## The Honorable George F. Gunn, Jr., United States District Judge f or the Eastern 1 

## District of Missouri. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1204

___________ United States of America, *

Plaintiff - Appellee, * Appeal from the United States

v. * Eastern District of Missouri. Terrick Alfred Williams, *

Defendant - Appellant. * *

* District Court for the

*

*

*

___________ Submitted: September 11, 1997 Filed: February 10, 1998

___________ Before HANSEN, ROSS, and MURPHY, Circuit Judges.

___________ HANSEN, Circuit Judge.
Terri ck Williams appeals his convictions on counts of carjacking , using a firearm during a crime of violence, and being a felon in possessio n of a f irearm. He challenges the sufficiency of the evidence and th e admissibility of his confession. We affirm the district court. 1

## -2- I. Factual Background

Williams’ convictions arose from two incidents. In the firs t incident, the evidence offered showed that Edith Cooper and her three-year

old son were waiting in Cooper’s parked 1989 Mer cury Cougar while Cooper’s frien d shopped. A man approached Cooper’s car and opened its unlocke d door. Upon seeing Cooper and her son inside the car, the man said “excuse me,” and closed the door. The man then opened the door again, pointed a gunat the child, said “a few choice dirty words” to Cooper, and ordered the two out of the ca r. (Trial Tr. Vol. 1 at 109.) Cooper complied with the order by grabbing her son and running into the store. The man drove away in Cooper’s car.
The second incident began the next m orning when Dr. Jill O’Har drove into the parking lot of the hospital where she worked. O’Har parked her BMW, exited the vehicle and was retrieving items from the passenger side of her car when a mangrabbed her from behind and pushed her down towards the interi or of her car. The man ordered O’Har not to say anything

. Initially, O’Har thought someone was joking with her, but the man continue d to p ush O’Har down toward the passenger seat while pressing his bod y against her. When O’Har turned she saw the man’ s face. Fearing she would be killed if she was forced into her car, O’Har began to scream and put he r hands on top of the car to resist being pushed i nto the vehicle. As O’Har continued to scream, the man backed away and grabbed her briefcase from th e front seat of the car . O’Har then saw that the man had a revolver in his hand. When another c ar pulled into the parking lot the man ran to a 1989 MercuryCougar and drove away. The police later recovered Cooper’s 1989 Mercury Cougar parked on a nearby street.
Erin McDonough witnessed the incident involving O’Har from a di stance of abo ut 30 feet. She was able to see the man and O’Har during th e struggle and saw the

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man’s face as he drove away in the Mercury. Later, both McDonough and O ’Har each identified Williams as the man in a police photo array.

Sho rtlyafter the incident involving O’Har, the police received a n anonymous telephone call stating Williams was responsible for the incident. The cal ler also gave the police two addresses that Williams allegedl y frequented. Follo wing the positive identifications by McDonough and O’Har in the photo array , the police went to one of these addresses and obtained written permission from an occupant to search the premises. The polic e found Williams dur ing this search, took him into custody, and read him his Mirandarights. Williams stated he understoo d his rights. The police also recovered a .38 revolver with Williams’ fingerprints on it. The officers did not question Williams after his arrest or while transporting him to the police station. Williams also did not assert his right to remain silent or his ri ght to counsel. At the police station, both McDonough and O’Ha r identified Williams in a lineup. When an off icer informed Williams that he had been identified in the lineup, Williams indicated that he wanted to talk with the officer. The officer again advised Williams of his Mirandarig hts, and Williams again said he understood his rights. After waiving his rig hts, Williams confessed that he had “jacked a lady for her car” in a stor e par king lot and had “jacked a lady by a car . . . when she starte d screaming. I took her briefcase and ran backto the car.” (Trial Tr. Vol. 1 at 281.)

The police later went to the second address given by the anonymou s caller. After rec eiving written permission from an occupant to search the premises, the police seized items that the occupant said were not hers. Ms. Cooper identified these items as property that had been in her car before it was stolen. Al though Ms. Cooper was unable to identify Williams as the man who stole her car, Williams’ fingerprints were found on a telescope that was in the trunk of Cooper’s car.
Williams was charged with two cou nts of carjacking in violation of 18 U.S.C. § 2119 (1994), two counts of using a firearm during a crime o f violence in violation of

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18 U.S.C. § 924(c)(1), and two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) . A jury convicted him of all charges, and the district court sentenced him to 450 months of imprisonm ent. Williams appeals his convictions.

