Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit

3-10-1997

United States v. Anderson Precedential or Non-Precedential:

Docket 96-1496

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____________

NO. 96-1496

____________ UNITED STATES OF AMERICA, Appellee,

v.

JEFFREY ANDERSON, a/k/a JONATHAN THOMAS, Appellant.

_____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 95-cr-00424-01)

_____________

Argued: January 27, 1997

_____________ Before: BECKER and ROTH, Circuit Judges, and ORLOFSKY, District Judge.*

(Filed: March 10, 1997)

* Honorable Stephen M. Orlofsky, United States District Judge for the District of New Jersey, sitting by designation.

1 MAUREEN KEARNEY ROWLEY, ESQUIRE Chief Federal Defender ELAINE DEMASSE, ESQUIRE Assistant Federal Defender, Senior Appellate Counsel ROBERT EPSTEIN, ESQUIRE (ARGUED) Assistant Federal Defender ELLEN C. BROTMAN Assistant Federal Defender Federal Court Division Defender Association of Philadelphia Suite 800 - Lafayette Building 437 Chestnut Street Philadelphia, PA 19106-2414

COUNSEL FOR APPELLANT

MICHAEL R. STILES, ESQUIRE United States Attorney WALTER S. BATTY, JR., ESQUIRE Assistant United States Attorney, Chief of Appeals J. ALVIN STOUT, III, ESQUIRE (ARGUED) Assistant United States Attorney United States Department of Justice United States Attorney Eastern District of Pennsylvania 615 Chestnut Street Suite 1250 Philadelphia, PA 19106-4476

COUNSEL FOR APPELLEE

_____________

OPINION OF THE COURT _____________

ORLOFSKY, District Judge.

Jeffrey Anderson appeals from his conviction after a jury trial on a three-count

superseding indictment charging him with carjacking, in violation of

(the

“carjacking statute”), using and carrying a firearm during a crime of violence, in violation of 18

(c)(1), and possession of a firearm by a convicted felon, in violation of

(g)(1).

This appeal requires this Court to address for the first time the quantum of evidence that

the government must offer at trial such that a jury could find beyond a reasonable doubt that the

defendant had the requisite “intent to cause death or serious bodily harm,” within the meaning of

the 1994 amendment to the carjacking statute. The federal courts which have considered this

issue have reached different conclusions.1 We hold that it is sufficient for the government to

establish beyond a reasonable doubt that a defendant possessed a conditional intent to cause

death or serious bodily harm to the carjacking victim -- in other words, that the defendant

intended to cause death or serious bodily harm if the victim resisted the defendant’s efforts to

obtain the victim’s car. In addition, we conclude that, when viewing the evidence presented at

trial in a light most favorable to the government, a rational trier of fact could have found beyond

a reasonable doubt that the defendant in this case had such an intent to kill or cause serious

bodily harm, if necessary, in order to obtain the victim’s car. We, therefore, affirm.

I. Facts and Procedural Background On December 28, 1994, at approximately 9:30 p.m., Pamela White was inside her

mother’s home when she noticed Mark Stanley sitting at a table appearing jumpy, upset and

nervous. Ms. White then noticed Jeffrey Anderson, whom she did not know at the time, standing

in the vestibule of the house. Ms. White’s mother asked Anderson to leave and he refused. Ms.

White observed the imprint of a gun in the front of Anderson’s jersey.

Anderson entered the living room of the house, exchanged words with Stanley and began

to struggle with him. When Anderson brandished his .38 caliber handgun at Stanley, Ms. White

1 Compare United States v. Holloway,

(E.D.N.Y. 1996) and United States v. Norwood,

(D.N.J. 1996), with United States v. Randolph,

(9th Cir. 1996).

3 tried to get her children and her mother upstairs. Stanley then broke away from Anderson and

fled up the stairs behind them. Anderson followed them up the stairs with the gun in his hands.

Ms. White heard a gunshot which she later discovered had gone into the ceiling. After firing the

gunshot, Anderson fled from the house.

