1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-21-1998

United States v. Lake

Precedential or Non-Precedential:

Docket 97-7462

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Lake" (1998). 1998 Decisions. Paper 165.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/165
Filed July 21, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-7462 

UNITED STATES OF AMERICA 

v. 

HILTON A. LAKE 

Hilton A. Lake, 

Appellant 

ON APPEAL FROM THE DISTRICT COURT 

OF THE VIRGIN ISLANDS 

(D.C. Criminal No. 96-cr-00161) 

Argued March 30, 1998 

Before: BECKER, Chief Judge, COWEN, and ALITO, 

Circuit Judges 

(Opinion Filed: July 21, 1998) 

 Thurston T. McKelvin 

 Federal Public Defender 

 Patricia Schrader-Cooke (Argued) 

 Asst. Federal Public Defender 

 P.O. Box 3450 

 Christiansted, VI 00822 

 Attorney for Appellant Hilton Lake 
 James A. Hurd, Jr. 

 United States Attorney 

 Kim L. Chisholm (Argued) 

 Assistant U.S. Attorney 

 5500 Veterans Drive, Suite 260 

 Charlotte Amalie 

 U.S. Virgin Islands 00802-6424 

 Attorneys for Appellee 

OPINION OF THE COURT 

ALITO, Circuit Judge 

This is an appeal from a judgment in a criminal case. 

After a jury trial, the defendant, Hilton A. Lake, was 

convicted under 18 U.S.C. S 924(c)(1) of using or carrying a 

firearm during and in relation to a crime of violence, 

namely, a carjacking (see 18 U.S.C. S 2119). Lake 

challenges his conviction on numerous grounds, the most 

substantial of which is that he did not violate the

carjacking statute because, he argues, he did not take the 

motor vehicle in question "from the person or presence" of 

the victim. We reject this and Lake's other arguments, and 

we therefore affirm. 

I. 

The events that led to Lake's prosecution occurred at 

Little Magen's Bay in St. Thomas, United States Virgin 

Islands. The road to the beach at Little Magen's Bay ends 

at the top of a hill. There is a steep path bordered by 

vegetation and rocks that leads from the road down to the 

beach, and the road cannot be seen from the beach. 

On the day in question, Lake hitchhiked to Little Magen's 

Bay and encountered Milton Clarke, who was sitting on the 

beach reading a newspaper. Lake asked whether Clarke 

owned a white car parked up on the road. Clarke said that 

he did, and Lake initially walked away. However, Lake 

returned a few moments later and asked to borrow the car. 

When Clarke refused, Lake stated that it was an 

 2 
emergency. Clarke again refused, and Lake walked off. 

When Lake returned yet again, Clarke said: 

 [L]isten, think about it. If I walked up to you and asked 

 you, can I borrow your car[,] [a]re you going to lend it 

 to me? Of course not. So why don't you leave me the 

 hell alone. I'm here to have a nice time. Just chill. Go 

 someplace else. 

App. 140A. 

Lake walked off and sat on a rock, while Clarke anxiously 

watched him out of the corner of his eye, but Lake soon 

returned with the same request. When Clarke swore again, 

Lake asked if he could have a drink from Clarke's cooler. 

Clarke said: "[D]on't you get it? Leave me alone." App. 

141A. Lake then lifted up his shirt, showed Clarke the 

handle of a gun, and said: "[Y]ou know what that is?" App. 

141A. Clarke stood up and started backing away, but Lake 

pulled the gun from his waist band, put it against Clarke's 

face, and demanded the car keys. App. 142A. Clarke said 

that he did not have the keys and started walking toward 

the water with Lake following. Clarke waded into waist-deep 

water, and Lake walked out onto a promontory overlooking 

the water. App. 143A-48A. 

While Clarke was in the water, his friend, Pamela 

Croaker, appeared on the beach. Clarke shouted a warning, 

prompting Lake to approach Croaker. Lake demanded that 

Croaker surrender her car keys, and Croaker said:"I don't 

even know you. Why would I give you the keys to the car?" 

App. 183A. Lake then grabbed the keys, and the two 

wrestled for possession of the keys. When Croaker saw the 

gun, she surrendered the keys but asked to keep her house 

keys. App. 184A-86A. Lake went up the steep path to the 

parking area where Croaker had parked her car out of sight 

of the beach. Lake then drove away in Croaker's car after 

leaving her house keys on the hood of Clarke's car. App. 

