 62 F.4th 108, 114 (3d
Cir. 2023); United States v. Mathis, 932 F.3d 242, 266 (4th Cir.
2019); United States v. Buck, 847 F.3d 267, 275 (5th Cir.
2017); United States v. Gooch, 850 F.3d 285, 291–92 (6th Cir.
2017); United States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017);
United States v. Jones, 919 F.3d 1064, 1072 (8th Cir. 2019);
United States v. Eckford, 77 F.4th 1228, 1236–37 (9th Cir.
2023), cert. denied, 144 S. Ct. 521 (2023), overruled on other
grounds by United States v. Gomez, 165 F.4th 1199 (9th Cir.
2026); United States v. Melgar-Cabrera, 892 F.3d 1053, 1066
(10th Cir. 2018); United States v. Wiley, 78 F.4th 1355, 1363–
64 (11th Cir. 2023); see Armstrong, 122 F.4th at 1287–88 (11th
Cir. 2024). Today, we join our sister circuits in that conclusion.
D. Onyewu’s Due Process Claim
Onyewu individually advances an argument that the
Government deprived him of due process when it wired his
plea offer to his co-defendants’ offers. We hold that it did not.
When the Government wires a plea offer—i.e., conditions one
defendant’s plea offer on other defendants’ acceptance of their
respective plea offers—it “does not, per se, offend due
process.” United States v. Pollard, 959 F.2d 1011, 1020 (D.C.
Cir. 1992). So long as “the government had probable cause to
arrest and prosecute” all the “defendants in a related crime,”
and the Government did not “conduct[] itself in bad faith . . .
to generate additional leverage over the defendant,” the “wired
plea is constitutional.” Id. at 1021. Under that test, the wiring
of Onyewu’s plea was constitutional.
Onyewu does not argue there was no probable cause nor
that the crimes were unrelated. He argues only that the
Government acted “in bad faith . . . to generate additional
leverage over” him. Id. That fails.

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Onyewu has not proven that the Government made a bad-
faith attempt to assert additional leverage over him. Indeed,
nothing Onyewu has asserted shows “improper . . . pressure to
force him to plead guilty.” Id. at 1020; see also id. at 1021
(“The question, of course, is whether the practice of plea wiring
is so coercive as to risk inducing false guilty pleas.”). On the
contrary, the more likely explanation for the Government’s
wiring of the plea deal was efficiency. The goal was that either
all three defendants would enter plea deals, or the Government
would just take all three to trial. See United States v. Williams,
827 F.3d 1134, 1165 (D.C. Cir. 2016) (finding that the
Government’s preference to either accept guilty pleas from
both defendants or trying both “provides no basis to conclude
that the Government’s offer was coercive or made in bad
faith”). Moreover, it is somewhat challenging to find coercion
on this record given that Onyewu did not even accept the plea
offer. Cf. Pollard, 959 F.2d at 1021 (“To say that a practice is
‘coercive’ or renders a plea ‘involuntary’ means only that it
creates improper pressure that would be likely to overbear the
will of some innocent persons and cause them to plead
guilty.”).
Consider Onyewu’s main argument.7 Onyewu argues the
plea deal was too onerous for Flumo given the “severe
immigration consequences” it would impose. Appellants’ Br.
120. Thus, Onyewu argues, he was guaranteed to face trial,
and as a result, he was sentenced to 166 months incarceration,
well above the forty-six–month maximum his plea offer
7 Onyewu also suggests the Government used his young age and his
relative inexperience in the criminal process against him. See
Appellants’ Br. 119; Reply Br. 67. But he offers no evidence of that,
nor any reason to think it used his age and inexperience to coerce him
into pleading guilty.

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24
contemplated. Even if we were to credit Onyewu’s allegation,8
his complaint boils down to the fact that the Government did
not offer him a plea deal he could end up accepting: Per
Onyewu, Flumo was guaranteed to reject the plea offer, thereby
nullifying Onyewu’s own deal. See Reply Br. 4. But Onyewu
had “‘no right to be offered a plea’ at all, much less the
particular plea of his choosing.” Williams, 827 F.3d at 1165
(quoting Missouri v. Frye, 566 U.S. 134, 148 (2012)).
If anything, Onyewu’s argument would seem to cut against
his position. At worst, the Government threatened to impose
an onerous condition on Flumo if Onyewu accepted the plea
deal. Perhaps, that could impose some pressure on Onyewu to
reject the deal. Cf. Pollard, 959 F.2d at 1021 (noting that a
defendant might feel pressure to avoid an onerous condition
upon “a loved one, particularly a spouse” while still holding
such pressure did not amount to coercion). But the question for
coercion is whether the Government improperly pressured
Onyewu to plead guilty, not whether Onyewu might have felt
some pressure to refuse to plead guilty. See id. (“The question,
of course, is whether the practice of plea wiring is so coercive
as to risk inducing false guilty pleas.”).
E. Flumo’s Individual Claims
Flumo appeals a number of issues independently of his co-
defendants. We consider—and reject—each of them below,
8 We would hesitate to do so. Onyewu does not offer any evidence
that Flumo placed much weight on any immigration consequences
involved in accepting the deal. Moreover, one doubts immigration
consequences would bear much weight in Flumo’s decision given the
potential eighteen-year sentence under the plea offer. Compare Lee
v. United States, 582 U.S. 357, 371 (2017) (“deportation [was] the
‘determinative issue’ for an individual in plea discussions” when he
risked only “a year or two more of prison time”).