After fleeing from the house, Anderson passed directly by a marked police car, making

eye contact with Officer Terrence Graham, who was inside the car. Graham briefly pursued

Anderson, who was still carrying the gun in his hand at the time, before losing sight of him.

Anderson then came upon Alfred Tennessee a few blocks away. Tennessee was washing a car

belonging to a friend. While kneeling down near the front passenger side tire, Tennessee

suddenly felt Anderson’s gun pressed against the back of his neck. Tennessee turned to see a man

whom he subsequently identified as Anderson, clutching the gun. Anderson told Tennessee that

“the police [are] after me, I’m taking the car.” Tennessee responded by telling Anderson to take

the car.

Tennessee, however, ran around to the driver’s side of the vehicle in an attempt to stop

Anderson from taking the car. Anderson pointed the gun out the driver’s side window at

Tennessee and sped off in the car. Tennessee heard a gun shot when Anderson was a half-block

away, although he did not see who fired the shot, or in which direction it was fired. Tennessee

informed nearby police of the incident and the police began to pursue Anderson.

This vehicular pursuit ended when the vehicle Anderson was driving stalled out.

Anderson exited the vehicle with the gun in his hand, and refused to comply with a police

officer’s order to drop the gun. Six officers pursued Anderson on foot. The officers finally caught

up with him and forcibly removed the gun from his hand. Anderson was arrested and placed in a

police vehicle. The officers subsequently ascertained that his gun was loaded and operable at the

time of his arrest.

On November 19, 1995, Jeffrey Anderson was charged in a superseding indictment filed

in the Eastern District of Pennsylvania with carjacking, in violation of

(Count

4 1), using and carrying a firearm during a crime of violence, in violation of

(c)(1)

(Count 2), and possession of a firearm by a convicted felon, in violation of

(g)(1)

(Count 3). A jury trial was held, and the jury returned a verdict of guilty on each of the three

counts. On June 4, 1996, Anderson was sentenced to a prison term of 156 months on Counts 1

and 3, to run concurrently, and to a consecutive 60 month term of incarceration on Count 2.

Anderson was also sentenced to a three year period of supervised release, and the imposition of a

special assessment of $50.

Anderson filed a timely Notice of Appeal from his convictions on Counts 1 and 2. We

have jurisdiction under

, and review Anderson’s convictions in order to

ascertain whether, when viewing the evidence presented at trial in a light most favorable to the

government, any rational trier of fact could have found the essential elements of the offenses

charged in Counts 1 and 2, beyond a reasonable doubt. See Jackson v. Virginia,

(1979). However, since Anderson’s trial counsel failed to renew his motion for judgment of

acquittal at the end of the defense’s case, Anderson has failed to preserve this issue for appeal.

See United States v. Barel,

(3d Cir. 1991). Accordingly, the alleged insufficiency

of the evidence with respect to the essential elements of the offense must constitute plain error in

order to warrant reversal. See id.; Fed. R. Crim. P. 52(b).

II. Analysis On appeal, Anderson contends that his convictions under Counts 1 and 2 of the

superseding indictment should be reversed since the evidence presented at trial was insufficient

to establish his guilt under

, beyond a reasonable doubt. Section 2119 of Title

18 provides:

Whoever, 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

5 attempts to do so, shall --

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

(2) if serious bodily injury results, be fined under this title or imprisoned not

more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of

years up to life, or both, or sentenced to death.

(as amended in 1994). Specifically, Anderson claims on appeal that the

evidence presented by the government at trial was insufficient to establish that he had the

requisite “intent to kill or cause serious bodily harm,” within the meaning of the carjacking

statute. See

.

