*1 parent examined the role of the in the operations subsidiary, particularly
regard pollution nearby to the issue of
waters and actions that have resolved
it.
Although Dairy Dean any contends that
evaluation of its financial condition would
show that it lost over one million dollars
between 1992 and there was also evi-
dence that it twenty had over million dollars year assets in fiscal 1995. at 586-88.
In light of the discretion afforded district in determining penalty, we conclude
that the court’s parent’s examination of the
assets, done, the basis for which it was
the manner in which the information was
used was neither clear error nor an abuse of
discretion.
III. reasons,
For the foregoing the order of the
district court will be affirmed.
UNITED STATES of America LAKE,
Hilton A. Lake, Appellant.
Hilton A.
No. 97-7462. Appeals, Court
Third Circuit.
Argued March July
Decided *2 Hurd, Jr., Attor- A.
James (Argued), Assistant Kim L. Chisholm ney, Amalie, VI, Ap- for Attorney, Charlotte pellee. COWEN, BECKER, Judge, Chief
Before: ALITO, Judges Circuit and THE COURT OF OPINION ALITO, Judge Circuit in a judgment appeal from is an This trial, . the defen- After case. criminal Lake, dant, A. was convicted Hilton carrying a using U.S.C. a crime of in relation during and firearm (see violence, namely, a 2119). on challenges his Lake conviction most substantial grounds, the numerous he did not violate is that because, not take he did argues, he statute per- question “from motor vehicle reject of the victim. presence” son or we arguments, and Lake’s other this and affirm. therefore I. to Lake’s events that led
The Bay in Thom- Magen’s St. at Little occurred road as, Virgin Islands. The States United Bay ends at Magen’s at Little to the beach steep path There is a top of a hill. that leads by vegetation and rocks bordered beach, and the the road down from from the beach. cannot seen road day in Lake hitchhiked question, theOn Milton Bay encountered Magen’s and Little reading Clarke, sitting beach who was asked Clarke newspaper. whether Lake up on the road. parked a white car owned did, initially and said Clarke However, returned a away. walked borrow and asked to moments later few refused, Lake stated car. When Clarke refused, again emergency. Clarke anwas returned walked off. When Lake yet again, Clarke said: up to [Ljisten, If I it. think walked about McKelvin, De- Federal Public T. Thurston your I you, can borrow asked you and fender, (Argued), Patricia Schrader-Cooke to me? Of lend it car[,] you going Defender, [a]re Christianst- Asst. Federal Public n you leave me the why So don’t not. VI, ed, course Appellant. responded hell alone. I’m here to have a nice time. that he “would think about it.” someplace gun Just chill. Go else. was never recovered. Lake was carjacking, indicted for in viola-
App. 140A. tion of 18 using and for rock, off and on a Lake walked sat while carrying a during firearm relation to a *3 anxiously watched him out Clarke of the (the crime of violence carjacking), in violation eye, corner of his but Lake soon returned 924(c)(1). § of 18 U.S.C. At the close of the request. with the same When Clarke swore trial, his'jury evidence in Lake moved unsuc- again, Lake if he a asked could have drink cessfully judgment for a acquittal. of from Clarke’s cooler. Clarke said: “[DJon’t jury subsequently returned a verdict of not you get App. it? Leave me alone.” 141A. guilty charge guilty but shirt, up Lake then lifted his Clarke showed the firearms offense. Lake was to sentenced gun, of a the handle and said: know “[Y]ou imprisonment plus for 60 months a three- App. what that is?” 141A. up Clarke stood year supervised term of release. He then backing away, pulled and started but Lake appeal. took this band, gun put the from against his waist face, keys. Clarke’s and demanded the car II. App. 142A. Clarke said that he did not have begin We will argument Lake’s keys walking the and started toward the that support the evidence was insufficient to following. water with Lake Clarke waded his conviction § under 18 