Opposition Brief — Holloway v. United States

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ORIGINAL FILED

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No. 97-7164 ,

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

FRANCOIS HOLLOWAY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

lic

JOHN C. KEENEY

Acting Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washi -0

(202) 514-2217

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QUESTION PRESENTED

Whether a jury may find that a defendant acted "with the

intent to cause death or serious bodily harm" for purposes of the

federal carjacking statute, 18 U.S.C. 2119, if it finds that the

defendant intended to cause death or serious harm if the victim

refused to comply with his demands.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

No. 97-7164

FRANCOIS HOLLOWAY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-23a) is

reported at 126 F.3d 62. The opinion of the district court (Pet.

App. 25a-32a) is reported at 921 F. Supp. 155.

JURISDICTION

The judgment of the court of appeals was entered on September

16, 1997. The petition for a writ of certiorari was filed on

December 12, 1997. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for

the Eastern District of New York, petitioner was convicted of

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conspiracy to operate a "chop shop" in violation of 18 U.S.C. 371;

operating a chop shop, in violation of 18 U.S.C. 2322; three counts

of carjacking, in violation of 18 U.S.C. 2119; and three counts of

using a firearm during and in relation to a crime of violence, in

violation of 118 U.S.C. 924(c). He was sentenced to concurrent

prison terms of 60 months for conspiracy, 151 months for operation

of the chop shop, and 151 months for each count of carjacking; a

consecutive term of five years’ imprisonment on the first firearms

count; and two additional consecutive 20-year terms on the two

remaining firearms counts. The district court also imposed a five-

year term of supervised release. The court of appeals affirmed.

Pet. App. la-23a.

1. In September 1994, Teddy Arnold recruited his son, Vernon

Lennon, to steal cars to be taken to a Queens, New York "chop shop"

for dismantling. Lennon, in turn, recruited petitioner and David

Valentine to assist him. The three agreed that they should use a

“firearm during their thefts, and Lennon showed the others a .32-

caliber revolver for that purpose. Pet. App. 3a.

On October 14, 1994, petitioner and Lennon followed a 1992

Nissan Maxima driven by 69-year-old Stanley Metzger. When Metzger

stopped and parked across from his residence, Lennon approached,

pointed his gun at Metzger, and demanded Metzger’s car keys.

Metzger first gave Lennon his house keys, but Lennon demanded the

car keys, telling Metzger "I have a gun. I am going to shoot."

Metzger then surrendered his keys and his money, and Lennon drove

away in the Maxima. Pet. App. 3a-4a.

ae ]

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The following day, Lennon and petitioner followed a 1991

Toyota Celica driven by Donna DiFranco. When DiFranco parked,

Lennon approached her, pointed his gun at her, and demanded her

money and car keys. After DiFranco disengaged the car alarm and

unlocked the "club" device that secured the steering wheel, Lennon

drove off in her car. Pet. App. 4a.

That same day, Lennon and petitioner followed a 1988 Mercedes-

Benz driven by Ruben Rodriguez until Rodriguez parked near his

home. As Lennon and petitioner approached him, Rodriguez retreated

to his car. Lennon produced his gun and threatened: "Get out of

the car or I’ll shoot." Rodriguez complied, and Lennon demanded

his money and car keys. When Rodriguez hesitated, petitioner

punched him in the face. Rodriguez surrendered the items and fled

on foot. Lennon drove off in the Mercedes, and petitioner followed

in another car. Pet. App. 4a.

Lennon pleaded guilty to several carjacking and robbery

charges and testified as a government witness at trial. Lennon

testified that his plan was to steal cars without harming the

victims, but that he would have used the gun if any of the victims

had resisted or given him “a hard time." Pet. App. 5a.

Petitioner was charged with a variety of offenses. See pages

1-2, Supra. With respect to carjacking, the district court in-

structed the jury that in order to find petitioner guilty it must

find that his “intent in committing the crime [was] to cause death

or serious bodily harm." Tr. 336. Over the objection of defense

counsel, the court also instructed the jury that, under a theory of

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“conditional” intent, it could find petitioner guilty if it found

that he “intended to cause death or serious bodily harm if the

alleged victims had refused to turn over their cars." Pet. App.

6a, lla; Tr. 336-337.’ The jury convicted petitioner on all

counts.

2. The court of appeals affirmed. Pet. App. la-18a. With

respect to the district court’s “conditional intent" instruction,

+ The court gave the following instructions (Tr. 336-337):

The defendant's intent in committing the crime must have

been to cause death or serious bodily harm. I remind you that

intentional conduct is done willfully, with a bad purpose to

do something the law forbids, in this case, to cause death or

serious bodily harm to the person from whom the car was taken.

It is the defendant's theory of the case that the evi-

dence fails to prove that he acted with intent to cause death

or serious bodily harm.

Evidence that the defendant intended to use a gun to

frighten the victims is not sufficient in and of itself to

prove an intent to kill or cause serious bodily harm. It is,

however, one of the facts you may consider in determining

whether the government has met its burden.

You may also consider the fact that no victim was

actually killed or seriously injured when you consider the

evidence or lack of evidence as to the defendant’s intent.

In some cases, intent is conditional. That is, a de-

fendant may intend to engage in certain conduct only if a

certain event occurs.

In this case, the government contends that the defendant

intended to cause death or serious body harm if the alleged

victims had refused to turn over their cars. If you find be-

yond a reasonable doubt that the defendant had such an intent,

the government has satisfied this element of the offense.

If you find that the co-defendant, Vernon Lennon, acted

with the intent to cause death or serious bodily injury, that

is not sufficient. You must find that the defendant shared in

poe 7 pas before you can conclude that this element has been

satis °

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the court first reviewed the history of 18 U.S.C. 2119. Id. at 8a-

lla. It noted that before 1994, Section 2119 required proof that

a defendant possessed a firearm in connection with a carjacking,

but imposed no explicit intent requirement. In 1994, Congress

amended the statute to authorize imposition of the death penalty if

a carjacking resulted in death, and to delete the phrase

“possessing a firearm." The court remarked that the present

language requiring “intent to cause death or serious bodily harm”

was inserted late in the legislative process, without recorded

explanation. Id. at 9a. The court nonetheless thought it “clear

from * * * the legislative history that Congress intended to

broaden the coverage of the federal carjacking statute," and it

speculated that application of the new intent requirement to cases

not involving the death of a victim “was, in all likelihood, an

unintended drafting error." Pet. App. 9a-10a. The court

“decline(d]," however, “any invitation to redraft the statute,” and

instead considered whether the new intent element could be

satisfied by proof of “conditional” intent to kill or harm a victim

only if it proved necessary to do so in order to effectuate the

carjacking. Id. at 10a.

The court rejected (Pet. App. 12a) petitioner's argument that

“conditional” intent involved “no more than a state of mind where

death is a foreseeable event.” In the court’s view, "conditional

intent requires a much more culpable mental state," because " (a)

carjacker who plans to kill or use deadly force on a victim in the

event that his victim fails to comply with his demands has engaged

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in willful and deliberate consideration of his actions." Ibid.

Under those circumstances, the court explained, "death is more than

merely foreseeable, it is fully contemplated and planned for.”

Ibid.

The court observed that "the inclusion of a conditional intent

to harm within the definition of specific intent to harm is a well-

established principle of criminal common law" (Pet. App. 13a),

supported by state statutory and case law, academic commentary, and

the Model Penal Code (see id. at 13a-15a). “Furthermore, and most

importantly,” the court concluded that “incorporating conditional

intent within the specific intent language of the carjacking

statute comports with a reasonable interpretation of the

legislative purpose of the statute." Jd. at 15a. Rejecting an

interpretation that “would have the federal carjacking statute

covering only those carjackings in which the carjacker’s sole and

unconditional purpose at the time he committed the carjacking was

to kill or maim the victim," the court held instead that "an intent

to kill or cause serious bodily harm conditioned on whether the

victim selingsiches his or her car is sufficient to fulfill the

intent requirement set forth in the federal carjacking statute."

Id. at 15a-1l6a.’

Judge Miner dissented. Pet. App. 18a-23a. In his view, there

was "no basis in the plain language of [Section 2119] or in the

* The court also rejected petitioner’s further claims that he

had received ineffective assistance of counsel and that the trial

court had erred in imposing consecutive sentences with respect to

his firearms offenses. Pet. App. l6a-17a. Petitioner does not

renew those claims in this Court.

a al

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legislative history for an element of conditional intent." Id. at

18a. Rather, Judge Miner concluded that "(t]he intent required is

spelled out explicitly in the statute," and that any common-law

interpretation of that requirement lay beyond the power of courts

applying federal criminal law. Jd. at 23a. He would therefore

have reversed petitioner's convictions and remanded for retrial.

ibid.

ARGUMENT

Petitioner contends (Pet. 9-16) that in order to prove

carjacking in violation of 18 U.S.C. 2119 the government must show

that the defendant acted with the "purposeful objective" (Pet. 10)

of causing death or serious bodily harm while taking the victim's

car, whether or not the victim offered any resistance. This Court

has recently denied review in two cases involving the same issue,

and there is no reason for a different result here. See Anderson

v. United States, 118 S. Ct. 123 (1997); Fraction v. United States,

118 S. Ct. 100 (1997); see also Romero v. United States, petition

for cert. pending, No. 97-6863 (filed Nov. 18, 1997).

1. Section 2119 provides for the punishment of any person who

“with the intent to cause death or serious bodily harm takes a

motor vehicle * * * from the person or presence of another by force

and violence or by intimidation.” As the court of appeals pointed

out (Pet. App. 7a-9a), Congress added the “intent” language in 1994

in place of the phrase “possessing a firearm as defined in Section

921 of this title." See also United States v. Anderson, 108 F.3d

478, 481-482, cert. denied, 118 S. Ct. 123 (1997). That change,

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which accompanied the addition of authorization to impose the death

penalty in cases in which death results, was evidently intended to

broaden the statute to cover situations where the carjacker uses a

knife or other weapon rather than a firearm. See id. at 481-483;

Pet. App. 9a-10a. It would be ironic if the amendment were instead

interpreted to narrow the coverage of Section 2119 by excluding

cases in which a carjacker would prefer to proceed by intimidation,

but intends to use actual force and violence if necessary -- cases

that obviously fall within the core purpose of the statute.