II. Analysis
A. Intent Required for Carjacking
Williams first argues that there was insufficient evidence to convict him of carjacking in either incident, because the government failed to p rove that he had a specific intent to cause death or serious bodily harm a s required by the ca rjacking statute, 18 U.S.C. § 2119. Williams claims the government is required to prove that he possessed an unconditional intent to cause death or serious bodily harm, regardless of whether the victi m relinquishes his or her car. The government argues that an intent to cause dea thor serious bodily harm if the victim does not comply with th e defendant’s demand s is sufficient to satisfy the statute’s specific intent requirement. The government asserts there is sufficient evidence to sup port the jury finding that Williams possessed this conditional intent.
We must interpret the carjacking statute to resolve these conflicting cla ims. We review the district court’s interpretation of the statute d e novo. See Loehrer v. McDonnell Douglas Corp. , 98 F.3d 1056, 1061 (8th Cir. 1996). In interpreting a statute “we must not be guided by a singl e sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” Pilot Life Ins. Co. v. Dedeaux , 48 1 U.S. 41, 51 (1987) (internal quotations omitted).
The carjacking statute provides as follows:

## -5- Whoeve r, with the intent to cause death or seriou s bodily harm takes a motor vehicle that has bee n transported, shipped, or received in interstate o r foreig ncommerce from the person or presence o f another by force and vio lence or by intimidation, or attempts to do so, shall-- (1) be fined under this title or impris oned not more than 15 years, or both, (2) if serious bodily injury (as defined i n section 1365 of this title) results, be fine d under this title or imprisoned not more than 25 years, or both, and (3) if death results, be fined under th is title or im prisoned for any number of years up t o life, or both, or sentenced to death.

18 U.S.C. § 2119 (1994).
Thus, a carjacking conviction requires proof of three basic elements. First, the defendant must have taken or attempted to take a motor vehicle froma “p erson or presence of another by force and violence or b y intimidation.” Id. Second, the defendant mu st have acted “with the intent to cause dea th or serious bodily harm.” Id. Third, the motor vehicl e involved must have been “transported, shipped , or received in interstate or foreign commerce.” Id.

At l east four of our sister circuits have been confronted with th e issue we face here : whether a conditional intent to cause death or serious bodily harm if the victim does not relinquish his or her car satisfies the intent element. The Ninth Circuit answered the question in the negative, holding “[t]he mere conditional intent to harm a victim if she resists is sim plynot enough to satisfy § 2119's new specific intent requirement. ” United Stat es v. Randolph , 93 F.3d 656, 665 (9th Cir. 1996). The cour t fou nd that the defendant’s threat to harm the victim if she did no t relinquish her car satisfied the intimidation part of the first element, but
was insufficient to show the defendant intended to cause death or serious bodily harm where his accomplices

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impulsively and independently assaulted the victim. Id. The court reas oned that “to construe a threat to satisfy §2119's intent element as well as its ‘taking’ element would be to make surplusage of the intent element.” Id. at 665 n.6. Such an interpretation, the Ninth Circuit concluded, woul d “eliminate” the government’s burden to prove “that additional inten t element.” Id. at 665.

We res pectfully disagree with this reasoning. It is very likely, in
our view, that the same actions which satisfy the taking by force o r intimidation element may also serve to indica te an intent to cause death or serious bodily injury. Consistent with our view, the Tenth Circuit ha s re jected the Ninth Circuit’s reasoning, explaining that the carjackin g sta tute’s taking and intent elements do not constitute two separate an d distin ct “intent requirements.” United States v. Romero , 122 F.3d 1334 , 1338 (10th Cir. 19 97), petition for cert. filed , (U.S. Nov. 17, 1997) (No. 97-6863). “Instead, the plain language of the statute indicates that the ‘tak[ing] . . . by force or intimidation’ element comprises the actus reus of the crime and the ‘intent to cause death o r serious bodily harm’ element constitute s the mens rea of the crime.” Id. at 1338-39 (alterations i n original).

