NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0768n.06
09-5240
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. TAMADGE HOL MAN, Def endant- Appellant.

__________________________________________ ) ) ) ) ) ) ) ) ) ) ON AP P E AL FR OM T HE UNI TED STA TES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE
OP INION

Before: M ARTIN, CLAY and WHIT E, Circuit Judges.
HELE NE N. WHITE , Circuit Judge. A fede ral g rand jury returne d an indictment char g ing Tamadg e Holman with car jacking , 18 U.S.C. § 2119, using and car rying a firea

rm duri n g and in rela tion to a car

jacking , 18 U.S.C. § 924(c) , and being a felon in possession of a firea rm, 18 U.S.C. § 922(g ). Hol m an pleade d g uilty to the felon-in- possession count and does not appea l that conviction. A j ury found Holm an guilty of t he remaining two counts. Holman appeals, asse rt ing that there was insuffic ient evidenc e to sustain the ca rjac king c onviction. We AF F IRM

. I. Trial testimony established that on the evening of Dec ember 15, 2007, Nathanie l Hicks and Ti m o t h y W alker, members of a band, perf ormed at the New Club 5000 in Memphis, Tenne ssee. Around 2:00 a.m. on Dec ember 16, afte r having been paid in cash for their perf ormanc e, they wer e loading band equipment in their r espec tive car s in the club’s par king lot.

1Walker and Hicks testified that Holman approa ched them individually in the parking lot and

asked how m u ch i t cost to g et into the club. Walker quickly answe red and ree ntere d the club as Hicks was g oing back out to the parking lot with more band equipment. Walker testified that sever al minutes later, Hicks ran in the club say ing “Man this g uy just tried to kill me.” The club owner then called the police. Hicks, the victim, testified that he saw Holman approa ch Walker in the club parking lot, and that afte r W alker

went bac k into the club, Holman appr oache d Hicks as he loaded equipment i nto his car . Holman asked Hicks how much it cost to g et in the club, Hi ck s replied that he could probably g et in fre e and then went back into the cl u b to g et more of his equipment. He emer g ed from the club, did not see Holman any more, and started his car , a 1988 L incoln Town Car. Hicks’s intention was to start his car , lock it, and retrie ve his bass g uitar from the club while the car war med up. He testified tha t he had two key s for the car and would not have lef t it running a

nd unlocked. Hicks testified that rig ht afte r starting his car , Holman opened his car door and pointed a g un at him. Hicks said to Holman, “Man are y ou cra zy ,” and tried t o pull the door shut, but could not beca use Holman’s arm was in the door. Wit h Holman’s g un six inches awa y from his head, Hicks
manag ed to g rab Holman’s hand, aim the g un awa y from his fac e, and with his other hand rea ched

to unlatch his seatbe lt, at which time Holman said, “Don’ t rea ch for nothing. Don’t rea ch for nothing, don’t y ou know I ’ll kill y ou.” Hicks m anag ed to g et out of t he car, the two “wr estled all the way around the car until [Hic k s ] manag ed to g et[Holman] on the roof of the trunk.” As they

wre stled, the g un went off. Holman then manag ed to throw Hicks off and aimed the g un at him,
say ing, “Oh, I g ot y ou now.” At t hat point, Hicks ran back into the club and said, “This g uy ’s

2shooting at me.” Hicks testified that afte r the police wer e called, he “pee ked around the corne r. The

next t hing y ou know, my

car [’] s g one with my

equipment in it.” Hicks testified that the first time H olman made a menac ing move towar d him with the g un

was when Hicks was sitti ng inside his car . At the close of the Gover nment’s proofs, Holman moved for a judgme nt of acquittal, which the district court denied. Holman then testified that his intent on the evening in ques t i o n wa s to rob someone coming out of the club, not to car jack someone. Holman’s testi m o n y was in acc ord with Hicks’s, except Holman testified that when he initially
app ro ac h ed Hi ck s, Hicks’s car was alre ady running , and that he did not threa ten to kill Hicks. Holman testified that the r eason he did not ask for Hicks’s money or wa llet is that he “neve r g ot a chanc e to.” He testified that he did not shoot at Hicks bec ause he never intended to har