The text does not require that result. The "intent" language

added in 1994 need not be read to require any more than that the

defendant intentionally undertook actions which posed a serious and

unjustifiable risk of death or serious bodily harm to the victim.

The conduct involved in most carjackings would, of course, easily

satisfy that requirement. It would be the rare crime that met

Section 2119’s other criteria, but escaped punishment under that

provision because of the extraordinary care taken by the defendant

to ensure that his victims would sustain no physical harm.

This case, however, did not require the court of appeals to go

that far in interpreting Section 2119's "intent" requirement. See

Pet. App. 12a (distinguishing "conditional intent" from criminal

reckiessness or “depraved indifference"). Nothing in the facts of

this case suggests a situation in which the defendant intended not

to use force under any circumstances, but nonetheless took actions

that presented a serious risk that injury or death would result.

The court here held only that Section 2119 covers the conduct of a

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defendant if the jury finds that he was prepared to use deadly

force, but was spared the necessity of doing so by the victim's

acquiescence in his demands. Pet. App. 15a-1l6a; see also United

States v. Williams, 1998 WL 50,191 (8th Cir. Feb. 10, 1998); United

States v. Romero, 122 F.3d 1334, 1339 (10th Cir. 1997), petition

for cert. pending, No. 97-6863 (filed Nov. 18, 1997); Andersen, 108

F.3d at 485.

As the court of appeals explained (Pet. App. 13a-15a), that

interpretation of the meaning of "intent" as used in Section 2119

is not only well supported by the common-law understanding of

"specific" intent, but also "“comports with a reasonable interpre-

tation of the legislative purpose of the statute” (id. at 15a).’

As the court observed (jibid.), it is implausible that Congress

intended the federal carjacking prohibition to cover “only those

* There is no force to petitioner’s argument (Pet. 15-16)

that the court below violated due process by "“expand[ing) the

principles of criminal liability which exist in the federal courts"

Or attempting to create a "federal common law of crimes." The

court merely interpreted the word “intent” as Congress used it in

a federal criminal statute. The proper interpretation is, of

course, informed by the common-law background against which

Congress acted (see, e.g., United States v. Wells, 117 S. Ct. 921,

927 (1997)), but the exercise remains one of _ statutory

construction. Moreover, there is nothing "novel"(Pet. 15) about

the concept of "conditional" intent. See, e.g., United States v.

Arrellano, 812 F.2d 1209, 1211 n.2, as amended, 835 F.2d 235 (9th

Cir. 1987) ("(C)Jonditional intent is still intent. If, for

example, a defendant breaks into a woman’s house intending to rape

her if she is there, he has committed a burglary whether or not she

is in fact there"); United States v. Marks, 29 M.J. 1, 3 (C.M.A.

1989); United States v. Dworken, 855 F.2d 12, 18 (ist Cir. 1988)

(attempt and conspiracy); Shaffer v. United States, 308 F.2d 654

(Sth Cir. 1962) (conditional intent to do bodily harm in

prosecution for assault under 18 U.S.C. 113), cert. denied, 373

U.S. 939 (1963); People v. Connors, 253 Ill. 266, 272-280 (111.

1912); see also W. Lafave and A. Scott, imi

§ 3.5(d), at 312 (1986); Model Penal Code § 2.02(6).

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carjackings in which the carjacker’s sole and unconditional purpose

* * * was to kill or maim the victim." See also Williams, 1998 WL

50,191, at *3-*4; Romero, 122 F.3d at 1339 ("Congress did not

intend for death or serious bodily injury to be a prerequisite to

every carjacking conviction."); Anderson, 108 F.3d at 483. That is

especially evident in light of the enhanced penalties that Congress

expressly provided for crimes that do result in serious injury or

dea~h. Ibid.; see 18 .S.C. 2119 (2) and (3).

: Similarly, a rule requiring “unconditional” intent to kill or

harm would make little sense in light of Section 2119's prohibition

against taking a vehicle "by force and violence or by intimidation"

(emphasis added). That language makes clear that Congress intended

to punish crimes in which successful threats obviate any need for

the carjacker to resort to actual force; yet those crimes would lie

beyond the reach of the statute under petitioner's proposed require-

ment of “unconditional” intent to cause death or bodily harm.

Indeed, because it would be difficult to prove such an “uncondi-

tional” intent in any case in which the carjacker did not in fact

do violence to the victim, petitioner’s argument would essentially

read the phrase "or by intimidation" out of Section 2119.

2. As petitioner points out (Pet. 10-11), there is consider-

able tension between the reasoning of the decisions in this case,

Williams, Anderson and Romero and that of United States v. Ran-

dolph, 93 F.3d 656 (9th Cir. 1996). See also Pet. App. l6éa n.4.

In Randolph, the Ninth Circuit stated that a “mere Sontitianal

intent to harm a victim if she resists is simply not enough to

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satisfy § 2119's new specific intent requirement," and that the

government must "prove that the causation of ‘death or serious

bodily harm’ was the defendant’s actual intent." 93 F.3d at 665.

Both Randolph’s reasoning and its result are incorrect.

Randolph turned, however, not only on erroneous reasoning, but

on unusual facts. As the court explained (see 93 F.3d at 658-659),

although Randolph pointed a gun at his victim, she was assured from

the outset that she would not be harmed if she did as she was told.

Randolph dropped the victim off, unharmed, some way out of town,

and he Geniad aay complicity in his accomplices’ decision to pick

her up again, drive her further away, and then beat her severely

before releasing her. Randolph "consistently denied having any

intention to kill or to harm [the victim), and insisted that the

group’s plan was merely to rob, not to harm anyone." Id. at 659.

Indeed, he specifically claimed that, while he brandished a rifle

in order to intimidate the victim, "he had no intention of actually

using the firearm, even had she resisted." Ibid.

Randolph's conviction should have been affirmed, either

because his conduct posed a sufficient (and sufficiently obvious)

risk of injury or death to satisfy the intent element of Section

2119, whatever his own hopes for how the crime would proceed, or

because the district court that convicted him was entitled to

believe, despite his protestations to the contrary, that he was

personally prepared to harm or kill his victim had she resisted his

demands. Nonetheless, the facts of the case are so unusual that a

court might have concluded that Randolph’s conduct, in contrast to

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that of his accomplices, clearly demonstrated an actual intent to

avoid harm to his victim — the rare sort of case that might justify

acquittal even under a standard requiring only criminal reckless-

ness, and certainly would require acquittal under the "conditional

intent" standard applied in this case, Williams, Romero and

Anderson.

It is therefore difficult to predict, based solely on the

decision in Randolph, how the Ninth Circuit will approach other

carjacking cases with more typical facts, like those at issue here.

Compare United States v. Hicks, 103 F.3d_837, 842-844 (9th Cir.

1996) (upholding admission under pre-amendment language of evidence

concerning rape and murder during course carjacking, and stating

that new “intent” language would not change the result), cert.

denied, 117 S. Ct. 1483 (1997); United States v. Arrellano, 812

F.2d 1209, 1211 n.2, as amended, 835 F.2d 235 (9th Cir. 1987)

(although conditional intent to kill victim if she refused request

for money might support conviction for transporting firearm with

intent to commit a felony, "the jury made no finding as to intent,

so we are unable to imply any finding as to conditional intent

either"). If that court adheres to Randolph and extends its

reasoning to the logical extreme, it may be necessary for this

Court to grant review in an appropriate case to correct the error.

Review would be premature, however, until the Ninth Circuit has had

a chance to consider the relevant issues in a case with more

typical facts, and in light of the intervening decisions in this

case, Williams, Anderson and Romero.

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

MARCH 1998

SETH P. WAXMAN

Solic: :

JOHN C. KEENEY

Acti Ass;

DEBORAH WATSON

Attorney

APPENDIX

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1877—August Term, 1996

(Argued June 25, 1997 Decided September 16, 1997)

Docket No. 96-1563

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.

Before:

MCLAUGHLIN and MINER, Circuit Judges,

and SCULLIN, District Judge.'

| The Honorable Frederick J. Scullin, Jr. of the United States District Court

for the Northern District of New York, sitting by designation.

6593

Appeal from a judgment entered in the United States Dis-

trict Court for the Eastern District of New York (Gleeson, J.)

convicting defendant, following a jury trial, of conspiracy to

operate a “chop shop,” operation of a chop shop, three counts

of carjacking, and three counts of using a firearm in the com-

mission of a crime of violence.

Affirmed.

Judge Miner dissents in a Separate opinion.

KEVIN J. KEATING, Esq., Law Office of Kevin J.

Keating, Garden City, New York, for Defen-

dant-Appellant.

DOLAN L. GARRETT, Assistant United States

Attorney, Brooklyn, New York (Zachary W.

Carter, United States Attorney, Eastern Dis-

trict of New York, Brooklyn, New York, of

counsel), for Appellee.

SCULLIN, District Judge:

Defendant-Appeilant Francois Holloway appeals from a

judgment entered in the United States District Court for the

Eastern District of New York (Gleeson, J.), following a jury

trial, convicting Holloway of numerous offenses connected

with his participation in several carjackings in Queens, New

York. Holloway was convicted of one count of conspiracy to

operate a “chop shop” in violation of 18 U.S.C. § 371 (count

one); one count of Operating a chop shop in violation of 18

6594

U.S.C. § 2322 (count two); three counts of carjacking in vio-

lation of 18 U.S.C. § 2119 (counts seven, nine, and eleven);

and three counts of using a firearm in the commission of a

crime of violence in violation of 18 U.S.C. § 924(c) (counts

eight, ten, and twelve). Holloway was sentenced to 60

months on count one; 151 months on count two, to run con-

currently with count one; 151 months on each of counts

seven, nine, and-eleven, to run concurrently with each other

and counts one and two; 5 years on count eight, to run con-

secutively; and 20 years each on count ten and count twelve,

each to run consecutively. Defendant was also sentenced to

terms of supervised release and a special assessment of $400.

