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

Ringgold challenged has not the dis- preempted competition of her unfair missal

claim, we affirm the District Court’s dismiss-

al of that claim. judgment

The of the District Court is re-

versed, and the case is remanded. America, Appellee,

UNITED STATES of

Teddy ARNOLD; Robinson; Charles Dar- Jones; Valentine;

rel David Paul Sca- Jeffrey

glione; Drake, Defendants,

Francois Abdu a/k/a Ali, Defendant-Appellant.

No. Docket 96-1563. Appeals,

United States Court of

Second Circuit.

Argued June 1997. Sept.

Decided reasonably regarded being would legal injunctive have a cause of action artist, damage work of the reputation to the artist’s relief. reasonably likely to result there- (McKinney N.Y. &Arts Cult. Aff. Law 14.03 from. ... Supp.1995). Ringgold claims that the defen- 2.(a) [T]he artist shall retain at all times the statutory rights they dants violated her because or, right authorship, just to claim and valid story did not credit her as the creator of the reason, authorship to disclaim of such work. quilt. Though argued the defendants on various right authorship to claim shall include the grounds apply that the statute does not right of the artist to have his or her name alleged, facts the District decided not to appear on or in connection with such work as supplemental jurisdiction exercise over the artist. remand, By express our we claim. no view as to 4.(a) the merits of this claim or of defendants’ defens- aggrieved An artist under subdivision one or subdivision two this section shall es. using a firearm in the

counts of commission in of a crime of violence violation of 18 U.S.C. 924(c) (counts ten, twelve). eight, and Hol- loway was sentenced to 60 months on count one; two, 151 months on count to run concur- one; rently with count 151 months on each of seven, nine, eleven, and to run counts concur- rently with each other and counts one and two; years eight, run on count to consecu- tively; years each and on count ten and twelve, consecutively. run count each to De- fendant was also sentenced to terms of su- pervised special release and a assessment of $400. (1) appeal, Holloway

