1 The car was manufactured in Flint, Michigan, and titled

in Arkansas and Mississippi. UNITED STATES COURT OF APPEALS

for the Fifth Circuit

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No. 93-7554

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GREGORY HARRIS and TERENCE HOSKINS,

Defendants-Appellants.

___________________________________________________

Appeals from the United States District Court

for the Northern District of Mississippi

___________________________________________________

(June 29, 1994)

Before WISDOM, DAVIS, and DUHÉ, Circuit Judges.

DAVIS, Circuit Judge:

Gregory Harris and Terence Hoskins challenge their convictions

and sentences for aiding and abetting each other in a "carjacking"

in violation of 18 U.S.C. § 2119, and for using and carrying a

firearm in the commission of a crime of violence in violation of 18

U.S.C. § 924(c)(1). We affirm.

I.

On December 12, 1992, Barbar a Scott lent her 1976 Buick

Electra 1 to Michael Anderson. At 10:00 p.m. that same day, Michael

Anderson lent the car to his nephew, Frank Anderson, and Frank's2

friend, Christopher Williams, so that the two boys could take the

girl next door to a club. After dropping the girl off, the boys

drove past other clubs, but did not stop. They then picked up

Johnny Bradberry and Herbert Williams. After riding around for

awhile, the boys were taking Herbert Williams home when they were

flagged down by Michael Anderson. Defendants, Gregory Harris and

Terence Hoskins, were standing across the street from where the car

stopped.

At trial, Frank Anderson testified that he was talking to his

uncle, when Hoskins and Harris approached the car. Hoskins was

carrying an ax handle and grabbed the car door that Frank Anderson

was getting in and held it open. Harris was armed with a 12 gauge

saw ed-off shotgun and went around to the passenger's side and

pointed the gun across the top of the car at Anderson.

As they approached, Hoskins and Harris demanded to know why

the car's occupants had "jumped" them. After the occupants denied

t he accusation, Harris opened the back door and put the gun to

Herbert Williams' head. Frank Anderson testified that:

Then him [Gregory Harris] and Terence started hollering,

get out the car. Get out the car. And then when he

cocked it, we got out of the car and we started running.

Hoskins then jumped into the car and drove away, while Harris

chased the occupants of the car through a field. Frank Anderson's

testimony was corroborated by the other occupants of the car.

After Hoskins drove away, the former occupants of the car

called the police. They reported what had happened and identified

Harris and Ho skins by name. Sgt. Keith White was one of the3

officers who responded to the call. About 30 minutes later, Sgt.

White responded to a report of a possible robbery of a Double Quik

store by two men. He parked a block away and approached the store

on foot. He observed one man with panty hose on his head standing

in front of the store, but did not see a second man and assumed he

was inside. Sgt. White observed the man outside for about five

minutes, until the man walked around the corner and discovered Sgt.

White.

When they confronted each other, Sgt. White had his gun drawn

and placed the man against a wall. White asked him where his

"partner" was, and he said he had gone across the street; the man

identified himself as Terence Hoskins. Recognizing the name as one

of the two reported to have taken the car, Sgt. White placed

Hoskins under arrest and asked him: "Where did Harris go?"

Hoskins responded: "I told you he went across the street." White

then asked where the car was, and Hoskins told him. Finally, White

asked where the car keys were, and Hoskins said in his pocket.

Hoskins and Harris were subseque ntly charged in a two-count

indictment with aiding and abetting each other in a "carjacking" in

v iolation of 18 U.S.C. § 2119 (count 1), and with using and

carrying a firearm in the commission of a crime of violence in

violation of 18 U.S.C. § 924(c)(1) (count 2). A jury convicted the

defendants on bot h counts, and the district court sentenced each

defendant to 41-months imprisonment on count 1, and 60 months on

count 2, the terms to be served consecutively.2 Rule 18 provides that:

Except as otherwise permitted by statute or by these

rules, the prosecution shall be had in a district in

which the offense was committed. The court shall fix the

place of trial within the district with due regard to the

convenience of the defendant and the witnes ses and the

prompt administration of justice.

4 II.

A.

On appeal, defendants argue first t hat the district court

abused its discretion in denying their motion to change venue.

Defendants co ntend that because the offense was committed in

Greenville, Mississippi, and all the witnesses, couns el, and

defendants were located there, the court violated Fed. R. Crim. P.

18 in fixing the place of trial at the Oxford Division. 2 Because

"[a] di strict court judge has 'broad discretion in determining

whether transfer is warranted,'" we review a denial of a motion to

transfer under an abuse of discretion standard. United States v.

Dickie , 775 F.2d 607, 609-10 (5th Cir. 1985).

In response to defendants' motion to transfer the case to the

Greenville Division, the district court stated:

In this particular instance, all parties have alluded to

the fact that

. . . these defendants are alleged to be

members of some organization or g ang there and the

alleged victims belong to another gang.

Having recognized the fact that this possibly could

create some security problems for the trial of this case

. . . the Court had requested of the United States

Marshal that they make a security e valuation for the

trial of this case and where it should be tried. . . .

The home station of this court, the headquarters of the

Court for the Northern District i s in Oxford,

Mississippi.