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25
and ultimately decline to vacate Flumo’s convictions on those
grounds raised.
1. Admission of All Evidence from Flumo’s Cell Phone
As described in Part II.B, law enforcement officers seized
Onyewu’s vehicle and subsequently searched it pursuant to a
warrant. During that search, Detective Lin recovered three cell
phones—a pink Apple iPhone 6s Plus, a gold Apple iPhone 6s,
as well as a silver Samsung Galaxy S7 Edge that was later
linked to Flumo. To determine the phone number associated
with the Samsung device, Detective Lin used the cell phone’s
emergency call feature, dialed 9-1-1 from the lock screen, and
then asked the 9-1-1 dispatcher to relay to him the “telephone
number on the other side.” J.A. 236–37. Detective Lin then
included the cell phone number provided by the dispatcher, the
IMEI number (a number identifying the physical device), as
well as a general description of the Samsung phone in the
search warrant affidavit for the device, which was signed on
February 20, 2018. Pursuant to the search warrant, Agent
Kaori Tahan of the FBI conducted a partial extraction of the
Samsung device, and the Government admitted six
photographs obtained from that extraction through Agent
Tahan’s testimony at trial.
Flumo argued in the proceeding below that the Detective’s
decision to dial emergency services from the lock screen of
Flumo’s phone constituted an unlawful search under the Fourth
Amendment. Asserting that no exception would apply to the
default rule of exclusion, Flumo further argued that any
evidence from the phone—including all six admitted
photographs—should have been suppressed because the “later-
obtained warrant for the phone was tainted by the evidence
Detective Lin illegally obtained from it.” Appellants’ Br. 33,
92; see also Wong Sun v. United States, 371 U.S. 471 (1963)

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26
(establishing that evidence obtained in violation of the Fourth
Amendment must be suppressed absent exception). The
district court disagreed with Flumo, first finding that Detective
Lin’s call to emergency services did not constitute a Fourth
Amendment search, and second, that even if it did, the good-
faith exception—which allows the admission of unlawfully
seized evidence so long as the officer reasonably believed that
the affidavit established probable cause—applied.
We review “a district court’s legal rulings on a suppression
motion de novo . . . and its factual findings for clear error.”
United States v. Holmes, 505 F.3d 1288, 1292 (D.C. Cir. 2007).
Although the question of whether Detective Lin’s dialing of 9-
1-1 from Flumo’s phone constituted a search under the Fourth
Amendment is a complex—and novel—one, we need not reach
it. Even assuming that the call constituted a Fourth
Amendment search for which Detective Lin should have
obtained a warrant, the inevitable discovery exception to the
exclusionary rule clearly applies here and obviates the need to
suppress the evidence.
The inevitable discovery exception to the exclusionary
rule permits the admission of seemingly unlawfully obtained
evidence if the Government can establish by “a preponderance
of the evidence that the information ultimately or inevitably
would have been discovered by lawful means.” Nix v.
Williams, 467 U.S. 431, 444 (1984). Here, as the district court
found, the phone number associated with the Samsung device
was “not a material element of the warrant” and thus, “not
required to secure” it. J.A. 288. Further, while Detective Lin
testified that when initially drafting the affidavit, he believed
that “it was necessary to have some sort of telephone number,”
he later learned that it was not required so long “as you describe
the phone really well with a photograph attachment.” Id. at
246. And Agent Tahan, who conducted an extraction of the

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27
Samsung device, indicated that the phone number was not
necessary for her to be able to extract the data from the phone.
Id. at 438–39. The above thus leads to the conclusion that if
one were to excise the phone number from the affidavit, the
warrant would still have been granted, the phone number still
inevitably discovered, and the Samsung device itself still
inevitably searched.
Flumo contests the district court’s conclusion by arguing
that without the phone number, the warrant would have been
deficient because it lacked the particularity required under the
Fourth Amendment. This too we find unavailing. The Fourth
Amendment requires that a warrant must “particularly describe
the place to be searched” so that the “officer will not mistakenly
search the wrong place.” United States v. Scurry, 821 F.3d 1,
15 (D.C. Cir. 2016) (citation modified). Here, the search
warrant not only contained a precise description of the phone,
detailing the color, but it also underscored that the device was
a “Samsung Galaxy S7 Edge,” which was notably distinct from
the other devices recovered from the vehicle. J.A. 204. Even
without the phone number in the affidavit, there cannot be any
reasonable risk that the officer would mistakenly have searched
an entirely different phone upon the warrant being granted.
In sum, although we decline to opine on whether the 9-1-
1 call, dialed to determine the number connected to the
Samsung device, constituted an unlawful search for which the
Detective should have obtained a warrant, we hold that the
evidence obtained from the phone would have been inevitably
discovered because the phone number itself was ultimately
immaterial to whether the search warrant would have been
granted. Flumo’s first argument thus fails.

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2. Admission of a Photograph of Flumo Holding a
Handgun
In addition to moving to suppress all evidence from his
phone, Flumo also moved to exclude a specific photograph
extracted from his mobile device of him holding a handgun.
Flumo argued to the district court that the photograph was
improper propensity evidence under Federal Rule of Evidence
404(b) and prejudicial under Rule 403. The district court
denied Flumo’s motion and admitted the photograph, finding
that although the photograph was extrinsic to the charged
conspiracy, and thus, subject to Rule 404(b), it was still
admissible to establish Flumo’s “opportunity to have access to
a firearm” and his “identity.” J.A. 323. Under Rule 403, the
district court found that although it was “hard . . . to make out”
what the photo was depicting, see id. at 314, and that there was
“obviously . . . prejudicial value,” such value was “certainly
not substantially outweighed by the probative value of the
evidence,” id. at 324. As noted in Part II.A, we review the
district court’s decision to admit evidence under Rule 403 and
404(b) for an abuse of discretion and are “extremely wary of
second-guessing the legitimate balancing of interests taken by
the trial judge in this context.” McGill, 815 F.3d at 932–33
(citation modified); United States v. Sheffield, 832 F.3d 296,
307 (D.C. Cir. 2016).
We decline to disturb the balancing of those interests here.
Flumo’s main argument on appeal is that “opportunity to
access firearms was irrelevant” because he “was not the
gunman in any of the robberies, and there was no evidence that
[he] supplied a gun to either of his codefendants.” Appellants’
Br. 96. But Flumo was charged with aiding and abetting the
use of a firearm. The photograph of Flumo holding the gun
could thus demonstrate not that Flumo was “predisposed to
possessing firearms,” see id. at 97, but instead that Flumo had