m any one, just to rob someone, and that h e d ro v e awa y in Hicks’s car only to g et awa y from the scene as quickly as possible. Holman testified that afte r evading the police sever al times, he parke d Hicks’s

car . When he rea liz ed the police wer e rig ht behind him, he jumped out of the car and ran, and that was whe n the police shot him in the elbow. Holman did not re turn fire or otherw ise dischar g e his
g un. After the defe nse re s t ed , Holman rene wed his motion for a judgme nt of acquittal, ag ain
arg uing that there was insufficient evidenc e of intent to kill or seriously harm and of the car having been taken from the person or prese nce of another

. The district c ourt denied the motion. The jury

returne d g uilty verdic ts on both counts. The district court imposed concur rent 96-month sentenc es for the car jacking and felon-in- possession counts, and a consec utive 120-month sentenc e for using a fire arm during a ca

rjac king, f

ollowed by

three y ear s’ supervise d rele ase.

3II.

I n r e v ie w in g in s u f

f ic ie n c y - o f

- the-e vidence claims this court assesses the evidenc e in the li g h t
most favor able to the g overnme nt and deter mines whether any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt. United States v. Fek ete , 535 F.3d 471, 476 (6th Cir. 2008).

A. Specifi c Intent Elem ent : to Cause Death or Serious Bodily Har m To prove a violation of the fede ral car jacking s t at u te the g overnme nt must prove that the defe ndant (1) with the intent to cause death or serious bodily harm , (2) took a motor vehicle, (3) that had been transporte d, shipped, or rec eived in interstate or fore ign commerc e, (4) from the person or
prese nce of another (5) by forc e and violence or by intimi dation. 18 U.S.C

. § 2 1 19 (empha sis added)

. “Reg ardle ss of whether the car jacke r obtains possession of the car throug h forc e and violence or throug h intimi dation

. . . the defe ndant must possess the specific intent to cause ‘death

or serious bodily harm.’” United States v. Adams , 265 F.3d 420, 423-24 (6th Cir. 2001). To satisfy the s pecif ic intent require ment, the Gover nment “must show more than that the defe ndant committed the criminal acts; it must also show evidenc e of the specific mental culpability at issue.” Id. at 424.
1. Holman argues t h at he made only an empty threa t to Hicks and that empty threa ts are insufficient to establish conditional intent. Holloway v. United States , 526 U.S. 1 (1999). Holloway held that proof that a defe ndant possessed a conditional intent to cause death or serious bodily harm

at the time he demands or takes control of the car satisfies the specific intent require ment of § 2119; the Go v er n m ent is not require d to prove that the defe ndant had an unconditional intent to kill or harm in all eve nts. Id. at 6-8, 11-12; see also Feke te , 535 F.3d at 476-77.

4Holman’s argument has sever al flaws. First, empty threa ts, standing alone, are insufficient

to establish the requisite conditional intent for car jacking under Holloway

. 526 U.S. at 11 (noting that an empty threa t or intimi dating bluff would be sufficie nt to satisfy the by -for ce- or-intimidation element of § 2119, but that “such conduct, standing on its own, is not enoug h to satisfy § 2119’s specific intent element” ); Fek ete , 535 F.3d at 478 (same)