On appeal, Holloway contends that: (1) the district court

erroneously charged the jury on the intent element of the car-

jacking statute; (2) his trial counsel rendered constitutionally

ineffective assistance; and (3) the trial court improperly

imposed consecutive sentences pursuant to Holloway’s

firearm convictions.

BACKGROUND

Holloway’s conviction stems from his involvement in a

“chop shop” operation located at 115th Drive in Queens, New

York. In September 1994, Teddy Arnold recruited his son,

Vernon Lennon, to begin stealing cars to be taken to the chop

shop for dismantling. Lennon, in turn, recruited two indi-

viduals, David Valentine and Holloway, to assist him in his

car thefts. The co-conspirators agreed that they should use a

firearm during their thefts, and Lennon showed both Valen-

tine and Holloway a .32 caliber revolver he intended to use

for that purpose.

The first charged carjacking involving Holloway and

Lennon occurred in October 1994. On October 14, Holloway

and Lennon followed a 1992 Nissan Maxima driven by sixty-

6595

nine year-old Stanley Metzger. When Metzger stopped and

parked across from his residence, Lennon approached

Metzger and pointed his revolver at him, demanding his car

keys. At first, Metzger gave his house keys to Lennon, who

rejected them and demanded his car keys. Metzger testified

that Lennon told him, “I have a gun. I am going to shoot.”

Thereafter, Metzger surrendered his keys and also his money,

and Lennon drove away in the Maxima.

The following day, Lennon and Holloway followed a 1991

Toyota Celica driven by Donna DiFranco. When DiFranco

parked, Lennon approached her, leveled his gun at her, and

demanded her money and her car keys. After DiFranco dis-

engaged the car alarm and unlocked her “club” securing the

steering wheel, Lennon drove off in her car.

That same day, Holloway and Lennon followed a 1988

Mercedes-Benz driven by Ruben Rodriguez until he parked

near his home at Jamaica Estates. Both Lennon and Holloway

approached the driver this time. Rodriguez, sensing some-

thing was wrong, retreated to his car. Lennon produced his

gun and threatened, “Get out of the car or I'll shoot.”

Rodriguez complied and Lennon demanded his money and

car keys. When Rodriguez hesitated, Holloway punched him

in the face. Rodriguez surrendered the items and fled on foot,

yelling for help. Lennon drove off in the Mercedes, and Hol-

loway followed in another car.

At trial, the Government also presented evidence of two

additional uncharged carjackings involving Lennon and Hol-

loway. One involved the theft of a 1987 Nissan Maxima

which was stolen from Betty Eng as she parked in her drive-

way on October 12, 1994. The other uncharged carjacking

occurred on October 19, 1994. On that day, Holloway and

Lennon attempted to steal a 1994 Nissan Sentra from Sara

Markett when she parked her car on 193rd Street in Queens.

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Lennon threatened Markett, telling her, “Give me your keys

or I will shoot you right now.” Thereafter, Markett surren-

dered her keys and ran screaming into a nearby hair salon.

The theft was foiled by an off-duty police officer, Adam

Lamboy, who happened to be in the hair salon at that time.

Upon seeing Lennon in Markett’s car, Lamboy yelled,

“Police, don’t move.” Lennon made a motion toward his

waist band prompting Lamboy to draw his weapon. Lennon |

then fled to a red Toyota driven by Holloway, and the two

escaped.

On November 22, 1994, two of the carjacking victims,

Ruben Rodriguez and Sara Markett, identified Holloway as

one of the carjackers in a police line-up. Following his iden-

tification, Holloway confessed to the police that he had par-

ticipated with Lennon in three carjackings involving a silver

Mercedes-Benz, a black Nissan Maxima, and a gray Nissan.

Immediately prior to trial, Lennon pled guilty to several car-

jacking charges and eight automatic teller machine (“ATM”)

robberies. Thereafter, Lennon testified at trial as a govern-

ment witness. Lennon testified as to the events set forth in

the above carjackings, as well as seven additional carjackings

in which he participated with Valentine. Lennon testified that

his plan was to steal the victims’ cars without harming the

victims; however, Lennon also testified that he would have

used the gun if one of the victims had given him “a hard

time” or had resisted.

The Government also presented testimony at trial from

Rodriguez, Metzger, DiFranco, Eng, and Lamboy. These wit-

nesses presented factually consistent testimony depicting the

various Carjackings as set forth above. With the exception of

Rodriguez, none of the victims was injured during the course

of the carjackings, and Rodriguez did not require medical

attention.

Ss ? 25 5>

The defense declined to call any witnesses. Over the objec-

tion of defense counsel, Judge Gleeson charged the jury on

the doctrine of conditional intent, as it applied to the intent

element for the carjacking offenses. Judge Gleeson instructed

the jury that an intent to cause death or serious bodily harm

conditioned on whether the victims surrendered their cars

was sufficient to satisfy the specific intent requirement of the

statute. As stated, the jury found Holloway guilty on all eight

counts charged in the indictment.

Following the verdict, Holloway moved for a new trial pur-

suant to Rule 33 of the Federal Rules of Criminal Procedure,

or in the alternative, for reconsideration of his unsuccessful

Rule 29 motion. See United States v. Holloway, 921 F. Supp.

155, 156 (E.D.N.Y. 1996). Holloway argued that the Court

erred in charging the jury on conditional intent in light of the

carjacking statute’s unambiguous specific intent requirement,

which requires a carjacker to have the intent to cause death

or serious bodily harm in order to be culpable.

In a decision issued on April 5, 1996, Judge Gleeson

denied Holloway’s post-trial motion. On August 16, 1996,

Holloway was sentenced, and, on August 28, 1996, judgment

of conviction was entered. This appeal followed.

DISCUSSION

Holloway raises three issues on appeal: (1) whether Judge

Gleeson erred in instructing the jury on “conditional intent”;

(2) whether the performance of Holloway’s trial counsel was

constitutionally deficient so as to require reversal and a new

trial; and (3) whether Judge Gleeson abused his discretion by

sentencing Holloway to consecutive sentences pursuant to 18

U.S.C. § 924(c).

6598

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I. Conditional Intent Instruction

Holloway maintains that Judge Gleeson committed

reversible error by charging the jury on the doctrine of “con-

ditional intent.” Holloway contends that: (1) the federal car-

jacking statute clearly and unambiguously requires that a

defendant possess a specific intent to cause death or serious

bodily harm (hereinafter “specific intent to kill”), and (2)

conditional intent, by definition, does not satisfy this require-

ment. ;

A. 1994 Amendments to the Carjacking Statute

Holloway argues that the statute, as amended, is clear and

unambiguous on its face, thus preventing the trial court, or

this Court for that matter, from inquiring into the intent of

Congress or ascribing some alternate construction of the

statute based on any perceived error in drafting. See Rubin v.

United States, 449 U.S. 424, 430, 66 L. Ed. 2d 633, 101 S.

Ct. 698 (1981).

Prior to the 1994 Amendments, the federal carjacking

statute, 18 U.S.C. § 2119, read as follows:

Whoever, possessing a firearm as defined in section 921

of this title, takes a motor vehicle that has been trans-

ported, shipped, or received in interstate or foreign com-

merce from the person or presence of another by force

and violence or by intimidation, or attempts to do so,

shall—

(1) be fined under this title or imprisoned not more

than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365

of this title, including any conduct that, if the conduct

occurred in the special maritime and territorial juris-

diction of the United States, would violate section 2241

6599

or 2242 of this title) results, be fined under this title or

imprisoned not more that 25 years, or both, and

(3) if death results, be fined under this title or impris-

oned for any number of years up to life, or both.

The Violent Crime Control and Law Enforcement Act of

1994 amended this statute in the following manner:

(14) CARJACKING. —Section 2119(3) of title 18, United

States Code, is amended by striking the period after

“both” and inserting “, or sentenced to death.”; and by

striking “, possessing a firearm as defined in section 921

of this title,” and inserting “, with the intent to cause

death or serious bodily harm”.

Pub. L. 103-322, § 60003(a)(14). With these revisions, the

statute now reads:

Whoever, with the intent to cause death or serious bod-

ily harm takes a motor vehicle that has been transported,

shipped, or received in interstate or foreign commerce

from the person or presence of another by force and vio-

lence or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more

than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365

of this title, including any conduct that, if the conduct

occurred in the special maritime and territorial juris-

diction of the United States, would violate section 2241

or 2242 of this title) results, be fined under this ttle or

imprisoned not more that 25 years, or both, and

(3) if death results, be fined under this title or impris-

oned for any number of years up to life, or both, or sen-

tenced to death.

18 U.S.C. § 2119 (1997) (emphasis added).

6600

The amendments to the carjacking statute contained in the

Violent Crime Control and Enforcement Law Act of 1994

came about as an attempt to expand the number of federal

crimes subject to the death penalty. See 140 Cong. Rec.

E857-03 (statement of Rep. Franks); 140 Cong. Rec. $12421-

O01, S$12458 (statement of Sen. Nunn); 139 Cong. Rec.

$15295-01, 15301 (statement of Sen. Lieberman). The thrust

of the various early versions of the amendments was to add

the death penalty as a sentencing option when death resulted

from a carjacking, and also, in some versions, to eliminate

the firearm requirement. See H.R. 4197, 103d Cong. § 125(h)

(1994) (removed firearm requirement and added death

penalty); H.R. 3355, 103d Cong. § 203(a)(15) (1993) (version

as of October 19, 1993 removed the firearm requirement and

added death penalty); H.R. 3355, 103d Cong. § 703(e) (1994)

(version as of April 21, 1994 added the death penalty only).

Congressional opposition to the amendments coalesced into

two camps: those who opposed the death penalty in general,

and those who opposed the expansion of federal criminal

jurisdiction. See 140 Cong. Rec. $12309-02, $12311 (state-

ment of Sen. Leahy contained in Conference Report on H.R.

3355); 140 Cong. Rec. H2322-02, H2325 (statement by Rep.

Glickman on amendment introduced by Rep. Scott to remove

the death penalty addition to the Violent Crime Control Act).

