This appeal calls upon us to interpret language in the federal carjacking statute, 18 U.S.C. § 2119 (the “carjacking statute”), that defines how near a robbery victim must be to his or her stolen automobile to render the robber criminally liable for carjacking. That is, this case requires us to decide what the federal carjacking statute means when it criminalizes the forcible taking of an automobile “from the person or presence” of the victim, id.
Defendant-Appellant William Soler, joined by his co-defendant Sami Waters,
Both Soler and Waters made this argument before Judges Dearie and Gershon, respectively, in motions for acquittal at the close of their trials, and each judge rejected their interpretive argument.
BackgRound
For the purpose of advancing their interpretation of the carjacking statute on appeal, the defendants do not dispute that evidence at their trials established that on August 10, 2010, they entered a home in Brooklyn, New York, and violently robbed the three residents therein of several things of value. As they left the home, the defendants demanded that one of the residents give them the keys to a car parked in front of the house. This victim testified that the car was parked on a curb “10 to 15 feet” or “a five second walk” from the front door to the house, Soler App. 51, and that while a person could have seen the car “from [the] front door,” she “couldn’t at th[e] moment [the defendants asked for the keys] because [she] was laying down,” Soler App. 47. After the defendants demanded the keys, the victim retrieved her keychain from a shelf near the front door and handed it to them. She then sat near the two defendants as the two turned to flee the scene, though from her vantage point she was unable to observe the defendants’ behavior as they left the home.
Photographs of the front of the home introduced into evidence show that the interior of the house in which the victim was robbed of her keys is separated from the street by a solid front door, a short driveway (the transiting of which would account for the “five second walk” described in the victim’s testimony), a wrought iron fence, and a sidewalk. The victim also testified that the ear could be unlocked from the front door using a remote attached to her keychain.
Both Soler’s and Waters’s counsel moved, pursuant to Federal Rule of Criminal Procedure 29, for acquittal as to the carjacking count as well as a related count charging the unlawful use of a firearm in violation of 18 U.S.C. § 924(c).
Judge Dearie deemed Soler’s motion to have been made both at the close of the government’s case and at the close of all the evidence, but did not decide the motion until the first day of sentencing.
Judge Dearie explained from the bench that although this Court has not yet decided the issue, other courts have reached “the common sense conclusion that person or presence does [not] necessarily require the immediate presence of the victim.” Soler App. 166.
Judge Gershon denied a nearly identical motion in Waters’s case. In an opinion explaining her decision, Judge Gershon correctly observed that “all circuits that have considered the issue have held that ‘property is in the presence of a person if it is so within his reach, observation, or control that he could, if not overcome by violence or prevented by fear, retain possession of it,’ ” Waters App. 255, and that the facts of the defendants’ robbery here involved no greater a distance between the victim and her automobile than several carjacking convictions affirmed by our fellow circuits. See id.
This appeal ensued, in which the defendants renew their argument that the victim’s car was not within her “presence” when they forcibly took her keys from her inside her home.
DISCUSSION
We review the district courts’ interpretation of a federal statute de novo. United States v. Aleynikov,
We begin with our traditional interpretive tools, turning first to the text of the statute in an attempt to discern whether the plain and ordinary meaning of the term “presence” settles the matter. See Raila v. United States,
In pertinent part, the carjacking statute imposes criminal penalties upon “[w]hoever, with the intent to cause death or serious bodily 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 violence or by intimidation, or attempts to do so.” 18 U.S.C. § 2119. As many of our fellow courts of appeals have noted, the critical term — “presence”—does not yield a straightforward ordinary meaning. See, e.g., United States v. Kimble,
The legislative history is just as equivocal with respect to the intended scope of the carjacking statute, and it is utterly silent as to the meaning of “presence.” To be sure, the legislative history of the larger Anti Car Theft Act of 1992, Pub.L. No. 102-519, 106 Stat. 3384, of which the carjacking statute was a part, reflects Congress’s preoccupation with a surfeit of “auto kleptomania ... sweeping the nation,” Anti-Car Theft Act of 1992: Hearings Before the Subcomm. on Crime & Criminal Justice of the H. Comm, on the Judiciary, 102d Cong. 1 (1991) (Opening statement of Rep. Schumer). Read in context with the aims of the broader Anti Car Theft Act, it is clear that in enacting the carjacking statute, Congress was legislating to address the ever-growing problem of auto theft in this country. Thus the broader Anti Car Theft Act also aims to reduce trafficking in stolen vehicles by addressing the phenomena of “chop shops,” “title washing,” and export “rings” that use shipping containers to ship stolen cars abroad. See H.R.Rep. No. 102-851, pt. 1, at 14 (1992); see also Kimble,
On the other hand, the legislative history that describes the particular mischief Congress sought to remedy in passing the carjacking statute makes repeated reference to what one would consider the ordinary meaning of “carjacking”: that is, “[t]he stealing or commandeering of an occupied car by threatening the driver with violence,” carjacking, n., OED Online, www.oed.com (search “carjacking”) (last visited May 9, 2014). At the forefront of this legislative history are repeated references to the shocking death of a mother who was dragged to her death after her vehicle was carjacked in the Washington, D.C. area. See, e.g., 138 Cong. Rec. 24809 (1992) (statement of Sen. Cohen); 138 Cong. Rec. 24914 (1992) (statement of Rep. Goss); 138 Cong. Rec. 25146 (1992) (statement of Rep. Bliley). Similarly, when Senator DeConcini rose to introduce a slightly different (and ultimately unsuccessful) bill that aimed to address carjacking, he began by describing the horrors of a crime “popularly known as carjacking,” 138 Cong. Rec. 25672 (1992), in which a “car is stolen while the driver is behind the wheel,” id. A few days thereafter, Senator Lautenberg lamented the “most disturbing ... problem of violent carjackings” in which “thieves are using violence and intimidation to force drivers to give up their cars.” 138 Cong. Rec. 27977 (1992).