. . . As we do with any case that involves

more than ordinary secur ity, we try to schedule those5

criminal cases in Oxford because that is the headquarters

of the United States Marshals Service. We have more

officers and more equipment available to us to handle any situation that might arise there at Oxford.

Now, there is another factor. The Court must take

into consideration

. . . the fact that I have other cases

scheduled, other cri minal cases scheduled at the same

time there in Oxford. Therefore, it is important to this

court that I conduct any trial at a place and a time when

I can expeditiously and efficiently handle the business

of the Court. . . .

The Court is also . . . persuaded that in order to

avail itself of the sugge sted security arrangements of

the Marshals Service, that the trial of this case should

be held at the headquarters of the Court, and the

headquarters of the Marshals Service, the courtroom there

in Oxford, so that we can avail ourselves of the proper

and maximum security arrangements. Therefore, the Court

declines to move the case to Greenville for trial.

To accommodate the defendants, the district court ordered t hat

their witnesses be compelled to attend at government expense. At

trial, defendants called five witnesses and at no time complained

of any prejudice or inconvenience.

As we have noted, "[i]n deciding the place of trial within the

district the court must balance the statutory factors of the

convenience o f the defendant and witnesses with the prompt

administration of justice." I n re Chesson

, 897 F.2d 156, 159 (5th

Cir. 1990). In this case, the district court considered

defendants' interest in a trial in Greenville, but found it

outweighed by the securi ty measures available in Oxford and the

trial of other criminal cases in Oxford at the same time.

Rule 18 allows a court to consider "the prompt administration

of justice" in fixing the place of trial, and "matters of security

c learly fall within that consideration." U nited States v.6

Afflerbach , 754 F.2d 866, 869 (10th Cir. 1985), cert. denied , 472

U .S. 1029 (1985). In addition, "the prompt administration of

justice includes more than the case at bar; the phrase includes the

state of the court's docket generally. The court must balance not

only the effect of the location of the trial will have upon the

defendants and their witnesses, but it must weigh the impact the

trial location will have on the timely disposition of the instant

case and other cases." Chesson

, 897 F.2d at 159. We therefore

conclude that the district court did not abuse its discretion in

denying defendants' motion for change of venue.

B.

Defendants argue next that the government failed to present

suffic ient evidence to convict them of aiding and abetting each

other in the commission of a carjacking and in the use of a firearm

in relation to a crime of violence. They argue that they and the

occupants of the car were members of rival gangs, and that their

intent in forcing the occupants out of the car was to retaliate for

an incident that occurred earlier in the evening. In addition,

Hoskins maintains that he drove away in the car as an afterthought,

and Harris claims that he had no idea that Hoskins was going to do

so.

In evaluating the sufficiency of the evidence, we must

"determine whethe r, viewing the evidence and the inferences that

may be drawn from it in the light most favorable to the verdict, a

rational jury could have found th e essential elements of the

offense beyond a reasonable doubt." U nited States v. Sparks

, 27

F.3d 574, 579 (5th Cir. 1993), cert. denied

, 114 S.Ct. 899 (1994).

We must accept all credibility choices that support the jury's

verdict. Id.

In order to convict defendants of carjacking in violation of

18 U.S.C. § 2119, the government must prove that: "the defendant,

(1) while possessing a firearm, (2) took from the person or

presence of another (3) by force and violence or intimidation (4)

a motor vehicle which had moved in interstate or foreign commerce."

United States v. Singleton

, 16 F.3d 1419, 1422 (5th Cir. 1994). In

order to convict defendants of using a firearm in the commission of

a crime of violence i n violation of 18 U.S.C. § 924(c)(1), the

government must prove: (1) that defendant knowingly used or

car ried a firearm, and (2) the use or carrying of the firearm

occurred during and in relation to a "crime of violence." United

States v. Zukinta

, 830 F. Supp. 418, 421 (E.D. Tenn. 1993).

Finally, to prove aiding and abetting, the government must show

that defendants: (1) associated with the criminal enterprise; (2)

participated in the venture; and (3) sought by action to make the

venture succeed. U nited States v. Mergerson

, 995 F.2d 1285, 1290-

91 (5th Cir. 1993), cert. denied , 114 S.Ct. 1310 (1994).

In this case, the government presented sufficient evidence to

allow a rational jury to convict defendants on both counts. When

Hoskins and Harris approached the car, Harris was armed with a

sawed-off shotgun, and Hoskins had an ax handle. Hoskins grabbed

the driver's door and held it open. Harris went around to the

other side and leveled the gun at Anderson across the top of the8

car. Harris opened the back door, stuck the gun in the car, and

pointed it at Herbert Williams' head. Harris and Hoskins began

hollering "get out the car. Get out the car." When Harris cocked

the gun, the passengers all jumped out and ran, and as they fled,

Hoskins jumped in the car and drove away.

From this evidence, the jury wa s entitled to conclude that

Harris knowingly possessed a firearm, and that both men used force

and intimidation in taking the car. The defendants' motive in

taking the car is irrelevant. The government therefore presented

sufficient evidence to allow a rational jury to convict defendants

as charged.

