12-2077 (L)

United States v. Soler & Waters

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

_______________

August Term, 2013

(Argued: April 4, 2014 Decided: July 22, 2014)

Docket Nos. 12

‐ 2077

‐ cr, 12

‐ 3831

‐ cr

_______________

U NITED S TATES OF A MERICA

,

Appellee

,

—v.—

W ILLIAM S OLER

, S AMI W ATERS

,

Defendants

‐ Appellants.

_______________

B e f o r e:

K ATZMANN

, Chief Judge

, W ALKER and D RONEY

, Circuit Judges

.

_______________

Appeal from two judgments of conviction entered by the United States

District Court for the Eastern District of New York (Dearie, J.

, and Gershon

, J. )

following jury trials in which Defendants

‐ Appellants were found guilty of, inter

alia

, one count of carjacking in violation of 18 U.S.C. § 2119. Both defendants

contend that the district court erred in denying their motions for a judgment of2 acquittal as to the carjacking count because in forcibly taking the keys to an

automobile parked on the curb outside the home in which the robbery took place,

the defendants did not take an automobile from the “presence” of the victim as

required by the carjacking statute. We join our fellow circuits in construing the

term “presence” in the carjacking statute to accord with the meaning given to that

term in the common law crime of robbery, and therefore hold that an automobile

is taken from the victim’s presence when the victim is sufficiently within reach,

inspection, or observation of the vehicle that the victim could have retained his or

her possession of it if not overcome by violence or prevented by fear. Because

evidence at trial demonstrated that the taken automobile was sufficiently within

the presence of the victim to satisfy this definition, we conclude that the district

court properly denied the motions for acquittal.

JUDGMENTS AFFIRMED.

_______________

R ICHARD M. T UCKER (Emily Berger, W. David Sarratt, on the brief ),

Assistant United States Attorneys, for Loretta E. Lynch, United

States Attorney for the Eastern District of New York, Brooklyn,

NY, for Appellee.

D AVID A. L EWIS

, Assistant Federal Public Defender, Federal

Defenders of New York, Inc., New York, NY, for Defendant

‐ Appellant Soler.

T INA S CHNEIDER

, Portland, ME, for Defendant

‐ Appellant Waters

.

_______________

K ATZMANN

, Chief Judge :

This appeal calls upon us to interpret language in the federal carjacking

statute, 18 U.S.C. § 2119 (the “carjacking statute”), that defines how near a3 robbery victim must be to his or her stolen automobile to render the robber

criminally liable for carjacking. That is, this case requires us to decide what the

federal carjacking statute means when it criminalizes the forcible taking of an

automobile “from the person or presence” of the victim, id

.

Defendant

‐ Appellant William Soler, joined by his co

‐ defendant Sami

Waters, 1 contends that he should have been acquitted of carjacking because the

statutory phrase “person or presence of another” should be read to describe only

the area that is immediately near the victim. He asserts that because he robbed his

victim of the keys to her automobile inside of her home—while her car was

parked on a curb outside her home, beyond a closed front door and a tall fence—

he is not criminally liable for the federal offense of carjacking.

Both Soler and Waters made this argument before Judges Dearie and

Gershon, respectively, in motions for acquittal at the close of their trials, and each

1 While Defendant

‐ appellant Waters joins the relevant portions of Soler’s brief

regarding the issue of statutory interpretation we discuss in this opinion, we note that

Waters’s appeal principally argues that the district court erred in denying his motion to

suppress certain evidence and erred in imposing sentence. We address those arguments

in a summary order filed simultaneously with this opinion.4 judge rejected their interpretive argument. 2 Judge Dearie held that the denial of

Soler’s motion was a matter of “common sense,” while Judge Gershon cited the

holding of several of our fellow circuits that “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 possession of it,” Waters App.

255. For the reasons that follow, we adopt the same interpretation of “presence”

as that endorsed by Judge Gershon and several of our fellow courts of appeals.

We therefore affirm both judgments.