192A. As we will discuss later in more detail, both Croaker 

and Clarke followed him up the path, but when they 

arrived, he was driving away. 

Later that day, the police apprehended Lake in the stolen 

car at a McDonald's restaurant. When questioned by the 

police and an FBI agent, Lake stated that he had used a toy 

 3 
gun and that he had thrown it in a swamp. He refused to 

take the officers to the site where he had allegedly disposed 

of the gun, and when asked to tell the truth about whether 

the gun was really a toy, he responded that he "would think 

about it." The gun was never recovered. 

Lake was indicted for carjacking, in violation of 18 U.S.C. 

S 2119, and for using and carrying a firearm during and in 

relation to a crime of violence (the carjacking), in violation 

of 18 U.S.C. S 924(c)(1). At the close of the evidence in his 

jury trial, Lake moved unsuccessfully for a judgment of 

acquittal. The jury subsequently returned a verdict of not 

guilty of the carjacking charge but guilty of thefirearms 

offense. Lake was sentenced to imprisonment for 60 

months plus a three-year term of supervised release. He 

then took this appeal. 

II. 

We will begin with Lake's argument that the evidence was 

insufficient to support his conviction under 18 U.S.C. 

S 924(c)(1) because the evidence did not show that he used 

or carried a "firearm" within the meaning of 18 U.S.C. 

S 921(a)(3). Lake contends that the evidence failed to 

establish that the gun was not a toy. Appellant's Br. at 18. 

Lake notes that he initially told Officer Griffin that the gun 

was a toy, that Croaker and Clarke both said that the gun 

looked like the type of gun used by cowboys in Westerns, 

and that Clarke said that he was not able to tell whether 

the gun was real. Id. 

We recently addressed a similar argument in United 

States v. Beverly, 99 F.3d 570 (3d Cir. 1996), and under 

Beverly the evidence here was sufficient. Both Clarke and 

Croaker stated that Lake had a gun and described it in 

some detail. See App. 141A-42A, 184A. Lake does not

contend that their descriptions were inconsistent with that 

of a real gun. Both Clarke and Croaker testified that they 

experienced great fear, App. 151A, 184A, 186A, and 

Croaker manifested sufficient fear of the gun to surrender 

her keys. Moreover, although Lake originally told the 

authorities that the gun was a toy and that he had thrown 

it in a swamp, he refused to reveal its location, and when 

 4 
later asked whether he would tell the truth about whether 

the gun was real, Lake responded that he would "think 

about it." App. 171A-72A. In light of all of this evidence, a 

rational jury could find that the gun was real. 

III. 

Lake next argues that the evidence was insufficient to 

show that he violated the carjacking statute, 18 U.S.C. 

S 2119, and thus that he committed the predicate offense 

needed to support his 18 U.S.C. S 924(c)(1) conviction. 

Under the carjacking statute, 18 U.S.C. S 2119, the

prosecution must prove that the defendant (1) "with intent 

to cause death or serious bodily harm" (2) took a motor 

vehicle (3) that had been "transported, shipped, or received 

in interstate or foreign commerce" (4) "from the person or 

presence of another" (5) "by force and violence or by 

intimidation." Lake contends that the evidence in this case 

was insufficient to prove elements one, three, and four. In 

reviewing the sufficiency of the evidence, we must decide 

whether the jury could have rationally found that each of 

the challenged elements had been established beyond a 

reasonable doubt. United States v. Carr, 25 F.3d 1194, 

1201 (3d Cir. 1994). 

A. Intent to cause death or serious bodily injury. We see 

no merit in Lake's contention that the evidence was

insufficient to show that he intended to cause death or 

serious bodily injury. As previously discussed, the evidence 

was sufficient to show that Lake's gun was real. In

addition, the car jacking victim, Pamela Croaker, testified 

that Lake waved the gun in front of her and ordered her to 

give him the keys to her car. App. 184A. When she 

hesitated, she testified, Lake placed the gun close to her 

head and again told her to surrender the keys. App. 185A. 

Based on this testimony, a rational jury could find that 

Lake had the intent to kill or cause serious bodily injury to 

Croaker if she did not comply with his demands, and we 

have previously held that such a conditional intent is 

sufficient to satisfy the carjacking statute. United States v. 