. I t w as for the jury to deter mine whether Holman’s pointing a g un at Hicks’s head while Hicks sat in the car , and saying to Hicks, “don’t

rea ch for nothing, don’t y ou know I ’ll kill y ou,” constituted an actua l threa t, a s opposed to only an empty threa t, and whether Hicks possessed the requisite specific intent for car jacking , see United
States v. Adams , 265 F.3d 420, 425 (6th Cir. 2001) (holding that the jury could infer from evidenc e that the defe ndant possessed the prese nt means to car ry out his threa ts to harm that th e d ef endant possessed requisite specific intent for car jacking ). Second, Holman overlooks that afte r Holloway , this court found sufficie nt evidenc e of conditional intent in sever al case s in which the defe ndants did

not shoot or shoot at their victims. For example, in Fek ete , this court observe d that car jacking may b e established if the Gover nment “ca

n show bey ond a rea sonable doubt that a defe ndant h ad t h e intent to kill or seriously harm his car jacking victim if the victim resisted, even if the victim did not in f act resist and no attempts to inf lict suc h harm we re made.” 535 F.3d at 477 (conditional intent found wher e defe ndant poi n t ed wh at j u ry could have deter mined was a loaded g un at truck
passeng er’ s stomach whil e telli ng him to exit the t ruck) (interna l citations omitted). Simi larly , in Adams , 265 F.3d at 424-25, this court upheld car jacking convictions wher e the defe ndant threa tened

sever al of the victims with a g un, concluding that a phy s i ca l touching of a victim with a wea pon, standing alone, “is sufficie nt to justify a finding that the victim fac es an imminent threa t of phy sical harm, and indicates an intent on the part of t he de fe n dant t o act violently .” And, i n United St ates

5v. Glover , 265 F.3d 337, 340-42 (6th Cir. 2001) , this c ourt upheld the car jacking conviction of the defe ndant McDona ld, who, along with Glover, approac hed the victim while s he wa s seated in he r vehicle, raised his shirt to reve al a g un, said to the victim, “drop y our money , bitch,” put a g un to the victim’s head and ag ain told her to drop her money , demande d the victim’s wedding ring s, then told the victim to move to the passeng er’ s seat so he could take her somewher e, and threa tened to shoot the vi ctim when she started to g et out of the c ar, but did not harm the vic tim as she escaped into a
store. This court in Fek

ete held t hat “[ o]nce the gover nment produce s evidenc e of intent bey ond the simple fac t that the defe ndant brandished a firea rm, the fac tfinder is to look at the totality of the ci rcumstances to evaluate whether the defe ndant’s words and actions sufficie ntly demonstrated a conditional intent to cause de ath or ser ious bodily harm.” 535 F.3d at 481.
Her e, the totality of the circ umstances viewed in the light most favor able to the Gover nment is that Holman pulled open Hicks’s car door shortly afte r Hicks started the eng ine, pointed a loaded
g un at Hicks’s head while Hicks was in the driver’ s seat, threa tened Hicks’s life, wre stled with Hicks and, when he rec overe d control of the g u n after it discharg ed, ag ain pointed the g un at Hicks and

s aid, “I ’ve g ot y ou now.” Under the authorities discussed, there was sufficie nt evide n ce fo r a

rea sonable jury to conclude from Holman’s words and actions that he possessed the specific intent to kill or do seriously

bodily harm to Hicks.
2. Nexus Between Intent to Cause De ath or Serious Bodi ly Harm and T akin g of Vehicle Holman’s second argument is that even assuming he had the requisite intent to harm Hicks,

a nex us is require d betwee n that inte n t an d t h e t aking of t he car and that there was no such nex us

6here

. Holloway makes c lear that such a ne x us is required. Holloway is quoted in United States v. Applewhaite , 195 F.3d 679 ( 3d Cir. 1999), on which Holman r elies: [t ]he intent require ment of § 2119 is satisfi ed when the Gover nment proves that at the moment the defe ndant demande d or took control over the driver’ s automobile the defe ndant possessed the intent to seriously harm or kill the driver if nece ssary to steal the car (or, a lternatively , if unnec essar y to steal the ca