On contends that: erroneously charged jury district court on the intent element of the stat- (2) ute; his trial counsel rendered constitu- assistance; tionally ineffective and improperly imposed trial court consecutive pursuant Holloway’s firearm sentences Keating, Law Office of Kevin J. Kevin J. convictions. NY, Keating, City, for Defendant- Garden Appellant. BACKGROUND Garrett, Dolan L. Assistant United States Holloway’s in- conviction stems from his Carter, Brooklyn, (Zachary NY Attorney, W. “chop shop” operation in volvement a located Attorney, Eastern District Queens, at 115th Drive New York. NY, counsel), York, Brooklyn, New 1994, Teddy September Arnold recruited his Appellee. son, Lennon, stealing begin Vernon cars to chop shop dismantling. be taken to the MINER, Before: McLAUGHLIN and Lennon, turn, individuals, recruited two SCULLIN, Judges, and District Circuit Holloway, him Valentine and to assist David Judge.1 co-conspirators agreed in his car thefts. The they during a firearm their should use SCULLIN, Judge: District thefts, Lennon showed both Valentine and Holloway Defendant-Appellant Francois Holloway revolver he in- and a .32 caliber appeals judgment from a entered the Unit- purpose. tended to use for that District Court for the Eastern ed States (Gleeson, J.), following charged carjacking involving Hol- of New York The first District trial, loway Lennon occurred in October 1994. convicting of numerous and a 14, Holloway and Lennon fol- participation with his On October offenses connected by sixty- Maxima carjackings Queens, New York. lowed a 1992 Nissan driven several year-old Stanley Metzger. When Metz- of one count of con- nine was convicted stopped parked across from his resi- spiracy operate “chop shop” ger in violation and (count dence, one); Metzger approached Lennon and of 18 one count of U.S.C. him, demanding shop pointed his operating chop in violation of 18 his revolver (count two); first, keys. Metzger gave counts of car At his house three U.S.C. Lennon, rejected keys them and de- violation who U.S.C. (counts seven, nine, eleven); keys. Metzger three manded his car testified York, Scullin, sitting by designation. New Frederick J. Jr. of the District of 1. The Honorable for the Northern United States District Court him, 22, 1994, “I I gun. going carjack- Lennon told have a am On November two of the victims, Thereafter, ing Metzger Rodriguez Ruben and Sara shoot.” surrendered Markett, identified as one of the keys money, his also his Lennon carjackers police line-up. Following away in drove the Maxima. identification, Holloway po- confessed to the following day, Holloway The Lennon and participated that lice he had with Lennon in Toyota by followed a 1991 Célica driven Don- carjackings involving three a silver Mer- parked, na DiFranco. When DiFranco Len- cedes-Benz, Maxima, a black Nissan and her, her, approached gun non leveled his at trial, gray Immediately prior Nissan. money keys. her and her car and demanded pled guilty Lennon to several disengaged After DiFranco the car alarm charges eight automatic and teller machine securing and unlocked her “club” the steer- (“ATM”) Thereafter, robberies. Lennon tes- wheel, ing Lennon drove off in her car. government at trial tified as witness. Len- non as to in testified the events set forth day, Holloway That same and Lennon fol- carjackings, above as well as seven additional by lowed 1988 Mercedes-Benz driven Ru- carjackings participated in which he with Rodriguez parked ben until he near his home plan Valentine. Lennon testified his Estates. Both Lennon Jamaica and Hol- was to steal the victims’ cars without harm- loway approached the driver this time. Rod- victims; ing however, Lennon also testi- riguez, sensing something wrong, was re- gun fied he would have used the if one of produced gun treated to his car. Lennon given the victims had him “a time” hard or threatened, and out car I’ll “Get of the or had resisted. Rodriguez complied shoot.” and Lennon de- money keys. manded his and car When presented testimony The Government also hesitated, Rodriguez Holloway punched him DiFranco, Rodriguez, Metzger, at trial from Rodriguez in the face. surrendered the Eng, Lamboy. present- and These witnesses foot, yelling help. items and fled on Len- factually testimony depicting ed consistent Mercedes, in non drove off and carjackings the various as set forth above. followed another car. exception Rodriguez, With the none of the injured during victims was the course of the trial, presented At the Government also carjackings, Rodriguez require did not uncharged evidence of two additional car- medical attention. jackings involving Holloway. Lennon and any defense declined to call witnesses. One involved the theft of a 1987 Nissan counsel, objection Judge Over defense Betty Eng Maxima which was stolen from charged jury on the doctrine of parked driveway she in her on October applied as it to the intent uncharged carjacking 1994. The other oc- element for the Judge offenses. day, curred on October 1994. On that jury Gleeson instructed the that an intent to attempted Lennon steal a cause death or serious harm condi- 1994 Nissan Sentra Sara Markett when tioned on whether the victims surrendered parked she her car on 193rd Street satisfy their cars was sufficient to Queens. Markett, telling Lennon threatened stated, of the statute. As her, your keys you me or I “Give will shoot jury Holloway guilty found on all eight Thereafter, right now.” Markett surren- charged in counts the indictment. keys screaming her ran dered into a verdict, nearby by hair salon. Following The theft was foiled moved for officer, an off-duty police Lamboy, pursuant Adam who a new trial to Rule 33 of the Feder happened Procedure, the hair salon at that time. al Rules of Criminal or Upon car, alternative, seeing Lennon Markett’s Lam- for reconsideration of his unsuc boy “Police, yelled, don’t move.” Lennon cessful Rule 29 motion. See United States v. (E.D.N.Y. made a Holloway, F.Supp. motion toward his waist band prompting Lamboy weapon. Holloway argued to draw his the Court Toyota Lennon then in charging fled to a red driven erred on conditional Holloway, escaped. light the two statute’s requirement, person presence merce specific intent from the or of an- unambiguous carj to have the intent other force and violence or requires a acker intimi- which dation, so, attempts harm or to do shall— or serious culpable. order to be (1) impris- fined this title under or 5,1996, April issued on In a decision both, years, oned not more than 15 Holloway’s post-trial motion. Gleeson denied (as bodily injury if serious defined in sentenced, 16,1996, Holloway August On title, including any section 1365 of this and, August judgment of convic- on that, conduct if the conduct occurred in the appeal followed. tion was entered. This special jurisdiction maritime and territorial States, of the United would violate section DISCUSSION title) results, 2241 or 2242 of this be fined (1) appeal: on raises three issues imprisoned under this title or not more instructing in Judge Gleeson erred whether both, years, that 25 or and (2) intent”; jury on “conditional whether (3) results, if death be fined under this performance Holloway’s of trial counsel imprisoned any title or number of constitutionally require so as to deficient life, years up to or both. (3) trial; and whether reversal and new by his discretion sen- Judge Gleeson abused The Violent Control Law Crime and Enforce- sentences tencing to consecutive ment Act of 1994 amended this statute in the 924(c). pursuant to 18 U.S.C. following manner: (14) 2119(3) CARJACKING.—Section of Intent Instruction I. Conditional Code, title is amended maintains that by striking period after “both” and by charging error committed reversible “, death.”; inserting or sentenced to and jury on the doctrine of “conditional intent.” by striking “^possessing a firearm as de- (1) Holloway contends that: the federal car- title,” fined in section 921 of this in- and jacking clearly unambiguously statute and “, serting with the intent to cause death or requires possess that a defendant serious harm”. bodily harm intent to cause death or serious 60003(a)(14). 