U.S.C. water, waist-deep into and Lake walked out because the evidence did not show that he promontory a overlooking onto the water. used or a carried “firearm” within the mean App. 143A-48A. 921(a)(3). § ing of 18 U.S.C. Lake contends water, friend, While Clarke was in the his that the evidence failed to establish that the Croaker, appeared Pamela on the beach. gun toy. Appellant’s was not a Br. at 18. warning, Clarke a prompting shouted Lake initially Lake notes that he told Officer Grif approach to Lake Croaker.' demanded that fin gun toy, that the was a that Croaker and keys, Croaker surrender her car and Croak- gun Clarke both said that the looked like the you. Why er said:“I don’t even know would type Westerns, gun by cowboys used I give you keys App. the to ear?” 183A. and that Clarke said that he was not able to grabbed keys, Lake then and the two gun tell whether the was real. Id. possession keys. wrestled When recently argument addressed a similar gun, Croaker saw the she surrendered the (3d Beverly, in United States v. keys keep keys. but asked to her house Cir.1996), Beverly and under the evidence App. up steep 184A-86A. Lake went here was sufficient. Both Clarke and Croak- where area Croaker had gun er that stated Lake had a and described parked sight her car out of of the beach. 141A-42A, App. it in some detail. See 184A. away Lake then drove Croaker’s car after descriptions Lake does not contend that their leaving keys her house on the hood were inconsistent with that of gun. a real App. ear. Clarke’s 192A. As we will discuss Both they Clarke and Croaker testified detail, later more both Croaker and Clarke fear, 151A, 184A, experienced great App. path, followed him they but when 186A, and Croaker manifested sufficient fear arrived, driving away. he was Moreover, gun keys. to surrender her day, police apprehended Later although originally Lake told the authorities Lake in the stolen car at gun toy a McDonald’s res- was a and that he had questioned by police taurant. When swamp, thrown it in a he refused to reveal its an FBI agent, location, Lake stated that he had used and when later asked whether he toy a gun and that he had gun thrown it a would tell the truth about whether the real, swamp. He to take responded refused the officers to was that he would allegedly disposed the site where he had light “think about it.” 171A-72A. In gun, evidence, to when asked tell the truth of all of this a rational gun really toy, gun about whether the he find that the was real. Appel- gun her. pulling before her
III.
agree that these facts
lant’s Br. at 16. We
the evidence was
argues that
next
Lake was at least reluctant
suggest that
the car-
that he
to show
insufficient
violated
gun,
agree
fire his
but we do
statute,
and thus
jacking
compelled to infer that
jury was
rational
predicate
offense
committed
gun
in the end
would not have fired
924(e)(1)
support his 18 U.S.C.
needed
keys.
On
given
had not
Croaker
statute, 18
Under the
conviction.
evidence am-
contrary, we hold that .the
prove
must
finding that Lake
supported
jury’s
ply
(1)
intent to cause
“with
the defendant
requisite conditional intent
possessed the
(2)
bodily harm”
took
or serious
death
bodily injury.
or serious
cause death
“transported,
that had been
motor vehicle
foreign
in interstate or
shipped,
received
*4
person
presence
or
B. From the
(4)
person
presence
“from the
or
commerce”
the evidence
maintains that
another. Lake
by
“by
violence or
force and
another”
he took Croaker’s car
not show that
did
that
the
Lake contends
evi-
intimidation.”
person
presence,” as 18 U.S.C.
“from
or
[her]
prove
insufficient to
in this case was
dence
argues
that he took
2119 demands. Lake
one, three,
reviewing
In
and four.
elements
car,
person
her
or
keys, not her
from
her
evidence, we
sufficiency of the
must de-
the
not in
presence and that the car was
Croak-
rationally
jury
the
could have
cide whether
took it because she
presence
er’s
when he
challenged elements
found that each of the
car at that mo
not see or touch the
could
beyond a reasonable
been established
had
ment.
Carr,
1194,
25
v.