B ACKGROUND

For the purpose of advancing their interpretation of the carjacking statute

on appeal, the defendants do not dispute that evidence at their trials established

that on August 10, 2010, they entered a home in Brooklyn, New York, and

violently robbed the three residents therein of several things of value. As they left

the home, the defendants demanded that one of the residents give them the keys

2 For reasons that are not relevant to this appeal, Soler and Waters were each tried

separately for offenses charged in the same indictment. The indictment charged the

defendants with carjacking, 18 U.S.C. § 2119 (Count 1); the unlawful use and

brandishing of a firearm, 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2); and being felons in

possession of a firearm, 18 U.S.C. § 922(g)(1) (Count 3 as to Soler and Count 4 as to

Waters, to account for a difference in the applicable penalty provisions).5 to a car parked in front of the house. This victim testified that the car was parked

on a curb “10 to 15 feet” or “a five second walk” from the front door to the house,

Soler App. 51, and that while a person could have seen the car “from [the] front

door,” she “couldn’t at th[e] moment [the defendants asked for the keys] because

[she] was laying down,” Soler App. 47. After the defendants demanded the keys,

the victim retrieved her keychain from a shelf near the front door and handed it to

them. She then sat near the two defendants as the two turned to flee the scene,

though from her vantage point she was unable to observe the defendants’

behavior as they left the home.

Photographs of the front of the home introduced into evidence show that

the interior of the house in which the victim was robbed of her keys is separated

from the street by a solid front door, a short driveway (the transiting of which

would account for the “five second walk” described in the victim’s testimony), a

wrought iron fence, and a sidewalk. The victim also testified that the car could be

unlocked from the front door using a remote attached to her keychain.6 Both Soler’s and Waters’s counsel moved, pursuant to Federal Rule of

Criminal Procedure 29, for acquittal as to the carjacking count as well as a related

count charging the unlawful use of a firearm in violation of 18 U.S.C. § 924(c).

Judge Dearie deemed Soler’s motion to have been made both at the close of

the government’s case and at the close of all the evidence, but did not decide the

motion until the first day of sentencing. 3 In support of his motion, Soler argued

that even though he had “knowingly participated in an uncharged home invasion

robbery with his co

‐ defendant, Sami Waters,” his taking of the victim’s keys

inside her home and subsequent taking of her automobile outside her home did

not satisfy the statutory requirement that the car be taken from the “person or

presence of the victim.” Soler App. 207. Judge Dearie denied Soler’s motion, and

sentenced him to three years’ imprisonment on the carjacking count.

Judge Dearie explained from the bench that although this Court has not yet

decided the issue, other courts have reached “the common sense conclusion that

person or presence does [not] necessarily require the immediate presence of the

3 Soler’s sentencing proceedings began on March 28, 2012, but were adjourned.

His sentence was eventually imposed on April 4, 2012.7 victim.” Soler App. 166. 4 Without elaborating a positive definition of “presence,”

the district court concluded that it would be a “silly result” to interpret

“presence” so that the carjacking of a victim in a grocery store parking lot would

no longer be carjacking if the victim were instead robbed of her keys after she

walked into the grocery store. See id.

Judge Gershon denied a nearly identical motion in Waters’s case. In an

opinion explaining her decision, Judge Gershon correctly observed that “all

circuits that have considered the issue have held that ‘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 possession of it,’” Waters App.

255, and that the facts of the defendants’ robbery here involved no greater a

distance between the victim and her automobile than several carjacking

convictions affirmed by our fellow circuits. See id.

This appeal ensued, in which the defendants renew their argument that the

victim’s car was not within her “presence” when they forcibly took her keys from

her inside her home.

4 Although Judge Dearie indicated at sentencing that he would issue a written

opinion denying Soler’s Rule 29 motion, no such opinion appears in the record.8 D ISCUSSION

We review the district courts’ interpretation of a federal statute de novo

.

United States v. Aleynikov

, 676 F.3d 71, 76 (2d Cir. 2012). We similarly review the

denial of a Rule 29 motion arguing sufficiency of the evidence de novo

, United

States v. Amico

, 486 F.3d 764, 780 (2d Cir. 2007), and view all evidence “in the light

most favorable to the government,” id

. That said, however, the defendants’

argument on appeal exclusively turns on which of the competing interpretations

of the statutory language of “presence” we adopt. There is no contention that the

evidence at the two trials was insufficient to meet the government’s broader

definition of “presence,” and the defendants acknowledge that their appeal relies

upon our willingness to construe (contrary to the district court) the statutory term

“presence” to mean “in front of, or in the area immediately around, a person.” See

Br. for Defendant

‐ Appellant Soler at 13. We therefore turn to the question of

statutory interpretation that is before us.