“When the sufficiency of the evidence at trial is challenged, we must view the evidence

in the light most favorable to the government.” United States v. Coyle,

(3d

Cir. 1995)(citing Glasser v. United States,

(1942)). Moreover, “[a] claim of

insufficiency of evidence places a very heavy burden on the appellant. . . [This Court] must

affirm the conviction[] if a rational trier of fact could have found defendant guilty beyond a

reasonable doubt, and the verdict is supported by substantial evidence.” Coyle,

;

see also United States v. Gonzalez,

(3d Cir. 1990), cert. denied,

(1991). Indeed, “‘[o]nly when the record contains no evidence, regardless of how it is

weighted, from which the jury could find guilt beyond a reasonable doubt, may an appellate court

overturn the verdict.’” United States v. McNeill,

(3d Cir. 1989), cert. denied,

(1990) (citing Brandom v. United States,

(7th Cir. 1970),

cert. denied,

(1971)).

Anderson contends that, in order to be found guilty of carjacking, the statute requires that

the government prove beyond a reasonable doubt that he intended to cause death or serious

bodily injury whether or not the victim agreed to relinquish his car. In contrast, the government

6 maintains that the “intent to cause death or serious bodily injury” element of the statute is

satisfied if the government is able to show that Anderson intended to cause death or serious

bodily injury if the victim refused to relinquish his or her car.

The few federal courts to consider this issue have reached different conclusions.

Compare United States v. Holloway,

(E.D.N.Y. 1996) and United States v.

Norwood,

(D.N.J. 1996), with United States v. Randolph,

(9th

Cir. 1996). In Holloway, the court found that the intent element of the carjacking statute is

satisfied if the government proves beyond a reasonable doubt that the defendant intended to

cause death or serious bodily harm to the victim if the victim refused to turn over his car.

. See also Norwood,

.

In contrast, in Randolph, the Ninth Circuit found that “the mere conditional intent to

harm a victim if she resists is simply not enough to satisfy § 2119's new specific intent

requirement.”

. The court held that absent evidence that the defendant intended to

cause death or serious bodily harm -- whether or not the victim turned over his or her car -- the

intent element could not be established.

In reversing the defendant’s conviction under the

carjacking statute, the court noted that “[a] key distinction between this case and federal cases

sustaining convictions for analogous specific intent offenses is that [the defendant] did not

personally harm [the victim], even though he was armed and clearly capable of harming her.”

.

A review of the legislative history and development of the carjacking statute is critical in

determining which court’s interpretation of the intent provision of the carjacking statute this

Court should adopt. The carjacking statute, as initially enacted in 1992, contained no intent

provision whatsoever. The original statute, the “Anti Car Theft Act of 1992,” codified at

, provided that: Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall--

7 (1) be fined under this title or imprisoned not more than 15 years, or both, (2) if serious bodily injury results, be fined under this title or imprisoned not more than 25 years, or both, and (3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.

(1992).

Not long after the enactment of the carjacking statute, however, several amendments

were proposed which were intended to be applied in cases where a death resulted from the

carjacking. Two such changes were first proposed in the Senate. The first change sought was the

inclusion of the death penalty in cases where a carjacking resulted in death. See 139 Cong. Rec.

S15295, S15301, S15303 (1993). Another proposed change to the statute was the elimination of

the “possessing a firearm” requirement from the proposed death penalty provision.

In

proposing this addition, Senator Lieberman argued that “[i]f the person in a carjacking is killed

as a result of a knife or other weapon or just as a result of the carjacking, then the criminal ought

to be subject to death himself.”

Presumably, in an effort to avoid subjecting the death penalty provision proposed by the

Senate to Eighth Amendment attack for authorizing the death penalty for an accomplice who

neither killed nor intended to kill or harm a victim, the House inserted an additional

modification to the death penalty provision by adding the “intent to cause death or serious

bodily harm” requirement. See Holloway,

(citing Enmund v. Florida,

(1982)). Accordingly, the amendments to the carjacking statute proposed by the Senate

and the House were combined to form the following provision of the Violent Crime Control and

Law Enforcement Act of 1994 which modified the carjacking statute as follows: (14) CARJACKING--Section 2119(3) of title 18, United States Code, is amended by striking the period after “both” and inserting “, or sentenced to death.”; and by striking “, possessing a firearm as defined in section 921 of this title," and inserting “, with the intent to cause death or serious bodily harm.”