F.3d
doubt. United States
requirement
that
(3d Cir.1994).
statute’s
1201
person
taken “from the
or
the vehicle be
serious,
death or
A.
Intent
to cause
language
presence of the
“tracks the
victim”
in Lake’s
bodily injury.
see no merit
We
statutes,”
robbery
in other
federal
used
was insufficient
contention that the evidence
102-851(1),
(1992),reprint
H.R.Rep. No.
at 5
to show that he
to cause death
intended
2829, 2834, such as
in 1992 U.S.C.C.A.N.
ed
bodily injury.
previously
As
dis
serious
2113,
2111,
§§
and 2118. See
cussed,
sufficient to show
the evidence was
Perez-Garcia,
v.
F.3d
addition,
gun
real.
In
the
that Lake’s
was
(1st Cir.1995).
statutes, “prop
these
Under
Croaker,
victim,
testified
jacking
ear
Pamela
erty
presence
person
of a
if it is ‘so
is
the
in front of her and
gun
that Lake waved the
reach,
control, that
observation or
within his
keys
give him the
to her car.
ordered her to
by
pre
he could if not overcome
violence
testified,
hesitated,
App. 184A.When
she
she
”
fear,
possession
by.
retain his
of it.’
vented
placed
close to her head and
gun
Lake
the
Burns,
v.
keys. App.
again
told her to surrender
Cir.1983).
(9th
See also United States
testimony, a rational
185A. Based on this
(8th Cir.1986);
W.T.T.,
780, 782
800 F.2d
jury
had the intent to
that Lake
find
Scott,
Criminal
LaFave and
Substantive
injury
bodily
kill or cause serious
to Croaker
(1986) (“
‘Presence’ in this
Law 8.11 at 443
demands, and
comply
if she did not
with his
eye
so much a matter of
connection is not
previously
that such a condi
we have
held
proximity
control:
sight as it is one of
satisfy
car
tional intent
sufficient to
is
robbery
must be
property
taken
Anderson,
jacking statute. United States
sufficiently
enough
the victim and
close
to
(3d Cir.),
cert. de
481-85
that,
not
his control
had the latter
—nied,
-,
118 S.Ct.
by
subjected
been
to violence
intimidation
L.Ed.2d 74
robber,
prevented
have
the tak
he could
was
arguing
proof
of intent
ing”).
insufficient,
notes, among
things,
other
Lake
described,
Here,
previously
keys
as
several
he “asked
Clarke’s
gunpoint
keys
ear
at
on
gun
placed
took Croaker’s
displayed
times
before he
ran
and drove
against
initially
beach and then
and that he
Clarke’s face”
pursued Lake but
away in her car. Croaker
keys
asked for
Croaker’s
and wrestled
stop
area in time to
commerce. The
sought
did
reach
to estab
lish this
Applying
“presence”
testimony by po
the definition of
element based on
him.
Griffin,
above,
lice officer Curtis
life-long
conclude that a rational
resident
noted
we
Islands,
Virgin
that no motor vehicles
could have found that Croaker could have
are manufactured in the Virgin Islands
prevented
taking
of her car
she had not
that all motor vehicles
shipped
have
fearful that Lake
shoot or other-
been
would
App.
the islands.
194A-195A.
argues,
harm her.
wise
Croaker testified
however, that
was not qualified
“Griffin
sight
gun
great
of Lake’s
caused her
fear.
testify regarding this
simply
element
because
gun
She stated that when she first saw the
long
he was a life
Virgin
resident of the
going
go
she“felt like
to let
of [her]
[she]
Islands” and that “[n]o foundation was laid
App.
Although
faint.”
[and]
bowels
184A.
testimony.” Appellant’s
for this
Br. at 19.
say
many
in so
Croaker did
words that
this,
reject
argument.
Under Fed.
pursuing
she hesitated for some time before
R.Evid.
