United States v. Lake

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

7-21-1998

United States v. Lake

Precedential or Non-Precedential:

Docket 97-7462

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Filed July 21, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-7462

UNITED STATES OF AMERICA

v.

HILTON A. LAKE

Hilton A. Lake,

Appellant

ON APPEAL FROM THE DISTRICT COURT

OF THE VIRGIN ISLANDS

(D.C. Criminal No. 96-cr-00161)

Argued March 30, 1998

Before: BECKER, Chief Judge, COWEN, and ALITO,

Circuit Judges

(Opinion Filed: July 21, 1998)

Thurston T. McKelvin

Federal Public Defender

Patricia Schrader-Cooke (Argued)

Asst. Federal Public Defender

P.O. Box 3450

Christiansted, VI 00822

Attorney for Appellant Hilton Lake

James A. Hurd, Jr.

United States Attorney

Kim L. Chisholm (Argued)

Assistant U.S. Attorney

5500 Veterans Drive, Suite 260

Charlotte Amalie

U.S. Virgin Islands 00802-6424

Attorneys for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge

This is an appeal from a judgment in a criminal case.

After a jury trial, the defendant, Hilton A. Lake, was

convicted under 18 U.S.C. S 924(c)(1) of using or carrying a

firearm during and in relation to a crime of violence,

namely, a carjacking (see 18 U.S.C. S 2119). Lake

challenges his conviction on numerous grounds, the most

substantial of which is that he did not violate the

carjacking statute because, he argues, he did not take the

motor vehicle in question "from the person or presence" of

the victim. We reject this and Lake's other arguments, and

we therefore affirm.

I.

The events that led to Lake's prosecution occurred at

Little Magen's Bay in St. Thomas, United States Virgin

Islands. The road to the beach at Little Magen's Bay ends

at the top of a hill. There is a steep path bordered by

vegetation and rocks that leads from the road down to the

beach, and the road cannot be seen from the beach.

On the day in question, Lake hitchhiked to Little Magen's

Bay and encountered Milton Clarke, who was sitting on the

beach reading a newspaper. Lake asked whether Clarke

owned a white car parked up on the road. Clarke said that

he did, and Lake initially walked away. However, Lake

returned a few moments later and asked to borrow the car.

When Clarke refused, Lake stated that it was an

2

emergency. Clarke again refused, and Lake walked off.

When Lake returned yet again, Clarke said:

[L]isten, think about it. If I walked up to you and asked

you, can I borrow your car[,] [a]re you going to lend it

to me? Of course not. So why don't you leave me the

hell alone. I'm here to have a nice time. Just chill. Go

someplace else.

App. 140A.

Lake walked off and sat on a rock, while Clarke anxiously

watched him out of the corner of his eye, but Lake soon

returned with the same request. When Clarke swore again,

Lake asked if he could have a drink from Clarke's cooler.

Clarke said: "[D]on't you get it? Leave me alone." App.

141A. Lake then lifted up his shirt, showed Clarke the

handle of a gun, and said: "[Y]ou know what that is?" App.

141A. Clarke stood up and started backing away, but Lake

pulled the gun from his waist band, put it against Clarke's

face, and demanded the car keys. App. 142A. Clarke said

that he did not have the keys and started walking toward

the water with Lake following. Clarke waded into waist-deep

water, and Lake walked out onto a promontory overlooking

the water. App. 143A-48A.

While Clarke was in the water, his friend, Pamela

Croaker, appeared on the beach. Clarke shouted a warning,

prompting Lake to approach Croaker. Lake demanded that

Croaker surrender her car keys, and Croaker said:"I don't

even know you. Why would I give you the keys to the car?"

App. 183A. Lake then grabbed the keys, and the two

wrestled for possession of the keys. When Croaker saw the

gun, she surrendered the keys but asked to keep her house

keys. App. 184A-86A. Lake went up the steep path to the

parking area where Croaker had parked her car out of sight

of the beach. Lake then drove away in Croaker's car after

leaving her house keys on the hood of Clarke's car. App.

192A. As we will discuss later in more detail, both Croaker

and Clarke followed him up the path, but when they

arrived, he was driving away.

