# Opposition Brief — Holloway v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0198%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1 ## Text ¢ JF ’ re, j ORIGINAL FILED wy) MAR 1 6 1998 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 e © 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 2 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 ] 3 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 e © 4 “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 ° @ © 5 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 6 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 * 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, — 8 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 9 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). @ ® 10 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 9 @ 11 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 \ 12 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. 13 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 | | | . . = 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. 6596 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 © 1 @ 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 ,../-