Seizing upon these latter statements, Soler contends that the legislative history buttresses the conclusion that “presence” should take the ordinary meaning of something akin to “close proximity.” On Sol-er’s interpretation, the carjacking statute prohibits the taking of a car that is “in front of, or in the area immediately around” the victim. Br. for Defendant-Appellant Soler at 13.
Given the absence of any clearly probative discussion of “presence” within the
By way of background, we note that we are not the first court of appeals to construe the term “presence” in the federal carjacking statute. Indeed, the government directs us to the decisions of no fewer than nine courts of appeals that have come to the conclusion that the broader definition employed by Judge Gershon is correct. See United States v. Savarese,
While rejecting the typical tools of ordinary meaning, legislative history, and legislative purpose to aid its interpretation of the statute, the government asks us to adopt these other courts’ interpretation of the carjacking and federal robbery statutes. Naturally, the decisions of our fellow courts of appeal inform our analysis, but we emphasize that these decisions do not bind us of their own force; they carry authoritative weight only insofar as they articulate persuasive reasons favoring a particular interpretation of the statute in question.
That said, however, it is a fair observation to suggest that the genesis of most courts’ interpretation of the word “presence” in the federal carjacking statute is not the standard methodology of statutory interpretation, but rather the gloss given to the term “presence” in the federal robbery statute, 18 U.S.C. § 2111 (“§ 2111”), by the Ninth Circuit’s opinion in United States v. Burns,
The Ninth Circuit’s opinion in Bums gives little indication of the provenance of this definition, nor does it offer an interpretive argument about why this fairly elaborate definition ought to be read between the lines of Congress’s use of the word “presence” in the federal robbery statute. Nevertheless, the Bums definition of “presence” in § 2111 is the touchstone for the many decisions of our sister circuits that have interpreted “presence” in § 2119, the federal carjacking statute. That is to say that nearly all of these decisions read the presence requirement of § 2119 to be consistent with the Burns definition of § 2111’s presence requirement. See, e.g., Savarese,
We note, as have other courts of appeals, that the legislative history of the carjacking statute indicates that Congress intended the statute’s language to “traek[ ] the language used in other federal robbery statutes (18 U.S.C. §§ 2111, 2113, 2118).” Anti Car Theft Act of 1992, H.R.Rep. No. 102-851, pt. 1, at 17; see also Lake,
In defining the “carjacking” offense by using the roundabout language of “person or presence of another” (rather than simply criminalizing “carjacking”), the statute adopts a peculiar turn of phrase with an old pedigree. Indeed, Soler’s principal brief solves, in part, the riddle of the Ninth Circuit’s definition in Bums by directing our attention to nineteenth-century descriptions of the common law offense of robbery. Crucially, the baroque definition of “presence” that has made its way into the nine decisions of our fellow courts of appeals appeared at least as early as 1844 in Massachusetts. That is to say that the Bums definition of “presence” appears almost verbatim in a report on the penal code of Massachusetts commissioned by that state’s legislature. The report describes the offense of “robbery” as “larceny or stealing of a thing from the person of another, or from his custody in his presence, by force or putting him in fear.” Report of the Penal Code of Massachusetts, Prepared Under a Resolve of the
This common law definition of “presence” was recited in the early decades of the last century by the Massachusetts Supreme Judicial Court, see Commonwealth v. Homer,
Having identified the legal hook on which the Burns court could hang its interpretation of “presence,” we turn to assess the legitimacy of the Bums definition as a matter of statutory interpretation. In our view, the Ninth Circuit was correct to read the common-law definition of “person or presence” into the federal robbery statute, as were the eight other courts of appeals that have applied the Bums interpretation of “presence” to the carjacking statute. “It is a settled principle of interpretation that, absent other indication, ‘Congress intends to incorporate the well-settled meaning of the common-law terms it uses.’ ” Sekhar v. United States, — U.S. -,
While mindful that the common-law meaning canon applies only where the identity between the common law words and the statutory words is clear, see United States v. Turley,