Later that day, the police apprehended Lake in the stolen

car at a McDonald's restaurant. When questioned by the

police and an FBI agent, Lake stated that he had used a toy

3

gun and that he had thrown it in a swamp. He refused to

take the officers to the site where he had allegedly disposed

of the gun, and when asked to tell the truth about whether

the gun was really a toy, he responded that he "would think

about it." The gun was never recovered.

Lake was indicted for carjacking, in violation of 18 U.S.C.

S 2119, and for using and carrying a firearm during and in

relation to a crime of violence (the carjacking), in violation

of 18 U.S.C. S 924(c)(1). At the close of the evidence in his

jury trial, Lake moved unsuccessfully for a judgment of

acquittal. The jury subsequently returned a verdict of not

guilty of the carjacking charge but guilty of thefirearms

offense. Lake was sentenced to imprisonment for 60

months plus a three-year term of supervised release. He

then took this appeal.

II.

We will begin with Lake's argument that the evidence was

insufficient to support his conviction under 18 U.S.C.

S 924(c)(1) because the evidence did not show that he used

or carried a "firearm" within the meaning of 18 U.S.C.

S 921(a)(3). Lake contends that the evidence failed to

establish that the gun was not a toy. Appellant's Br. at 18.

Lake notes that he initially told Officer Griffin that the gun

was a toy, that Croaker and Clarke both said that the gun

looked like the type of gun used by cowboys in Westerns,

and that Clarke said that he was not able to tell whether

the gun was real. Id.

We recently addressed a similar argument in United

States v. Beverly, 99 F.3d 570 (3d Cir. 1996), and under

Beverly the evidence here was sufficient. Both Clarke and

Croaker stated that Lake had a gun and described it in

some detail. See App. 141A-42A, 184A. Lake does not

contend that their descriptions were inconsistent with that

of a real gun. Both Clarke and Croaker testified that they

experienced great fear, App. 151A, 184A, 186A, and

Croaker manifested sufficient fear of the gun to surrender

her keys. Moreover, although Lake originally told the

authorities that the gun was a toy and that he had thrown

it in a swamp, he refused to reveal its location, and when

4

later asked whether he would tell the truth about whether

the gun was real, Lake responded that he would "think

about it." App. 171A-72A. In light of all of this evidence, a

rational jury could find that the gun was real.

III.

Lake next argues that the evidence was insufficient to

show that he violated the carjacking statute, 18 U.S.C.

S 2119, and thus that he committed the predicate offense

needed to support his 18 U.S.C. S 924(c)(1) conviction.

Under the carjacking statute, 18 U.S.C. S 2119, the

prosecution must prove that the defendant (1) "with intent

to cause death or serious bodily harm" (2) took a motor

vehicle (3) that had been "transported, shipped, or received

in interstate or foreign commerce" (4) "from the person or

presence of another" (5) "by force and violence or by

intimidation." Lake contends that the evidence in this case

was insufficient to prove elements one, three, and four. In

reviewing the sufficiency of the evidence, we must decide

whether the jury could have rationally found that each of

the challenged elements had been established beyond a

reasonable doubt. United States v. Carr, 25 F.3d 1194,

1201 (3d Cir. 1994).

A. Intent to cause death or serious bodily injury. We see

no merit in Lake's contention that the evidence was

insufficient to show that he intended to cause death or

serious bodily injury. As previously discussed, the evidence

was sufficient to show that Lake's gun was real. In

addition, the car jacking victim, Pamela Croaker, testified

that Lake waved the gun in front of her and ordered her to

give him the keys to her car. App. 184A. When she

hesitated, she testified, Lake placed the gun close to her

head and again told her to surrender the keys. App. 185A.

Based on this testimony, a rational jury could find that

Lake had the intent to kill or cause serious bodily injury to

Croaker if she did not comply with his demands, and we

have previously held that such a conditional intent is

sufficient to satisfy the carjacking statute. United States v.

