# United States v. Teddy Arnold Charles Robinson Darrel Jones David Valentine Paul Scaglione and Jeffrey Drake, Francois Holloway A/K/A Abdu Ali

> Court of Appeals for the Second Circuit · September 16, 1997 · 126 F.3d 82

URL: https://www.frixlaw.com/law-library/cases/9490666

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Teddy ARNOLD; Charles Robinson; Darrel Jones; David Valentine; Paul Scaglione; And Jeffrey Drake, Defendants, Francois Holloway A/K/A Abdu Ali, Defendant-Appellant
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** September 16, 1997
- **Citations:** 126 F.3d 82; 1997 U.S. App. LEXIS 24441
- **Precedential status:** Published
- **Opinion:** Dissent by Miner
- **Judges:** McLAUGHLIN, Miner, Scullin
- **Cited by:** 18 later opinions in the Frix Law Library

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## Opinion text

MINER, Circuit Judge,
dissenting:
Because I perceive no basis in the plain language of the statute or in the legislative history for an element of conditional intent in the crime under examination here, I respectfully dissent.
As originally cast, the carjacking .legislation established as a federal crime the taking or attempted taking of a motor vehicle having some connection with interstate commerce from the person or presence of another by force, violence or intimidation on the part of one possessing a firearm. See 18 U.S.C. § 2119 (prior to 1994 Amendment). Enhanced penalties for the infliction of serious bodily injuries or resulting death were provided. See id. § 2119(2), (3). The statute after amendment defines the crime as the taking or attempted taking of a motor vehicle having some connection with interstate commerce from the person or presence of another by force or violence on the part of one who intends to cause death or serious bodily harm. See id. (as amended). The penalty if death results is further enhanced to include the death penalty. See id. § 2119(3). The distinctions to be made between the original and the amended statute are clear: the firearm possession requirement is deleted; a specific intent element is added; and the penalty provision is expanded.
Despite the foregoing, my colleagues approve the district court’s failure to instruct the jury as the statute requires regarding the specific intent to cause death or serious bodily harm, and further approve the following substituted instruction, which allows for conviction on proof of conditional intent:
In this case, the government contends that the defendant intended to cause death or serious bodily harm if the alleged victims had refused to turn over their cars. If you find beyond a reasonable doubt that the defendant had such an intent, the government has satisfied this element of the offense.
(Emphasis added.) What is the provenance of such an instruction? It surely is not the language of the statute itself. It is not even the indictment, for the indictment parrots the statute. The district court therefore was wrong in charging the jury that the government had advanced a conditional intent contention.
In arriving at their conclusion, my colleagues first turn to the legislative history and properly note that the amendment to the carjacking statute represented an effort to expand the number of crimes subject to the death penalty, including carjacking where death results. There is also an indication of an intent on the part of Congress to eliminate the firearm requirement. Ultimately, as all agree, the heightened intent requirement was added to the final amending legislation by the Congressional Conference Committee. There is no discernible information on why or how this element was added.
How, then, can it be said that “it is clear from a review of legislative history that Congress intended to broaden the coverage of the federal carjacking statute by the passage of the 1994 amendments, and that the application of the heightened intent requirement to all three of the carjacking [penalty] categories was, in all likelihood, an unintended drafting error[?]” Maj. Opn. at 86. No member of Congress has ever referred to “an unintended drafting error,” and the congressional intent may well have been to narrow in some respects, as well as broaden in some respects, the statute’s coverage.
*91 The scienter requirement of the amended statute has been interpreted in different ways. While one circuit court thinks that Congress intended the specific intent provision to apply only where the carjacking resulted in death, see United States v. Anderson, 108 F.3d 478, 482 (3d Cir.1997), another circuit court considers that the purpose of the amendment was to convert the entire general intent offense to a specific intent offense, see United States v. Randolph, 93 F.3d 656, 661 (9th Cir.1996). But we have no authority to correct an “unintentional drafting error” where there is no reason to say that there is an “error” or that the statutory provision inserted is “unintended.” By adding a conditional intent element to correct what the court perceives to be an error, we ignore the teaching of the Supreme Court that “[to] supply omissions transcends the judicial function.” Iselin v. United States, 270 U.S. 245, 251 , 46 S.Ct. 248, 250 , 70 L.Ed. 566 (1926), quoted in West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 101 , 111 S.Ct. 1138, 1148 , 113 L.Ed.2d 68 (1991).
We do know that since the enactment of the 1994 amendment to the carjacking statute, Congress has made at least three attempts to eliminate what was termed the “unjustified scienter element for carjacking.” Omnibus Crime Control Act of 1997, S. 3, 105th Cong. § 807; Violent Crime Control and Law Enforcement Improvement Act of 1995, S. 3, 104th Cong. § 717 (“VCCLEIA”); see Anti-Gang and Youth Violence Control Act of 1997, S. 362, 105th Cong. § 2113 (“AGYVCA”). These statutes would eliminate entirely the requirement that the government prove that the defendant possessed the intent to cause death or serious bodily harm. See, e.g., VCCLEIA § 717 (“Section 2119 of title 18, United States Code, is amended by striking ‘, with the intent to cause death or serious bodily harm’.”). It is unclear what happened to the earlier attempts to remove the intent element from § 2119, but the AGYVCA, the most recent effort, presently appears to be before the Senate Judiciary Committee.