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access to guns and that he could have supplied the use of the
gun during the robberies, even if he was not the individual who
ultimately wielded it, accord United States v. Lauria, 541 F.
Supp. 3d 311, 314, 317–18 (S.D.N.Y. 2021) (finding that
evidence of photos and videos demonstrating that defendant
possessed a gun was admissible to establish that defendant had
opportunity and access firearms, even when defendant only
served as the getaway driver).
Flumo also contests the district court’s finding that the
photo could be admitted because it would “show his identity.”
Appellants’ Br. 96. Flumo’s argument is mainly premised on
the fact that the “photograph was ‘hard’ to interpret” and that
the object in the photograph “could not be identified as the
firearm allegedly used in the robberies.” Id. at 96–97 (quoting
J.A. 314). Accordingly, the photograph could not have been
admitted for the purpose of identifying Flumo as one of the
robbers. But the District Court acknowledged that the picture
was hard to discern and that the evidence was a “little weaker
on identity.” J.A. 323. Yet it still found that the photo could
be admitted because it provided probative value as to “whether
[the defendants] were the ones who committed these offenses.”
Id. at 324 Such acknowledgment of the varying factors, as well
as the “legitimate balancing” of those factors demonstrates that
the district court did not abuse its discretion in admitting the
photograph for purposes of showing identity under Rule
404(b). McGill, 815 F.3d at 932–33 (citation modified)
The same goes for Flumo’s argument that the district court
should not have admitted the photo under Rule 403 because any
probative value of the evidence was substantially outweighed
by the risk of prejudice. Flumo would have us believe that the
photograph had no probative value at all, but as explained
above, this is patently untrue. The district court properly
recognized both the prejudicial weight of the evidence, as well
as its probative value, and carefully balanced those interests.

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Additionally, the district court also issued a limiting
instruction immediately after the testimony admitting the
photograph. It instructed the jury to only use the evidence “for
the limited purpose of evaluating whether [Flumo was] one of
the persons who committed the crimes charged in” the case,
and prohibited them from using the “evidence for any other
purpose,” such as “conclud[ing] that [Flumo] has a bad
character or has a criminal personality.” J.A. 457–58. When
a district court “instruct[s] the jury that it was only to consider
the evidence for the limited and proper purpose[] . . . . This is
the type of instruction that can sufficiently protect a
defendant’s interest in being free from undue prejudice.”
United States v. Cassell, 292 F.3d 788, 796 (D.C. Cir. 2002)
(citation modified). The district court’s limiting instruction
here thus further weighs in favor of affirming its ruling, and we
hold that the district court did not abuse its discretion in
rejecting Flumo’s Rule 403 arguments.
3. Testimony Regarding the Handgun Depicted in the
Photograph
Recall that the Government admitted six photographs
extracted from Flumo’s phone through FBI Agent Tahan,
including the photograph of Flumo holding a gun. During her
direct examination, Agent Tahan was asked to opine on this
photo, with the Government first asking whether she was
“familiar with firearms.” J.A. 451. This drew a general
objection from the defense, which the district court overruled.
Agent Tahan responded that she was familiar with firearms and
that the gun “depicted in the picture appear[ed] to be consistent
with firearms that are real.” Id. at 451–52. The district court
then called for a bench conference, noting that this was a “lay
opinion issue,” and that at that point in the testimony, the
Government needed to lay “a little bit more foundation.” Id. at
452. Once trial resumed, the Government did so, and asked
Agent Tahan “how many times . . . [she] encountered

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firearms,” to which Agent Tahan responded, “[a] couple
hundred times.” Id. at 453. When asked to explain how the
photograph of the gun was “consistent with a functional real
gun,” Agent Tahan noted that “toy guns or the training
guns that [the FBI] use[d] would have an orange tip on the very
front of the barrel,” which was missing from the gun in the
photograph. Id. at 454. Agent Tahan further testified that the
metallic-looking texture of the gun in the photograph, as well
as the visible magazine, also contributed to her conclusion that
the gun was consistent with a real firearm. Id. at 454–55. After
Agent Tahan completed her direct examination, the district
court found that “foundation was laid” for Agent Tahan’s
testimony of whether “the image in the photograph [was]
consistent with a real weapon,” highlighting that the testimony
only “bolster[ed] the nature of the lay testimony.” Id. at 456–
57. The defense noted that they were “continuing the
objection.” Id. at 457. At no point was Agent Tahan ever
qualified as an expert.
Flumo argues on appeal that the district court
impermissibly admitted Agent Tahan’s testimony as lay
opinion testimony in violation of Federal Rule of Evidence
701, which mandates that such testimony should not be “based
on scientific, technical, or other specialized knowledge within
the scope of Rule 702.” Fed. R. Evid. 701(c). The force of
Flumo’s argument is premised on his assertion that because
Agent Tahan relied on her previous professional experience
with guns in her testimony, she could have only been properly
admitted as an expert witness under Rule 702. The
Government disagrees, arguing that because the basis of Agent
Tahan’s testimony arose from her “common, but not universal”
experience with guns, see Appellee Br. 93, Agent Tahan’s
testimony was properly admitted as lay opinion testimony.
Although we agree that the district court erred in admitting

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Agent Tahan’s testimony as lay opinion rather than expert,9 we
hold that the error was ultimately harmless.
While Rule 701 governs the admission of lay opinion
testimony, Rule 702 governs the admission of expert opinion
testimony. The distinction between the two is important
because of the reliability requirements set forth in Rule 702 that
do not exist in Rule 701. Indeed, Rule 702 requires that an
expert witness be qualified “by knowledge, skill, experience,
training, or education,” with the judge playing a “gatekeeping”
role in ensuring that such testimony will help the “trier of fact
to understand the evidence or to determine a fact in issue,” “is
based on sufficient facts or data,” “is the product of reliable
principles and methods,” and “reflects a reliable application of
the principles and methods to the facts of the case.” Daubert
9 The parties contest what standard of review properly applies. The
Government argues that this Court should review for plain error
because Flumo’s challenge was unpreserved, as Flumo only
provided a general objection to Agent Tahan’s testimony. See
Appellee Br. 90 (citing United States v. Guerrero, 665 F.3d 1305,
1309 (D.C. Cir. 2011)). The Government further contends that the
question of whether the objection was properly preserved also
impacts the harmless error analysis. According to the Government,
when an error is preserved, “the government must show that the error
did not have ‘substantial and prejudicial effect,’” see Appellee Br. 94
(quoting United States Bostick, 791 F.3d 127, 147 (D.C. Cir. 2015),
and when the error is unpreserved, the defendant “must show that
‘the error effected his substantial rights.’” Id. (quoting Guerrero,
665 F.3d at 1309); see also Fed. R. Crim. P. 52. In contrast, Flumo
asserts that we should review for abuse of discretion because it was
“abundantly clear that the district court understood that [Flumo’s]
counsel objected to Agent Tahan’s testimony because it was
improper ‘lay opinion testimony.’” Reply Br. 56; see also United
States v. Pole 741 F.3d 120, 124 (D.C. Cir. 2013). Ultimately, there
is no need to decide what standard of review should apply because
Flumo’s arguments would fail under either standard.