Anderson, 108 F.3d 478, 481-85 (3d Cir.), cert. denied, 118 

S. Ct. 123 (1997). 

 5 
In arguing that the proof of intent was insufficient, Lake 

notes, among other things, that he "asked for Clarke's keys 

several times before he displayed the gun and placed it 

against Clarke's face" and that he initially asked for 

Croaker's keys and wrestled with her before pulling the gun 

on her. Appellant's Br. at 16. We agree that these facts 

suggest that Lake was at least reluctant to fire his gun, but 

we do not agree that a rational jury was compelled to infer 

that Lake would not have fired the gun in the end if 

Croaker had not given up the keys. On the contrary, we 

hold that the evidence amply supported the jury's finding 

that Lake possessed the requisite conditional intent to 

cause death or serious bodily injury. 

B. From the person or presence of another. Lake 

maintains that the evidence did not show that he took 

Croaker's car "from [her] person or presence," as 18 U.S.C. 

S 2119 demands. Lake argues that he took her keys, not 

her car, from her person or presence and that the car was 

not in Croaker's presence when he took it because she 

could not see or touch the car at that moment. 

The carjacking statute's requirement that the vehicle be 

taken "from the person or presence of the victim" "tracks 

the language used in other federal robbery statutes," H.R. 

Rep. No. 102-851 (I), at 5 (1992), reprinted in 1992 

U.S.C.C.A.N. 2829, 2834, such as 18 U.S.C. SS 2111, 2113, 

and 2118. See United States v. Perez-Garcia, 56 F.3d 1, 3 

(3d Cir. 1995). Under these statutes, "property is in the 

presence of a person if it is `so within his reach, observation 

or control, that he could if not overcome by violence or 

prevented by fear, retain his possession of it.' " United 

States v. Burns, 701 F.2d 840, 843 (9th Cir. 1983). See also 

United States v. W.T.T., 800 F.2d 780, 782 (8th Cir. 1986); 

LaFave and Scott, Substantive Criminal Law S 8.11 at 443 

(1986) (" `Presence' in this connection is not so much a 

matter of eyesight as it is one of proximity and control: the 

property taken in the robbery must be close enough to the 

victim and sufficiently under his control that, had the latter 

not been subjected to violence or intimidation by the 

robber, he could have prevented the taking"). 

Here, as previously described, Lake took Croaker's car 

keys at gunpoint on the beach and then ran up the path 

 6 
and drove away in her car. Croaker pursued Lake but did 

not reach the parking area in time to stop him. Applying 

the definition of "presence" noted above, we conclude that 

a rational jury could have found that Croaker could have 

prevented the taking of her car if she had not been fearful 

that Lake would shoot or otherwise harm her. Croaker 

testified that the sight of Lake's gun caused her great fear. 

She stated that when she first saw the gun she"felt like 

[she] was going to let go of [her] bowels [and] faint." App. 

184A. Although Croaker did not say in so many words that 

she hesitated for some time before pursuing Lake up the 

path, the sequence of events laid out in her testimony 

supports the inference that this is what occurred. Croaker 

stated that at the point when she surrendered the keys, 

Clarke "was struggling back through the water to come 

back," App. 185A, but that she did not start to run up the 

path until Clarke emerged from the water. App. 186A. 

Clarke testified that, when Lake ran up the path, Croaker 

was "pulling herself together kind of." App. 150A. Clarke 

related that he "caught up to [Croaker] at the bottom of the 

paved driveway" and that the two of them proceeded up the 

path together. App. 150A. They reached the parking area in 

time for Croaker to see Lake driving away in her car but not 

in time to stop him. App. 186A. Both Croaker and Clarke 

stated that at this point they were very scared. App. 151A, 

186A. Based on this testimony, a rational jury could infer 

that Croaker hesitated before pursuing Lake due to fear 

and that if she had not hesitated she could have reached 

the parking area in time to prevent Lake from taking her 

car without employing further force, violence, or 

intimidation. We do not suggest this inference was 

compelled, but because such an inference was rational, we 

hold that the evidence was sufficient. 

C. Interstate or foreign commerce. Lake al so contends 

that the evidence was not sufficient to show that Croaker's 

car had been transported in interstate or foreign commerce. 

The prosecution sought to establish this element based on 

testimony by police officer Curtis Griffin, a life-long resident 

of the Virgin Islands, that no motor vehicles are 

manufactured in the Virgin Islands and that all motor 

vehicles have to be shipped to the islands. App. 194A-195A. 