In contrast to the Ninth Circuit’s rejection of conditional intent , the Second, Third, and Tenth Circuits have al l held that conditional intent is suf ficient to satisfy the intent requirement of § 2119. See Unite d States v. Arnold , 126 F.3d 82, 89 (2d Cir. 19 97); Romero , 122 F.3d at 1339; United States v. Anderson , 108 F.3d 478, 485 (3d Cir.), cert. denied , 118 S. Ct. 123 (1997). In Anderson , the Third Ci rcuit noted that the practical effect of the Nint h Circuit’s Randolphholding is to limit the application of the carjacking statute to only those cases where the defendant actually physicallyharms the victim, because “[r]arely will there be a case where there will be evidence of a defendant’s uncon ditional intent to cause death
or serious bodily harm whether or not the victim relinquishes his or he r car, ye t the victim sustains no injuries.” 108 F.3d at 483. The cour t sta ted that such a result is clearly contrary to Congressional intent a s evidenced in the statue itself, because “Cong ress has provided for enhanced penalties

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when a carjacking does, in fact, result in de ath or serious bodily injury.” Id. (citin g 18 U.S.C. § 2119(2) and (3)). The court then reviewed basi c criminal law tenets regarding conditional intent, noting that conditiona l intent is normally sufficient to prove intent “unless the conditio n negatives the harm or evil sought to be prevented by the law defining the offen se.” Id. (quoting Wayne R. Lafave and Austin W. Scott, Jr. , Substantive Criminal Law § 3.5(d), at 313 (1986)) (other internal quotat ions omitted). Because a conditional intent to harm the victim unless the vi ctim relinquishes his or her car does not negate t he harm sought to be prevented by the carjacking statute, the Third Circuit held conditional intent i s sufficient to satisfy the intent element. Id. at 483-85. The Se cond and Tenth Circuits have followed much of the reasoning of Anderson , also holding conditional intent cansatisfy the intent element of the carjacking sta tute. In Romero , the Tenth Circuit initially noted that “[a]s a general rule, conditional intent is still intent.” Romero , 122 F.3d at 1 338 (internal quotations omitted). The Romero court agreed wit h Anders onthat the structure of the carjacking statute itself showed tha t Congre ss did not intend to limit the offense of carjacking to thos e situations in which the victim was killed or suffered serious bodily harm because Congress had provided enhanced penalties in those particula r situations. Id. at 1339. The Second Circuit similarly found that allowing conditional intent to satisfy the intent requirement “comports with a reaso nable interpretation of the legislative purpose of the statute. ” Arnold , 126 F.3d at 88.

We fi nd persuasive these courts’ reliance on the structure of th e carjacking statute itself to conclude that the specific intent requirement is satisfied by a defendant’s conditional intent to cause death or serious bodily in jury only if the victim does not relinquish the vehicle. B y looking at § 2119 as a whole, including the enhanced penalties fo r car jackers whose actions actually cause death or physical injury, it i s clear Congress didnot intend to limit the reach of the federal carjacking statute to those situations where a defendant unconditionally intends death
or ser ious bodily injury regardless of whether the victim surrenders th e vehicle. See Anderson , 108 F.3d

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at 483. We hold that the intent element of the carjacking statute can be sat isfied by proof that the defendant intended to cause death or seriou s bodily injury evenif such a result is only intended if the victim refused to relinquish his or her car.
Havinginterpreted the statute, we must review Williams’ sufficiency of the evidence claim to determine “if there is an interpretation of th e evidence that would allow a reasonable jury t o conclude” Williams possessed the necessary inte nt beyond a reasonable doubt. United States v. Uder , 98 F.3d 1039, 1045 (8 th Cir. 1996). We review the evidence in the light most favorable to the verdict, drawing all reasonable inferences from th e evidence in favor of the verdict. United States v. Willis , 89 F.3d 1371, 1376 (8th Cir.), cert. denied , 117 S. Ct. 273 (1996).
Turning to the record in this case, we find there is sufficien t evi dence for a reasonable jury to conclude that Williams possessed thi s conditional intent to cause death or serious physical injury in both of the incident s. In the first incident, the evidence supports a finding tha t Williams pointed his loaded revolver at Cooper’s three-year-old son an d ordered the two out of the car. In the second incident, the evidenc e sup ports a finding that Williams attacked O’Har from behind and tried t o force her in to her car. Williams was armed with a revolver during th e attack. Only O’Ha r’s screams caused Williams to move away from her. Even
as Williams moved away, he continued to hold the gun. Williams only fled the scene when another car entered the parking lot. The jury coul d reasonablyinfer from this evidence that Williams intended to cause death or serious bodily injury on each occasion.
B. Sufficiency of the Evidence in First Carjacking Incident