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33
v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993);
accord Fed. R. Evid. 702. There are no such admission
requirements for lay opinion testimony. Additionally, lay
opinion testimony does not require the same disclosures as
required for expert testimony. See, e.g., Fed. R. Evid. 705. The
rules committee was keenly aware of these distinctions, and the
heightened burden imposed on expert testimony, and the
committee amended the evidence rules in 2000 to “eliminate
the risk that the reliability [and disclosure] requirements set
forth in Rule 702 will be evaded through the simple expedient
of proffering an expert in lay witness clothing.” Fed. R. Evid.
701 advisory committee’s notes to 2000 amendment.
The line between lay opinion and expert testimony can
sometimes be far from bright. However, one illuminating
distinction is that lay opinion testimony “results from a process
of reasoning familiar in everyday life, while expert testimony
results from a process of reasoning which can be mastered only
by specialists in the field.” Id. (citation modified). Further to
this point, this Court has expressly held that “knowledge
derived from previous professional experience falls squarely
within the scope of Rule 702 and thus by definition outside of
Rule 701.” United States v. Smith, 640 F.3d 358, 365 (D.C.
Cir. 2011) (citation modified).
In light of the above guidance, it is clear that Agent Tahan’s
testimony falls within the purview of expert, rather than lay
opinion. The Government would have us decide that Agent
Tahan’s testimony, which it claims was grounded in “common,
but not universal” experiences with guns, is of the type that is
from a “process of reasoning familiar in everyday life.”
Appellee Br. at 89, 93 (citation omitted). But Agent Tahan’s
testimony was grounded in her experience not as a lay citizen,
but as both a police officer and an FBI agent, because she
compared the gun in the photograph to the “toy and training

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34
guns” used in her profession to explain her conclusion that the
photographed gun was consistent with a “real functioning
gun.” J.A. 454–55. Such testimony is clearly within the realm
of an individual who is a “specialist[] in the field,” see Fed. R.
Evid. 701 advisory committee’s notes to 2000 amendment, and
further, “derived from previous professional experience,”
Smith, 640 F.3d at 365. Accordingly, the district court erred in
admitting Agent Tahan’s testimony under Rule 701.
That said, we further hold that the district court’s error is
harmless because it is clear that it could not have “a substantial
and injurious effect on the jury’s verdict.” McGill, 815 F.3d at
880 (citations omitted). Flumo raises two arguments
contesting this: (1) “[T]here was no direct evidence of [his]
involvement in the robberies”; and (2) “Agent Tahan was the
only witness who linked [him] to a firearm at any point in
time.” Appellants’ Br. 104–05. Both arguments are
unpersuasive.
The record clearly belies Flumo’s assertions. While Flumo
is right that there was no “direct evidence” of his involvement
in the robberies, there was a plethora of circumstantial evidence
that connected him to the scene of the crimes. See United
States v. Gates, 807 F.2d 1075, 1080 (D.C. Cir. 1986) (“As a
general rule, circumstantial evidence is as pertinent as direct
evidence to the establishment of guilt or innocence in a
criminal case.” (citations omitted)). This included cell phone
location evidence that placed Flumo near the scene of the
robbery at the BP Gas station that occurred on January 2, 2018,
near the El Don Restaurant that occurred on January 12, 2018,
near the Sunoco Gas station on January 17, 2018, as well as
near four additional robbery locations. Other evidence
included Flumo’s arm tattoo that was partly visible during
multiple robberies, including the El Don robbery. And further
supporting evidence involved a recorded jail call, wherein

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35
Flumo instructed his co-defendant, Sumo, to trash an orange-
and-black jacket, which matched the clothing that Flumo
presumably wore to three robberies. Such evidence clearly
demonstrates that there was circumstantial evidence of
Flumo’s involvement in the robberies, such that Agent Tahan’s
testimony, if wrongly admitted, would not have affected his
“substantial rights.” Fed. R. Crim. P. 52(a).
Similarly, Flumo is incorrect that Agent Tahan’s testimony
was the only evidence that established that the appellants used
a real firearm during the robberies. While the weapon was
never fired, video evidence showed a gun being brandished at
all of the robberies. That same video evidence showed that the
weapon was repeatedly racked. And an unfired cartridge was
found at one of the scenes, which matched a box of ammunition
found in Onyewu’s car. In the face of such overwhelming
evidence, Agent Tahan’s testimony regarding the photograph
of the gun was a marginal piece of a much larger puzzle, and
her testimony alone could not have reasonably impacted the
jury’s verdict. Accordingly, we hold that the district court’s
error in admitting Agent’s Tahan’s testimony as lay opinion
testimony was harmless and we further reject Flumo’s
argument to vacate his conviction on these grounds.
4. Sufficiency of Evidence for Flumo’s § 924(c)
Convictions
Finally, Flumo asserts that the district court erred in
denying his motion for judgment of acquittal as to his 18 U.S.C.
§ 924(c) charge, arguing that “[t]he evidence presented [was]
insufficient to support a § 924(c) conviction” under an aiding-
and-abetting theory. Appellants’ Br. 107. Reviewing the
challenge to the sufficiency of the evidence de novo, and
“asking whether, viewing the evidence in the light most
favorable to the verdict, any rational trier of fact could have

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36
found the essential elements of the crime beyond a reasonable
doubt,” we affirm the decision of the district court. United
States v. Brock, 94 F.4th 39, 46 (D.C. Cir. 2024) (citation
modified).
18 U.S.C § 924(c) prohibits using or carrying a firearm
during a crime of violence. One can be guilty of violating
§ 924(c) under an aiding-and-abetting theory of liability.
Flumo was charged under § 924(c) for aiding and abetting only
the fifth and sixth robberies (out of a total of ten) at the El Don
Restaurant and Sunoco Gas Station.
The Supreme Court set forth the standard for determining
whether the Government has proven its § 924(c) case under
such a theory in Rosemond v. United States, which held that the
Government had to prove two things: that the “defendant
actively participated in the underlying . . . violent crime” and
that he did so “with advance knowledge that a confederate
would use or carry a gun during the crime’s commission.” 572
U.S. 65, 67 (2014). We conclude that the Government met its
burden and the evidence is clearly sufficient to uphold Flumo’s
charge.
Flumo claims that the Government has failed to prove that
he “actively participated in the underlying” crime because it
had not demonstrated that he “performed some act that directly
facilitated or encouraged the use or carrying of a firearm.”
Appellants’ Br. 108 (quoting United States v. Medina, 32 F.3d
40, 45 (2d Cir. 1994)). Flumo’s contention is patently wrong
under Rosemond, which held that the defendant “could assist
in § 924(c)’s violation by facilitating either the [violent crime]
or the firearm use [or both].” 572 U.S. at 74 (emphasis added).
In other words, the Government is not required to prove that
the defendant “performed some act that directly facilitated or
encouraged the use or carrying of a firearm,” see Appellants’