Anderson, 108 F.3d 478, 481-85 (3d Cir.), cert. denied, 118

S. Ct. 123 (1997).

5

In arguing that the proof of intent was insufficient, Lake

notes, among other things, that he "asked for Clarke's keys

several times before he displayed the gun and placed it

against Clarke's face" and that he initially asked for

Croaker's keys and wrestled with her before pulling the gun

on her. Appellant's Br. at 16. We agree that these facts

suggest that Lake was at least reluctant to fire his gun, but

we do not agree that a rational jury was compelled to infer

that Lake would not have fired the gun in the end if

Croaker had not given up the keys. On the contrary, we

hold that the evidence amply supported the jury's finding

that Lake possessed the requisite conditional intent to

cause death or serious bodily injury.

B. From the person or presence of another. Lake

maintains that the evidence did not show that he took

Croaker's car "from [her] person or presence," as 18 U.S.C.

S 2119 demands. Lake argues that he took her keys, not

her car, from her person or presence and that the car was

not in Croaker's presence when he took it because she

could not see or touch the car at that moment.

The carjacking statute's requirement that the vehicle be

taken "from the person or presence of the victim" "tracks

the language used in other federal robbery statutes," H.R.

Rep. No. 102-851 (I), at 5 (1992), reprinted in 1992

U.S.C.C.A.N. 2829, 2834, such as 18 U.S.C. SS 2111, 2113,

and 2118. See United States v. Perez-Garcia, 56 F.3d 1, 3

(3d Cir. 1995). Under these statutes, "property is in the

presence of a person if it is `so within his reach, observation

or control, that he could if not overcome by violence or

prevented by fear, retain his possession of it.' " United

States v. Burns, 701 F.2d 840, 843 (9th Cir. 1983). See also

United States v. W.T.T., 800 F.2d 780, 782 (8th Cir. 1986);

LaFave and Scott, Substantive Criminal Law S 8.11 at 443

(1986) (" `Presence' in this connection is not so much a

matter of eyesight as it is one of proximity and control: the

property taken in the robbery must be close enough to the

victim and sufficiently under his control that, had the latter

not been subjected to violence or intimidation by the

robber, he could have prevented the taking").

Here, as previously described, Lake took Croaker's car

keys at gunpoint on the beach and then ran up the path

6

and drove away in her car. Croaker pursued Lake but did

not reach the parking area in time to stop him. Applying

the definition of "presence" noted above, we conclude that

a rational jury could have found that Croaker could have

prevented the taking of her car if she had not been fearful

that Lake would shoot or otherwise harm her. Croaker

testified that the sight of Lake's gun caused her great fear.

She stated that when she first saw the gun she"felt like

[she] was going to let go of [her] bowels [and] faint." App.

184A. Although Croaker did not say in so many words that

she hesitated for some time before pursuing Lake up the

path, the sequence of events laid out in her testimony

supports the inference that this is what occurred. Croaker

stated that at the point when she surrendered the keys,

Clarke "was struggling back through the water to come

back," App. 185A, but that she did not start to run up the

path until Clarke emerged from the water. App. 186A.

Clarke testified that, when Lake ran up the path, Croaker

was "pulling herself together kind of." App. 150A. Clarke

related that he "caught up to [Croaker] at the bottom of the

paved driveway" and that the two of them proceeded up the

path together. App. 150A. They reached the parking area in

time for Croaker to see Lake driving away in her car but not

in time to stop him. App. 186A. Both Croaker and Clarke

stated that at this point they were very scared. App. 151A,

186A. Based on this testimony, a rational jury could infer

that Croaker hesitated before pursuing Lake due to fear

and that if she had not hesitated she could have reached

the parking area in time to prevent Lake from taking her

car without employing further force, violence, or

intimidation. We do not suggest this inference was

compelled, but because such an inference was rational, we

hold that the evidence was sufficient.

C. Interstate or foreign commerce. Lake al so contends

that the evidence was not sufficient to show that Croaker's

car had been transported in interstate or foreign commerce.

The prosecution sought to establish this element based on

testimony by police officer Curtis Griffin, a life-long resident

of the Virgin Islands, that no motor vehicles are

manufactured in the Virgin Islands and that all motor

vehicles have to be shipped to the islands. App. 194A-195A.

Lake argues, however, that "Griffin was not qualified to

7

testify regarding this element simply because he was a life

long resident of the Virgin Islands" and that "[n]o

foundation was laid for this testimony." Appellant's Br. at

19. We reject this argument. Under Fed. R. Evid. 602,

Officer Griffin's testimony was proper if there was sufficient

evidence "to support a finding that [he had] personal

knowledge of the matter." This foundation may be

"furnished by the testimony of the witness himself." Fed R.