C.

Defendants ar gue next that the carjacking statute is

unconstitutionally vague. They contend that it is flawed because

it lacks an element of intent, and because it applies only to

vehicles that have been transported in interstate commerce.

Defendants also argue that the statute was intended to apply only

to thefts for profit and not to gang violence.

The carjacking statute, 18 U.S.C. § 2119, provides that:

Whoever, possessing a firearm as defined in section

921 of this title, 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 in timidation, or attempts to do so,

shall--

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury . . .

results, be fined under this title or imprisoned not more than 25 years, o r both,

and9 (3) if death results, be fined under this

title or imprisoned for any number of years up

to life, or both.

Although the statute does not include a scienter requirement, it is

supplied by "the general rule of cons truction that 'knowledge of

the facts constituting the offense is ordinarily implied' where a

'statute does not expressly mention any mental element.'" United

States v. Wilson , 884 F.2d 174, 178 (5th Cir. 1989).

Relying on their reading of the l egislative history,

defendants argue next that Congress did not intend for the statute

to apply to the facts of this case. They focus on the

Congressional concern with "chop shops" and organized theft rings.

However, in resorting to the legislative history, defendants ignore

the first rule of statutory construction that: "the meaning of the

statute must, in the first instance, be sought in the language in

which the act is fra med, and if that is plain, . . . the sole

function of the court s is to enforce it according to its terms."

Meredith v. Time Ins. Co.

, 980 F.2d 3 52, 356 (5th Cir. 1993).

Ne vertheless, the legislative history makes clear that Congress

i ntended "to take effective measures to thwart all motor vehicle

theft, not just theft related to 'chop shops.'" H.R. Rep. No. 851,

102d Cong., 2d Sess., reported in 1992 U.S.C.C.A.N. 2829, 2844.

Defendants also argue that the statute is unconstitutionally

vague because it applies only to vehicles transported in interstate

commerce. Citing U nited States v. Cortner

, 834 F. Supp. 242 (M.D.

Tenn. 1993), defendants contend that the statute would not apply to

a vehicle which never left its state of manufacture. However, as10

one court has held, it is a rational exercise of Congressional

power "to place the anti-carjacking statute within the traditional

statutory formulation that draws a distinction between interstate

and intrastate commerce regulations." U nited States v. Watson

, 815

F. Supp. 827, 836 (E.D. Pa. 1993). Because the carjacking statute

applies to the facts of this case and because it properly applies

only to cars transported in interstate commerce, we conclude that

it is not unconstitutionally vague.

D.

Defendants argue next tha t the statute is unconstitutional

because it lacks a rational nexus to interstate commerce. The

Supreme Court has instructed that: "A court may invalidate

legislation enacted under the Commerce Clause only if it is clear

that there is no rational basis for a congressional finding that

the regulated activity affects interstate commerce, or that there

is no reasonable connection between the regulatory means selected

and the asserted ends." H od el v. Indiana , 452 U.S. 314, 323-24

(1981).

Recently, in United States v. Johnson , ___ F.3d ___, 1994 WL

140293 (6th Cir.), the Sixth Circuit concluded that the carjacking

statute bears a rational relationship to interstate commerce:

It may well be that the carjacking statute is unwise

and encroaches on traditional views of federalism, as

Judge Wiseman observes in United States v. Cortner , 834

F. Supp. 242 (M.D. Tenn. 1993), but it is not

unconstitutional under current Commerce Clause doctrine.

So long as the activity regulated has an effect on

interstate commerce i t makes no difference that the

transported item is now "at rest" and is no longer "in"

interstate commerce. A long line of cases establishes

the general or aggregate "economic effect" standard and11

does away with the requirement that the individual act at

issue must be "in interstate commerce" or involve

movement in interst ate commerce . . . . It is obvious

that carjackings as a category of criminal activity have

an effect on interstate travel and the travel of foreign

citizens to this coun try. Thus we must reject

defendant's argument that the carjacking statute as applied here is unconstitutional.

Id. at *3. A number of district courts also have upheld the

statute against Commerce Clause challenges. See United States v.

Payne , 841 F. Supp. 810 (S.D. Ohio 1994); United States v. Stith

,

824 F. Supp. 128 (S.D. Ohio 1993); United States v. Eskridge , 818

F. Supp. 259 (E.D. Wis. 1993); United States v. Watson

, 8 15 F.

Supp. 827 (E.D. Pa. 1993). Because of the obvious effect that

carjackings have on interstate commerce, we hold that the

carjacking statute is a valid exercise of Congress's Commerce

Clause powers.

E.

Finally, defendants argue that their convictions under 18

U.S.C. § 2119 and 18 U.S.C. § 924(c)(1) violate the Double Jeopardy

Clause. However, we expressly rejected this argument in U nited

States v. Singleton

, 16 F.3d 1419, 1420 (5th Cir. 1994): "Although

we agree with the district court that the firearms offense is not

fac tually distinct from the carjacking offense, we hold that

Congress has clearly indicated its intention to impose cumulative

punishments."

III.

Because we find no merit in defendants' arguments, we affirm

their convictions and sentences.

AFFIRMED.