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. e du/thir dc ir c uit_1998/165Filed 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 LakeJames 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 cas e. After a jury trial, the defendant, Hilton A. Lake, was convicted under 18 U.S.C. S 924(c)(1) of using or c arrying a firearm during and in relation to a crime of violen ce, 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 t ake the motor vehicle in question "from the person or prese nce" of the victim. We reject this and Lake's other argumen ts, and
we therefore affirm.

I.

The events that led to Lake's prosecution occurred at Little Magen's Bay in St. Thomas, United States Vir gin Islands. The road to the beach at Little Magen's Ba y ends at the top of a hill. There is a steep path bordere d 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 M agen's Bay and encountered Milton Clarke, who was sitting on the beach reading a newspaper. Lake asked whether Clark e owned a white car parked up on the road. Clarke sai d that he did, and Lake initially walked away. However, La ke

returned a few moments later and asked to borrow th e car. When Clarke refused, Lake stated that it was an

2emergency. Clarke again refused, and Lake walked of f.

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 goin g 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. Ju st chill. Go someplace else.

App. 140A.

Lake walked off and sat on a rock, while Clarke anx iously watched him out of the corner of his eye, but Lake soon returned with the same request. When Clarke swore a gain,
Lake asked if he could have a drink from Clarke's c ooler. 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 t oward the water with Lake following. Clarke waded into wa ist-deep water, and Lake walked out onto a promontory overlo oking the water. App. 143A-48A.

While Clarke was in the water, his friend, Pamela Croaker, appeared on the beach. Clarke shouted a wa rning, prompting Lake to approach Croaker. Lake demanded t hat 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 s aw 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 o f 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 us ed a toy

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

take the officers to the site where he had allegedl y disposed of the gun, and when asked to tell the truth about whether the gun was really a toy, he responded that he "wou ld think about it." The gun was never recovered.

Lake was indicted for carjacking, in violation of 1 8 U.S.C. S 2119, and for using and carrying a firearm during and in relation to a crime of violence (the carjacking), i n violation of 18 U.S.C. S 924(c)(1). At the close of the evide nce in his jury trial, Lake moved unsuccessfully for a judgmen t of acquittal. The jury subsequently returned a verdict of not guilty of the carjacking charge but guilty of thefi rearms 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 evidenc e 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 B r. at 18. Lake notes that he initially told Officer Griffin t hat the gun was a toy, that Croaker and Clarke both said that t he gun looked like the type of gun used by cowboys in West erns, and that Clarke said that he was not able to tell w hether 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 Clar ke 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 w ith that of a real gun. Both Clarke and Croaker testified th at they experienced great fear, App. 151A, 184A, 186A, and Croaker manifested sufficient fear of the gun to su rrender her keys. Moreover, although Lake originally told t he authorities that the gun was a toy and that he had thrown it in a swamp, he refused to reveal its location, a nd when

4later asked whether he would tell the truth about w hether

the gun was real, Lake responded that he would "thi nk about it." App. 171A-72A. In light of all of this e vidence, 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 of fense needed to support his 18 U.S.C. S 924(c)(1) convict ion. 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 m otor vehicle (3) that had been "transported, shipped, or received in interstate or foreign commerce" (4) "from the pe rson or presence of another" (5) "by force and violence or by
intimidation." Lake contends that the evidence in t his 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 e ach of the challenged elements had been established beyond a reasonable doubt. United States v. Carr, 25 F.3d 11 94, 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 deat h 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, t estified 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. Unite d States v. Anderson, 108 F.3d 478, 481-85 (3d Cir.), cert. den ied, 118 S. Ct. 123 (1997).

5In arguing that the proof of intent was insufficien t, Lake

notes, among other things, that he "asked for Clark e's keys several times before he displayed the gun and place d 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 hi s 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 i f Croaker had not given up the keys. On the contrary, we hold that the evidence amply supported the jury's f inding that Lake possessed the requisite conditional inten t 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 to ok Croaker's car "from [her] person or presence," as 1 8 U.S.C. S 2119 demands. Lake argues that he took her keys, not her car, from her person or presence and that the c ar was not in Croaker's presence when he took it because s he

could not see or touch the car at that moment.