Wil liams next claims that there is insufficient evidence to convic t himof carjacking in the first incident. He contends that his statements to polic e that he “jacked” one victim for a car and another victim for a briefcase should have been suppressed because they were obtained i n violation of Miranda v. Arizona , 384 U.S.

## We note that even if this statement had been obtained in violation o f 2 

## Miranda ,Williams’ subsequent statements would be admissible under Oregon v. Elstad , 470 U.S. 298 (1985). In Elstad , the defendant, while in custody and in response to police interrogation, made an incriminating statement to police officers without firs t havi ngbeen given his Miranda rights. 470 U.S. at 301. He was then taken to th e police station and, after being advised of and waiving his Miranda rights, executed an inculpatory written statement. Id. The Court addressed the is sue of whether the failure to gi ve Miranda

warnings before the first statement “‘taints’ subsequent admission s made after a suspect has been fully advised of and has waived his Miranda rights.” Id. at 300. The Court reasoned it would be “an unwar ranted extension of Miranda to hold that a simple failure to administer the warnings, un accompanied by any actual coercion or other circumstances calculated to undermine the suspect ’s ability to exercise his free wi ll, so taints the investigatory process that a subsequent voluntary and informe d waiver is ineffective for some indeterminate period.” Id. at 309. Thus, the Court held that “a suspect who has once responded to unwa rned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given th e requisite Miranda

warnings.” Id. at 318.
Williams’ first statement, that he wanted to talk after the officer informed him he h ad been picked out of a lineup, was voluntarily made without any coercion o r circumstances calculated to undermine Williams’ ability to exercis e his free will. Thus, Williams’ subsequent confession to police is admissible under Elstadso long as it was givenafter he was advised of and voluntarily waived his Miranda rights. See id

. William s was given these rights, he understood them, and he waived them prior to giving his statement.
-9- 436 (1966). Willi ams argues that because his initial statement to police, that he wanted to talk after being informed by an officer that he had been identified in a lineup, was coerced, his subsequent statements made after being advised of and waiving his Mirandarigh ts are inadmissible. Williams further argues that the remaining evidence is insufficient to convict him of carjacking in t he first incident because the government failed to prove he was th e man who stole Cooper’s car. We reject Williams’ argument s because we hold th at his statements were admissible under Miranda and that there is sufficient evidence to support his conviction for carjacking inthe first incident.

We fin d that Williams’ first statement, that he wanted to talk after being informed by the officer that he had been identified in a lineup, was voluntarily made without any coercion. This statement was also not obta ined in violation of Miranda

. 2

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Assuming arguendo that the officer’s statemen t to Williams that he had been identified was “interrogation” for purposes of Miranda , there was n o violation. Williams was advised of his Miran da rights when he was arrested earlier in the day, he told police he underst ood his rights, and he did not assert any of his rights. Under such circumstances, Mirandadid not pre vent the officer from “interrogating” Williams by telling him he had bee n identified in the lineup. See Miranda , 384 U .S. at 475. We therefore hold that Williams’ subsequent statements, made af ter again being advised of his Miranda rights and waiving those rights, were admissible.
We next review the record to determine if a reasonable jury could have found Williams guilty of carjacking in the first incident. Uder , 98 F.3d at 1045 . Williams told the police that he “jacked a lady for her car. ” (Trial Tr. Vol. 1 at 281.) Williams’ fingerprints were found on Cooper’s telescope in the trunk of Cooper’s car. An e yewitness saw Williams driving Cooper’s stolen car after the incident involving O’Har, the morning after Cooper’s car was stolen. We conclude that this evidence is sufficient to support a finding that Williams was the man who carjacked Cooper’s car