r). Thus, the statute direc ts the fac tfinder’ s attention to the defe ndant’ s s t at e of mind at the prec ise moment he demande d or took control over the car “b y force and violence or by intimi dation.” I f the defe ndant has the proscr ibed state of mind at that moment, the statute’s sciente r ele ment is satisfied. Applewhaite , 195 F.3d at 685 (quoting Holloway , 526 U.S. at 12, 8; emphasis in Holloway ). Holman
arg ues that the require d temporal nexus betwee n the conditional intent to harm and the intent to take the car i s ab s en t in this case beca use “I t was only afte r the victim ran awa y , the defe ndant was bleeding , the g unshot was starting to draw attention, and the car was sitti ng there with the door open and the eng ine on, that Holman for med the intent to steal the car and use it a s a g etawa y vehicle.” (Reply Br . at 3.) Holman asserts that “may be [ he] had the intent to use t he gun on Hicks i f Hicks ref used to g ive up the cash. Howeve r, the car was taken as an afte rthoug ht in an attempt to g et awa y from the crime scene . There fore , the evil intent w as solely for the purpose of g etting the cash, and there was no ne x us betwee n the intent and the subseque nt taking of the ca r.” ( Def .’s B r. at 14.) Applewhaite is distinguishable from the i nstant case becau s e the evidenc e there supported that the intent to kill was part of an attempted murder plot, not a car jacking

. I n contra st, Holman’s

1
Applew haite involved a marrie d couple, the Romeros, who had separ ated sever al y ear s 1 ear lier. Mrs. Romero had become romantical l y involved with another man, and the Romeros’ separ ation was marke d by arguments and violence, including on the morning of the day in question. That eve ning, Mr s. Romero ca lled her husba nd to her home. When he arr ived in his van, she told him to wait until she p en n ed the dog s but, rathe r than doing so, she rema ined in place and stood 7arg ument t h at h e t o o k Hicks’s car only to g et awa y from a robber

y g one wrong contra dicts the

ev i d ence when viewed in the light most favor able to the Gover nment. Holman did not demand
money or brandish a wea

pon at the times he could easily have attempted to rob Hicks or Walker, i.e., during his initial parking -lot encounte rs with them. I t was only afte r Hicks g ot in his car and started

staring at Mr. Romero while he was knocked unconscious by three blows from behind. Mr. Romero awoke inside his va

n and saw Applewha ite driving the van and holding a g un. The two strug g led, Romero was shot, and the van cra shed. Applewha ite g ot out of t h e v an , s h o t R omero two more times and ran f

rom the sce ne. Romero survive d, howeve r. 195 F . 3d at 682. Applewha ite and Mrs. Romero wer e convicted of conspirac y , attempted first-deg ree murder, kidnapping , and car

jacking

. The Third Circuit reve rsed the car jacking convictions for insufficient evidenc e of nexus betwee n the i ntent to harm–the assault–and t h e t ak i ng of R omero’s van. After quoting Holloway , see quotes supra , the Third Circuit conc luded:
Her e, it is clea

r that the require d scienter was never established. Although the defe ndants clea

rly intended to seriously harm or kill Eddie Romero, neither their evil intent, nor the forc e they employ ed in further an ce o f i t , had any nexus to the subsequent taking of his van. The forc e was employ ed in an attempt to harm Eddie Romero. I t was not used to take his va n. I t is, of cour s e, u n co ntested that Romero’s van was taken afte r he was violently assaulted. But that does not establish that the forc e was used to g et control o f his van. Even when this rec ord is viewed in the light most favor abl e t o t h e g overnme nt, it is clea

r that t h e prosec ution failed to establish the require d nexus betwee n the assault and the taking

. Rather, the rec ord establishes that the van was taken as an afte rt h oug ht in an attempt to g et Romero’s limp body awa y from the crime sc ene. T hat is not sufficient to establish the intent re quired unde r § 2119.