Evid. 602 Advisory Committee Note on the 1972 Proposed

Rules. "The district court exercises its discretion in

determining whether the proponent of the evidence has met

[this] burden." 3 Weinstein's Federal Evidence S 602.03

[1][b] at 602-11 (2d Ed. 1998).

There was no abuse of discretion here. We take judicial

notice of the fact that the United States Virgin Islands

consist of three main islands, which are closely grouped

and have an area of only 136 square miles. Times Atlas of

the World 33 (1995). A police officer and lifelong resident of

a place of this type has a sufficient basis to testify as to

whether any motor vehicle manufacturing facilities are

located there. We therefore conclude that the prosecution

adequately proved, as 18 U.S.C. S 2119 requires, that the

motor vehicle in question had been transported in

interstate or foreign commerce.1

In sum, we hold that the evidence was sufficient to

establish all of the elements of the car jacking statute.

IV.

We reject Lake's contention that the district court

committed reversible error in instructing the jury with

respect to the 18 U.S.C. S 924(c)(1) charge because the

_________________________________________________________________

1. Lake has not raised the question whether Congress possessed the

authority under the Commerce Clause to enact the federal carjacking

statute. See United States v. Oliver, 60 F.3d 547, 549-50 (9th Cir.

1995)(statute constitutional), cert. granted sub nom. Jones v. United

States, 118 S. Ct. 1359 (1998), order granting cert. amended, 118 S. Ct.

1405 (1998)(limiting questions presented); United States v. Bishop, 66

F.3d 569 (3d Cir. 1995)(statute constitutional), cert. denied, 116 S. Ct.

681, 750 (1996); id. at 590-91 (statute unconstitutional)(Becker, J.,

dissenting).

8

court did not at that point reiterate all of the elements of

the predicate carjacking offense. The district court set out

all of the elements of the car jacking offense when it

instructed the jury on the carjacking count (count I) of the

indictment. When the court later turned to the firearms

charge, the court told the jury that this offense required

proof that Lake "committed the crime of carjacking as

charged in the indictment in Count I." App. 351A. This

instruction was accurate, and although the court refused to

give Lake's requested instruction reiterating all of the

elements of the carjacking offense, the court's refusal

clearly does not justify reversal. A trial judge's refusal to

give an instruction requires reversal only when the

requested instruction "was correct, not substantially

covered by the instructions given, and was so consequential

that the refusal to give the instruction was prejudicial to

the defendant." United States v. Phillips, 959 F.2d 1187,

1191 (3d Cir. 1992). Here, the requested instruction was

substantially covered elsewhere in the instructions, and we

perceive little risk of prejudice to the defendant from the

trial court's refusal to reiterate the elements of carjacking.

V.

Lake argues that the district court erred in sentencing

him under 18 U.S.C. 924(c)(1) for using or carrying a

firearm during a carjacking since he was acquitted on

count I of the indictment, which charged him with the

carjacking. In making this argument, Lake relies on

Government of the Virgin Islands v. Edwards, 750 F.2d 23

(3d Cir. 1984), which in turn relied on Government of the

Virgin Islands v. Charles, 590 F.2d 82 (3d Cir. 1979). Both

Edwards and Charles concerned a Virgin Islands statute,

14 V.I.C. S 2251(a)(2), which provides in pertinent part as

follows:

Whoever--

(1) with intent to use the same unlawfully against

another, has, possesses, bears, transports, carries or

has under his proximate control, a dagger, dirk,

dangerous knife, stiletto, or any other dangerous or

deadly weapon shall--

9

(A) be fined not more than $1,000 or imprisoned not

more than two (2) years, or both; or

(B) if he has previously been convicted of a felony, or

has, possesses, bears, transports, carries or has under

his proximate control, any such weapon during the

commission or attempted commission of a crime of

violence (as defined in section 2253(d)(1) hereof) shall

be fined not more than $2,000 or imprisoned not more

than five (5) years, or both, which penalty shall be in

addition to the penalty provided for the commission of,

or attempt to commit, the crime of violence.