The insertion of the heightened intent requirement at issue

here occurred at a relatively late stage in the legislative pro-

cess—while the Act was under consideration in Conference

Committee in the summer of 1994. See 140 Cong. Rec.

H8772-03, H8819, H8872 (Conference Report on H.R. 3355

dated August 21, 1994). On September 13, 1994, the Act was

signed into law. There is no indication in the Congressional

Record as to the purpose of the late-added heightened intent

requirement. However, it is clear from a review of legislative

history that Congress intended to broaden the coverage of the

6601

® ~ e

federal carjacking statute by the passage of the 1994 amend-

ments, and that the application of the heightened intent

requirement to all three of the carjacking categories was, in

all likelihood, an unintended drafting error. See 139 Cong.

Rec. $15295-01, 15301 (statement of Sen. Lieberman) (“This

amendment will broaden and strengthen that law so our U.S.

attorneys have every possible tool available to them to attack

the problem.”); 140 Cong. Ret. E857-03, E858 (extension of

remarks by Rep. Franks) (“We must send a message to the

criminal that committing a violent crime will carry a severe

penalty. This legislation will make an additional 22 crimes

including carjacking and drive-by shootings, subject to the

death penalty.”).

At least two courts have speculated that Congress probably

intended the heightened intent requirement to apply only to

cases where the carjacking resulted in death, that is, those

cases falling under § 2119(3). See United States v. Anderson,

108 F.3d 478, 482-83 (3d Cir. 1997), petition for cert. filed

(U.S., June 3, 1997) (No. 96-9338); Holloway, 921 F. Supp.

at 158. But see United States v. Randolph, 93 F.3d 656, 660-

61 (9th Cir. 1996). In support of this interpretation, these

courts point to the initial wording of the 1994 amendment,

“Section 2119(3) of title 18, United States Code, is amended

by .... ,.” as limiting language for the two specific

changes set forth within. See Anderson, 108 F.3d 378-79

(quoting Pub. L. No. 103-322, § 60003(a)(14) (emphasis

added); see also Holloway, 921 F. Supp. at 158.

Regardless of the actual intent of Congress in adding this

amendment, the practical effect of adding this requirement ts

to severely limit the scope of conduct covered by the statute.

The addition of the heightened intent requirement into the

body of the carjacking statute limits federal jurisdiction over

all carjacking offenses to only those in which death or seri-

ous bodily harm was intended. Notwithstanding that such a

6602

@ 11a @

result was unintended, the Court declines any invitation to

redraft the statute—that is a task better left to the legisla-

ture.? Thus, the sole issue this Court must decide is whether

the “specific intent to kill,” as now reflected in 18 U.S.C.

§ 2119, encompasses a conditional intent, as defined by

Judge Gleeson in his instruction to the jury.

B. Judge Gleeson’s Instruction

In his instruction to the jury, Judge Gleeson charged, in

relevant part:

Evidence that the defendant intended to use a gun to

frighten the victims is not sufficient in and of itself to

prove an intent to kill or cause serious bodily harm. It is,

however, one of the facts you may consider in deter-

mining whether the government has met its burden.

You may also consider the fact that no victim was

actually killed or seriously injured when you consider

the evidence or lack of evidence as to the defendant's

intent.

In some cases, intent is conditional. That is, a defen-

dant may intend to engage in certain conduct only if a

certain event occurs.

In this case, the government contends that the defen-

dant 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 ele-

ment of the offense.

We note that since the 1994 amendments there have been several legislative

initiatives introduced in Congress that seek to remove the intent portion of the

carjacking statute. See The Violent Crime Control and Law Enforcement Act

of 1995, S. 3, 104th Cong. § 717 (1995) (titled “Elimination of Unjustified Sci-

enter Element for Carjacking”); Omnibus Crime Control Act of 1997, S. 3,

105th Cong. § 807 (1997) (titled “Elimination of Unjustified Scienter Element

for Carjacking”).

6603

@ 12a @

If you find that the co-defendant, Vernon Lennon,

acted with the intent to cause death or serious bodily

injury, that is not sufficient. You must find that the

defendant shared in that intent before you can conclude

that this element has been satisfied.

Holloway argues that the above instruction was erroneous

because it allowed the jury to convict him based on or

mental state than is required by the carjacking statute. Hol-

loway contends that the plain meaning of “specific intent *

kill” does not include the lesser mental state of “conditiona

intent,” because a conditional intent to kill is no more ory

state of mind where death is a foreseeable event and, as suc :

is equivalent to a mental state of recklessness OF deprave ;

indifference. Holloway contends that such a lesser owe

state plainly does not satisfy the intent requirement 0 the

carjacking statute.’

The Court agrees that a conditional intent to couse estat

serious bodily harm and “reckless indifference both invo =

foreseeability; however, conditional intent requires a

more culpable mental state. A carjacker who plans to a “¢

use deadly force on a victim in the event that his mes on

to comply with his demands has engaged in willful and deli

erate consideration of his actions. Under these circumstances,

death is more than merely foreseeable, it 1s fully ee

plated and planned for. Such a mental state 1s clearly is-

tinguishable from the characterization of conditional intent

advanced by Holloway, which only has the carjacker aware

of a risk of death of which he chooses to disregard.

Court case,

Holloway further argues that the Supreme

Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676 (1987), fore-

3 Holloway cites to Second Circuit precedent which holds that a - a

reckless or wanton state of mind cannot constitute @ specific intent to kill. See,

e.g., United States v. Kwong, 14 F.3d 189, 194-95 (2d Cir. 1994)

© 13a rd]

closes the inclusion of conditional intent within the scope of

an ordinary specific intent to kill. In Tison, co-defendants

Raymond and Ricky Tison planned an armed jail break to

free their father, Gary Tison, and another inmate from the

Arizona State Prison. Jd. at 139. After a successful escape

from prison, a flat tire in their getaway car led to the stop-

ping and theft of a family’s car in the desert outside of

Flagstaff, Arizona. See id. at 140. The defendants witnessed

their father brutally execute the family who had been in the

car. See id. at 141. The defendants were found guilty of

aggravated felony-murder and sentenced to death. See id. at

142. In the context of reviewing a collateral attack on the

imposition of the death penalty, the Supreme Court found

that under the factual circumstances presented, the defen-

dants lacked a “specific intent to kill,” and at most had a cul-

pable mental state of reckless indifference to human life. Jd

at 152. Holloway seizes on this language, characterizing con-

ditional intent as an analogous mental state to that ascribed

to the defendants in Tison. Holloway argues that, at best, the

proof shows that he and Lennon shared a conditional intent

to kill, which only meant that it was foreseeable that death

could result from their various carjackings.

The facts of Tison are plainly distinguishable from the case

at bar. In Tison some violence was foreseeable to the defen-

dants in effecting the jailbreak, however, the murders for

which the defendants were convicted were precipitated by a

completely unplanned event, the flat tire in the desert. Thus

while it may have been foreseeable to them that death would

occur in the course of the escape, the murders that flowed

from their breakdown in the desert were not the result of

willful and deliberate plan. F

Furthermore, the inclusion of a conditional intent to harm

within the definition of specific intent to harm is a well-

established principle of criminal common law. In his decision

6605

—_— ee ee -_ _--

. * =

denying Holloway’s Rule 33 motion, Judge Gleeson cited to

state criminal law authority as support for his conditional

intent charge. See Holloway, 921 F. Supp. at 159 (citing W.R.

LaFave and A.W. Scott, Jr., Handbook on Criminal Law § 28

at 200 (1972); Model Penal Code § 2.02(6) (American Law

Institute); People v. Connors, 253 Ill. 266, 97 N.E. 643

(1912); Hairston v. Mississippi, 54 Miss. 689 (1877)). Fol-

lowing his decision, the Third Circuit in United States v.

Anderson cited to Judge Gleeson’s opinion with approval,

finding that “conditional intent” was included within the spe-

cific intent required by the carjacking statute. 108 F.3d at

483, 485. The Anderson court also cited to additional author-

ity confirming this principle of criminal law, including the

incorporation of the doctrine of conditional intent into some

state penal codes. See Del. Code Ann. tit. 11 § 254 (1996)

(“The fact that a defendant's intention was conditional is

immaterial unless the condition negatives the harm or evil

sought to be prevented by the statute defining the offense.”);

18 Pa. Cons. Stat. Ann. 18 § 302(f) (West 1997) (“Require-

ment of intent satisfied if intent is conditional—When a par-

ticular intent is an element of an offense, the element is

established although such intent is conditional, unless the

condition negatives the harm or evil sought to be prevented

by the law defining the offense.”); Haw. Rev. Stat. § 702-209

(1996) (“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.”),;

see also Shaffer v. United States, 308 F.2d 654, 654-55 (Sth

Cir. 1962); People v. Vandelinder, 481 N.W.2d 787, 788-89

(Mich. Ct. App. 1992); Commonwealth v. Richards, 293

N.E.2d 854, 860 (Mass. 1973). But see State v. Irwin, 285

S.E.2d 345, 349 (N.C. Ct. App. 1982).

® sss e

This Court also finds ample persuasive authority sup-

porting the inclusion of conditional intent within the scope of

the specific intent requirement. See People v. Thompson, 209

P.2d 819, 820 (Cal. Ct. App. 1949); People v. Henry, 190

N.E. 361, 361-62 (Ill. 1934); Johnson v. State, 605 N.E.2d

762, 765 (Ind. Ct. App. 1992); Gregory v. State, 628 P.2d

384, 386 (Okla. Crim. App. 1981); see also 40 Am. Jur. 2d

Homicide § 571 (1968) (“The question whether an assault

accompanied by a threat to kill unless a demand is complied

with is an assault with intent to kill or murder has generally

been answered in the affirmative. . . .”). Furthermore, and

most importantly, incorporating conditional intent within the

specific intent language of the carjacking statute comports

with a reasonable interpretation of the legislative purpose of

the statute. The alternative interpretation would have the fed-

eral carjacking statute covering only those carjackings in

which the carjacker’s sole and unconditional purpose at the

time he committed the carjacking was to kill or maim the vic-

tim. Such an interpretation would dramatically limit the reach

of the carjacking statute. “It is well-established that ‘in

expounding a statute, we must not be guided by a single sen-

tence or member of a sentence, but look to the provisions of

the whole law, and its object and policy.’ ” Tomka v. Seiler

Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (quoting Pilot Life

Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S. Ct. 1549, 1554

(1987)). A statute should not be literally applied if it results

in an interpretation clearly at odds with the intent of the

drafters. See id. While the Court cannot and should not

rewrite a poorly drafted statute, it has an obligation to inter-

pret a statute so as to give it reasonable meaning.