Lake argues, however, that "Griffin was not qualified to 

 7 
testify regarding this element simply because he was a life 

long resident of the Virgin Islands" and that "[n]o

foundation was laid for this testimony." Appellant's Br. at 

19. We reject this argument. Under Fed. R. Evid. 602, 

Officer Griffin's testimony was proper if there was sufficient 

evidence "to support a finding that [he had] personal 

knowledge of the matter." This foundation may be 

"furnished by the testimony of the witness himself." Fed R. 

Evid. 602 Advisory Committee Note on the 1972 Proposed 

Rules. "The district court exercises its discretion in 

determining whether the proponent of the evidence has met 

[this] burden." 3 Weinstein's Federal Evidence S 602.03 

[1][b] at 602-11 (2d Ed. 1998). 

There was no abuse of discretion here. We take judicial 

notice of the fact that the United States Virgin Islands 

consist of three main islands, which are closely grouped 

and have an area of only 136 square miles. Times Atlas of 

the World 33 (1995). A police officer and lifelong resident of 

a place of this type has a sufficient basis to testify as to 

whether any motor vehicle manufacturing facilities are 

located there. We therefore conclude that the prosecution 

adequately proved, as 18 U.S.C. S 2119 requires, that the 

motor vehicle in question had been transported in 

interstate or foreign commerce.1 

In sum, we hold that the evidence was sufficient to

establish all of the elements of the car jacking statute. 

IV. 

We reject Lake's contention that the district court

committed reversible error in instructing the jury with 

respect to the 18 U.S.C. S 924(c)(1) charge because the 

_________________________________________________________________ 

1. Lake has not raised the question whether Congress possessed the 

authority under the Commerce Clause to enact the federal carjacking 

statute. See United States v. Oliver, 60 F.3d 547, 549-50 (9th Cir. 

1995)(statute constitutional), cert. granted sub nom. Jones v. United 

States, 118 S. Ct. 1359 (1998), order granting cert. amended, 118 S. Ct. 

1405 (1998)(limiting questions presented); United States v. Bishop, 66 

F.3d 569 (3d Cir. 1995)(statute constitutional), cert. denied, 116 S. Ct. 

681, 750 (1996); id. at 590-91 (statute unconstitutional)(Becker, J., 

dissenting). 

 8 
court did not at that point reiterate all of the elements of 

the predicate carjacking offense. The district court set out 

all of the elements of the car jacking offense when it 

instructed the jury on the carjacking count (count I) of the 

indictment. When the court later turned to the firearms 

charge, the court told the jury that this offense required 

proof that Lake "committed the crime of carjacking as 

charged in the indictment in Count I." App. 351A. This 

instruction was accurate, and although the court refused to 

give Lake's requested instruction reiterating all of the 

elements of the carjacking offense, the court's refusal 

clearly does not justify reversal. A trial judge's refusal to 

give an instruction requires reversal only when the

requested instruction "was correct, not substantially 

covered by the instructions given, and was so consequential 

that the refusal to give the instruction was prejudicial to 

the defendant." United States v. Phillips, 959 F.2d 1187, 

1191 (3d Cir. 1992). Here, the requested instruction was 

substantially covered elsewhere in the instructions, and we 

perceive little risk of prejudice to the defendant from the 

trial court's refusal to reiterate the elements of carjacking. 

V. 

Lake argues that the district court erred in sentencing 

him under 18 U.S.C. 924(c)(1) for using or carrying a 

firearm during a carjacking since he was acquitted on 

count I of the indictment, which charged him with the 

carjacking. In making this argument, Lake relies on

Government of the Virgin Islands v. Edwards, 750 F.2d 23 

(3d Cir. 1984), which in turn relied on Government of the 

Virgin Islands v. Charles, 590 F.2d 82 (3d Cir. 1979). Both 

Edwards and Charles concerned a Virgin Islands statute, 

14 V.I.C. S 2251(a)(2), which provides in pertinent part as 

follows: 

 Whoever-- 

 (1) with intent to use the same unlawfully against 

 another, has, possesses, bears, transports, carries or 

 has under his proximate control, a dagger, dirk, 

 dangerous knife, stiletto, or any other dangerous or 

 deadly weapon shall-- 

 9 
 (A) be fined not more than $1,000 or imprisoned not 

 more than two (2) years, or both; or 

 (B) if he has previously been convicted of a felony, or 

 has, possesses, bears, transports, carries or has under 

 his proximate control, any such weapon during the 

 commission or attempted commission of a crime of 

 violence (as defined in section 2253(d)(1) hereof) shall 

 be fined not more than $2,000 or imprisoned not more 

 than five (5) years, or both, which penalty shall be in 

 addition to the penalty provided for the commission of, 

 or attempt to commit, the crime of violence.