In Charles, our court held that the defendant could not

be sentenced under subsection (B) of this statute because

he had not been convicted of any offense that qualified as

a "crime of violence" under the statutory definition. In

Edwards, our court again held that the defendant, who had

not been convicted of a crime of violence, could not be

sentenced under subsection (B). Although the trial judge

made "specific findings that [the defendant] possessed the

weapon during the commission of a crime of violence," our

court wrote that "those findings cannot act as a substitute

for the jury's conviction of defendant of a crime of violence."

750 F.2d at 24-25. We also "deem[ed] it significant" that the

instruction on the 14 V.I.C. S 2251(a)(2) charge merely

required the jury to find that the defendant possessed a

dangerous knife with the purpose of using it unlawfully

against the victim and did not require the jury tofind, as

14 V.I.C. S 2251(a)(2)(B) demanded, that he possessed the

weapon during the commission of a crime of violence. Id. at

25. In a footnote, the court observed that it "express[ed] no

opinion on whether or under what circumstances any

conviction of S 2251(a)(2) could be subject to enhancement

under S 2251(a)(2)(B) if there were no predicate conviction

for a crime of violence." 750 F.2d at 25 n.1.

Because Charles and Edwards involved a different

statute, we do not believe that they support Lake's

argument here. The federal statute at issue in this case, 18

U.S.C. S 924(c)(4), is not a sentencing enhancement

provision but sets out an independent criminal offense.

United States v. Nelson, 27 F.3d 199, 200 (6th Cir. 1994).

See also United States v. Jenkins, 90 F.3d 814, 821 (3d Cir.

10

1996). In a prosecution under this provision, the

government must prove that the defendant committed a

qualifying predicate offense, see Jenkins, 90 F.3d at 821,

but it is not necessary that the defendant be separately

charged with or convicted of such an offense. Nelson, 27

F.3d at 200; United States v. Wilson, 884 F.2d 174, 176

(5th Cir. 1989); United States v. Hill, 971 F.2d 1461, 1464

(10th Cir. 1992); United States v. Ospina, 18 F.3d 1332,

1336 (6th Cir. 1994); United States v. Wilkins, 911 F.2d

337, 338 n.1 (9th Cir. 1990); United States v. Robertson,

901 F.2d 733, 734 (9th Cir. 1990); United States v. Munoz-

Fabela, 896 F.2d 908, 911 (5th Cir. 1990); United States v.

Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989). Although

Charles and Edwards apparently stand for the proposition

that a defendant either always or generally must be

separately convicted of a crime of violence in order to be

sentenced under 14 V.I.C. S 2251(a)(2)(B), we see no basis

for importing that rule into a case involving an entirely

different, federal statute.

VI.

Lake's final argument is that he was entitled to a new

trial or to the suppression of the testimony regarding his

statement to the police because rough notes taken by a

detective during Lake's interview were not preserved after

the interview was reduced to writing by an FBI agent. We

have admonished government agents to preserve rough

notes of interviews with prospective trial witnesses, but we

have also held that if the destroyed notes do not contain

"Brady"2 or Jencks Act, 18 U.S.C. S 2500, material and

were discarded in good faith, retrial is unnecessary even if

the testimony of the officer who took the notes is not

stricken. United States v. Ramos, 27 F.3d 65, 72 (3d Cir.

1994). Under Ramos, we see no ground for reversal here.

VII.

For these reasons, we affirm the judgment of the district

court.

_________________________________________________________________

2. Brady v. Maryland, 373 U.S. 83 (1963).

11

BECKER, Chief Judge, dissenting.

When the defendant took the car keys from his victim,

Pamela Croaker, Ms. Croaker's car was, in city terms, a

block away, up the hill, out of sight. Under these

circumstances, I would join an opinion upholding Lake's

conviction for "keyjacking," or for both key robbery and

grand larceny. I cannot, however, agree that he is guilty of

carjacking. The majority draws upon federal robbery

statutes to explicate how the vehicle (as opposed to its keys)

may be considered to have been taken from the "person or

presence of the victim." Disciples of the jurisprudence of

pure reason may, in analytic terms, find this approach

convincing. As I will explain below, I do not. At all events,

my polestar is the plain meaning of words, and in my

lexicon, Ms. Croaker's car cannot fairly be said to have

been taken from her person or presence, hence I

respectfully dissent.