The carjacking statute's requirement that the vehic le 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 199 2 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.3 d 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 violen ce 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 a t 443 (1986) (" `Presence' in this connection is not so m uch a matter of eyesight as it is one of proximity and co ntrol: 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 t he 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 p ath

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

not reach the parking area in time to stop him. App lying the definition of "presence" noted above, we conclu de 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. Croake r testified that the sight of Lake's gun caused her g reat fear. She stated that when she first saw the gun she"felt like [she] was going to let go of [her] bowels [and] fai nt." 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 testim ony supports the inference that this is what occurred. Croaker stated that at the point when she surrendered the k eys, Clarke "was struggling back through the water to co me 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, C roaker was "pulling herself together kind of." App. 150A. Clarke related that he "caught up to [Croaker] at the bott om 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 ca r but not in time to stop him. App. 186A. Both Croaker and Cl arke stated that at this point they were very scared. Ap p. 151A, 186A. Based on this testimony, a rational jury coul d infer that Croaker hesitated before pursuing Lake due to fear
and that if she had not hesitated she could have re ached the parking area in time to prevent Lake from takin g her car without employing further force, violence, or intimidation. We do not suggest this inference was compelled, but because such an inference was ration al, we
hold that the evidence was sufficient.

C. Interstate or foreign commerce. Lake al so conte nds
that the evidence was not sufficient to show that C roaker's car had been transported in interstate or foreign c ommerce. The prosecution sought to establish this element ba sed 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 mot or vehicles have to be shipped to the islands. App. 19 4A-195A. Lake argues, however, that "Griffin was not qualifi ed to

7testify regarding this element simply because he wa s 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. 60 2, Officer Griffin's testimony was proper if there was sufficient evidence "to support a finding that [he had] person al 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 Propo sed
Rules. "The district court exercises its discretion in determining whether the proponent of the evidence h as met [this] burden." 3 Weinstein's Federal Evidence S 60 2.03 [1][b] at 602-11 (2d Ed. 1998).

There was no abuse of discretion here. We take judi cial notice of the fact that the United States Virgin Is lands consist of three main islands, which are closely gr ouped and have an area of only 136 square miles. Times At las of the World 33 (1995). A police officer and lifelong resident of a place of this type has a sufficient basis to test ify as to whether any motor vehicle manufacturing facilities are located there. We therefore conclude that the prose cution adequately proved, as 18 U.S.C. S 2119 requires, th at 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 st atute.

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 Congres s possessed the authority under the Commerce Clause to enact the fe deral carjacking statute. See United States v. Oliver, 60 F.3d 547, 549-50 (9th Cir. 1995)(statute constitutional), cert. granted sub no m. Jones v. United States, 118 S. Ct. 1359 (1998), order granting cert . amended, 118 S. Ct. 1405 (1998)(limiting questions presented); United S tates v. Bishop, 66 F.3d 569 (3d Cir. 1995)(statute constitutional), ce rt. denied, 116 S. Ct. 681, 750 (1996); id. at 590-91 (statute unconstitut ional)(Becker, J., dissenting).

8court did not at that point reiterate all of the el ements of

the predicate carjacking offense. The district cour t 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 fire arms charge, the court told the jury that this offense r equired proof that Lake "committed the crime of carjacking as charged in the indictment in Count I." App. 351A. T his instruction was accurate, and although the court re fused to give Lake's requested instruction reiterating all o f the elements of the carjacking offense, the court's ref usal clearly does not justify reversal. A trial judge's refusal to give an instruction requires reversal only when the requested instruction "was correct, not substantial ly covered by the instructions given, and was so conse quential that the refusal to give the instruction was prejud icial to the defendant." United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992). Here, the requested instructio n 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 senten cing 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 t he 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. 197 9). Both Edwards and Charles concerned a Virgin Islands stat ute, 14 V.I.C. S 2251(a)(2), which provides in pertinent part as
follows:

Whoever--

(1) with intent to use the same unlawfully a gainst another, has, possesses, bears, transports, carries or has under his proximate control, a dagger, d irk, dangerous knife, stiletto, or any other dang erous or deadly weapon shall--

9(A) be fined not more than $1,000 or impriso ned 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 o r has under his proximate control, any such weapon durin g the commission or attempted commission of a crim e of violence (as defined in section 2253(d)(1) h ereof) 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 com mission 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 b ecause he had not been convicted of any offense that quali fied as a "crime of violence" under the statutory definitio n. In Edwards, our court again held that the defendant, w ho had not been convicted of a crime of violence, could no t be sentenced under subsection (B). Although the trial judge made "specific findings that [the defendant] posses sed the weapon during the commission of a crime of violence ," our court wrote that "those findings cannot act as a su bstitute for the jury's conviction of defendant of a crime o f 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 me rely required the jury to find that the defendant posses sed a dangerous knife with the purpose of using it unlawf ully against the victim and did not require the jury tof ind, as 14 V.I.C. S 2251(a)(2)(B) demanded, that he possess ed the weapon during the commission of a crime of violence . Id. at 25. In a footnote, the court observed that it "expr ess[ed] no opinion on whether or under what circumstances any conviction of S 2251(a)(2) could be subject to enha ncement under S 2251(a)(2)(B) if there were no predicate co nviction
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 offe nse. 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.