After reviewing the substantial body of state law address-

ing this issue, and the clear legislative purpose of 18 U.S.C.

§ 2119, the Court finds that an intent to kill or cause serious

bodily harm conditioned on whether the victim relinquishes

his or her car is sufficient to fulfill the intent requirement set

6607

® rf ®

forth in the federal carjacking statute.‘ Accord Anderson, 108

F.3d at 485. As such, we accept the well-reasoned opinion of

the court below, and hold that Judge Gleeson did not err

when he instructed the jury on conditional intent.

Il. Ineffective Assistance of Counsel

Holloway’s second ground for appeal is that he received

constitutionally ineffective assistance of counsel, requiring

the reversal of his conviction and a new trial. Holloway

argues that even though his defense counsel relied on a

legally sound argument premised on the lack of specific

intent, once Judge Gleeson rejected his argument, Holloway’s

conviction was a foregone conclusion. Holloway argues that

his trial counsel should have presented his specific intent

defense, while at the same time vigorously contesting the evi-

dence concerning all of the other elements in question.

Claims for ineffective assistance of counsel are analyzed

under the framework set forth in Strickland v. Washington,

466 U.S. 668, 686 (1984), which requires that a defendant

show “(1) that his attorney's performance fell below an

‘objective standard of reasonableness,’ and (2) that ‘there is

4 The Ninth Circuit seemingly came to the opposite conclusion in United

States v. Randolph, 93 F.3d 656, 665 (9th Cir. 1996), when it stated, “[t}he

mere conditional intent to harm a victim if she resists is simply not enough to

satisfy § 2119's new specific intent requirement.” However, in Randolph the

only evidence of intent was a threat made by one of the defendants to the vic-

tim that “ ‘she would be okay’ if she ‘(did] what was told of her.’ ” Jd. The

Ninth Circuit held that “more than a mere threat is required to establish a spe-

cific intent to kill or harm.” /d. We agree with the Ninth Circuit that without

more, a mere threat of harm 1s not sufficient to establish a specific intent to kill.

In fact, Judge Gleeson so charged in his jury instruction.

We do, however, disagree with the Ninth Circuit's dicta that equated a threat

of harm to conditional intent. See id. The court stated, “[the defendant's} threat

was tantamount to a conditional intent to harm.” /d. While a threat is certainly

evidence of a conditional intent to harm, conditional intent is not equivalem

to a threat, it is much more. Conditional intent implies some indication that the

defendant means to make good on his threat to harm. An idle threat can never

constitute an intent to kill.

6608

yd] 17a ©

a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been differ-

ent."" Kieser v. New York, 56 F.3d 16, 18 (2d Cir. 1995)

(quoting Strickland, 466 U.S. at 688, 694).

Even if Holloway could establish the first prong of the

Strickland test, he has not met his burden on the second

prong. The trial counsel's “intent” defense was appropriately

directed at the most questionable aspect of the Government's

case. Trial counsel's strategy to concede the other elements

of the offense was reasonable in light of the overwhelming

evidence in the case, i.e., Lennon's testimony that Holloway

assisted him in the carjackings, several victims’ identifica-

tion of Holloway, and Holloway’s own confession. Hol-

loway's assertion that the outcome of the trial would have

somehow been different had his trial counsel more vigorously

contested this testimony is conclusory and unpersuasive

given the record before the Court. As such, Holloway’s

appeal in this respect lacks merit.

III. /mposition of Consecutive Sentences

Finally, Holloway contests the imposition of consecutive

sentences on his firearm convictions pursuant to 18 U.S.C.

§ 924(c). Holloway concedes that this Court has already held

in United States v. Mohammed that issuing consecutive sen-

tences under the carjacking statute and the firearm statutes

based on the same carjacking is constitutionally permissible.

27 F.3d 815, 820-21 (2d Cir. 1994). However, Holloway

argues that because the trial court lowered the standard of

proof for carjacking by allowing a verdict based on condi-

tional intent, then the trial court should be precluded from

imposing Consecutive sentences based on those offenses. The

Court finds this argument to be wholly without merit.

© es @

CONCLUSION

Based on the foregoing, we affirm the judgment of the dis-

trict court.

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 condi-

tional intent in the crime under examination here, I respect-

fully 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 penal-

ties 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 tak-

ing of a motor vehicle having some connection with inter-

state 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 instruc-

6610

© = ©

tion, which allows for conviction on proof of conditional

intent:

In this case, the government contends that the defen-

dant 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 ele-

ment of the offense.

(Emphasis added.) What is the provenance of such an instruc-

tion? 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 car-

jacking 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 dis-

cernible 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 cov-

erage of the federal carjacking statute by the passage of the

1994 amendments, and that the application of the heightened

intent requirement to al] three of the carjacking [penalty] cat-

egories was, in all likelihood, an unintended drafting

error{?]" Maj. Opn. at 8. No member of Congress has ever

referred to “an unintended drafting error,” and the congres-

6611

— es ausce -—— ee —

sional intent may well have been to narrow in some respects,

as well as broaden in some respects, the statute's coverage.

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

y. 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 “unin-

tentional 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 cor-

rect what the court perceives to be an error, we ignore the

teaching of the Supreme Court that “(to] supply omissions

transcends the judicial function.” /selin v. United States, 270

U.S. 245, 251 (1926), quoted in West Virginia Univ. Hosps.,

Inc. v. Casey, 499 U.S. 83, 101 (1991).

We do know that since the enactment of the 1994 amend-

ment 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 Vio-

lence 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 21 19 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

6612

) 21a @

from § 2119, but the AGYVCA, the most recent effort,

presently appears to be before the Senate Judiciary Com-

mittee.

The only discussion we have concerning the attempts to

remove the intent element comes from Senator Leahy’s com-

ments 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 require-

ment, as had been proposed im 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 inappro-

priately make carjackings difficult or impossible to pros-

—ecute 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 occu-

pied 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 vic-

tim had the victim in fact declined to leave the car.

143 Cong. Rec. $1659, $ 1661-62 (Feb. 26, 1997) (statement

of Sen. Leahy).

Aside from the fact that Senator Leahy’s comments rep-

resent the views of only one member of Congress, there is

nothing in those comments to indicate that the “scienter ele-

ment,” 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 col-

leagues have not agreed that this should be done.

6613

In this regard, it is of more than passing interest that car-

jacking 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 Punish-

ments § 348A (1996); Miss. Code Ann. § 97-3-117 (1994),

Va. Code Ann. § 18.2-58.1 (Michie 1996). The common ele-

ments of each of these statutes are the taking of a motor vehi-

cle by threat ot force or violence. See, ¢.g., S.C. Code Ann.

8 16-3-1075(B) (Law Co-op. 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 vio-

lence 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, ¢.g., DC. Code Ann. § 22-2903(b)( 1) (1996).

Those states that do not have a specific carjacking statute,

such as New York, prosecute carjackings under the state's

robbery statute. See, ¢.g., Kansas v. Vincent, 908 P.2d 619,

621 (Kan. 1995) (defendant charged with felony murder, con-

spiracy to commit robbery and aggravated robbery in relation

to a carjacking resulting in death); New York v. Lee, 652

N.Y.S.2d 2, 3 (App. Div. Ist Dep't 1996) (defendant charged

with first degree robbery in the gunpoint theft of acar). As

with the specific carjacking statutes, these robbery statutes

apply to thefts involving the use of threat or force. See, €.8-.

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, even where there is no specific

6614

® 395 ®

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 ijegisla-

ture.” Maj. Opn. at 9. (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 rea-

son 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 well-established

principle of criminal common law,” Maj. Opn. at 12—is irrel-

evant here. There is no federal common law of crimes, see

United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32,

34 (1812), state criminal law supplies no authority for inter-

preting 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, as 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.

6615

@ 24a @

oN MIAN DA TE : EY BRI/n/

IS-ch- 79

GLEE Spn/

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on the sixteenth day of September, one thousand nine hundred

and ninety-seven.

PRESENT: JOSEPH M. McLAUGHLIN,

= Alia

eagse COLA 5S

ROGER J. MINER, Sel,

Circuit Judges, Gy, PET NS )

FREDERICK J. SCULLIN, *( Sep 16 i997)

District Judge. *y ho _ ak

ited he Sia tier

Docket No. 96-1563 al

UNITED STATES OF AMERICA,

Appellee,

Vv.

TEDDY ARNOLD; CHARLES ROBINSON; DARREL JONES; DAVID VALENTINE; PAUL $

and JEFFREY DRAKE, ° CAGLIONE:

Defendants,

francois holloway a/k/a ABOU ALI,

Defendant-Appellant.

Appeal from a judgment of the United States District Court for the Eastern District of New York,

This matter came on to be heard on the transcript of record from the United States District Court for the

Eastern District of New York, and was argued.

Upon consideration thereof, IT IS ORDERED that the judgment be, and it hereby is, AFFIRMED.

FOR THE COURT:

GEORGE LANGE II, Clerk

Beth J. , Administrative Attorney

*The Hon. Frederick J. Scullin, Judge of the United States District Court for the Northern District of New Y

sitting by designation. ies =

1 * FAM

— ISSUED AS MANDATE ,../-</,.

.

2ND CASE of Level 1 printed in FULL format.

PAGE 15

UNITED STATES OF AMERICA, - against - FRANCOIS HOLLOWAY,

also known as “Abdu Ali," Defendant.