The robbery statutes upon which the carjacking statute

is based do not themselves define the phrase "from the

person or presence of the victim." Webster's New

International Dictionary defines presence as "the vicinity of,

or area immediately near one." However, rather than relying

on the plain meaning, the majority turns to a construction

of the phrase "person or presence" adopted by the Ninth

Circuit in United States v. Burns, 701 F.2d 840 (9th Cir.

1983), where, in construing a federal robbery statute, that

court reasoned that "property is in the presence of a person

if it is `so within his reach, inspection, observation or

control, that he could if not overcome by violence or

prevented by fear, retain his possession of it." Id. at 843.

Based on this definition, the majority concludes that a

rational jury "could infer that Croaker hesitated before

pursuing Lake due to fear and that if she had not hesitated

she could have reached the parking area in time to prevent

Lake from taking her car without employing further force,

violence, or intimidation." Maj. Op. at 7. This proves too

much. If it is true that had Croaker not hesitated out of

fear she could have followed Lake up the steep path leading

from the secluded beach to the road, then it is equally true

(barring physical limitations) that she could have followed

him up that path and then halfway across St. Thomas. The

12

fact that Croaker's car was nearby is thus not relevant; if

she could have followed Lake up the hill, she could have

followed him anywhere. I am aware, of course, that the

craft of judging requires line-drawing, but I simply do not

see how that endeavor can be principled when it is

predicated on open-ended definitions of key statutory

terms, especially where those terms admit of plain

meaning.

The majority's reliance on a car robbery case to show

that the evidence was sufficient to convict Lake of

carjacking is of particular interest to me since, coupled with

the typical fact pattern in federal carjacking cases, it

strengthens my view that my dissent in United States v.

Bishop, 66 F.3d. 569 (3d. Cir. 1995), was correct when it

reasoned that the federal carjacking statute should be

declared unconstitutional under the authority of United

States v. Lopez, 514 U.S. 549 (1995). The principal basis on

which the Bishop majority found the carjacking statute to

be a valid exercise of the interstate commerce power was

the belief that carjacking is an adjunct of the interstate

business of auto theft, in which the stolen vehicle is

destined for a "chop shop." The majority adverted to

references in the legislative history labeling carjacking as

part of an economic enterprise in which profit is derived

from the resale of stolen vehicles or their parts.1 In

contrast, almost every carjacking case that I have seen or

read about in the last several years -- and there have been

many -- is a violent robbery in which the perpetrator has

not even the remotest connection to a car theft ring or a

chop shop.2 The "effect on interstate commerce"

_________________________________________________________________

1. Other courts of appeals have cited as additional bases for concluding

that S 2119 is within Congress' power to regulate commerce that

automobiles are instrumentalities of interstate commerce and that the

statute has a "jurisdictional hook" (i.e., that it only applies to the

forcible

taking of a car "that has been transported, shipped, or received in

interstate or foreign commerce."). See e.g., United States v. Romero, 122

F.3d. 1334 (10th Cir. 1997); United States v. McHenry, 97 F.3d. 125 (6th

Cir. 1996); United States v. Oliver, 60 F.3d. 547 (9th Cir. 1995), aff'd

on

resentencing, 116 F.3d. 1487 (9th Cir. 1997), cert. granted sub nom.,

Jones v. United States, 118 S. Ct. 1405 (1998). For the reasons set out

in my dissent in Bishop, I find these justifications unconvincing.

2. Indeed, the facts of the instant case are amongst the least egregious

that I have seen where carjacking is alleged. That is probably because,

as I have explained, this case does not involve a carjacking nor, for that

matter, a car robbery.

13

underpinning of the carjacking statute is thus a chimera,

and I hope that the Supreme Court will take up this issue

before too long.3

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

3. In my view, carjacking cases are local crimes which belong in state

courts not federal courts. See Judicial Conference of the United States,

Long Range Plan for the Federal Courts 24 (Dec. 1995) (Congress should

be encouraged to allocate criminal jurisdiction to the federal courts only

in limited situations; such a situation is not present where criminal

activity has "some minor connection with and effect on interstate

commerce". ).

14