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37
Br. 108, so long as it instead proved that the defendant assisted
in facilitating the underlying violent crime more generally,
Rosemond, 572 U.S. at 74–75 (noting that it is
“inconsequential . . . that [the defendant’s] acts did not
advance each element of the offense; all that matters is that they
facilitated one component.”). Accordingly, here, the
Government meets its burden under the affirmative act
requirement if “any rational trier of fact could have found” that
Flumo participated in the robbery. Brock, 94 F.4th at 46.
And indeed, here, any rational trier of fact could find that
he participated, given the plethora of evidence presented to the
jury demonstrating that Flumo participated in the robbery. As
highlighted on supra Part II.E.3, cell site location data placed
Flumo near the scene of multiple robberies, Flumo’s arm tattoo
was visible in the surveillance footage from the scenes of the
crimes, and a jail call between Flumo and Sumo demonstrated
that a certain jacket that one of the robbers was wearing during
the course of multiple robberies belonged to Flumo. Further,
some of the video evidence partly showed what appeared to be
Flumo’s face. Appellee Br. 14 (citing Prime Beer & Wine Co.
Robbery [PBW002.mp4], Suppl. App. (Box, filed July 3, 2025)
(on file with D.C. Circuit)). In light of this robust record, the
Government clearly met the first prong of the Rosemond test.
Turning now to whether the Government proved that
Flumo undertook the underlying offense “with advance
knowledge that a confederate would use or carry a gun during
the crime’s commission,” Rosemond, 572 U.S. at 67, we hold
that it did. Under Supreme Court and D.C. Circuit precedent,
to fulfill this intent requirement, the Government must show
that the defendant had “advance knowledge” that a firearm
would be used in furtherance of the underlying crime of
violence, see id. at 79, and he must know to a “practical
certainty that those . . . commit[ting] the crime of violence

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38
would use a firearm in continuing that crime,” McGill, 815
F.3d at 932–33 (citation modified).
Importantly here, Flumo was charged under § 924(c) for
aiding and abetting only the fifth and sixth robberies, which
were the fourth and fifth in which Flumo directly
participated.10 All the robberies preceding the El Don and
Sunoco robberies involved the use of a gun. Those earlier
robberies also happened in close succession, taking place either
on the same day or only a few days apart.11 Additionally,
robberies one through four also had a consistent scheme, with
at least two of the men entering the store while wearing ski
masks, dark clothes, and gloves, one tasked with threatening
employees and patrons inside the store with a weapon—always
a gun—and the other tasked with gathering cash and valuables.
Finally, as outlined above, there were numerous pieces of
evidence connecting Flumo to those earlier robberies.
We have held that “evidence of the prevalence of guns in a
particular context” can be used as a factor to allow the jury to
infer that a certain defendant “knew to a practical certainty”
that a firearm would be used in the underlying violent crime.
McGill, 815 F.3d at 933 (quoting United States v. Powell, 929
F.2d 724, 729 (D.C. Cir. 1991)). Here, the record is replete
with evidence of the “prevalence of [a] gun[]” in the scheme
10 While Flumo’s cell site data placed him near the scene of the first
robbery, he did not appear in the video evidence.
11 Indeed, the entirety of the ten robberies was completed within the
month of January. The BP Gas Station was robbed on January 2,
2018, Lucky Seven on January 3, Lucky’s Beer & Wine on January
10, Delicias Market II on January 10, El Don Restaurant on January
12, Sunoco Gas Station on January 17, Las Placitas Restaurant on
January 22, Prime Beer & Wine on January 27, Sheger International
Market on January 27, and Exxon Gas Station on January 29. J.A.
45–46.

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39
that appellants created. Accordingly, a rational trier of fact
could find that because Flumo participated in some way in
robberies one through four—where appellants operated the
same scheme with only days in between each of the crimes—
in which a firearm had been utilized, then he had to have had
“advance knowledge” “to a practical certainty” that a firearm
would be used for the fifth and sixth robberies as well. See also
United States v. Harrington, 108 F.3d 1460, 1471 (D.C. Cir.
1997) (holding that the defendant knew to a practical certainty
that his partner would use a gun when the defendant previously
knew nothing of the firearm, but still acted as the getaway
driver after seeing said partner fire a gun at pursuing officers).
Accordingly, we affirm the district court’s denial of Flumo’s
motion for judgment of acquittal as to Flumo’s § 924(c) charge.
F. Ineffective Assistance of Counsel Claims
There have been a number of ineffective assistance of
counsel (“IAC”) claims lodged in this case, one claim filed
jointly by all appellants and then multiple others filed
individually by Flumo. All of them fail under D.C. Circuit and
Supreme Court precedent because the trial record is clear that
none of the appellants can demonstrate prejudice.
When a defendant alleges that their counsel has been
ineffective, they must successfully demonstrate: (1) that their
counsel made errors that are “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment” and (2) “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland
v. Washington, 466 U.S. 668, 687, 694 (1984). Given the “fact-
intensive nature of the Strickland inquiry . . . this court’s
general practice is to remand the claim for an evidentiary
hearing unless the trial record alone conclusively shows that