We begin with our traditional interpretive tools, turning first to the text of

the statute in an attempt to discern whether the plain and ordinary meaning of

the term “presence” settles the matter. See Raila v. United States

, 355 F.3d 118, 1209 (2d Cir. 2004) (noting that “[s]tatutory construction begins with the plain text,

and, ‘where the statutory language provides a clear answer, it ends there as

well’”) (quoting Hughes Aircraft Co. v. Jacobson

, 525 U.S. 432, 438 (1999)).

In pertinent part, the carjacking statute imposes criminal penalties upon

“[w]hoever, with the intent to cause death or serious bodily harm 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

intimidation, or attempts to do so.” 18 U.S.C. § 2119. As many of our fellow courts

of appeals have noted, the critical term—“presence”—does not yield a

straightforward ordinary meaning. See, e.g.

, United States v. Kimble

, 178 F.3d 1163,

1166 (11th Cir. 1999). General purpose dictionaries published around the time of

the statute’s enactment define “presence” as “the part of space within one’s ken,

call, or influence: the vicinity of or the area immediately near one: the place in

front of or around a person.” Webster’s Third New International Dictionary 1793

(1993). As is obvious from this definition, consulting the available dictionaries

does not yield a meaning for “presence” that would decisively limit the statute’s

scope. Words like “ken,” “vicinity,” and “near” leave us with the same ambiguity10 with which we started our inquiry. Indeed, as another contemporary dictionary

explains, when the word “presence” is used with a possessive or the word “of,”

as in the carjacking statute, it communicates “a vague sense of the place or space

in front of a person, or which immediately surrounds him.” 12 Oxford English

Dictionary 394 (2d ed. 1989). Just so in this very case, in which the ordinary

meaning of “presence” is vague and fails to communicate a precise limitation

upon the statute’s prohibition.

The legislative history is just as equivocal with respect to the intended

scope of the carjacking statute, and it is utterly silent as to the meaning of

“presence.” To be sure, the legislative history of the larger Anti Car Theft Act of

1992, Pub. L. No. 102

‐ 519, 106 Stat. 3384, of which the carjacking statute was a

part, reflects Congress’s preoccupation with a surfeit of “auto kleptomania

. . .

sweeping the nation,” Anti

‐ Car Theft Act of 1992: Hearings Before the Subcomm. on

Crime & Criminal Justice of the H. Comm. on the Judiciary

, 102d Cong. 1 (1991)

(Opening statement of Rep. Schumer). Read in context with the aims of the

broader Anti Car Theft Act, it is clear that in enacting the carjacking statute,

Congress was legislating to address the ever

‐ growing problem of auto theft in this11 country. Thus the broader Anti Car Theft Act also aims to reduce trafficking in

stolen vehicles by addressing the phenomena of “chop shops,” “title washing,”

and export “rings” that use shipping containers to ship stolen cars abroad. See

H.R. Rep. No. 102

‐ 851, pt. 1, at 14 (1992); see also Kimble

, 178 F.3d at 1167–68

(noting the statute’s purpose of curbing a “rash of car robberies” and explaining

that “[j]ust as with other types of robbery, the victim’s proximity

. . . is a predicate

of the crime”). That Congress had in mind the general problems of auto theft and

auto robbery suggests that “presence” could be read to embrace a general class of

robberies involving automobiles, even those that may seem to fall outside the

prototypical meaning of “carjacking.”

On the other hand, the legislative history that describes the particular

mischief Congress sought to remedy in passing the carjacking statute makes

repeated reference to what one would consider the ordinary meaning of

“carjacking”: that is, “[t]he stealing or commandeering of an occupied car by

threatening the driver with violence,” carjacking, n.

, OED Online, www.oed.com

(search “carjacking”) (last visited May 9, 2014). At the forefront of this legislative

history are repeated references to the shocking death of a mother who was12 dragged to her death after her vehicle was carjacked in the Washington, D.C. area.

See, e.g.

, 138 Cong. Rec. 24809 (1992) (statement of Sen. Cohen); 138 Cong. Rec.