103-322, (hereinafter (2) kill”), Pub.L. With these “specific intent to revisions, the statute now reads: definition, by does not sat- isfy requirement. this Whoever, the intent to cause death or urith a motor harm takes vehicle Carjacking A. Amendments to 1994 transported, shipped, that has or re- been Statute foreign ceived interstate or commerce statute, Holloway argues that the as person presence or from the another amended, unambiguous is clear and on its intimidation, force and violence or or face, court, preventing the trial or this thus so, attempts to do shall— matter, inquiring Court for that into the (1) impris- fined under this title or Congress ascribing or alter intent of some both, years, oned not more than 15 or any nate construction of the statute based on (as (2) bodily injury perceived drafting. Rubin v. if serious defined error See States, title, 424, 430, including any section 1365 United 449 U.S. 101 S.Ct. o^ (1981) that, 698, 701-02, conduct if the conduct occurred 66 L.Ed.2d 633 jurisdiction special maritime and territorial Amendments, the Prior to the 1994 federal States, would violate section United statute, 18 read as U.S.C. title) results, 2241 or 2242 of this be fined follows: imprisoned or not more under this title Whoever, possessing a firearm as defined both, years, that 25 or title, in section 921 of this takes a motor (3) results, transported, shipped, be fined under vehicle that has been death any foreign imprisoned or com- title or number or received interstate life, both, years up gress coverage or sentenced to intended broaden the passage death. the federal statute amendments, appli- of the 1994 and that the added). (emphasis 18 U.S.C. heightened cation of the statute The amendments was, carjacking categories to all three of the contained in the Violent Crime Control and likelihood, drafting all an unintended er- Act of came Enforcement Law about S15295-01, Cong. ror. See 139 Rec. attempt expand the number of federal (statement Lieberman) (“This of Sen. amend- subject penalty. crimes death See strengthen ment will broaden and that law so (statement Rep. Cong. Rec. E857-03 attorneys every possible our have U.S. tool Franks); S12421-01, Cong. Rec. S12458 problem.”); available to to attack the them (statement Nunn); Cong. of Sen. Rec. (extension E857-03, Cong. Rec. E858 (statement S15295-01, 15301 of Sen. Lieber- Franks) (“We by Rep. remarks must send man). early The thrust of the various ver- message to the criminal that committing a was to sions of the amendments add carry penalty. violent crime will a severe option penalty sentencing as a when legislation This will make an additional 22 also, carjacking, from a death resulted including carjacking drive-by crimes versions, eliminate the firearm re- some shootings, subject penalty.”). to the death quirement. Cong. H.R. 103rd 125(h) (1994) (removed speculated At require- § firearm least two courts have that 3355, penalty); Congress probably heightened H.R. ment and added death intended the (1993) (version 203(a)(15) § Cong. requirement apply only 103rd as of intent to to cases 19, death, removed firearm carjacking October re- where the resulted in 2119(3). is, penalty); falling added death H.R. quirement and those cases under See (1994) (version 703(e) 3355,103rd Anderson, 478, Cong. as United States 108 F.3d (3d 21, Cir.1997), penalty petition 1994 added the death 482-83 April cert. filed 1997) (No. (U.S., opposition 96-9338); only). Congressional to the June Hollo camps: way, F.Supp. into two amendments coalesced those at 158. But see United (9th opposed penalty general, Randolph, the death who States v. 93 F.3d Cir.1996). opposed expansion support and those who In interpretation, fed- of this jurisdiction. Cong. point eral criminal See 140 wording these courts to the initial (statement 2119(3) S12309-02, amendment, Rec. S12311 of Sen. the 1994 “Section title Code, ....,” Leahy Report contained in on by Conference is amended H2322-02, 3355); Cong. limiting Rec. language H.R. H2325 as for the two (statement Anderson, by Rep. changes on Glickman amendment set forth within. See 103-322, by Rep. (quoting introduced Scott to remove the F.3d at 478-79 Pub.L. No. 60003(a)(14)) penalty added); (emphasis death addition to the Violent Crime see also Act). Holloway, F.Supp. Control at 158. heightened Regardless of the intent re- Congress insertion of the actual intent of amendment, quirement adding practical at issue here occurred a rela- ef- tively stage legislative process— adding requirement severely late fect of is to scope the Act was under consideration in limit while conduct covered Conference Committee in the summer of statute. heightened The addition of the in- H8772-03, H8819, Cong. body Rec. requirement tent into the of the car- (Conference Report jacking jurisdiction H8872 on H.R. 3355 dat- statute limits federal August September only ed all On over offenses to those in signed bodily the Act was into law. There is which death or serious in- harm was Congressional Notwithstanding no indication in the Record as tended. that such a result purpose unintended, heightened any to the of the late-added the Court declines invi- However, requirement. intent it is clear tation to the statute —that redraft is a task Thus, legislative history legislature.2 from a review of that Con- better left to the the sole Congress 2. We note that since the 1994 amendments there duced in to seek remove intent legislative portion have been several initiatives intro- of the statute. See The Vio- cific kill” not decide is whether the intent to does include the lesser this Court must issue intent,” mental state of “conditional kill,” in 18 because as now reflected “specific intent a conditional intent to kill is no more than a in- encompasses a conditional U.S.C. state of mind where death is foreseeable tent, Judge in his Gleeson as defined and, such, equivalent event to mental jury. instruction depraved state of recklessness or indiffer- ence. contends that such a lesser B. Instruction Gleeson’s plainly satisfy mental state not does the in- jury, Judge In his instruction tent statute.3 part: charged, relevant agrees The Court that a conditional intent intended to Evidence defendant or to cause death harm and frighten victims not gun use a “reckless indifference” both involve foresee- prove an sufficient in and of itself to however, ability; requires is, to kill or cause serious harm. It culpable a much more A mental state. car- however, you may of the facts consider one jacker plans kill deadly who or use force determining government whether on a victim in the event that his victim fails has met its burden. comply engaged with his has demands may You also consider the fact no willful and deliberate consideration of his seriously in- actually victim was killed or circumstances, actions. Under these death is jured you consider the evidence when foreseeable, merely fully more than it is con- in- lack of as to the defendant’s evidence templated planned for. Such a mental tent. clearly distinguishable state is from the char- eases, is conditional. some acterization of conditional intent advanced is, may engage That intend to defendant Holloway, only earjacker which has the only if a certain event certain conduct of a risk of of which aware he chooses occurs. disregard. case, government In this the contends argues Supreme further that the that the defendant intended to cause death case, Arizona, 137, Court Tison v. 481 U.S. alleged or serious harm the vic- 1676, (1987), 107 S.Ct. 95 L.Ed.2d 127 fore turn over cars. tims had refused to their closes the inclusion of conditional intent with you beyond If find a reasonable doubt that scope ordinary specific in the of an intent to gov- the defendant had such an the Tison, Raymond kill. In co-defendants ernment has satisfied this element of the Ricky planned jail Tison an armed break to offense. father, Tison, Gary another free their co-defendant, you If find that the Ver- Id. at inmate from the Arizona State Prison. Lennon, non with the intent to cause acted 139, 107 at 1678-79. After a S.Ct. successful bodily injury, or serious that is not death escape prison, geta a fiat tire their sufficient. You must find that the defen- a way stopping car led to the and theft of you shared in that intent before can dant Flagstaff, family’s car in the desert outside of conclude that this element has been satis- 140, at 107 at 1679. Arizona. See id. S.Ct. fied. father The defendants witnessed their brutal ly family the in the Holloway argues that the above instruction execute who had been 141, at 107 at 1679-80. erroneous because it allowed the car. See id. S.Ct. guilty aggra convict him based on lesser mental state than The defendants were found felony-murder and sentenced to death. required the statute. Hollo- vated 142, way plain meaning “spe- See id. at 107 S.Ct. at 1680. the contends precedent Law Act of cites to Second Circuit lent Crime Control and Enforcement 3, 1995, (1995) (titled Cong. proof S. 104th 717 that of a reckless or wanton which holds Unjustified "Elimination of Scienter Element for mind cannot constitute a intent state of Carjacking”); Omnibus Crime Control Act of See, e.g., Kwong, United States v. 14 F.3d to kill. 1997, 3, (tided Cong. § S. 105th 807 189, (2d Cir. 194-95 Unjustified Scienter Element for "Elimination of Carjacking”). 88 was conditional is immaterial unless reviewing collateral attack on the intention a