. . . . [] The rea son the defe ndants assaulted Romero was not to transport his body in his own car . Rather, the forc e was used s o l el y fo r the purpose of bludge oning Romero. That was the object of the assault. I t was not the means of stealing his car . After defe ndants acc omplished their objective, they drag g ed Romero’s unconscious body to his car , and drove awa y . Howeve r, under Holloway , unless the t hrea tened or actua l forc e is employ ed in further ance of the taking of the car , there is no car jacking within the meaning of 18 U.S.C. § 2119. Acc ording ly , t h e d efe ndants’ conviction for c arja cking can not stand. Applewhaite , 195 F.3d a t 685-86. 8the eng ine that Holman brandished a g un and threa tened to kill him. Even afte r the ensuing strug g le

outside the car when Holman reg ained c ontrol of the g un, Holman di d not ask or demand Hicks’s wallet or money , but ra t h er , s aid to Hicks “I ’ve g ot y ou now,” and drove off in Hicks’s car afte r Hicks ran into the club. Thus, there was sufficie nt evidenc e of nexus betwee n Holman’s intent and his demand for, or taking control of, Hicks’s car for the issue of Holman’s intent to g o to the jury

. III. Elem ent of Tak ing Vehicle “F rom the P erson or P rese nce of Another” Holman also argues that there was insufficient evidenc e that he took the car “fr om the person

or prese nce of another .” 18 U.S.C. § 2119. Rely ing on United States v. Edwards , 231 F.3d 933 (5th Cir. 2000), Hol m an as s er t s that wher e, as here , a victim has alre ady fled the scene , is inside a building with solid walls, and is unable to view any part of the car , it cannot be rea sonably said that the victim was “suff

iciently near to the vehicle for it to be within r eac h, inspection, or control and, absent threa t or intimi dation, to be able to maintain control of [t he vehicle].” See Edwards , 231 F.3d

at 937 (adop t i n g t h e E l eventh Circuit’s interpre tation of “per son or prese nce” in United States v. Kimble , 178 F.3d 1163, 1167- 68 (11th Cir. 1999)). 2

Holman notes that the Edwards standard is substantially the same as the jury instruction in 2 this case. In the instant case the district court c harg ed the jury , without objection: [T] he Gover

nment must prove bey ond a rea sonable doubt [] that the defe ndant took the vehicle from the pe rson or pre sence of anothe r. To take a motor vehicle, means to acquir e possession or control of the vehicle for a period of time. The g overnme nt does not have to prove that the defe ndant i n t ended to perma nently deprive the owner of possession of the vehicle, nor does the g overnme nt have to prove that the victim was forc ed to leave the vehicle if the Gover nment proves the defe ndant had control of the situation. To prove that the defe ndant took the vehicle from the person or prese nce of another , the g overnme nt must prove that the victim was sufficien t ly within rea ch or observa tion of the vehicle that he

. . . 9As mentioned, on fac ts similar to the instant case , this court in Glover , 265 F.3d at 339-40,

upheld carjac king convictions wher e one defe ndant drove the vi ctim’s car awa y afte r she esca

ped from the car and ran into a building. Glo ve r re l i ed on case s, including Kimble ,178 F.3d 1163, in which the defe ndants enter ed a restaur ant, forc ed employ ees to the g round at g unpoint, robbed them, and demande d to know who had a car parke d outside the restaur ant. The manag er volunteere d, the defe ndants took his key s and esc aped in his ca r. On appea l, one defe ndant ar g ued that bec ause he took key s from a victim who was inside the restaur ant and had a car parke d outside, he did not take the car from the victim’s prese nce. Id. at 1164-65. The Eleventh Circuit disag ree d and upheld the

car jacking conviction: [The manag er] was sufficie ntly near to his vehicle when Blount and Kimble robbed him of it to sustain a conviction under § 2119. Wil cher ’s car was not se vera l miles awa y , b u t p ar k ed rig ht outside the restaur ant. Had Wil cher not been in fea r of his safe ty , h e co u l d h ave rea ched the car and preve nted its taking