24914 (1992) (statement of Rep. Goss); 138 Cong. Rec. 25146 (1992) (statement of

Rep. Bliley). Similarly, when Senator DeConcini rose to introduce a slightly

different (and ultimately unsuccessful) bill that aimed to address carjacking, he

began by describing the horrors of a crime “popularly known as carjacking,” 138

Cong. Rec. 25672 (1992), in which a “car is stolen while the driver is behind the

wheel,” id. A few days thereafter, Senator Lautenberg lamented the “most

disturbing

. . . problem of violent carjackings” in which “thieves are using

violence and intimidation to force drivers to give up their cars.” 138 Cong. Rec.

27977 (1992).

Seizing upon these latter statements, Soler contends that the legislative

history buttresses the conclusion that “presence” should take the ordinary

meaning of something akin to “close proximity.” On Soler’s interpretation, the

carjacking statute prohibits the taking of a car that is “in front of, or in the area

immediately around” the victim. Br. for Defendant

‐ Appellant Soler at 13.13 Given the absence of any clearly probative discussion of “presence” within

the legislative history, however, we are not persuaded that the legislative history

resolves the interpretive question. Indeed, in addition to the overarching

observation that the Anti Car Theft Act aimed to strike broadly at the problem of

car theft that Congress perceived to be sweeping the nation, we also note the

obvious fact that the statute does not adopt the language of “carjacking”—the

term appears nowhere in the statute’s language—and instead embraces the

distinct language of “tak[ing]

. . . from the person or presence of another by force

and violence.” As we shall now explain, these words, and legislative history

explaining their appearance, suggest that the meaning of the word “presence”

ought to be resolved in favor of the district courts’ interpretation below.

By way of background, we note that we are not the first court of appeals to

construe the term “presence” in the federal carjacking statute. Indeed, the

government directs us to the decisions of no fewer than nine courts of appeals

that have come to the conclusion that the broader definition employed by Judge

Gershon is correct. See United States v. Savarese

, 385 F.3d 15, 20 (1st Cir. 2004)

(construing U.S.S.G. § 2B3.1(b)(5)); United States v. Lake

, 150 F.3d 269, 272–73 (3d14 Cir. 1998); United States v. Davis

, 233 F. App’x 292, 295 (4th Cir. 2007) (per curiam);

United States v. Edwards

, 231 F.3d 933, 935–37 (5th Cir. 2000); United States v.

Boucha

, 236 F.3d 768, 771–74 (6th Cir. 2001) (construing U.S.S.G. § 2B3.1(b)(5));

United States v. Casteel

, 663 F.3d 1013, 1019–21 (8th Cir. 2011); United States v.

Murray

, 56 F.3d 74, 1995 WL 295438, at *6 (9th Cir. 1995) (unpublished table

decision) (citing United States v. Burns

, 701 F.2d 840, 843 (9th Cir. 1983) (per

curiam)); United States v. Brown

, 200 F.3d 700, 705 (10th Cir. 1999); Kimble

, 178 F.3d

at 1166–68.

While rejecting the typical tools of ordinary meaning, legislative history,

and legislative purpose to aid its interpretation of the statute, the government

asks us to adopt these other courts’ interpretation of the carjacking and federal

robbery statutes. Naturally, the decisions of our fellow courts of appeal inform

our analysis, but we emphasize that these decisions do not bind us of their own

force; they carry authoritative weight only insofar as they articulate persuasive

reasons favoring a particular interpretation of the statute in question.

That said, however, it is a fair observation to suggest that the genesis of

most courts’ interpretation of the word “presence” in the federal carjacking15 statute is not the standard methodology of statutory interpretation, but rather the

gloss given to the term “presence” in the federal robbery statute, 18 U.S.C. § 2111

(“§ 2111”), by the Ninth Circuit’s opinion in United States v. Burns

, 701 F.2d 840

(9th Cir. 1983). 5 In Burns

, the Ninth Circuit distinguished United States v. Culbert

,

548 F.2d 1355 (9th Cir. 1977) (per curiam), in which it had interpreted “presence”

in the similarly framed federal bank robbery statute, 18 U.S.C. § 2113 (“§ 2113”),

to exclude bank robbery that was accomplished by the use of a telephone to make

threats of physical violence to a bank employee. 6 After noting substantial criticism

of its prior decision in Culbert

, see Burns

, 701 F.2d at 843 n.4, the Ninth Circuit

approved of a jury instruction for the federal robbery statute (that is, § 2111) that

provided that an item of property is “in the presence of a person if it is ‘so within

5 18 U.S.C. § 2111, in pertinent part, proscribes the conduct of “whoever, within

the special maritime and territorial jurisdiction of the United States, by force and

violence, or by intimidation, takes or attempts to take from the person or presence of another

anything of value” (emphasis added).