context harm or evil negatives the condition penalty, Supreme imposition of death prevented by the statute defin- sought to be the factual circum- that under found Court offense.”); Ann. ing the 18 Pa. Cons.Stat. 18 lacked a the defendants presented, stances 302(f) (West 1997) (“Requirement of intent kill,” at most had a “specific par- if intent is a satisfied conditional—When reckless state of indifference culpable mental offense, ticular intent is an element of an 152, at 107 S.Ct. at 1685. life. Id. human although such intent is element is established language, character- on this Holloway seizes conditional, negatives unless the condition analogous an men- intent as izing conditional sought prevented to be the harm or evil to the defendants ascribed tal state to that offense.”); defining the Haw.Rev. the law that, best, argues Tison. (1996) (‘When particular Stat. 702-209 that he and Lennon shared proof shows necessary an intent is to establish element kill, only meant intent to which offense, it immaterial such intent re- it was foreseeable death could nega- unless the condition was conditional carjackings. various sult from their sought prevented tives the harm or evil plainly distinguish- of Tison are The facts offense.”); prohibiting the law see also the case at bar. In Tison some able from States, 654, v. 308 F.2d 654- United Shaffer foreseeable to the defendants violence was (5th Vandelinder, Cir.1962); People 55 v. 192 however, jailbreak, the murders effecting the 447, 787, Mich.App. 481 N.W.2d 788-89 the defendants were convicted for which Richards, (1992); Commonwealth v. by completely unplanned precipitated were (1973). 854, But Mass. 293 N.E.2d Thus, event, in the desert. while the flat tire Irwin, N.C.App. v. see State may foreseeable to them that it have been (1982). 345, 349 S.E.2d in the course of the es- would occur ample persua This also finds Court that flowed from their cape, murders authority supporting inclusion of sive were not the result in the desert breakdown scope conditional intent within the plan. of a willful and deliberate People v. requirement. Furthermore, inclusion of a conditional Thompson, Cal.App.2d 209 P.2d specif to harm within definition (1949); People Henry, v. 356 Ill. princi well-established intent to harm is a ic State, (1934); N.E. Johnson law. In his ple of criminal common decision (Ind.Ct.App.1992); 605 N.E.2d motion, Judge Holloway’s Rule 33 denying (Okla. State, Gregory v. 628 P.2d 386 authority criminal law cited to state Gleeson Crim.App.1981); see also 40 Am.Jur.2d charge. support his conditional intent (1968) (“The § question Homicide 571 wheth F.Supp. (citing Holloway, 921 at 159 See accompanied by a to kill er an assault threat Scott, Jr., LaFave and A.W. Handbook W.R. complied unless a demand is with is an as (1972); Law 28 at 200 Model on Criminal gener kill sault with intent to or murder has 2.02(6) (American Law Insti ”). Penal Code ally been answered the affirmative.... Connors, tute); 253 Ill. People v. 97 Furthermore, importantly, incorpo and most (1912); Mississippi, Hairston v. 54 N.E. 643 specific rating conditional intent within the (1877)). decision, Following his Miss. 689 language carjacking of the statute v. in United States Anderson Third Circuit comports interpretation with a reasonable of opinion approv with Judge cited to Gleeson’s purpose legislative of the statute. The al, intent” was in finding that “conditional interpretation have the fed alternative would required by cluded within the carjacking covering only those eral statute F.3d at carjacking carjacker’s statute. 108 carjackings in which the sole and also cited to additional purpose The Anderson court at the time he commit unconditional authority confirming principle of crimi to kill or maim the ted law, including incorporation of the interpretation nal victim. Such an would dra matically intent into some state limit the reach of the doctrine of conditional 11 that ‘in ex penal Ann. tit. statute. “It is well-established codes. See DeLCode (1996) (“The statute, pounding guided we must not be that a defendant’s fact concerning all of the other of a sen dence elements or member single by a sentence question. tence, of the whole provisions but look ” v. law, object policy.’ Tomka its and and for ineffective assistance of counsel Claims (2d Cir.1995) 1295, 1313 Corp., 66 F.3d Seiler analyzed the framework forth are under set Dedeaux, 481 v. Pilot Ins. Co. (quoting Life Washington, Strickland U.S. 1549, 1554, 41, 51, 95 L.Ed.2d 107 S.Ct. U.S. 2052, 2063-64, 80 L.Ed.2d 674 S.Ct. (1987)). literally A should not statute (1984), requires which that a defendant show interpretation clear if it results in an applied “(1) attorney’s performance that his fell be- the drafters. with the intent of ly at odds reasonableness,’ ‘objective low an standard of and the Court cannot should id. While probability that ‘there is a reasonable statute, it has an poorly drafted not rewrite that, errors, unprofessional but for counsel’s interpret give so as to a statute obligation proceeding the result of the would have been ” meaning. it reasonable People different.’ Kieser v. State New of of (2d Cir.1995) York, (quoting 56 F.3d body the substantial reviewing After Strickland, 688, 694, at U.S. S.Ct. issue, and the addressing this of state law 2064-65, purpose of 18 U.S.C. legislative clear kill or that an intent to finds establish the first the Court Even could test, on whether bodily harm conditioned prong he has not met Strickland his or her car is suffi relinquishes prong. on the second The trial victim his burden fulfill the intent set appropriately cient to “intent” defense was counsel’s Ac statute.4 questionable aspect forth in the federal at the most of directed Anderson, such, 108 F.3d at 485. As we cord case. Trial counsel’s strat- the Government’s opinion of the court accept well-reasoned egy to concede the other elements of the below, Judge did not hold that Gleeson in light offense was reasonable of the over- case, i.e., on condition he instructed the whelming err when evidence Lennon’s him in the testimony al intent. assisted carjackings, several victims’ identification of Assistance Counsel Holloway, Holloway’s II. own confession. Ineffective Holloway’s assertion that the outcome of the Holloway’s ground appeal second have somehow been different had trial would constitutionally ineffective he received is that vigorously more contested his trial counsel counsel, requiring the reversal assistance conclusory unpersua- testimony trial. his conviction and a new given the Court. As sive the record before though his defense counsel argues even such, respect lacks Holloway’s appeal in this premised legally argument sound relied on merit. once on the lack Holloway’s rejected argument, Imposition Sentences III. Consecutive foregone was a conclusion. Hollo conviction imposi Finally, contests the way argues that his trial counsel should have defense, on his firearm at tion of consecutive sentences presented specific his intent while 924(c). pursuant to 18 contesting the evi- convictions U.S.C. vigorously time the same seemingly fact, a intent to kill. In to the establish 4. The Ninth Circuit came specific oppo- Randolph, in charged jury so in his instruction. site conclusion (9th Cir.1996), stated, it 656, 665 when F.3d disagree the Ninth Cir- do, however, We with a mere conditional intent to harm victim ‘‘[t]he if harm to dicta that a threat of cuit’s equated enough to resists is not she simply satisfy id. The court stated, conditional intent. §2119's new intent requirement.” specific to a threat was tantamount "[the defendant’s] Randolph the evidence of intent However, only Id. While a threat harm.” conditional intent to to a threat made one of the defendants by " a conditional intent to is evidence of certainly she '[did] the victim that ‘she would be if okay' ” intent is not to harm, conditional equivalent Ninth Circuit Id. what was told of her.' Conditional intent im- threat, it is much more. a mere threat is to held that "more than required that the defendant means some indication Id. harm.” plies establish a intent to kill or An idle good make on threat to harm. agree with the Ninth Circuit that without We an intent to kill. threat can never constitute more, a mere threat of harm is not sufficient Despite foregoing, my ap- colleagues concedes that this Court has al- the prove ready States v. Mohammed the district court’s failure to instruct held United jury requires regarding statute issuing consecutive sentences under the the as the that firearm carjacking statute and the statutes the intent cause death or serious harm, carjacking bodily approve is further on the same constitution- the follow- based (2d instruction, ing ally permissible. 27 F.3d which allows for substituted Cir.1994). However, Holloway argues proof that conviction on of conditional intent: the trial court lowered the standard because case, government the contends by proof allowing a verdict of for that the defendant intended to intent, on then the trial based alleged or serious harm the vic- imposing precluded should be court tims had to turn over their cars. refused based on those consecutive sentences of- you beyond If find reasonable doubt argument fenses. The Court finds gov- the defendant had such an the wholly without merit. ernment has satisfied this element the