. Thus, his car was within his “presenc e” w hen B lount and Kimble robbed him of it. Kimble , 178 F.3d at 1168. Holman’s final argument is that Kimble and other case s the Gover nment cites “only g o as far

as holding that when the defe ndant takes the key s direc tly from the person of the victim, the fac t that the car is outside and the victim is inside does not preve nt a car jacking conviction,” and that, in the instant case, H olman took neither the ke y s nor the ca r fr om the person or

prese nce of

Hicks.
We note t hat a car

jacking convic t i o n wa s u pheld i n United St ates v. Brow n , 200 F.3d 700 (10th Cir. 1999), wher e, simil ar to the instant case , the taking of the victim’s car occur red when the

could have reta ined his

. . . possession of it, if not overc ome by violence or preve nted by fea r. [R. 42 at 216-17.] 10car was alre ady running and afte r the victim had esca ped into a residenc e. The Tenth Circuit upheld 3
the car jacking convictions ag ainst sufficie ncy challeng es, including challenges to the “per son or
prese nce of another ” element, 200 F.3d at 704, apply ing a definition of “pre sence ” substantially simil ar to the district c ourt’s jury instruction in this case , see supra n.2:
A car i s stolen from the “pre sence ” of an individual if “the victim [i s] sufficie ntly near to the vehicle for it to be within rea ch, inspection, or control and, absent threat or intimi dation, to be able to maintain control of it.” United States v. Kimble , 178 F.3d 1163, 1168 (11th Cir. 1999) []

. Having left the motor running and the lights on, the victim stepped awa y from his vehicle onl y b ri ef l y befor e he was acc osted. The vehicle was plainly within his r eac h, inspection and control. Absent the threa ts and intimi dation of Mr. Br own and Mr. Di x on, the victim would have returne d to his vehicle and driven awa y . I ndeed, once the victim fl ed, Mr. McClelland mere ly put the car in g ear and drove it aw ay . [] That the victim wa s in the residenc e, having fled to protect his life , when the vehicle was actua l l y d ri v en aw ay b y Mr. McClelland is of no moment. Reg ardle ss, we follow the Third an d Eleventh Circuits in holding that the prese nce require ment of 18 U.S.C. § 2119 does not require “that t h e proper ty be within easy touch” so long as “the car was close enoug h for the victim[ ] to have preve nted its taking had fear of violence not caused [him] to hesitate .” Kimble , 178 F.3d at 1167, 1168; United States v. Lake , 150 F.3d 269, 272 (3d Cir. 1998).
Brown , 200 F.3d at 705 (emphasis adde d, some citations omitted).

I n Brown , a trio of men riding in a car d i s cu s s ed robbing someone. They observe d the 3 victim in a parking lot g etting in his SUV, in which there wer e sever al passeng ers, and followed him and his p as s en ger s t o a residenc e. The victim g ot out of his vehicle, and said g oodby e to the passeng ers having left the motor running and headlig hts on. When the victim returne d, the three men had parke d direc tly behind him, blocking his exit

. The trio summoned the victim, they spoke, and the victim r eturne d to his vehicle. Be fore he could g et in, howeve r, one of the defe ndants, Br own, alig hted from the trio’s vehicle, cut him off, pointed a g un at him and demande d his wallet. The victim complied and was then asked for his jewelr y . As he remove d his jewelr y , another defe ndant, Dix on, beg an hitting him. Br own pointed his g un at the vict i m an d o rd ered him to run down the street. The victim r efuse d and was hit a g ain. One of the victim’s passeng ers a ppare ntly hear d the commotion and y elled “What’s g oing on? ” At t h at p o i n t, the victim ran inside the residenc e and esca ped. One of the defe ndants drove the victim’s ve hicle awa y , following the trio’s vehicle. 200 F.3d a t 703-05. 11We conclude that, under the authorit i es d i s cu s s ed, the jury in the instant case could have

conclude d that Hicks was sufficie ntly within rea ch or observa tion of the vehicle that he could have

reta ined his possession of it if not overc ome by violence or preve nted by fea r. This is espec ially so wher e the f

acts show that Hic ks was in the ca r whe n Holman threatened to kill him.
Be cause Holman’s challeng es to the sufficie ncy of the evidenc e fail, we AF F IRM his

car jacking conviction.

12