95-CR-0078 (JG)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW

YORK

921 F. Supp. 155; 1996 U.S. Dist. LEXIS 4905

April 5, 1996, Dated

COUNSEL: (**1] APPEARANCES:

ZACHARY W. CARTER, United States Attorney, Brooklyn, New York, By: Dolan L.

Garrett, Assistant U.S. Attorney.

DANA HANNA, ESQ., Brooklyn, New York, Attorney for Defendant.

JUDGES: JOHN GLEESON, United States District Judge

OPINIONBY: JOHN GLEESON

OPINION: (#155) MEMORANDUM AND ORDER

JOHN GLEESON, United States District Judge:

Defendant Francois Holloway, also known as “Abdu Ali," was indicted on

February 2, 1995. He was charged with conspiring to operate a “chop shop," in

violation of 18 U.S.C. @ 371, operating a chop shop, in violation of 18 U.S.C. @

2322, three counts of carjacking, in violation of 18 U.S.C. @ 2119, (*156)

and three counts of using and carrying a firearm during and in relation to the

charged carjackings, in violation of 18 U.S.C. @ 924(c). A jury trial was held

in December 1995, after which Ali was found guilty of all charges.

Ali now moves for a new trial pursuant to Fed. R. Civ. P. 33, claiming that

such relief is required in the interest of justice. In the alternative, he seeks

reconsideration of his unsuccessful motion pursuant to Fed. R. Cr. P. 29, which

he made at trial. The issue raised by the motion was also the central issue at

the trial: what must the government prove [**2) to satisfy the intent element

of the carjacking statute, 18 U.S.C. @ 2119? nl

nl Although Ali's motion purports to address all of the charges against hin,

none of his arguments addresses Counts One or Two (conspiracy to operate a chop

shop and operation of a chop shop, respectively). Even if the challenges raised

on this motion had merit, there would be no reason to set aside the jury's

verdicts on those counts.

There is no question that the conduct at issue in this case is precisely what

Congress and the general public would describe as carjacking, and that

921 F. Supp. 155, *156; 1996 U.S. Dist. LEXIS 4905, **2

PAGE 16

Congress intended to prohibit it in @ 2119. However, carelessness in the

legislative process has produced a criminal statute that says something

fundamentally different than what Congress obviously meant to say. As a result,

Ali advances a cclorable claim that his conduct here -- using a gun to terrorize

motorists into giving up their cars -- is no longer prohibited by the carjackinc

statute. Indeed, it is likely that a 1994 amendment to the statute, [**3)}

which was explicitly intended to broaden the available penalties, in fact placec

a large number of “carjackers" beyond its reach.

Ali, however, is not among them. Though colorable, his argument fails for the

reasons set forth below, and his motion is denied.

A. The Facts

Vernon Lennon's father, Teddy Arnold, operated a “chop shop" in Queens, New

York. Lennon stole cars for his father to chop. His father would tell him what

year and model cars he needed, and Lennon would locate such cars and steal then.

He did not know how to disable alarms or “hot wire" cars, so Lennon's modus

operandi was to take the cars from their owners at gunpoint. Lennon was a team

player, always taking another robber with him to help locate the target car and

steal it. Since Lennon liked to follow a targeted car, often to the driver's

home, before committing the robbery, a teammate was a virtual necessity; if the

robbery was successful, there were two cars that had to be driven away.

Lennon has known the defendant Ali (whom Lennon knows as Francois Holloway)

since they were boys. In approximately September 1994, he recruited Ali, who

would hang around the chop shop, to steal cars with him. Lennon [*#*4} told

Ali that Lennon would use a gun to steal the cars, and showed him the gun, a .3;3

caliber revolver. Ali agreed to help for a fixed fee per car stolen.

On October 14, 1994, Lennon and Ali stole a 1992 Nissan Maxima. They followec

the car to the home of its driver, 69 year-old Stanley Metzger, in Queens. As

Metzger got out of his car, Lennon and Ali got out of theirs. Lennon approached

Metzger, pointed the gun at him, and demanded the keys. Metzger was apparently

not fast enough in complying, so Lennon threatened to shoot him. Metzger handed

over the keys, and was then told to hand over his wallet. He did so, and the

robbers drove off with his car and his money.

On the next day, October 15, 1994, at approximately 8:00 p.m., Lennon and Ali

spotted Donna DiFranco driving a 1991 Toyota Celica at the Whitestone Shopping

Center in Queens. They followed her to her friend's house, and Lennon approachec

her after she exited her parked car. He pointed a gun at her and demanded her

money and her car keys. She complied, and after some fumbling with the car alarn

and an anti-theft device, Lennon and Ali took her car.

At approximately 10:00 p.m. on the same day, Lennon and Ali stole another

{**5) car, a 1988 Mercedes Benz. They followed the victim, Ruben Rodriguez, tc

his home in the Jamaica Estates section of Queens. Both robbers got out of thei)

car and approached Rodriguez, who had just stepped out of the Mercedes Benz.

Lennon asked Rodriguez if he knew (*157] the location of a particular

address. The address was, as Rodriguez put it, “way off base," and he knew

"something was up." Rodriguez got back into his car and closed the door. Lennon

pulled the gun and told him to get out of the car or he would be shot. Rodrigue:

got out of his car, and Lennon demanded his money as well as the keys. Rodrigue:

hesitated; his money was in a clutch bag on the passenger's seat, and he felt

: =e

PAGE 17

921 F. Supp. 155, *157; 1996 U.S. Dist. LEXIS 4905, **5

he might be killed if he leaned into the car to get it. Frustrated by the delay,

the defendant Ali punched Rodriguez in the face. Rodriguez reeled backwards from

the punch and used that momentum to begin running away from the robbers, who

fled with his car and his money.

On all three occasions, n2 Lennon and Ali intended to leave the victims

unharmed. Lennon never fired the gun in any of the carjackings. An experienced

criminal, he knew that if he did, he risked a lengthier prison term than he

would receive [**6) for simply robbing the car. For each robbery, the plan

was to use the firearm only to obtain possession of the car, not to shoot or

otherwise harm the victin.

n2 There was also evidence of two uncharged crimes committed by Ali with

Lennon: one other successful carjacking and an attempted one that was aborted by

the arrival of a police officer on the scene.

However, in all three of the charged carjackings, Lennon was prepared to

shoot the victims if their resistance made that necessary. In other words, he

intended to kill or seriously injure the victims, but that intent was

conditioned on their giving the robbers "a hard time." There was ample evidence

from which a rational juror could infer that the defendant Ali shared that

conditional intent.

B. The Carjacking Statute And Its 1994 Amendment

In September 1992, Paula Basu, a Maryland woman, had her car stolen from her

by two men. The men forced her from her car and drove off. Because her infant

daughter was in the car, Basu clung to it as the men ([**7) drove away, and

was dragged to her death.

This horrific offense generated a public outcry, and focused attention on

legislative efforts to make car robberies a federal crime. Those efforts

resulted in the Anti Car Theft Act of 1992, codified at 18 U.S.C. @ 2119. As

initially enacted, this new federal offense read as follows:

Whoever, possessing a firearm as defined in section 921 of this title, takes

a motor vehicle that has been transported, shipped, or received in interstate or

foreign commerce from the person or presence of another by force and violence or

by intimidation, or attempts to do so, shall -

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results,

be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of

years up to life, or both.

The subsections of the statute obviously related solely to punishment, and were

not elements of the offense. They provided for enhanced penalties of up to 25

years if serious bodily injury resulted from the offense, {**8) and up to

© <2 ®

921 F. Supp. 155, *157; 1996 U.S. Dist. LEXIS 4905, **8

PAGE 18

life in prison if it resulted in death.

During 1993, Congress was considering extensive new criminal legislation,

which included an array of new death penalties. Members of both houses proposed

amendments to the newly-minted carjacking statute. The Senate bill proposed an

amendment that would provide for the death penalty in cases where a carjacking

results in death. S. 942, 103d Cong., ist Sess. (1993). Senator Lieberman

proposed a further amendment to this death penalty provision that would

eliminate the requirement that such cases involve the use a firearm by the

carjacker. In his remarks in support of his proposed amendment, Senator

Lieberman observed:

If a carjacking occurs and a death occurs as a result of that, does it reall)

matter whether a firearm was used, whether a knife was used, whether physical

force was used, or whether a mother, as in the Basu case, was dragged to her

death because (*158) she wanted to make every effort to save the life of he:

child?

In this case, the very bill I am amending has the death penalty for

carjacking. All I am doing here is taking a small but I think significant

additional step in saying, if the death penalty is going to ([**9)} be enacted

into law for cases of carjacking where death occurs, then we ought not to

require that that death has to involve a firearm. If the person in a carjacking

is killed as a result of a knife or other weapon or just as a result of the

carjacking, then the criminal ought to be subject to death himself. That is why

I propose the amendment.

139 Cong. Rec. S$15295, S15301, S15303 (1993) (statement of Sen. Lieberman).

Thus, with respect to carjackings resulting in death, the Senate bill

eliminated the firearm requirement and provided for the death penalty. Because

such a statute could authorize the death penalty for an accomplice who neither

killed a victim nor intended to kill or harm the victim, it would have been

subject to attack under the Eighth Amendment. See Enmund v. Florida, 458 U.S.

782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982). Perhaps for that reason, the

conference report for the bill modified the Senate death penalty amendment for

carjacking by adding an intent requirement -- the “intent to cause death or

serious bodily harm." H.R. Rep. No. 103-694, 103d Cong., 2d Sess. (1994).

These combined efforts resulted in the following provision of the Violent

Crime Control and Law Enforcement Act [**10) of 1994:

(14) CARJACKING - Section 2119(3) of title 18, United States Code, is amended b

striking the period after “both” and inserting ", or sentenced to death."; and

by striking ", possessing a firearm as defined in section 921 of this title,"

and inserting ", with the intent to cause death or serious bodily harm."

Violent Crime Control and Law Enforcement Act of 1994 (the "Act"), Pub L. No.