offense. CONCLUSION added.) (Emphasis provenance What is the surely of such an It not instruction? the foregoing, Based on the we affirm the language of the statute itself. It not even judgment court. of the district indictment, parrots the for the indictment the statute. court The district therefore was MINER, Judge, dissenting: Circuit wrong in charging govern- the ment had con- advanced conditional intent plain I no perceive Because basis tention. language legislative or in of the statute history of conditional element conclusion, In arriving my their col- here, respect- crime examination I under leagues history legislative first turn to the fully dissent. properly note the amendment to the represented statute an effort to cast, originally carjacking .legisla- As expand subject the number of crimes to the taking tion established as a federal crime the including death penalty, carjacking where attempted a motor taking or vehicle hav- death results. There is also an indication ing with some connection interstate com- part an intent Congress on the elimi- person presence merce or from the of anoth- requirement. Ultimately, nate the firearm force, by violence intimidation on the er or agree, heightened require- as all part possessing a of one firearm. See 18 amending legis- ment was added final Amendment). (prior U.S.C. Congressional lation Com- Conference penalties the infliction Enhanced of seri- mittee. no There is discernible information bodily injuries resulting ous or death were why on or how this element was added. (3). 2119(2), provided. See id. The statute How, then, after amendment the crime as it defines can be said that “it is clear taking attempted taking of a legislative history or motor vehicle from a review of that Con- having gress with coverage some connection interstate com- intended to broaden the person presence merce from or of anoth- the federal passage statute amendments, part force on the er or violence of one who of the 1994 appli- heightened intends to cause death cation of the (as amended). harm. to all penalty carjacking [penalty] See id. The three of the cate- was, likelihood, gories results is further enhanced to include in all an unintended 2119(3). § penalty. drafting Maj. Opn. the death id. The See No error[?]” to original Congress distinctions be made between the member of has ever to “an referred error,” drafting congres- and the amended statute are clear: the fire- unintended and the possession deleted; requirement may arm is sional well in intent have been to narrow added; specific respects, intent element is the some well as as broaden some penalty provision expanded. respects, coverage. the statute’s