6 The Culbert panel concluded that the attempt to extort $100,000 from a bank

employee by instructing the employee to “drop the money at a specified site and then

return to the bank” did not satisfy the statutory requirement that the taking be from the

employee’s “person or presence.” 548 F.2d at 1356. Culbert is no longer good law, as the

bank robbery statute has since been amended to expressly reach bank robberies that

proceed by way of extortion. See Criminal Law and Procedure Technical Amendments

Act of 1986, Pub. L. No. 99

‐ 646, § 68, 100 Stat. 3592, 3616 (amendment codified as

amended at 18 U.S.C. § 2113(a)). The Ninth Circuit’s decision was also reversed on other16 his reach, inspection, observation or control, that he could if not overcome by

violence or prevented by fear, retain his possession of it.” Burns

, 701 F.2d at 843.

For the sake of clarity, we will refer to this holding as the Burns definition of

“presence.”

The Ninth Circuit’s opinion in Burns gives little indication of the

provenance of this definition, nor does it offer an interpretive argument about

why this fairly elaborate definition ought to be read between the lines of

Congress’s use of the word “presence” in the federal robbery statute.

Nevertheless, the Burns definition of “presence” in § 2111 is the touchstone for the

many decisions of our sister circuits that have interpreted “presence” in § 2119,

the federal carjacking statute. That is to say that nearly all of these decisions read

the presence requirement of § 2119 to be consistent with the Burns definition of

§ 2111’s presence requirement. See, e.g.

, Savarese

, 385 F.3d at 19 (citing Burns ); Lake

,

150 F.3d at 272 (same); Edwards

, 231 F.3d at 936 (same); Boucha

, 236 F.3d at 771–72

(same); Casteel

, 663 F.3d at 1020 (same, and noting most circuit courts’ reliance on

Burns and its progeny); Murray

, 1995 WL 295438, at *6 (same); and Kimble

, 178

F.3d at 1167 (same). But the critical initial premise—that is, the reason why

grounds by United States v. Culbert

, 435 U.S. 371 (1978).17 “presence” in these federal statutes means what Burns panel said it means—

remains somewhat elusive.

We note, as have other courts of appeals, that the legislative history of the

carjacking statute indicates that Congress intended the statute’s language to

“track[] the language used in other federal robbery statutes (18 U.S.C. §§ 2111,

2113, 2118).” Anti Car Theft Act of 1992

, H.R. Rep. No. 102

‐ 851, pt. 1, at 17; see also

Lake

, 150 F.3d at 272. But to say this much is to beg the question rather than to

answer it: each of these statutes uses the same cryptic “person or presence”

locution but is silent about Burns or any other judicial gloss on the crucial term.

One thus finds silence in the legislative history when one searches for the Burns

construction of “presence” in Congress’s work product.

In defining the “carjacking” offense by using the roundabout language of

“person or presence of another” (rather than simply criminalizing “carjacking”),

the statute adopts a peculiar turn of phrase with an old pedigree. Indeed, Soler’s

principal brief solves, in part, the riddle of the Ninth Circuit’s definition in Burns

by directing our attention to nineteenth

‐ century descriptions of the common law

offense of robbery. Crucially, the baroque definition of “presence” that has made18 its way into the nine decisions of our fellow courts of appeals appeared at least as

early as 1844 in Massachusetts. That is to say that the Burns definition of

“presence” appears almost verbatim in a report on the penal code of

Massachusetts commissioned by that state’s legislature. The report describes the

offense of “robbery” as “larceny or stealing of a thing from the person of another,

or from his custody in his presence, by force or putting him in fear.” Report of the

Penal Code of Massachusetts, Prepared Under a Resolve of the Legislature, ch.