. Williams’ carjacking conviction for the first incident must therefore st and.
C. Sufficiency of the Evidence in Second Carjacking Incident

Wil liams next argues that there is insufficient evidence to convic t himof carjacking in the second incident because the government failed to prove he intended to steal O’Har’s car. The carjacking statute expressly prohibits attempts. See 18 U.S.C. § 2119. W e review Williams’ sufficiency of the evidence claim to see if a

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reason able jury could have found Williams attempted to steal O’Har’s ca r beyond a reasonable doubt. Uder , 98 F.3d at 1045. A defendant must take
a “substantial step” towards the completion of the crime to constitute an attemp t. See United States v. Carlisle , 118 F.3d 1271, 1273 (8th Cir

. 19 97). “A substantial step is conduct such that if it had not bee n extraneouslyinterrupted would have resulted in a crime.” Id. We agai n review the evidence in the light most favorab le to the verdict, drawing all reasonable inferences from the evidence in favor of the verdict. Willis , 89 F.3d at 1376.

Our re view of the record convinces us that there is sufficien t evidence to support Williams’ conviction for the second carjacking incid ent. The evidence suppo rts a finding that Williams attacked O’Har while she was retrieving items from her car. Williams trie d to shove O’Har into her car. He ordered O’Har not to say anything while he was trying to push her into the car. Williams was armed with a revolver during the incident. Thes e facts all support a reasonable inference that Williams was attempting t o steal O’Har’s car and that he took the required substantial steps towards that goal.
D. Sufficiency of the Evidence for Using a Firearm During a Crime of Violence

Williams’ final argument is that the district court erred in failing to direct verdicts of acquittal for the two counts of using a firearm du ring
a crime of violence. Williams bases this argument on his previous claims that there was insufficient evidence to suppo rt his carjacking convictions, the underlying violent crimes. Because we have held there was sufficient evidence to support those convictions, we reject this argument.

## -12- III. Williams’ Post-Argument Motions

After this case was submitted following oral argument, Williams ’ counsel made two m otions to this court. First, Williams moved to withdraw the last a rgument he made in his initial appellate brief. We grant thi s motion and therefore do not consider that argument in this opinion.
Second, Williams moved this court to reconsider our prior order which denied his prior m otion to file a supplemental appellate brief. Williams’ original motion to file a supplemental brief was made after the government had filed its main brief and after he had filed his reply brief. We also note t hat Williams raises six new arguments in his tendered supplementa l brief. Allowing t he supplemental brief to be filed would require granting the government substantial time to respond to these new arguments. Mor e importantly, Williams was granted numerous extensions of time to file his initial brief with this court. Even with these numerous extensions, h e filed his initial brief late, along with a motion to file his brief out of time. We granted his motion and allowed him to file the late brief

. Considering all of the above facts, we deny Williams’ motion to reconsider
our prior order denying his motion to file a supplemental brief. At some point briefing and argument must end and the appeal must be decided

. Williams passed this point long ago.
IV. Williams’ Pro Se Briefing

On Ju ne 24, 1997, an administrative panel of this court permitte d Williams to file a pro se supplemental brief, leaving this hearing panel to determine the weig ht to be given to the arguments advanced. On August 14, 1997, this panel denied Williams’ further requests to file additional pro se briefs. We have carefully considered the arguments Williams makes inthe pro se brief he was authorized to file and we reject them. We have als o reviewed th e arguments he makes in the later brief he sent to the cour t before we entered our order denying him further pro se briefing. We rely
on

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counsel to winnow the issues on appeal. Garrett v. United States , 78 F.3d 1296, 1306 (8th Cir.), cert. denied , 117 S. Ct. 374 (1996). Becaus e Williams’ later pro se briefing appears prima rily to be an earlier draft of his cou nseled brief and contains issues not raised in the appellant’ s opening br ief as filed by counsel, we decline to consider them. We als o decline to address Williams’ complaints concerning his appellate counsel’s effectiveness. Our declinations are without prejudice to any later 2 8 U.S.C. § 2255 motion Williams may bring.

V. Conclusion
Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.