91 introducing the requirement of amended the The Senator The AGYVCA. ex- scienter plained: interpreted been different statute has circuit court thinks that

ways. one While Prior to the enactment of [the Violent provi Congress the intent intended Act], Crime Control and Law Enforcement only to where the re apply sion applied only the offense if the defendant death, see United sulted in States 60003(a)(14) possessed a firearm. Section (3d 478, Cir.1997), Anderson, 482 108 F.3d that law appropriately deleted the fire- pur considers that the another circuit court requirement, arm proposed as had been was to the pose of the amendment convert Senate-passed bill, the but conference a offense to general entire intent new scienter element was added the offense, v. Ran intent see United States defendant have to must intended cause (9th Cir.1996). 656, dolph, 661 But F.3d 93 injury. death or bodily serious This authority to correct an we “uninten have no unique new inappropriately element will where there drafting tional error” is no rea impossible make carjackings difficult or an “error” say son to that there is or that prosecute in certain situations.... The statutory provision inserted is “unintended.” requirement likely new ... will be a fertile By intent adding a conditional element of argument [source] for defendants in perceives correct what the court cases in inju- which no immediate threat of error, teaching Supreme of the ignore we occurs, ry such as a defendant where en- supply Court that omissions transcends “[to] stopped ters an occupied vehicle while it is judicial Iselin function.” v. United at a traffic light physically removes States, 245, 251, 248, 250, 46 S.Ct. 270 U.S. weapon the driver. Even when a is dis- (1926), quoted Virginia 70 L.Ed. 566 West played, may argue defendant al- 83, 101, Casey, 499 Hosps., Univ. Inc. v. U.S. fear, though designed it was to instill he (1991). 1148, 1138, 113 L.Ed.2d S.Ct. had no harm intent to the victim had the victim to leave the fact declined car. We know that since the enactment of do (Feb. Cong. S1659, 26, Rec. S1661-62 to the the 1994 amendment stat- (statement 1997) Leahy). of Sen. ute, at least at- Congress has made three tempts to eliminate what termed the Leahy’s Aside from the fact that Senator “unjustified for carjacking.” scienter element represent only comments the views of one 3, Act of Omnibus Control S. Crime nothing of Congress, member there is 807; § Violent Cong. 105th Crime Control those comments to indicate that the “scienter Improvement Act of Law Enforcement element,” it, intentionally calls was not he (“VCCLEIA”); § Cong. S. 104th placed in the when statute Amend- Anti-Gang see and Youth Violence Control saying only ment was enacted. He is § Cong. Act 105th But, S. far, so the element should be taken out. (“AGYVCA”). These statutes would elimi- colleagues agreed that have not entirely gov- nate should be done. prove possessed that the defendant ernment regard, than passing it is of more cause death or essentially a interest that state (“Section See, §