In sum, the statute’s text does not use the argot of carjacking to define the meaning of “person or presence”; instead the statute uses the language of common law robbery. To borrow an oft-repeated metaphor, because the term “person or presence” was “obviously transplanted from another legal source,” we will cultivate our interpretation of the statute in the “old soil” it brings with it. See Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 537 (1947); see also Sekhar,
As a final attack on the Bums definition of presence, Soler contends that the interpretation given therein is boundless and suggests no natural limit. Because, the argument goes, the proximity contemplated by the Burns view of “presence” can expand according to a defendant’s capacity to retain possession if not overcome by fear, the interpretation we adopt here would seem to allow for criminal liability to hang on the results of a footrace. That is, where a victim could have outrun his robber to the taken property — whatever the distance, even if the length of the island of Manhattan separated the victim from his automobile — the Bums definition would erroneously lead us to conclude that the property was within the victim’s “presence.” Cf. Lake,
We accordingly join our fellow courts of appeals in adopting, for the purpose of interpreting the carjacking statute, the Bums definition of “presence” as the law of our Circuit. A motor vehicle is in the presence of the victim if it is so within his or her reach, inspection, observation, or control that he or she could, if not overcome by violence or prevented by fear, retain possession of it. This definition naturally implies a degree of physical proximity between the victim and the vehicle.
There is no dispute that the evidence introduced at trial, viewed in the light most favorable to the prosecution, easily met the Bums definition. Nor could there be: the facts of this case present a degree of proximity and control that is either identical or far greater than facts leading our fellow courts of appeals to affirm carjacking convictions and carjacking-related sentencing enhancements. See, e.g., Savarese,
The district court therefore properly denied each defendant’s motion for a judgment of acquittal.
Conclusion
For the foregoing reasons, the judgments of the district court are AFFIRMED.
Notes
. While Defendant-appellant Waters joins the relevant portions of Soler's brief regarding the issue of statutory interpretation we discuss in this opinion, we note that Waters’s appeal principally argues that the district court erred in denying his motion to suppress certain evidence and erred in imposing sentence. We address those arguments in a summary order filed simultaneously with this opinion.
. For reasons that are not relevant to this appeal, Soler and Waters were each tried separately for offenses charged in the same indictment. The indictment charged the defendants with carjacking, 18 U.S.C. § 2119 (Count 1); the unlawful use and brandishing of a firearm, 18 U.S.C. § 924(c)(l)(A)(ii) (Count 2); and being felons in possession of a firearm, 18 U.S.C. § 922(g)(1) (Count 3 as to Soler and Count 4 as to Waters, to account for a difference in the applicable penalty provisions).
. Soler’s sentencing proceedings began on March 28, 2012, but were adjourned. His sentence was eventually imposed on April 4, 2012.
. Although Judge Dearie indicated at sentencing that he would issue a written opinion denying Soler's Rule 29 motion, no such opinion appears in the record.
. 18 U.S.C. § 2111, in pertinent part, proscribes the conduct of "whoever, within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes or attempts to take from the person or presence of another anything of value” (emphasis added).
. The Culbert panel concluded that the attempt to extort $100,000 from a bank employee by instructing the employee to "drop the money at a specified site and then return to the bank” did not satisfy the statutory requirement that the taking be from the employee’s “person or presence.”
. We also note that the 1844 Report includes an illustrative list to explain the meaning of presence, which confirms that at common law there must be some proximity between the owner and his property. The list includes among its examples “a horse standing by [the victim]”; the victim’s purse "thrown aside to prevent its being taken by the robber, but still being near at hand”; or "an article of apparel which has fallen from [the victim’s] person, but is still near at hand.” 1844 Report, ch. XVI, § 5; see also Wayne R. LaFave, 3 Substantive Criminal Law § 20.3(c), at 179 (2d ed.2003) (" 'Presence' in this connection is not so much a matter of eyesight as it is one of proximity and control....”).