XVI, § 1 (1844) (“1844 Report”). The 1844 Report continues that “[a] thing is in the

presence of a person, in respect to robbery, which 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 § 1, ¶ 5.

This common law definition of “presence” was recited in the early decades

of the last century by the Massachusetts Supreme Judicial Court, see

Commonwealth v. Homer

, 235 Mass. 526, 543, 127 N.E. 517, 520 (1920), and in the

late decades of the last century by the Supreme Court of California, see People v.

Hayes

, 52 Cal. 3d 577, 626–27, 802 P.2d 376, 406–07 (1990). Moreover, under

California law, the common

‐ law definition goes so far as to resolve what it means19 for an object to be in the “ immediate presence” of the victim—the very ordinary

meaning that defendants urge us to adopt. See Hayes

, 52 Cal. 3d at 626

‐ 27, 802

P.2d at 406; accord Conde v. Henry

, 198 F.3d 734, 737 (9th Cir. 1999). Thus the

reason why the Ninth Circuit approved of the district court’s jury instruction in

Burns is far less mysterious than it first appears.

Having identified the legal hook on which the Burns court could hang its

interpretation of “presence,” we turn to assess the legitimacy of the Burns

definition as a matter of statutory interpretation. In our view, the Ninth Circuit

was correct to read the common

‐ law definition of “person or presence” into the

federal robbery statute, as were the eight other courts of appeals that have

applied the Burns interpretation of “presence” to the carjacking statute. “It is a

settled principle of interpretation that, absent other indication, ‘Congress intends

to incorporate the well

‐ settled meaning of the common

‐ law terms it uses.’” Sekhar

v. United States

, 133 S.Ct. 2720, 2724 (2013) (quoting Neder v. United States

, 527 U.S.

1, 23 (1999)). This is because “where Congress borrows terms of art in which are

accumulated the legal tradition and meaning of centuries of practice, it

presumably knows and adopts the cluster of ideas that were attached to each20 borrowed word in the body of learning from which it was taken and the meaning

its use will convey to the judicial mind unless otherwise instructed.” Morissette v.

United States

, 342 U.S. 246, 250 (1952). In such cases, the common law furnishes an

extrinsic source to aid our interpretation of the disputed term because the

“absence of contrary direction may be taken as satisfaction with widely accepted

definitions, not as a departure from them.” Id.

While mindful that the common

‐ law meaning canon applies only where the

identity between the common law words and the statutory words is clear, see

United States v. Turley

, 352 U.S. 407, 411 (1957) (holding that the common law

could not be used as an extrinsic source to interpret Congress’s use of the term

“stolen”), we note the exact parallelism between the common law terms and the

text of the carjacking statute. Like the text of the carjacking statute, the common

law crime of robbery was described as the taking of property from the “person”

or “presence” of another by force. See Collins v. McDonald

, 258 U.S. 416, 420 (1922).

We also discern no contraindication that suggests that Congress intended to

depart from the common law meaning of “presence” in folding a near

‐ verbatim

definition of common law robbery into the carjacking statute. On the contrary, as21 we have noted above, the committee report accompanying the statute expressly

indicates that the committee intended to “track” the federal robbery statutes. See

supra at 17. We note, moreover, that the civil forfeiture provision of Title 18 refers

to § 2119 by using the shorthand parenthetical “(armed robbery of automobiles),”

not by using the potentially narrower colloquial term “carjacking.” See 18 U.S.C.

§ 981(a)(1)(F)(iii). Given this context, the frequent use of the colloquialism of

“carjacking” in the legislative history cannot serve as a sufficient indication that

Congress intended to implicitly adopt a definition of “presence” that is otherwise

at odds with the common law definition of robbery.

In sum, the statute’s text does not use the argot of carjacking to define the

meaning of “person or presence”; instead the statute uses the language of

common law robbery. To borrow an oft

‐ repeated metaphor, because the term

“person or presence” was “obviously transplanted from another legal source,” we

will cultivate our interpretation of the statute in the “old soil” it brings with it. See

Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev.