harm. e.g., VCCLEIA offense, may and it well be the Code, 2119 of title is Congress scope limit the federal ‘, by striking with the amended generally offense. Geraldine Szott harm’.”). It death or serious is Moohr, The Federal Interest in Criminal happened unclear what earlier at- (1997). Law, Syracuse L.Rev. 1127 Sev- tempts the intent to remove element specific carjacking eral states have enacted AGYVCA, but the most recent See, Fla. e.g., statutes. Stat. 812.133 effort, presently appears to be before (1994); Ann., Md.Code Crimes Punish- Judiciary Senate Committee. (1996); §Ann. ments 348A Miss.Code 97- (Mi- (1994); only concerning we have Ann. 18.2-58.1 discussion Va.Code of each attempts to remove the intent element chie The common elements Leahy’s taking statutes of motor comes from comments these are Senator See, Goodwin, vehicle threat of force or violence. see United States v. Hudson & 16-3-1075(B) (Law (7 Cranch) 32, 34, (1812), e.g., S.C.Code Ann. Co- U.S. 3 L.Ed. 259 (“A op. Supp.1996) person guilty supplies authority is state criminal law no takes, felony carjacking attempts interpreting statute, who a federal criminal take, Code, person a motor vehicle from another majority the Model Penal cited in the opinion, force and violence or intimidation while adopted by never has been Con- person fact, operating gress. point is the vehicle or while I can find no federal vehicle.”). person provides is Some states criminal statute that conditional in- specific carjacking also have enacted armed tent as an element of the crime defined. Nor carjackings general provision statutes to address in which a is there a in the Federal See, dangerous weapon Code, e.g., is used. Criminal ás there is in some state 22-2903(b)(l) (1996). codes, §Ann. D.C.Code criminal of intent by proof is satisfied of conditional intent. specific Those states that do not have a See, e.g., Haw.Rev.Stat. statute, York, carjacking prose such as New (“When particular necessary is carjackings robbery cute under the state’s offense, establish element of an im- it is See, Vincent, e.g., statute. v. Kansas material that such intent was conditional un- (1995) (defendant Kan. 908 P.2d negatives less the condition the harm or evil murder, felony charged conspiracy with sought prevented by prohibit- the law robbery aggravated robbery commit offense.”) ing the death); carjacking relation to a resulting Lee, People judicial v. 234 A.D.2d usurpation N.Y.S.2d To avoid a clear of con- (1st (defendant Dept.1996) charged gressional authority, with I would reverse and degree robbery gunpoint first upon theft of remand for a retrial instructions con- car). specific forming As with the stat with foregoing analysis. utes, robbery apply these statutes to thefts See,