Officer Griffin’s testimony was
path,
sequence
of events laid
proper if there was sufficient
“to
evidence
testimony supports
out
her
the inference
support
finding
personal
[he had]
that this what occurred. Croaker stated
knowledge of the matter.” This foundation
point
when she surrendered the
may
by
testimony
be “furnished
keys,
struggling
through
Clarke “was
back
Advisory
witness himself.” Fed R. Evid. 602
back,”
185A,
the water to come
but that
Committee
Proposed
Note
the 1972
*5
Rules.
she did not start
to run
the
until
“The district court exercises its discretion in
emerged
App.
Clarke
from the water.
186A.
determining
proponent
whether the
of the
that,
Clarke testified
when Lake ran
the
evidence has met
burden.” S
[this]
Wein-
path,
“pulling
together
was
Croaker
herself
steins’s Federal Evidence
at
602.03[1][b]
App.
of.”
kind
150A. Clarke related that he
(2d Ed.1998).
602-11
“caught up to
at the bottom of the
[Croaker]
paved driveway” and that
the two of them
There was no abuse of discretion
proceeded up
path together. App.
the
150A.
judicial
take
here. We
notice of the fact that
They
parking
reached the
area in time for
Virgin
the United States
Islands consist of
driving away
Croaker to see Lake
in her car
islands,
closely grouped
three main
which are
stop
App.
but not in time to
him.
186A.Both
only
and have an area
square
of
136
miles.
point
Croaker and Clarke stated that at this
police
Times Atlas
the
A
World
of
151A,
they
very
App.
were
scared.
186A.
lifelong
place
officer and
resident of a
of this
testimony,
jury
Based on this
a rational
could type
testify
has a sufficient basis to
as to
pursuing
infer that Croaker hesitated before
any
manufacturing
whether
motor vehicle
fa
Lake due to fear
and that
she had not
cilities are located there. We therefore con
hesitated she
could have reached the
proved,
clude
adequately
that the
prevent
in
taking
area
time to
Lake from
her
requires,
as U.S.C.
that the motor
force, violence,
car
employing
without
further
in question
transported
vehicle
had been
in
or intimidation.
suggest
We do not
this in-
foreign
interstate or
commerce.1
compelled,
ference was
but because such an
sum,
In
we hold that
the evidence was
rational,
inference was
we hold that the evi-
sufficient to establish all of the elements of
dence was sufficient.
carjacking
statute.
foreign
C.
Interstate or
commerce.
IV.
Lake also contends that the evidence was not
sufficient to show that
reject
Croaker’s car had
Lake’s contention that
transported
been
in
foreign
interstate or
court
district
committed reversible error
-,
question
1. Lake has not raised the
whether Con
118 S.Ct.
ed States v. 90 F.3d 821 Judge, dissenting. Chief Cir.1996). provi- In a under this keys When defendant took the’ car sion, government prove must victim, Croaker, from his Pamela Ms. Croak- qualifying predicate defendant committed a was, terms, er’s car city away, up a block Jenkins, offense, 821, see 90 F.3d at but it is hill, sight. out of Under these circum- necessary sepa- the defendant be stances, join I opinion would an upholding rately charged or convicted such an Lake’s “keyjacking,” conviction for or for Nelson, 200; offense. 27 F.3d United key robbery grand both larceny. I can- Wilson, (5th 174, v. States 884 F.2d 176 not, however, agree guilty that he is of car- Cir.1989); Hill, v. 971 United States F.2d jacking. majority upon The draws federal (10th 1461, Cir.1992); 1464 robbery explicate statutes to how the vehicle (6th Cir.1994); Ospina, 18 F.3d (as opposed keys) may to its be considered to Wilkins, F.2d “person pres- have been taken from the or (9th Cir.1990); n. 1 United States v. Robert- ence Disciples juris- of the victim.” son, (9th Cir.1990); 901 F.2d United prudence pure may, analytic reason Munoz-Fabela, 911 terms, approach convincing. find this As I (5th Cir.1990); Hunter, United States v. below, explain events, will I do not. At all (9th Cir.1989). Although my polestar plain words, meaning apparently Charles and Edwards stand for lexicon, my and in Ms. Croaker’s car cannot proposition defendant either al- fairly be said to have been taken from her ways generally separately must be con- person presence, I respectfully hence dis- victed of a crime of violence in order to be sent. 2251(a)(2)(B), sentenced under 14 V.I.C. robbery upon statutes which the car importing we see no basis for that rule into a jacking statute is based do not themselves different, involving entirely case an federal phrase person define the “from pres statute. ence the victim.” New Interna Webster’s Dictionary presence tional defines as “the
VI.