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40
the defendant either is or is not entitled to relief.” United States
v. Rashad, 331 F.3d 908, 909 (D.C. Cir. 2003) (citation
modified). Here, because the trial record conclusively shows
that even if counsel were deficient in the ways appellants
contend, appellants still cannot show a reasonable probability
of a different outcome, we decline to remand the claims, and
instead hold that all the IAC claims fail. We interrogate those
claims below and explain our holding as to each.
1. Joint IAC Claim
We begin with appellants’ joint IAC claim. This claim is
premised on the police’s search of Onyewu’s vehicle. The
police seized Onyewu’s vehicle on February 8, 2018, but they
did not execute the search warrant for the car until February 15.
Appellants allege that the phone records from a phone within
the vehicle demonstrate that the police accessed the car without
a warrant in between February 8 and 15 because those phone
records show outgoing activity between the aforementioned
dates. Because appellants’ counsel failed to file any motions
to suppress the evidence found in Onyewu’s car on the basis of
those phone records, appellants allege that their attorneys were
ineffective. Additionally, appellants’ assert that counsels’
failure to call any witnesses to interpret the phone records was
likewise ineffective.
We find this joint IAC claim unavailing. Even assuming
that appellants are correct—that the phone records did
demonstrate that police accessed the car prior to the issuance
of the search warrant and that their counsels were deficient in
not moving to suppress the evidence found in the car based on
those grounds or in admitting witnesses who could testify to
those records—appellants’ joint IAC claim still fails because
there is no “colorable” argument for suppression, which means
that there is no “colorable” argument for prejudice. See United

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41
States v. Sitzmann, 893 F.3d 811, 831–32 (D.C. Cir. 2018); see
also Strickland, 466 U.S. at 697 (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.”).
Even if the police unlawfully searched the car, the
independent source doctrine—which allows for the admission
of unlawfully obtained evidence “if officers independently
acquired it from a separate, independent source”—would still
have rendered the subsequent search of the car lawful. Utah v.
Strieff, 579 U.S. 232, 238 (2016). For the doctrine to apply, the
police’s decision to seek the warrant for the car must not have
been prompted by what they had seen through the unlawful
search of the phone and no information related to the allegedly
illegal search of the phones can have been presented to the
magistrate judge issuing the warrant. Murray v. United States,
487 U.S. 533, 542 (1988). Additionally, a finding that the
police would have sought a warrant regardless of the illegal
search bolsters the application of the independent source
doctrine. Id. at 543.
All of these factors are met here. The police obtained a
search warrant for Onyewu’s car that did not say anything
about any phone (other than a quick reference to “cellular
phones” as one of the items to be seized). See J.A. 68. Because
no information related to the phones was in the warrant, it is
reasonable to assume—and appellants have put forward no
argument suggesting otherwise—that the magistrate judge was
not made aware of any information the police gleaned from the
alleged illegal search of the phone (assuming it happened).
Additionally, the record also supports a finding that the police
would have sought a search warrant even without having
performed the alleged unlawful search, as the police had
already seized the car prior to the outgoing activity in the phone
records. Because the independent source doctrine would have

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42
rendered the alleged illegal search of Onyewu’s car lawful,
there can be no colorable argument of prejudice connected to
counsels’ failure to file motions to suppress premised on these
grounds. Appellants’ joint IAC claim is thus denied.
2. Flumo’s Individual IAC Claims
Flumo also raises a number of IAC claims against his
attorney, alleging that his counsel was deficient because: (1)
they failed to investigate the case; (2) they provided Flumo
insufficient access to his discovery; and (3) they failed to
challenge certain government testimony. We likewise do not
find any of those claims to be colorable, again because the trial
record “conclusively shows that the defendant” is not entitled
to relief. Rashad, 331 F.3d at 910 (citation modified).
First, Flumo contends that his counsel was ineffective for
failing to properly investigate his case. Flumo raises three
points to demonstrate his counsel’s deficiencies as to this
specific IAC claim: (1) that Flumo had to file his own pro se
motion to suppress evidence recovered from the Samsung
Galaxy phone and a Rule 33 motion for a new trial based on
newly discovered evidence; (2) that his counsel failed to
investigate AT&T evidence that would have demonstrated that
Flumo “never had an AT&T account in his name”; and (3) that
his counsel failed to “introduce into evidence call detail record
from the Samsung phone,” the number of which was tied to
“5566.” Appellants’ Br. 13, 111–13. Even assuming that
Flumo’s counsel was deficient for failing to do these things,
there is again no “colorable” argument for prejudice.
On Flumo’s contention that he had to file his own pro se
motions, there is no “colorable” argument for prejudice
because those motions were filed and considered by the district
court. Flumo has not put forward any arguments—and the trial

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43
record does not show—how the outcome of Flumo’s case
would have been different if counsel had made these motions
rather than Flumo.
On Flumo’s contention that his counsel failed to
investigate AT&T evidence, there is no “colorable” argument
for prejudice because AT&T had submitted a certified business
record that tied a phone number ending in “8846” to Flumo.
Although Flumo alleges that he had disclosed to the district
court in an ex parte proceeding that his girlfriend had obtained
exculpatory records showing that the number was never linked
to Flumo, he never sought to present that information to the
court or to his attorney. Flumo’s argument of prejudice is thus
conclusory, “fault[ing] his . . . attorney[] for not finding” the
AT&T records, without providing any reason for believing that
the records exist. United States v. Tucker, 12 F.4th 804, 817
(D.C. Cir. 2021). This claim can thus present no colorable
argument for prejudice either.
Finally, on Flumo’s contention that his counsel failed to
investigate the “5566” number and call records associated with
that number, Flumo again presents no colorable argument for
prejudice. As noted above, AT&T had submitted a certified
business record linking the “8846” number to Flumo. The cell
site location data that placed Flumo near the location of several
of the robberies was conducted using this number. However,
the Samsung Galaxy phone discovered during the search of
Onyewu’s car was associated with a number ending in “5566.”
Flumo’s theory of prejudice is that if his counsel had
investigated the “5566” number, counsel would have found
that the device associated with that phone was never in the
vicinity of any of the robberies. But even if we take all
inferences in favor of Flumo and accept that the records
associated with the “5566” number would have shown that this
phone was nowhere near the robberies during the time that they