In Charles, our court held that the defendant could not 

be sentenced under subsection (B) of this statute because 

he had not been convicted of any offense that qualified as 

a "crime of violence" under the statutory definition. In 

Edwards, our court again held that the defendant, who had 

not been convicted of a crime of violence, could not be 

sentenced under subsection (B). Although the trial judge 

made "specific findings that [the defendant] possessed the 

weapon during the commission of a crime of violence," our 

court wrote that "those findings cannot act as a substitute 

for the jury's conviction of defendant of a crime of violence." 

750 F.2d at 24-25. We also "deem[ed] it significant" that the 

instruction on the 14 V.I.C. S 2251(a)(2) charge merely 

required the jury to find that the defendant possessed a 

dangerous knife with the purpose of using it unlawfully 

against the victim and did not require the jury tofind, as 

14 V.I.C. S 2251(a)(2)(B) demanded, that he possessed the 

weapon during the commission of a crime of violence. Id. at 

25. In a footnote, the court observed that it "express[ed] no 

opinion on whether or under what circumstances any 

conviction of S 2251(a)(2) could be subject to enhancement 

under S 2251(a)(2)(B) if there were no predicate conviction 

for a crime of violence." 750 F.2d at 25 n.1. 

Because Charles and Edwards involved a different 

statute, we do not believe that they support Lake's

argument here. The federal statute at issue in this case, 18 

U.S.C. S 924(c)(4), is not a sentencing enhancement

provision but sets out an independent criminal offense. 

United States v. Nelson, 27 F.3d 199, 200 (6th Cir. 1994). 

See also United States v. Jenkins, 90 F.3d 814, 821 (3d Cir. 

 10 
1996). In a prosecution under this provision, the 

government must prove that the defendant committed a 

qualifying predicate offense, see Jenkins, 90 F.3d at 821, 

but it is not necessary that the defendant be separately 

charged with or convicted of such an offense. Nelson, 27 

F.3d at 200; United States v. Wilson, 884 F.2d 174, 176 

(5th Cir. 1989); United States v. Hill, 971 F.2d 1461, 1464 

(10th Cir. 1992); United States v. Ospina, 18 F.3d 1332, 

1336 (6th Cir. 1994); United States v. Wilkins, 911 F.2d 

337, 338 n.1 (9th Cir. 1990); United States v. Robertson, 

901 F.2d 733, 734 (9th Cir. 1990); United States v. MunozFabela, 896 F.2d 908, 911 (5th Cir. 1990); United States v. 

Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989). Although 

Charles and Edwards apparently stand for the proposition 

that a defendant either always or generally must be

separately convicted of a crime of violence in order to be 

sentenced under 14 V.I.C. S 2251(a)(2)(B), we see no basis 

for importing that rule into a case involving an entirely 

different, federal statute. 

VI. 

Lake's final argument is that he was entitled to a new 

trial or to the suppression of the testimony regarding his 

statement to the police because rough notes taken by a 

detective during Lake's interview were not preserved after 

the interview was reduced to writing by an FBI agent. We 

have admonished government agents to preserve rough

notes of interviews with prospective trial witnesses, but we 

have also held that if the destroyed notes do not contain 

"Brady"2 or Jencks Act, 18 U.S.C. S 2500, material and 

were discarded in good faith, retrial is unnecessary even if 

the testimony of the officer who took the notes is not 

stricken. United States v. Ramos, 27 F.3d 65, 72 (3d Cir. 

1994). Under Ramos, we see no ground for reversal here. 

VII. 

For these reasons, we affirm the judgment of the district 

court. 

_________________________________________________________________ 

2. Brady v. Maryland, 373 U.S. 83 (1963). 

 11 
BECKER, Chief Judge, dissenting. 

When the defendant took the car keys from his victim, 

Pamela Croaker, Ms. Croaker's car was, in city terms, a 

block away, up the hill, out of sight. Under these 

circumstances, I would join an opinion upholding Lake's 

conviction for "keyjacking," or for both key robbery and 

grand larceny. I cannot, however, agree that he is guilty of 

carjacking. The majority draws upon federal robbery

statutes to explicate how the vehicle (as opposed to its keys) 

may be considered to have been taken from the "person or 

presence of the victim." Disciples of the jurisprudence of 

pure reason may, in analytic terms, find this approach 

convincing. As I will explain below, I do not. At all events, 

my polestar is the plain meaning of words, and in my 

lexicon, Ms. Croaker's car cannot fairly be said to have 

been taken from her person or presence, hence I 

respectfully dissent. 

