United States v. Lake

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

7-21-1998

United States v. Lake
Precedential or Non-Precedential:

Docket 97-7462

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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. Munoz-
Fabela, 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