527, 537 (1947); see also Sekhar

, 133 S.Ct. at 2724. Consequently, we apply the

canon that the common law term “presence” in the context of the carjacking22 statute takes the undisputed common law meaning reflected in Burns

. See United

States v. Perez

‐ Garcia

, 56 F.3d 1, 3 (1st Cir. 1995) (construing the phrase “from the

person

. . . of another” in § 2119 and noting that “[c]ourts generally agree that

taking from a victim’s person is understood to include the common law

conception of taking from a victim’s presence.”).

As a final attack on the Burns definition of presence, Soler contends that the

interpretation given therein is boundless and suggests no natural limit. Because,

the argument goes, the proximity contemplated by the Burns view of “presence”

can expand according to a defendant’s capacity to retain possession if not

overcome by fear, the interpretation we adopt here would seem to allow for

criminal liability to hang on the results of a footrace. That is, where a victim could

have outrun his robber to the taken property—whatever the distance, even if the

length of the island of Manhattan separated the victim from his automobile—the

Burns definition would erroneously lead us to conclude that the property was

within the victim’s “presence.” Cf. Lake

, 150 F.3d at 275–76 (Becker, C.J.,

dissenting). The argument is a red herring. The case law is replete with decisions

that test the limits of the common law’s relatively more elastic definition of23 “presence.” Those decisions clarify that the extreme examples that worry the

defendant would clearly be foreclosed. See, e.g.

, Hayes

, 52 Cal.3d at 627, 802 P.2d

at 905 (noting that the common law definition would not permit a robbery

conviction where a defendant forcibly demands a combination to a safe many

miles away). As the First Circuit has explained, “the presence requirement is not

boundless.

. . . [C]ourts have required the victim to have both a degree of physical

proximity to the vehicle and an ability to control or immediately obtain access to

the vehicle,” Savarese

, 385 F.3d at 20. 7 Generally speaking, we view the First

Circuit’s description of the outer bounds of “presence” as fairly reflecting the

scope of the term as it is used in the carjacking statute. We are therefore not

moved to depart from the well settled canon that, in the absence of a contrary

indication, common law terms used in statutes should take their common law

meanings.

7 We also note that the 1844 Report includes an illustrative list to explain the

meaning of presence, which confirms that at common law there must be some proximity

between the owner and his property. The list includes among its examples “a horse

standing by [the victim]”; the victim’s purse “thrown aside to prevent its being taken by

the robber, but still being near at hand”; or “an article of apparel which has fallen from

[the victim’s] person, but is still near at hand.” 1844 Report, ch. XVI, § 5; see also Wayne

R. LaFave, 3 Substantive Criminal Law § 20.3(c), at 179 (2d ed. 2003) (“‘Presence’ in this

connection is not so much a matter of eyesight as it is one of proximity and24 We accordingly join our fellow courts of appeals in adopting, for the

purpose of interpreting the carjacking statute, the Burns definition of “presence”

as the law of our Circuit. A motor vehicle is in the presence of the victim if it is so

within his or her reach, inspection, observation, or control that he or she could, if

not overcome by violence or prevented by fear, retain possession of it. This

definition naturally implies a degree of physical proximity between the victim

and the vehicle.

There is no dispute that the evidence introduced at trial, viewed in the light

most favorable to the prosecution, easily met the Burns definition. Nor could there

be: the facts of this case present a degree of proximity and control that is either

identical or far greater than facts leading our fellow courts of appeals to affirm

carjacking convictions and carjacking

‐ related sentencing enhancements. See, e.g.

,

Savarese

, 385 F.3d at 20 (holding that a car parked “in the driveway” was in the

presence of victims who were robbed inside their home); Boucha

, 236 F.3d at 776

(holding that cars parked “just outside” the place where the victims’ keys were

taken were in the victims’ presence); Kimble

, 178 F.3d at 1166 (holding that a van

parked “right outside the restaurant” in which victim was robbed of his keys was

control

. . . .”).25 in the victim’s presence); United States v. Lopez

, 271 F.3d 472, 486 (3d Cir. 2001)

(holding that a car parked outside the residence in which the victim was robbed

was in the presence of the victim).

The district court therefore properly denied each defendant’s motion for a

judgment of acquittal.

C ONCLUSION

For the foregoing reasons, the judgments of the district court are

AFFIRMED

.