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44
occurred, there was still a certified business record from AT&T
tying the “8846” number to Flumo, and that phone was linked
to the robbery locations. In other words, even if Flumo’s
attorney had presented evidence that the “5566” phone was
never in the vicinity of the robberies, there is no reasonable
probability that such evidence would have changed the
outcome, given the evidence that the “8846” phone was near
the robbery locations and was associated with Flumo.
Accordingly, we deny Flumo’s IAC claim that his counsel was
ineffective for failing to investigate the case.
Second, Flumo asserts that his counsel was ineffective
because they did not provide Flumo with sufficient access to
the discovery. It is clear, however, that Flumo’s real contention
is that he was not provided timely access to certain documents,
including the warrant associated with the “8846” number and
the AT&T call detail records for the same. Indeed, Flumo
admits in his briefing that he viewed these records after trial
began. Flumo alleges that the delay in receiving his discovery
prejudiced him because it deprived him “of the opportunity to
litigate issues, including moving for suppression.” Appellants’
Br. 116. But nowhere does Flumo allege that his counsel did
not review the discovery that Flumo presumably saw very late
into his trial or that his counsel was deficient for not utilizing
that discovery in a motion to suppress. In fact, the trial record
is clear that counsel saw both the warrant and the call detail
records. Flumo has made no colorable argument as to what
theory of suppression he would have asked his lawyer to pursue
or why any such motion to suppress would likely have been
successful. Consequently, we deny Flumo’s second IAC
claim.
Flumo’s final assertion is that his counsel was ineffective
for “failing to challenge and subsequently eliciting improper
lay opinion testimony” from an officer named Detective Dyer.

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45
Appellants’ Br. 116. Detective Dyer had testified that the word
“twelve,” as used in a jail call between Flumo and Sumo, was
slang for “police.” J.A. 392. Flumo claims that his counsel
should have objected to such testimony as improper lay
testimony. Even assuming that his counsel was deficient for
not objecting, Flumo has, yet again, failed to raise a colorable
prejudice argument. Flumo states that “Detective Dyer’s
interpretation of the jail call” was prejudicial because it was
referenced multiple times in the Government’s closing.
Appellants’ Br. 117. But while the Government referenced the
jail call between Flumo and Sumo on multiple occasions, none
of those references relied upon Detective Dyer’s interpretation
of the word “twelve” as slang for “police.” Indeed, this
particular testimony had “minimal impact,” see United States
v. Glover, 872 F.3d 625, 635 (D.C. Cir. 2017), because what
was important about the jail call was not whether Flumo was
referring to police in his conversation with Sumo but instead
that Flumo told Sumo to destroy a certain jacket. There is thus
no “colorable” argument for prejudice. Along the same lines,
Flumo also briefly raises that his counsel’s performance was
ineffective because they “elicited additional improper [lay]
testimony on cross-examination,” and that such performance
was deficient and prejudicial. Appellants’ Br. 17. Such
conclusory assertions present no “colorable” arguments,
especially as Flumo has identified no “specific statements” for
this Court to analyze. Sitzmann, 893 F.3d at 832.
In sum, we decline to remand any of Flumo’s ineffective
assistance of counsel claims as none present a colorable
argument of prejudice.12
12 Flumo additionally raises a flurry of IAC claims near the end of
appellants’ brief, cursorily claiming that his counsel was deficient for
failing to call Detective Lin as a witness in the motion to suppress
hearing, not objecting to hearsay testimony during the suppression
hearing, and not obtaining or introducing call records from the jail

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46
III. Conclusion
For the foregoing reasons, the rulings of the District Court
are affirmed.
So ordered.
that would have allegedly “contradicted the government’s
interpretation” of a jail call introduced at trial. Appellants’ Br. 117–
18. As to prejudice, Flumo tersely states that the Government cannot
meet its burden to “‘conclusively demonstrate’ that [Flumo] cannot
show prejudice at an evidentiary hearing.” Id. at 118 (quoting
Rashad, 331 F.3d at 909, 912). Flumo has merely mentioned these
arguments “in the most skeletal way,” leaving the court to “put flesh
on its bones”; accordingly, Flumo has forfeited these arguments. Al-
Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019); see also Tucker,
12 F.4th at 816 (holding that when claims are presented in a “vague
or conclusory manner,” we deny those claims without remand).

-- 46 of 52 --

WILKINS , J., concurring:
Judge Walker’s concurring opinion questions the wisdom
of our holding in United States v. Burwell, 122 F.4th 984, 986
(D.C. Cir. 2024) that, at common law, robbery could
sometimes be accomplished by taking property without a threat
of physical force, specifically by using a threat to accuse the
victim of sodomy. See Walker Op. at 1–3. I write separately
to respond to Judge Walker’s doubts.
First, Judge Walker observes that our holding in Burwell
is in tension with dictum in Delligatti v. United States, 604 U.S.
423, 430–33 (2025) that, in turn, quoted from Stokeling v.
United States, 586 U.S. 73, 78–86 (2019). But Stokeling is
inapposite, and therefore so too is Delligatti. In Stokeling, the
Court addressed a Florida robbery conviction pursuant to a
state statute that had been construed by Florida’s highest court
to “require[] ‘resistance by the victim that is overcome by the
physical force of the offender.’” See Stokeling, 586 U.S. at 86
(quoting Robinson v. State, 692 So. 2d 883, 886 (Fla. 1997));
see also id. at 76. Thus, the Court had no occasion to ascertain
whether common law robbery required physical force—the
case turned on the meaning of the Florida robbery statute.
Moreover, the question before the Court in Stokeling was
whether the particular quantum of physical force mandated by
the Florida robbery statute met the standard of 18 U.S.C.
§ 924(e)(2). See id. at 75 (“This case requires us to decide
whether a robbery offense that has as an element the use of
force sufficient to overcome a victim’s resistance necessitates
the use of ‘physical force’ within the meaning of the Armed
Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B)(i).”). Stokeling had nothing to say about the
question of whether all common law robberies require the use
of such force. Finally, Stokeling was also a case construing
Section 924(e), rather than Section 924(c), the applicable
provision here. Perhaps for these reasons, none of the parties
even cited Stokeling to us in any of the briefing in Burwell.

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2
Judge Walker also suggests that perhaps common law
robbery did require the use of physical force because Rex v.
Donnally, an old English case dating to 1779, could be
construed as supporting the proposition that an accusation of
sodomy “carried an implied threat of personal violence —
potentially including violence from those who encountered the
publicly accused person.” Walker Op. at 2 (citing Rex v.
Donnally, 1 Leach 193, 194, 197–99, 168 Eng. Rep. 199, 200–
02 (1779)). Lest there be any doubt, the same judges who
decided Donnally clarified their holding later in a case called
Hickman:
[T]he true definition of Robbery is the stealing,
or taking from the person, or in the presence of
another, property of any amount, with such a
degree of force or terror, as to induce the party
unwillingly to part with his property;
and whether the terror arises from real or
expected violence to the person, or from a sense
of injury to the character, the law makes no kind
of difference; for to most men the idea of losing
their fame and reputation is equally, if not more
terrific than the dread of personal injury. The
principal ingredient in robbery is a man’s being
forced to part with his property; and the Judges
are unanimously of [the] opinion, [t]hat upon
the principles of law, and the authority of
former decisions, a threat to accuse a man of
having committed the greatest of all crimes, is,
as in the present case, a sufficient force to
constitute the crime of robbery by putting in
fear.