Stat. 1796, 1970 (1994).

8 Because Section 2119(3), to which the Violent Crime Control and Law Enforcement Act

refers, is solely a penalty provision applicable to carjackings resulting in death,2 the relevant

language of the Violent Crime Control and Law Enforcement Act reveals that the amendments

contained in that Act apparently were intended only to apply to carjackings resulting in death.

The first amendment prescribing that the language “or sentenced to death,” be added to 2119(3)

was easily incorporated into the original carjacking statute.

Closer examination of the Violent Crime Control and Law Enforcement Act, however,

reveals certain inconsistencies which made the incorporation of the second two amendments

into the original statute somewhat more difficult. For instance, the amendment instructs that

section 2119(3) is to be amended by striking the language “possessing a firearm as defined in

section 921 of this title.” The “possessing of a firearm” requirement, however, was not

contained in § 2119(3). Instead, it was included in the language of the substantive offense.

Accordingly, the elimination of this language from the statute had the effect of eliminating the

“possessing of a firearm” requirement for all carjackings, and not just those which resulted in

death. Because the possession of a firearm was eliminated from the substantive offense rather

than from the penalty provision applicable to carjackings resulting in death, as apparently

intended, the new intent requirement was also substituted in the statutory language as an

element of the substantive offense and not simply into 2119(3) as directed by Violent Crime

Control and Law Enforcement Act.

After the incorporation of the 1994 amendments, the carjacking statute, now provides: Whoever, 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, shall -- (1) be fined under this title or imprisoned not more than 15 years, or both, (2) if serious bodily injury results, be fined under this title or imprisoned not more than 25 years, or both, and

2

(3), as originally enacted in 1992, provided that “if death results, [a defendant shall] be fined under this title or imprisoned for any number of years up to life, or both.”

9 (3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.

(as amended in 1994).

As noted by the court in Holloway, as written, the current statute, contrary to

Congressional intent, requires the element of “intent to cause death or serious bodily injury” for

all carjackings, regardless of whether death results.

. Thus, the court found

that to interpret the “intent to cause death or serious bodily injury” language of the 1994

amendment to require the Government to establish that a defendant unconditionally intended to

cause death or serious bodily injury whether or not the victim relinquished his or her car, would

drastically narrow the application of the carjacking statute, when, in fact, the legislative history

reveals that the intent element should not have even been added as an element of the substantive

offense at all. Indeed, the legislative history reveals that the amendment was intended “to

broaden and strengthen [the carjacking statute] so our U.S. attorneys (sic) have every possible

tool available to them to attack the problem.’” 139 Cong. Rec. S15295, S15301

(1993)(statement of Sen. Lieberman)).

In contrast to the interpretation of the intent provision of the carjacking statute adopted

by the Holloway court, the conclusion of the Ninth Circuit in Randolph directly contravenes the

intent of Congress to broaden the application of the carjacking statute by the inclusion of the

1994 amendments. In effect, the Randolph rationale seemingly limits the application of the

statute only to cases where the defendant actually physically harmed the victim. Rarely will

there be a case where there will be evidence of a defendant’s unconditional intent to cause death

or serious bodily harm whether or not the victim relinquishes his or her car, yet the victim

sustains no injuries. It is apparent, however, that Congress did not intend for death or serious

bodily injury to be a prerequisite to every carjacking conviction, since Congress has provided for

enhanced penalties when a carjacking does, in fact, result in death or serious bodily injury. See §

2119(2) and (3).

10 In their treatise on criminal law cited by the court in Holloway, Professors LaFave and

Scott address the issue of conditional intent generally, outside the context of the carjacking

statute. In so doing, the authors first pose the question: [w]here a crime is defined so as to require that the defendant have a particular intention in his mind -- as larceny requires that he have an intention to deprive the owner permanently of his property, burglary that he have an intention to commit a felony, and assault with intent to kill that he have an intention to kill -- the problem arises whether he has the required intention when his intention is conditional.