The only discussion we have concerning the attempts to remove the intent element comes from Senator Leahy’s comments in introducing the AGYVCA. The Senator explained:
Prior to the enactment of [the Violent Crime Control and Law Enforcement Act], the offense applied only if the defendant possessed a firearm. Section 60003(a)(14) of that law appropriately deleted the firearm requirement, as had been proposed in the Senate-passed bill, but in conference a new scienter element was added that the defendant must have intended to cause death or serious bodily injury. This unique new element will inappropriately make carjackings difficult or impossible to prosecute in certain situations.... The new requirement ... will likely be a fertile [source] of argument for defendants in cases in which no immediate threat of injury occurs, such as where a defendant enters an occupied vehicle while it is stopped at a traffic light and physically removes the driver. Even when a weapon is displayed, the defendant may argue that although it was designed to instill fear, he had no intent to harm the victim had the victim in fact declined to leave the car.
143 Cong. Rec. S1659, S1661-62 (Feb. 26, 1997) (statement of Sen. Leahy).
Aside from the fact that Senator Leahy’s comments represent the views of only one member of Congress, there is nothing in those comments to indicate that the “scienter element,” as he calls it, was not intentionally placed in the statute when the 1994 Amendment was enacted. He is saying only that the element should be taken out. But, so far, his colleagues have not agreed that this should be done.
In this regard, it is of more than passing interest that carjacking is essentially a state offense, and it may well be the intent of Congress to limit the scope of the federal offense. See generally Geraldine Szott Moohr, The Federal Interest in Criminal Law, 47 Syracuse L.Rev. 1127 (1997). Several states have enacted specific carjacking statutes. See, e.g., Fla. Stat. § 812.133 (1994); Md.Code Ann., Crimes and Punishments § 348A (1996); Miss.Code Ann. § 97-3-117 (1994); Va.Code Ann. § 18.2-58.1 (Michie 1996). The common elements of each of these statutes are the taking of a motor *92 vehicle by threat of force or violence. See, e.g., S.C.Code Ann. § 16-3-1075(B) (Law Coop. Supp.1996) (“A person is guilty of the felony of carjacking who takes, or attempts to take, a motor vehicle from another person by force and violence or by intimidation while the person is operating the vehicle or while the person is in the vehicle.”). Some states also have enacted specific armed carjacking statutes to address carjackings in which a dangerous weapon is used. See, e.g., D.C.Code Ann. § 22-2903(b)(l) (1996).
Those states that do not have a specific carjacking statute, such as New York, prosecute carjackings under the state’s robbery statute. See, e.g., Kansas v. Vincent, 258 Kan. 694 , 908 P.2d 619, 621 (1995) (defendant charged with felony murder, conspiracy to commit robbery and aggravated robbery in relation to a carjacking resulting in death); People v. Lee, 234 A.D.2d 140 , 652 N.Y.S.2d 2 , 3 (1st Dept.1996) (defendant charged with first degree robbery in the gunpoint theft of a car). As with the specific carjacking statutes, these robbery statutes apply to thefts involving the use of threat or force. See, e.g., N.Y. Penal Law § 160.10 (3) (McKinney 1997) (“A person is guilty of robbery in the second degree when he forcibly steals property and when ... [t]he property consists of a motor vehicle.... ”). Thus, eyen where there is no specific carjacking statute, carjackings can be prosecuted adequately under state law.
Ultimately, my colleagues seem to reject the legislative intent approach, saying that “[njotwithstanding that such a result was unintended, the Court declines any invitation to redraft the statute — that is a task better left to the legislature.” Maj. Opn. at 86. (But that in fact is what they have done here.) The majority opinion goes on to find a conditional intent implicit in the carjacking statute as amended, but there is absolutely no basis for such a construction. The intent required is spelled out explicitly in the statute. The other reason assigned for reading conditional intent into the statute — that “the inclusion of a conditional intent to harm within the definition of specific intent to harm is a wellestablished principle of criminal common law,” Maj. Opn. at 88 — is irrelevant here. There is no federal common law of crimes, see United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 , 3 L.Ed. 259 (1812), state criminal law supplies no authority for interpreting a federal criminal statute, and the Model Penal Code, cited in the majority opinion, never has been adopted by Congress. In point of fact, I can find no federal criminal statute that provides conditional intent as an element of the crime defined. Nor is there a general provision in the Federal Criminal Code, ás there is in some state criminal codes, that the requirement of intent is satisfied by proof of conditional intent. See, e.g., Haw.Rev.Stat. § 702-209 (1993) (“When a particular intent is necessary to establish an element of an offense, it is immaterial that such intent was conditional unless the condition negatives the harm or evil sought to be prevented by the law prohibiting the offense.”)
To avoid a clear judicial usurpation of congressional authority, I would reverse and remand for a retrial upon instructions conforming with the foregoing analysis.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9490666. Public record. Not legal advice.