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3
Rex v. Hickman, 1 Leach 278, 280, 2 East P. C. 728 (1784)
(emphasis added). See also, e.g., Simmons v. State, 25 So. 881,
882 (Fla. 1899) (“The rule is well settled that property obtained
by trick or artifice, or by threats of illegal arrest or criminal
prosecution, or insinuations against character, except they
relate to sodomitical practices, is not taken by ‘putting in fear,’
within the common-law definition of robbery[.]”); Long v.
State, 12 Ga. 293, 318–19 (1852) (“[T]hreats of a prosecution
amount to that violence by construction, which constitutes the
offence of robbery, only in one instance, and that is when the
threat is to prosecute for an unnatural crime; and it will
be robbery, whether the party is guilty or not. So abominable
is the crime, and so destructive is even the accusation of it, of
all social right and privilege, that the law considers that the
accusation is a coercion which men cannot resist.”) (emphasis
in original); Britt v. State, 7 Humph. 45, 46–47 (Tenn. 1846)
(describing why sodomy is the exception to the rule that taking
by use of accusation of a crime does not constitute robbery:
“The reasoning on which the single admitted exception is made
to rest turns upon the over-whelming and withering character
of the charge and its damning infamy, so well calculated to
unman and subdue the will and alarm the fears of the falsely
accused.”); Houston v. Commonwealth, 12 S.E. 385, 387 (Va.
1890) (“The demonstrations or fear must be of a physical
nature, with the single exception that, if one parts with his
goods through fear of a threatened charge of sodomy, the
taking is robbery.”). We cited seven different treatises for the
same proposition in Burwell, see 122 F.4th at 992–93, and I
refer any other doubters to that opinion rather than belaboring
the point further here.

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WALKER, J., concurring:
Today, we join our sister circuits in holding that Hobbs Act
robbery is a crime of violence. That holding does not rely on
an analogy to common-law robbery. I mention this because, in
an opinion holding that federal bank robbery is not a crime of
violence, United States v. Burwell said that common-law
robbery did not require force or violence. See 122 F.4th 984,
992–93 (D.C. Cir. 2024).
I have great respect for Burwell’s author. And so long as
Burwell is a binding precedent, I will of course follow its
holding when it controls. But for two reasons, when Burwell’s
holding does not directly control the answer to an open legal
question that depends on the historical understanding of
common-law robbery, I will be reluctant to expand it.
First, Burwell said that “the government’s premise that
common law robbery ‘embraced only threats of immediate
bodily harm to the victim’ is flat wrong.” Id. at 992 (quoting
Government Br. at 15). But Burwell’s statement may be in
some tension with statements by the Supreme Court. See, e.g.,
Delligatti v. United States, 604 U.S. 423, 431–32 (2025)
(“[V]iolent force encompasses ‘the “force” required for
common-law robbery,’ which is ‘the quintessential [Armed
Career Criminal Act]-predicate crime.’ Common-law robbery
requires only the force needed to overcome the victim’s
slightest physical resistance, even if it results in ‘minimal pain
or injury.’” (quoting Stokeling v. United States, 586 U.S. 73,
78, 80, 83–84 (2019))).
Second, Burwell said that extorting money through
“accusations of sodomy or an infamous crime” was considered
robbery at common law even though it included no threat of
violence:

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2
As Blackstone explained, robbery is the “felonious and
forcible taking from the person of another of goods or
money to any value, by violence or putting him in fear.”
4 William Blackstone, Commentaries *241 (emphasis
added).
And multiple treatises, including Blackstone’s, make clear
that the fear element of common law robbery could be
induced by threats of something other than violence. As
Blackstone explained, “extorting money or [any] other
thing of value by means of a charge of sodomy may
be robbery.” Id. at *244 n.14; see also [other treatises].
Burwell, 122 F.4th at 992–93.1 However, that analysis may be
in some tension with authorities suggesting that the threat of
that particular allegation carried an implied threat of personal
violence — potentially including violence from those who
encountered the publicly accused person. See, e.g., Rex v.
Donnally, 1 Leach 193, 194, 197–99, 168 Eng. Rep. 199, 200–
02 (1779) (rejecting the argument that the conduct was merely
1 This quote regarding “a charge of sodomy” appears in an annotation
of Blackstone’s Commentaries by Thomas Cooley, who called the
charge a sole exception to the rule that common-law robbery requires
at least a threat of violence: “That extorting money or other thing of
value, by means of a charge of sodomy, may be robbery, see People
v. McDaniels, 1 Park. Cr. R., 198. But this is an exceptional case,
and it is held not robbery to extort money by means of the charge of
any other offense, as for instance, forgery. Long v. State, 12 Geo.,
293; Britt v. State, 7 Humph., 45. Obtaining money from a woman
under a threat to accuse her husband of an indecent assault, was held
not to be robbery, in Rex v. Edwards, 5 C. & P., 518; 1 Moo. & R.,
257.” 4 William Blackstone, Commentaries *244 (Thomas M.
Cooley ed., 3d rev. ed. 1884) (emphases added); cf. 4 William
Blackstone, Commentaries *244 (Edward Christian ed., 1818) (does
not include the quote).

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“a fraudulent extorting, and not a taking by violence”; noting
that the jury found that the victim surrendered his money
“under an apprehension that his life was in danger”; and
reasoning that the threat to take him before a magistrate
presented “a threat of personal violence,” because he had
“every thing to fear in being dragged through the streets as a
culprit charged with an unnatural crime”); cf. Chen Yehudai,
Informational Blackmail: Survived by Technicality?, 92 Marq.
L. Rev. 779, 805 n.158 (2009) (“In Donnally, the victim
testified that he thought that not complying with the
defendant’s demands would cost him his life.”).

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