101996). 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 separ ately charged with or convicted of such an offense. Nelso n, 27 F.3d at 200; United States v. Wilson, 884 F.2d 174, 176 (5th Cir. 1989); United States v. Hill, 971 F.2d 14 61, 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. Robe rtson, 901 F.2d 733, 734 (9th Cir. 1990); United States v. MunozFabela, 896 F.2d 908, 911 (5th Cir. 1990); United S tates v. Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989). Althou gh Charles and Edwards apparently stand for the propos ition that a defendant either always or generally must be separately convicted of a crime of violence in orde r to be sentenced under 14 V.I.C. S 2251(a)(2)(B), we see n o basis for importing that rule into a case involving an en tirely different, federal statute.

VI.

Lake's final argument is that he was entitled to a new trial or to the suppression of the testimony regard ing his statement to the police because rough notes taken b y a detective during Lake's interview were not preserve d after the interview was reduced to writing by an FBI agen t. We have admonished government agents to preserve rough notes of interviews with prospective trial witnesse s, but we have also held that if the destroyed notes do not c ontain "Brady"2 or Jencks Act, 18 U.S.C. S 2500, material and were discarded in good faith, retrial is unnecessar y even if the testimony of the officer who took the notes is not stricken. United States v. Ramos, 27 F.3d 65, 72 (3 d Cir. 1994). Under Ramos, we see no ground for reversal h ere.

VII.

For these reasons, we affirm the judgment of the di strict

court.

___________________________________________________ ______________

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

11BECKER, Chief Judge, dissenting.

When the defendant took the car keys from his victi m, Pamela Croaker, Ms. Croaker's car was, in city term s, a block away, up the hill, out of sight. Under these circumstances, I would join an opinion upholding La ke's conviction for "keyjacking," or for both key robber y 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 t o its keys) may be considered to have been taken from the "pers on or presence of the victim." Disciples of the jurisprud ence of pure reason may, in analytic terms, find this appro ach convincing. As I will explain below, I do not. At a ll events, my polestar is the plain meaning of words, and in m y 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 stat ute 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 v icinity of, or area immediately near one." However, rather than relying on the plain meaning, the majority turns to a const ruction of the phrase "person or presence" adopted by the N inth Circuit in United States v. Burns, 701 F.2d 840 (9t h Cir. 1983), where, in construing a federal robbery statu te, that court reasoned that "property is in the presence of a person if it is `so within his reach, inspection, observat ion 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 th at a rational jury "could infer that Croaker hesitated b efore pursuing Lake due to fear and that if she had not h esitated 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 pro ves 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 equ ally true (barring physical limitations) that she could have followed him up that path and then halfway across St. Thomas . The

12fact that Croaker's car was nearby is thus not rele vant; 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 simpl y do not see how that endeavor can be principled when it is predicated on open-ended definitions of key statuto ry terms, especially where those terms admit of plain meaning.

The majority's reliance on a car robbery case to sh ow that the evidence was sufficient to convict Lake of carjacking is of particular interest to me since, c oupled with the typical fact pattern in federal carjacking case s, it strengthens my view that my dissent in United State s v. Bishop, 66 F.3d. 569 (3d. Cir. 1995), was correct w hen it reasoned that the federal carjacking statute should be declared unconstitutional under the authority of Un ited States v. Lopez, 514 U.S. 549 (1995). The principal basis on which the Bishop majority found the carjacking stat ute to be a valid exercise of the interstate commerce powe r was the belief that carjacking is an adjunct of the int erstate business of auto theft, in which the stolen vehicle is destined for a "chop shop." The majority adverted t o references in the legislative history labeling carj acking as part of an economic enterprise in which profit is d erived 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 h ave been many -- is a violent robbery in which the perpetrat or has
not even the remotest connection to a car theft rin g or a chop shop.2 The "effect on interstate commerce"

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1. Other courts of appeals have cited as additional bases for concluding that S 2119 is within Congress' power to regulate c ommerce that
automobiles are instrumentalities of interstate com merce 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. McHen ry, 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 justification s unconvincing.

2. Indeed, the facts of the instant case are amongs t 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 c arjacking nor, for that matter, a car robbery.13underpinning of the carjacking statute is thus a ch imera,

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 wh ich belong in state
courts not federal courts. See Judicial Conference of the United States, Long Range Plan for the Federal Courts 24 (Dec. 199 5) (Congress should be encouraged to allocate criminal jurisdiction to the federal courts only in limited situations; such a situation is not pres ent where criminal activity has "some minor connection with and effect on interstate
commerce". ).

14