involving e.g., the use of threat or force. 160.10(3) 1997) (McKinney

N.Y. Penal Law

(“A person guilty robbery is in the second

degree forcibly property when he steals property

when ... consists of a motor [t]he eyen ”). Thus, vehicle.... where there is no statute, carjackings can America, Appellee, UNITED STATES of prosecuted adequately under state law.

Ultimately, my reject colleagues seem to legislative approach, saying that MALPESO, Jr., Louis Defendant- “[njotwithstanding that such a result was Appellant. unintended, any the Court declines invitation No. Docket 96-1716. to redraft the statute —that ais task better left to the legislature.” Maj. Opn. at 86. Appeals, United States Court of (But they in fact is what have done Circuit. Second here.) majority opinion goes on to find Argued April 1997. a conditional implicit in the amended, statute as absolutely but there Sept. Decided no basis for such a construction. The intent required spelled explicitly out the stat-

ute. The other assigned reading reason

conditional intent into the statute —that “the

inclusion of a conditional intent harm with-

in the definition of intent to harm is a principle

wellestablished of criminal common

law,” Maj. Opn. at 88—is irrelevant here. crimes,

There is no federal common law of

Case Details

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

Court Name: Court of Appeals for the Second Circuit

Date Published: Sep 16, 1997

Citation: 126 F.3d 82

Docket Number: 1877, Docket 96-1563

Court Abbreviation: 2d Cir.