of,
vicinity
immediately
or area
near one.”
*7
However,
argument
Lake’s final
is that he
enti-
relying
plain
was
rather than
on the
suppression
meaning,
majority
tled to a new trial or to the
turns to a construction
testimony regarding
phrase
his
“person
presence” adopted
statement to the
police
rough
by
by
because
notes taken
a detec-
in
Ninth Circuit
United States v.
(9th
Burns,
Cir.1983),
during
pre-
where,
tive
Lake’s
not
interview were
in
statute,
construing
robbery
served after the interview was reduced to
a federal
writing by
FBI agent.
“property
an
We have admon-
pres
reasoned that
is
government
reach,
agents
preserve rough
person
ished
ence of a
if it is ‘so within his
control,
prospective
inspection,
notes of interviews with
trial wit-
observation or
nesses,
by
prevent
but we have also held that
if the
could not overcome
violence or
”
”2
destroyed
fear,
“Brady
by
possession
notes do not contain
ed
retain his
of it.’
Id.
Act,
2500,
definition,
majority
Jencks
material
843. Based on this
faith,
good
were
discarded
retrial is unnec-
concludes that a rational
“could infer
essary
testimony
even if the
pursuing
of the officer
that Croaker hesitated before
who took the notes is not stricken. United
due to fear and that if she had not hesitated
Ramos,
(3d Cir.1994).
65,
she
could have reached the
area
Ramos,
ground
prevent
Under
we see no
time
taking
reversal
Lake from
her car
force,
employing
violence,
here.
without
further
1194,
(1963).
Brady Maryland,
2.
v.
373 U.S.
83 S.Ct.
principled when key statutory terms, es-
ended definitions plain those terms admit of
pecially where
meaning. robbery majority’s reliance on a car
The sufficient that the evidence was
case to show
particular
carjacking is of
to convict Lake of
JOHNSON;
Jeffrey
Bruce Howard
E.
since,
typical
coupled with the
interest to me
97-3581,
Shore, Appellants
in No.
cases,
it
pattern in federal
fact
v.
my
strengthens my view that
dissent
Raymond
HORN;
Sobina,
Martin F.
J.
(3d.
Bishop,
principal basis on which the Argued June 1998. carjacking statute to be valid found the July Decided 1998. power interstate commerce exercise of the adjunct is an was the belief 16, 1998. As Amended Oct. theft, of auto in which the interstate business “chop for a the stolen destined vehicle
shop.” majority adverted to references history labeling carjacking legislative
in the
Indeed,
are
appeals
the facts of the instant case
have cited as additional
1.Other
courts of
*8
egregious
amongst
that I have seen
concluding
the least
2119 is within Con
bases for
probably
carjacking,
alleged.
is
where
because,
That
gress' power
regulate
automo
commerce that
explained,
as I have
this case does not
of interstate com
biles
instrumentalities
are
nor,
matter,
a car
"jurisdictional
involve
robbery.
and that the statute has a
merce
(i.e.,
only applies to the forcible
hook”
that it
transported,
taking of a car "that has been
foreign
shipped,
view,
received in interstate or
com
my
local
cases are
crimes
Romero,
merce.”).
e.g.,
in,
See
belong
courts.
state courts not federal
(10th Cir.1997);
States,
F.3d
the United
See Judicial Conference of
(6th Cir.1996);
(Dec.
McHenry,