103-322, Title VI, @ 60003(a) (14), 108 Stat. 1796, 1970 (1994). The provision

was intended to affect only carjackings resulting in death. That was the sole

focus of the legislative debates. Moreover, the provision was included in Title

VI of the Act, which was entitled the “Federal Death Penalty Act of 1994." The

most powerful evidence of the limited purpose of the amendment is Congress’

921 F. Supp. 155, *158; 1996 U.S. Dist. LEXIS 4905, **10

PAGE 19

obvious belief that it was amending only a penalty enhancement provision, not

the statutory prohibition itself. Specifically, it purported to amend "@

2119(3)," the subsection of the original (and existing) statute that is solely a

penalty provision. Indeed, it is the penalty provision applicable to cases in

which death results, which cases were, as noted, the only focus of the

legislature's ([(*#*11]) attention.

However, the possession-of-a-firearm requirement that the amendment

eliminated was not, as the amendment mistakenly assumed, located in 2119(3). In

fact, it was not in any of the three penalty provisions; rather, it was an

element of the offense itself, a necessary ingredient of all carjacking

prosecutions, not just those resulting in death. Thus, in its effort to

eliminate the firearm requirement only in cases resulting in death, Congress

enacted an amendment that, on its face, eliminates it in all cases. n3

n3 It has been suggested that, notwithstanding the unequivocal language of

the amended statute, the firearm requirement has only been eliminated when the

carjacking results in death, and still must be proved in cases, like this one,

that fall within @ 2119 (a) or (b). M. Michenfelder, The Federal Carjacking

Statute: To Be Or Not To Be? An Analysis Of The Propriety Of 18 U.S.C. @ 2119,

39 St. Louis U.L.J. 1009 (1995). Perhaps because a firearm was used in this

case, however, that strained argument has not been made here, and thus its

merits need not be addressed.

{*#12)

Similarly, Congress intended to add a new intent element for cases in which

the death penalty is sought. However, notwithstanding the amendment's stated

intention to affect only the penalty provisions of @ 2119(3), it added the new

element -- “the intent to cause death or serious bodily harm" -- to the first

clause of @ 2119, and thus made it applicable to all violations of the statute.

As amended, the statute now reads as follows:

Whoever, with the intent to cause death or serious bodily harm takes a motor

vehicle that has been transported, shipped, or received [*159} in interstate

or foreign commerce from the person or presence of another by force and violence

or by intimidation, or attempts to do so, shall -

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results,

be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of

years up to life, or both, or sentenced to death.

In short, the 1994 amendment to the carjacking statute effected fundamental

changes that [(**13) Congress never intended. The elimination of the firearm

requirement for all cases federalized approximately 14,000 additional cases each

year. n4 At the same time that it inadvertently opened the door for all these

cases, Congress inadvertently closed it substantially by unintentionally

921 F. Supp. 155, *159; 1996 U.S. Dist. LEXIS 4905, **13

PAGE 20

imposing the specific intent requirement on the entire statute, not just in

death penalty cases. n5

-~_--- - -~----+- += = = = = = = = =-Pootnotes- - ---- +, + * * = = = = - =

n4 See Michenfelder, supra note 3, at 1012-13 (35,000 carjackings or

attempted carjackings were committed during each of the years 1987-92, and

firearms were used 50% of the time).

n5 The government does not contend, as it might have, that the specific

intent required by the 1994 amendment is an element only in carjacking cases

where death results and the death penalty is sought. For that reason and because

I conclude Ali had the specific intent required by the statute in any event, I

do not need to address that issue.

Cc. Discussion

Ali urges a literal construction of the amended statute, contending that it

(**14) prohibits only those carjackings in which the perpetrators

unconditionally intend to kill or seriously injure their victims. Under this

reading, the law would not prohibit the crimes committed by Ali and Lennon,

where the intent of the carjackers was not to kill or injure people, but to get

cars. Indeed, this reading would no doubt insulate from federal prosecution the

large majority of carjackings, as carjackers generally do not intend to cause

death or serious bodily injury, but in fact hope that the opposite will occur,

i.e., that the victim will peaceably give up the car and suffer no harm at all.

Thus, if accepted, Ali's construction of the carjacking statute would

drastically narrow its scope. Only those carjackers who intend not only to rob

cars, but also to murder or seriously injure another, could be prosecuted. A

person who intends to find a Mercedes Benz, shoot the owner and take the car

could be prosecuted. A person who intends to find a Mercedes Benz and shoot the

owner only if she refuses to give up her car could not, at least if the plan

succeeds and the car is taken without the need to fire.

This would be an odd result. The statute would no longer prohibit the

(**#15) very crime it was enacted to address except in those unusual

circumstances when carjackers also intended to commit another crime -- murder o)

a serious assault. Moreover, this result, if accepted, would be the ironic

product of legislation that was intended “to broaden and strengthen [the

carjacking statute) so our U.S. attorneys (sic) have every possible tool

available to them to attack the problem." 139 Cong. Rec. 815295, S15301 (1993)

(statement of Sen. Lieberman).

Ali's argument fails because his intent to aid and abet Lennon's use of the

firearm if the victims resisted is sufficient. Where a crime is defined to

require a particular intention, that element is satisfied even if the requisite

intent is conditional, unless the condition negatives the evil sought to be

prevented by the statute. W. R. Lafave and A. W. Scott, Jr., Handbook on

Criminal Law, @ 28 at 200 (1972).

Although the issue of conditional intent is not raised very often, at least

in the federal courts, it is not new. In People v. Connors, 253 Ill. 266, 97

@ 31a

921 F. Supp. 155, *159; 1996 U.S. Dist. LEXIS 4905, **15

PAGE 21

N.E. 643 (Ill. 1912), the defendants held guns to members of a rival labor union

and told them to take off their overalls or they would be shot. Although

[**16) the workers complied, and there was no shooting, the defendants were

convicted of assault with an intent to murder. 253 Ill. at 273. In upholding the

conviction, the Supreme Court of Illinois held that the crime is “complete where

it is shown that the assailant, with the (*160)} present ability to destroy

life or do great bodily harm, draws a dangerous weapon on another and threatens

to kill him unless the party assailed complies immediately with some unlawful

condition or demand. . . . The offense is complete even though commission of the

felony is averted by the submission of the assailed party to the unlawful

demands made upon him." Id. at 647-48.

Some conditions on intent may bring the conduct out of the reach of the

statute. In Hairston v. Mississippi, 54 Miss. 689 (1877), Hairston attempted to

remove the personal effects of a laborer from a plantation. When the plantation

owner grabbed Hairston's mules to prevent him from removing the property,

Hairston pointed a pistol at him and angrily threatened to “'shoot any G-d d--d

man who attempts to stop my mules.'" Id. at 692. The plantation owner released

the mules, and Hairston was convicted of assaulting him with intent to [*#*17]}

murder. The Supreme Court of Mississippi reversed the conviction. Because the

plantation owner was trespassing on Hairston's property by grabbing his mules,

the threat to shoot was conditioned on a demand Hairston had a right to make,

and thus he could not be guilty of the offense.

Here, of course, there can be no doubt that the intent to shoot the victims

was conditioned on a demand -- that they turn over their cars -- that Lennon and

Ali had no right to make.

Not all instances of conditional intent involve demands by the defendant. A

person may break into a house intending to rape its occupant if she is home, or

to steal from it only if no one is home. Section 2.02(6) of the Model Penal Code

provides as follows:

Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular

purpose is an element of an offense, the element is established although such

purpose is conditional, unless the condition negatives the harm or evil sought

to be prevented by the law defining the offense.

See also United States v. Arrellano, 812 F.2d 1209, 1212 n.2 (9th Cir. 1987).

Viewed under this standard, the conditional nature of Ali's intent obviously

does not help ([(**18) him. The evil sought to be prevented by @ 2119 in not

“negatived" by the condition, it is the condition. Section 2119 is not a murder

or assault statute, it is a car robbery statute.

Ali's argument on this motion relies in part on the premise that there was

insufficient evidence from which a juror could find an intent on his part that

recalcitrant victims be shot. However, as stated above, there was ample evidence

from which a jury could infer that intent. Lennon told Ali that a gun would be

used and showed him the gun. Lennon intended to shoot uncooperative victims, and

threatened to do so in Ali's presence. Ali himself demonstrated a seriousness of

purpose by punching one of the victims in the face simply because he hesitated

in handing over his money. Ali makes much of the fact that there is no direct

evidence of his intent, but there rarely is such evidence. The jury could

readily have inferred it from the circumstances, and Ali thus cannot satisfy

PAGE 22

921 F. Supp. 155, *160; 1996 U.S. Dist. LEXIS 4905, **18

his heavy burden of establishing the insufficiency of the evidence.

Finally, Ali's reliance on the rule of lenity is misplaced. Whether

conditional intent is sufficient to establish the intent element of the

=e offense ([(**19) is not a question of statutory construction, but o;

criminal law.

The jury instructions on the element of intent in the carjacking counts

included the following:

In some cases, intent is conditional. That is, a defendant may intend to

engage in certain conduct only if a certain event occurs. In this case, the

government contends that the defendant intended to cause death or seriously

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.

If you find that the co-defendant, Vernon Lennon, acted with the intent to

cause death or serious bodily injury, that is not sufficient. You must find tha‘

the defendant shared in that intent before you can conclude that this element

has been satisfied. {*161)} I remind you that you must consider each count

separately.

In view of the foregoing, those instructions, and the charge as a whole,

properly permitted the jury, if it accepted the government's evidence, to find

Ali guilty of carjacking.

D. Conclusion

It is likely that many incidents of what both Congress and the general publi

would [**20) call carjacking are no longer prohibited by @ 2119. Without

doubt, some car robbers threaten death or serious bodily injury, but intend to

flee the scene rather than escalate the confrontation if the demand for the car

is rebuffed. A defendant with that state of mind may not be subject to

prosecution under @ 2119, even if the threat succeeds and he robs the car.

However, because Ali had the specific intent required by the statute, albeit

conditionally, his motion to set aside the verdicts and for a new trial is

denied.

So Ordered.

JOHN GLEESON, U.S.D.J.

Dated: Brooklyn, New York

April 5, 1996

: 335

Rebuttal Summations - Garrett

person and presence of another, by force and violence and by

intimidation.