Wayne R. Lafave and Austin W. Scott, Jr., Substantive Criminal Law §3.5(d), at 312 (1986).

The authors do not answer this question with a simple “yes” or “no.” Instead, citing the Model

Penal Code as authority, they provide that, “[w]here a crime requires the defendant to have a

specified intention, he has the required intention although it is a conditional intention, ‘unless

the condition negatives the harm or evil sought to be prevented by the law defining the

offense.’” Id. at 313 (citing Model Penal Code § 2.02(6)).

Section 2.02(6) of the Model Penal Code provides that “[w]hen a particular purpose is

an element of an offense, the element is established although such purpose is conditional, unless

the condition negatives the harm or evil sought to be prevented by the law defining the

offense.”3 The Explanatory Note to this section elaborates on the issue of conditional intent by

setting forth the example that a defendant would, of course, be guilty of the crime of assault

3 A few states have even incorporated “conditional intent” provisions similar to section 2.02(6) of the Model Penal Code into their own respective criminal codes. See, e.g., Del. Code Ann. tit. 11 § 254 (“[t]he fact that a defendant’s intention was conditional is immaterial unless the condition negatives the harm or evil sought to be prevented by the statute defining the offense”); Pa. Stat. Ann. tit. 18 § 302(f) (“[w]hen a particular intent is an element of an offense, the element is established although such intent is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense”); Hawaii Rev. Stat. § 702-209 (“[w]hen a particular intent is necessary to establish an element of an offense, it is immaterial that such intent was conditional unless the condition negatives the harm or evil sought to be prevented by the law prohibiting the offense).

11 with the intent to rape if the government were able to establish that the defendant intended to

overcome the will of his victim if she resisted his advances. See Model Penal Code and

Commentaries §2.06 (American Law Institute).

Therefore, according to both Lafave and Scott and the Model Penal Code, the question

becomes not whether a defendant’s conditional intent is sufficient to satisfy an intent element of

a statute, but which conditions negative the harm sought to be prevented by a statute and which

will not. This analysis can be readily applied to the carjacking statute. The determination of

whether a defendant’s intent to kill or cause serious bodily harm if the victim does not

relinquish his or her car is sufficient to establish the requisite “intent to kill or cause serious

bodily harm” within the meaning of the statute, requires us to ascertain the nature of the

condition attached to the intent. When this intent is phrased slightly differently -- the intent to

kill or cause serious bodily harm to the victim unless the victim parts with his or her car -- the

condition -- unless the victim parts with his or her car -- becomes apparent. If, in fact, the

condition is not met and the victim relinquishes his or her vehicle, is the harm sought to be

prevented by the carjacking statute negated? We think not.

The fact that a defendant is able to achieve the goal of obtaining the car without resorting

to the infliction of death or serious bodily harm obviously does not negate the intent to cause

such harm in order to obtain the car. Whether the harm sought to be prevented by the statute is

the theft of cars, the threat to cause death or serious bodily harm in order to obtain another’s car,

or the causing of death or serious bodily harm, the intervening event of the victim giving up his

or her car in order to avoid serious injury in no way negatives the harm sought to be prevented

by the statute. Indeed, the fact that the victim opted to turn over his or her car in the hope of

avoiding serious harm does not alter the fact that the defendant possessed an intent to cause

death or serious bodily harm in order to obtain the car.