The robbery statutes upon which the carjacking statute 

is based do not themselves define the phrase "from the 

person or presence of the victim." Webster's New 

International Dictionary defines presence as "the vicinity of, 

or area immediately near one." However, rather than relying 

on the plain meaning, the majority turns to a construction 

of the phrase "person or presence" adopted by the Ninth 

Circuit in United States v. Burns, 701 F.2d 840 (9th Cir. 

1983), where, in construing a federal robbery statute, that 

court reasoned that "property is in the presence of a person 

if it is `so within his reach, inspection, observation or 

control, that he could if not overcome by violence or 

prevented by fear, retain his possession of it." Id. at 843. 

Based on this definition, the majority concludes that a 

rational jury "could infer that Croaker hesitated before 

pursuing Lake due to fear and that if she had not hesitated 

she could have reached the parking area in time to prevent 

Lake from taking her car without employing further force, 

violence, or intimidation." Maj. Op. at 7. This proves too 

much. If it is true that had Croaker not hesitated out of 

fear she could have followed Lake up the steep path leading 

from the secluded beach to the road, then it is equally true 

(barring physical limitations) that she could have followed 

him up that path and then halfway across St. Thomas. The 

 12 
fact that Croaker's car was nearby is thus not relevant; if 

she could have followed Lake up the hill, she could have 

followed him anywhere. I am aware, of course, that the 

craft of judging requires line-drawing, but I simply do not 

see how that endeavor can be principled when it is 

predicated on open-ended definitions of key statutory 

terms, especially where those terms admit of plain 

meaning. 

The majority's reliance on a car robbery case to show 

that the evidence was sufficient to convict Lake of

carjacking is of particular interest to me since, coupled with 

the typical fact pattern in federal carjacking cases, it 

strengthens my view that my dissent in United States v. 

Bishop, 66 F.3d. 569 (3d. Cir. 1995), was correct when it 

reasoned that the federal carjacking statute should be 

declared unconstitutional under the authority of United 

States v. Lopez, 514 U.S. 549 (1995). The principal basis on 

which the Bishop majority found the carjacking statute to 

be a valid exercise of the interstate commerce power was 

the belief that carjacking is an adjunct of the interstate 

business of auto theft, in which the stolen vehicle is 

destined for a "chop shop." The majority adverted to 

references in the legislative history labeling carjacking as 

part of an economic enterprise in which profit is derived 

from the resale of stolen vehicles or their parts.1 In 

contrast, almost every carjacking case that I have seen or 

read about in the last several years -- and there have been 

many -- is a violent robbery in which the perpetrator has 

not even the remotest connection to a car theft ring or a 

chop shop.2 The "effect on interstate commerce" 

_________________________________________________________________ 

1. Other courts of appeals have cited as additional bases for concluding 

that S 2119 is within Congress' power to regulate commerce that 

automobiles are instrumentalities of interstate commerce and that the 

statute has a "jurisdictional hook" (i.e., that it only applies to the 

forcible 

taking of a car "that has been transported, shipped, or received in 

interstate or foreign commerce."). See e.g., United States v. Romero, 122 

F.3d. 1334 (10th Cir. 1997); United States v. McHenry, 97 F.3d. 125 (6th 

Cir. 1996); United States v. Oliver, 60 F.3d. 547 (9th Cir. 1995), aff'd 

on 

resentencing, 116 F.3d. 1487 (9th Cir. 1997), cert. granted sub nom., 

Jones v. United States, 118 S. Ct. 1405 (1998). For the reasons set out 

in my dissent in Bishop, I find these justifications unconvincing. 

2. Indeed, the facts of the instant case are amongst the least egregious 

that I have seen where carjacking is alleged. That is probably because, 

as I have explained, this case does not involve a carjacking nor, for that 

matter, a car robbery. 
 13 
underpinning of the carjacking statute is thus a chimera, 

and I hope that the Supreme Court will take up this issue 

before too long.3 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

3. In my view, carjacking cases are local crimes which belong in state 

courts not federal courts. See Judicial Conference of the United States, 

Long Range Plan for the Federal Courts 24 (Dec. 1995) (Congress should 

be encouraged to allocate criminal jurisdiction to the federal courts only 

in limited situations; such a situation is not present where criminal 

activity has "some minor connection with and effect on interstate 

commerce". ). 

 14