All three of these offenses, Count 7, Count 9, Count ll,

call for the government to prove each of the following elements

beyond a reasonable doubt.

First, that the defendant knowingly and willfully took

or attempted to take a motor vehicle.

Second, that the defendant at the time of the taking,

intended to cause death or serious bodily harm.

Third, that the taking of the motor vehicle was

accomplished by force and violence or by intimidation.

Fourth, that the motor vehicle taken was transported,

shipped or received in interstate commerce.

The first of these elements that the defendant knowingly

took or knowingly attempted to take a motor vehicle. As I

explained before to do something knowingly is to act purposely

and voluntarily and not because of a mistake or accident or other

innocent reason.

Now, the defendant need not have been aware of the

specific law and rule that his conduct may have violated, but he

must act with a specific intent to do whatever it is the law

forbids, here take a motor vehicle by force, violence or

intimidation.

The second element the government must prove beyond a

reasonable doubt is that the taking was committed with the intent

D.Pereira, OCR

Pie “<

® 9 @

336

Rebuttal Summations - Garrett

to cause death or serious bodily harm. This requires you to make

a determination about the defendant’s state of mind at the time

of the conduct in question. I’ve already discussed with you the

fact that a person’s intent can rarely be proved by direct

evidence. You should consider the totality of the circumstances

presented by the evidence before you. —_

The defendant’s intent in committing the crime must have

been to cause death or serious bedily harm. I remind you that

intentional conduct is done willfully, with a bad purpose to do

something the law forbids, in this case, to cause death or

serious bodily harm to the person from whom the car was taken.

It is the defendant’s theory of the case that the

evidence fails to prove that he acted with intent to cause death

or serious bodily harm.

If the government has failed to prove beyond a

reasonable doubt that the defendant acted with the intent to kill

or cause serious bodily harm to the particular victim, you must

find him not guilty of that offense.

The defendant is entitled to the presumption of

innocence with regard to all of the elements of the offense

including this element. That is, you must presume that the

defendant did not possess the intent to kill or cause serious

bodily harm and you must continue to give the benefit of that

presumption to the defendant unless and until it is proven beyond

a reasonable doubt that the defendant intended to cause death or

D.Pereira, OCR

337

Rebuttal Summations - Garrett

serious bodily harm at the time of the events you are

considering.

Evidence that the defendant intended to use a gun to

frighten the victims is not sufficient in and of itself to prove

an intent to kill or cause serious bodily harm. It is, however,

one of the facts you may consider in determining whether the

government has met its burden.

You may also consider the fact that no victim was

actually killed or seriously injured when you consider the

evidence or lack of evidence as to the defendant’s intent.

In some cases, intent is conditional. That is, a

defendant may intend to engage in certain conduct only if a

certain event occurs.

In this case, the government contends that the defendant

intended to cause death or serious body harm if the alleged

victims had refused to turn over their euse. If you find beyond

a reasonable doubt that the defendant had such an intent, the

government has satisfied this element of the offense.

If you find that the co-defendant, Vernon Lennon, acted

with the intent to cause death or serious bodily injury, that is

not sufficient. You must find that the defendant shared in that

intent before you can conclude that this element has been

satisfied.

Let me also remind you, you must consider each count

separately.

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Rebuttal Summations - Garrett

Serious bodily harm is defined to be “bodily injury”

which involves substantial risk of death, extreme physical pain,

protracted and obvious disfigurement, or protracted loss or

impairment of a bodily member, organ, or mental faculty.

This is to be distinguished from “bodily harm" which

means cut, abrasion, bruise, burn, or disfigurement, physical

pain or any other injury to the body, no matter how temporary.

Proof of intent to cause bodily harm as opposed to

serious bodily harm is insufficient.

The third element the government must prove is that the

taking of the motor vehicles were accomplished by force or

violence or by intimidation.

The government can meet its burden on this element by

proving beyond a reasonable doubt either that the defendant used

force or violence or that the defendant acted in an intimidating

manner, it need not prove both. The phrase “intimidating manner”

means that the defendant said or did something that would make an

ordinary person fear bodily harm or for the purpose of causing

another person to fear bodily harm.

However, it is not necessary for the government to prove

that the victim was actually frightened in order to establish

that the defendant acted in an intimidating manner. Your focus

should be on the defendant’s behavior. Although the government

does not have to show that the defendant’s behavior caused or

could have caused terror, the government does have to show that

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written form, part of the charge.

I understood you to object to sending them the whole

charge. That’s why I am proceeding the way I intend to do

now. I am afraid by sending, in written form, just part of

it, I will undercut the bedrock principle that they should

view all my instructions as a whole.

MR. HANNA: We would respectfully object to this,

request that you send in the charge.

THE COURT: All right. Your request is denied.

Bring in the jury.

THE CLERK: All rise.

(11:30 - jury entered the courtroom).

THE COURT: Please be seated, everyone. Good

morning, ladies and gentlemen. Everybody made it in okay

eventually.

All right. At the end of the day yesterday, I

received from you what’s been marked as Jury Note 1: “Need a

copy of the law as stated by the Judge on intent.”

What I will do now is read to you the portions of the

charge I gave you yesterday that relate to intent. There are

two segments of the charge that respond to your note.

Let me remind you at the outset that although I

intend to do that, let me remind you not to single out any one

instruction, these ones included relating to intent, as alone

stating the law. Rather, you should consider my instructions

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357

a whole when you deliberate.

Now I instructed you regarding intent in two

respects. First, regarding knowledge, and intent generally as

opposed to in the context of the particular counts. Let me

reread to you my instructions regarding knowledge and intent

generally.

As a general rule, the law holds persons accountable

only for conduct they intentionally engage in. Thus, in

describing the various crimes that have been charged to you, I

have on occasion explained, before you can find the defendant

guilty you must be satisfied that he was acting knowingly and

intentionally.

Let me explain what these terms mean under the law.

A person acts knowingly if he acts purposely and

voluntarily and not because of a mistake or accident or some

other innocent reason. A person acts intentionally if he acts

willfully with the specific intent to do something the law

forbids.

Now the person need not be aware of the specific law

or rule that his conduct may be violating, but he must act

with a specific intent do whatever it is the law forbids.

These issues of knowledge and intent require you to

make a determination about a defendant’s state of mind,

something that can rarely be proved directly. A wise and

careful consideration of all the circumstances, including the

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358

defendant’s actions and omissions, may permit you to make a

determination as to a defendant’s state of mind. Indeed, in

your everyday affairs, you are frequently called upon to

determine a person’s state of mind from his words and actions

and unique circumstances. You are asked to do the same thing

here.

Now, I also charged you regarding intent in

connection with the specific crimes charged in 7, 9, and 1l.

Those are the offenses charging the taking of a motor vehicle

by force, violence, or intimidation.

Just to give you a little bit context, I instructed

that there were four elements that must be proved by the

government beyond a reasonable doubt before you may find the

defendant guilty of any of those crimes.

Those elements are as follows.

First, that the defendant knowingly and willfully

took or attempted to take a motor vehicle.

Second, that the defendant, at the time of the

taking, intended to cause death or serious bodily harm.

Third, that the taking of the motor vehicle was

accomplished by force and violence or by intimidation.

And lastly, that the motor vehicle taken was

transported, shipped, or received in interstate commerce.

Now, it strikes us responsive to your note regarding

intent are the instructions regarding the second element,

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359

element of intent. I will reread those to you now.

The second element the government must prove beyond a

reasonable doubt is that the taking of a motor vehicle was

committed with the intent to cause death or serious bodily

harm. This requires you to make a determination about the

defendant’s state of mind at the time of the conduct in

question.

I’ve already discussed with you the fact that a

person’s intent can rarely be proved by direct evidence. You

should consider the totality of the circumstances presented by

the evidence before you. The defendant’s intent in committing

the crime must have been to cause death or serious bodily

harm. I remind you that intentional conduct is done wilfully

with the purpose to do something the law forbids. In this

case, to cause death or serious bodily harm to the person from

whom the car was taken.

It is the defendant’s theory in the case that the

evidence fails to prove that he acted with indent to cause

death or serious bodily harm. If the government has failed to

prove beyond a reasonable doubt that the defendant acted with

the intent to kill or cause serious bodily harm to the

particular victim, you must find him not guilty of that

offense.

The defendant is entitled to the presumption of

innocence with regard to all elements of the offense,

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360

including this element of intent. That is, you must presume

that the defendant did not possess the intent to kill or cause

serious bodily harm and you must continue to give the benefit

of that presumption to the defendant unless and until it is

proven beyond a reasonable doubt that the defendant intended

to cause death or serious bodily harm at the time of the

offense you are considering.

Evidence that the defendant intended to use a gun to

frighten the victims is not sufficient in and of itself to

prove an intent to kill or cause serious bodily harm. It is,

however, one of the facts you may consider in determining

whether the government has met its burden. You may also

consider the fact that no victim was actually killed or

seriously injured when you consider the evidence or the lack

of evidence on the defendant’s intent.

In some cases, intent is conditional. That is, a

defendant may intend to engage in certain conduct only if a

certain event occurs.

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. If you find that the co-defendant, Vernon Lennon,

acted with the intent to cause death or serious body injury

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that is not sufficient. You must find that the defendant

shared in that intent before you can conclude that this

element has been satisfied.

I remind you must consider each count separately.

Serious bodily harm is defined to be bodily injury

which involves substantial risk of death, extreme physical

pain, protracted and obvious disfigurement or protracted loss

or tnesioonnt of a bodily member, organ, or mental faculty.

This is to be distinguished from mere bodily harm, which |

means, cut, abrasion, bruise, burn, disfigurement or physical

pain or any other injury to the body no matter how temporary.

Proof of intent to cause bodily harm is insufficient.

Those are my instructions to you regarding intent.

Hopefully, that answers your question.

Let me ask you to return to the jury room and resume

your deliberations.

THE CLERK: All rise.

(10:45 a.m. - Jury deliberations resume. )

THE COURT: Please be seated.

(Court in recess awaiting the verdict of the jury.)

D.Pereira, OCR