In addition, the notion of conditional intent has been embraced by the majority of courts

which, upon interpreting other statutes containing analogous specific intent provisions, have

12 held that a defendant’s conditional intent is sufficient to support a conviction under the

particular statute. For example, in Shaffer v. United States,

(5th Cir. 1962), cert.

denied,

(1963), the defendant, who was confined in an Army jail, brandished a gun

and threatened to harm anyone who tried to stop him from escaping. The defendant was then

charged and convicted of “assault with a dangerous weapon, with intent to do bodily harm, and

without just cause or excuse,” pursuant to

(c). In considering whether there was

sufficient evidence to support a finding that the defendant had the requisite “intent to do bodily

harm,” under § 113(c), the Fifth Circuit found that there was sufficient evidence for a jury to

conclude that the defendant intended to cause bodily harm if his escape was met with any

resistance, and that the evidence of such a “conditional” intent was sufficient to satisfy the intent

element of the statute. Id. at 655. Similarly, in People v. Connors,

(Ill. 1912), the

Illinois Supreme Court held that a defendant’s “intent to commit an offense which is coupled

with an unlawful condition or demand,” is sufficient to satisfy a specific intent element of a

statute.

. See also People v. Vandelinder,

(Mich. App. 1992);

Commonwealth v. Richards,

(Mass. 1973). But see State v. Irwin,

(N.C. App. 1982)(holding that “evidence that a defendant would have had an intent to

kill only if a particular event occurred is not sufficient” to convict defendant of assault with

intent to kill); State v. Kinnemore,

(Ohio App. 1972)(defendant’s threat to

kill in order to effectuate his escape insufficient to establish assault with intent to kill).

Thus, we conclude that the doctrine of conditional intent is consistent not only with

Congress’ purpose in amending the carjacking statute in 1994 and the language of the Model

Penal Code, but also with the majority of cases interpreting statutes with analogous specific

intent elements. See Shaffer,

; Connors,

; Vandelinder,

; Richards,

. Accordingly, we hold that in order to satisfy the “intent to cause

death or serious bodily harm” provision of

, it is sufficient for the government

to establish that the defendant intended to cause death or serious bodily harm if the victim

13 refused to relinquish his or her car. However, because of the unique nature of the language and

legislative history of the carjacking statute, as well as the clear Congressional intent to expand

the application of the carjacking statute with the 1994 amendment, our holding today -- that

evidence of a conditional intent to kill or cause serious bodily harm is sufficient to satisfy the

specific “intent to cause death or serious bodily injury” requirement -- is limited to the

carjacking statute.

Therefore, the relevant inquiry in this case is whether, when viewing the evidence in the

light most favorable to the government, there is substantial evidence upon which a reasonable

jury could determine beyond a reasonable doubt that Anderson possessed the requisite

“conditional” intent to kill or cause serious bodily injury if Tennessee did not relinquish the car.

See Coyle,

. Based upon the evidence presented at trial, we find that Anderson

has failed to meet his very heavy burden of establishing that the government did not present

enough evidence to overcome this hurdle. The government introduced evidence that Anderson

was involved in some sort of altercation at Pamela White’s mother’s house where Anderson

brandished a .38 caliber handgun which he ultimately fired in the house, albeit at the ceiling.

Anderson then fled from the house carrying the gun, and was seen by a police officer who began

to pursue him.

Anderson then came upon Tennessee, who was washing his friend’s car. Anderson

placed the loaded and operable gun up against the back of Tennessee’s neck. When Tennessee

turned around, Anderson pointed the gun right at him, stating that he was taking the car. Once in

the car, Anderson once again pointed the loaded weapon at Tennessee’s face as Tennessee tried

to stop Anderson. Anderson subsequently fired a shot from the car in an unknown direction.

Based upon the totality of all the surrounding facts and circumstances, we conclude that

there was sufficient evidence presented at trial to permit a rational trier of fact reasonably to

conclude beyond a reasonable doubt that Anderson intended to cause serious bodily injury to

Tennessee, or even kill him, if Tennessee failed to surrender the vehicle. Therefore, Anderson’s

14 convictions for carjacking in violation of

, and using and carrying a firearm

during a crime of violence, in violation of

(c)(1), will be affirmed.4

____________________________

4 Having concluded that no error occurred in the court below, we need not address the “plain error” standard as it relates to Anderson’s case.

15