United States v. Harris

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit August 8, 2005

Charles R. Fulbruge III
Clerk
No. 03-51147

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TRAVIS JAMES HARRIS,

Defendant-Appellant.

Appeal from the United States District Court
For the Western District of Texas

Before REAVLEY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

A jury found Defendant-Appellant Travis James Harris guilty of

carjacking, in violation of 18 U.S.C. § 2119, and use of a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)

and (j). Harris directly appeals his convictions, arguing that the

evidence is insufficient to sustain the carjacking conviction and

that the district court erred in dismissing a juror and in

instructing the jury. We hold that the evidence presented to the

jury was insufficient to sustain the carjacking conviction under 18

U.S.C. § 2119. Therefore, we REVERSE Harris’s convictions and
VACATE his sentence.

Factual and Procedural Background

Harris admits by his own testimony to shooting Paul John

Ceniceros. The Government and Harris disagree about the

circumstances surrounding the shooting. While both agree that

Harris committed homicide, the parties dispute whether the

Government succeeded at trial in proving a carjacking under 18

U.S.C. § 2119 (2003). The Government argues Harris killed

Ceniceros in connection with Harris’s taking of Ceniceros’s car, a

1996 red Ford Mustang, and that the connection is sufficient to

make the crime a carjacking under the statute’s language. Harris

testified that he killed Ceniceros in self-defense, and Harris

characterizes his theft of the automobile as a larcenous

afterthought. It is undisputed that the two rode in Ceniceros’s

car together for some time on the late night or early morning of

Ceniceros’s death and that the two arrived in the car together at

a secluded location where, outside of the car, Harris shot and

killed Ceniceros. Harris claims he drove Ceniceros’s car away to

escape from a deserted area and detection. Harris argues this

series of events, even according to the Government’s evidence and

reasonable inferences therefrom, constitutes only manslaughter and

larceny, not a carjacking.

Ceniceros was last seen alive on May 24, 2002, leaving his

home in Odessa around 11:45 p.m. As of that time, Ceniceros had

2
told his family he would return shortly, made plans to meet his

best friend at a club, and told another friend, Elizabeth Kamali,

he would meet her at her house for a barbeque. Later in the

evening of May 24 and the early morning hours of May 25, Ceniceros

made several phone calls from his mobile phone to friends, the last

of which was made at 4:14 a.m. on May 25 to Kamali, who told

Ceniceros he could let himself into her house to spend the night

and she would leave blankets and food for him. Ceniceros never

arrived at Kamali’s home.

An oil field worker found Ceniceros’s body on July 17,

approximately 53 days after Ceniceros disappeared, in an oil field

approximately 20 miles outside of Odessa, Texas. When found,

Ceniceros’s body was partially covered by thick mesquite brush and

was partially clothed, although it was determined that he was

clothed at the time of his death. Ten shell casings, ejected from

a 9-mm automatic handgun, were found approximately 23 to 30 feet

from Ceniceros’s body, in a pattern which would be consistent with

the fact that the shooter had been moving while firing. A gun,

which was connected by expert testimony to the bullet slugs

recovered from Ceniceros’s body, was later found on a road outside

Seminole, Texas.

A trace on the gun revealed it had been stolen, about two

months before May 24, from its original owner’s vehicle in Odessa.

No evidence traced the gun from its owner to Harris, but the

Government presented evidence related to Harris’s possession of a

3
handgun. One witness testified that he saw Harris handling a black

handgun in May 2002 at Harris’s home and that he saw Harris with

the gun on approximately five occasions within one month. The same

witness testified that Harris claimed the firearm was a 9-mm

handgun; and at trial, the witness identified the gun that killed

Ceniceros as the weapon he saw Harris handling. Witness testimony

established that friends of Ceniceros had never seen him with a gun

or known him to possess one.

On May 27, 2002, Harris telephoned a friend in Andrews, Texas,

to ask her for a ride from Lubbock back to his apartment in Odessa.

Harris explained his car had broken down in Lubbock and left him

stranded. Friends picked Harris up at the Albertson’s in Lubbock

that afternoon. He was carrying a black duffle bag at the time.

On the way back to Odessa, the group stopped in Seminole, Texas,

for food; and at some point on the ride, Harris explained that he

had been in Lubbock for two days, sleeping in his red Mustang,

while trying to repair the car. Harris was dropped off at his

apartment building in Odessa on the evening of May 27.

On June 5, 2002, acting upon their investigation into

Ceniceros’s disappearance, law enforcement officers effected a

search warrant on Harris’s white Ford Bronco parked outside his

Odessa apartment. There, police discovered a black duffle bag

containing clothes, keys later determined to be those for

Ceniceros’s red Mustang, Ceniceros’s mobile telephone, a receipt

pad matching that used by Ceniceros in his job as a waiter, a 9-mm

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cartridge, and latex gloves. Ceniceros’s red Mustang was

discovered in an Albertson’s parking lot in Lubbock on June 14,

2002, without signs of forced entry. The Mustang was disabled due

to a defective belt. Inside the car and under the seat, police

found Ceniceros’s wallet. Under the car, brush, like that found in

an oil field, was lodged. Later inspection revealed no physical

damage to the interior of the Mustang, and no bullet holes, blood,

or semen in or on the car; but expert serology testimony identified

DNA evidence found on the top half of the steering wheel of the car

as consistent with Harris’s own DNA from a blood sample.

During the federal investigation into Ceniceros’s

disappearance, an FBI agent met with Harris three times. In one

interview, Harris claimed he was picked up by a man named Nick,

driving a Ford Mustang; the two had car problems after some

driving; and finally Nick gave Harris the keys to the car and his

cell phone and instructed Harris to drive the car to Lubbock. When

shown a photo of Ceniceros, Harris stated the likeness was not

Nick’s. Harris denied owning a handgun.

On June 16, 2002, a witness led police to a trash dumpster

behind an apartment building in Monahans, Texas, located across the

street from the home of Harris’s father. There, that same day, the

witness had found several unfired 9-mm bullets on the ground and

placed them in the trash. The police recovered the bullets from

the dumpster and identified them as having the same three

manufacturers as the shell casings that were found near Ceniceros’s

5
body in the oil field.

At trial, Harris testified that on the night of May 24, 2002,

his father kicked him out of the car and left him on the side of a

highway near Monahans. Harris explained that Ceniceros, who was a

single homosexual approximately 28 years old, picked him up along

the road about midnight and that together they rode around, talking

in a friendly manner, drinking beer into the early morning hours.

Harris claimed that at some point, while still dark during the

early morning hours, they parked in a secluded area and Ceniceros

began asking Harris suggestive questions. Harris testified that he

responded by requesting Ceniceros take him back to town and then

Harris exited the car and started to walk away. Ceniceros

followed, according to Harris, and pointed a handgun at Harris,

which Harris identified as the gun admitted into evidence. Harris

testified he then, at Ceniceros’s demand, got back into the car.

Harris claimed Ceniceros demanded Harris let Ceniceros perform oral

sex on Harris and later that Ceniceros demanded Harris perform oral

sex on Ceniceros. Harris testified that, after Harris repeatedly

objected and asked to be taken back into town, Harris acquiesced to

Ceniceros’s demands for oral sex and then grabbed the gun from

Ceniceros. Harris claimed he ran down the road pursued by

Ceniceros and that only then did Harris shoot Ceniceros in self-

defense. Harris determined Ceniceros was dead, covered the body in

sticks, found the car keys, and drove back to his father’s house in

Monahans before proceeding north towards his mother’s home in

6
Missouri. Harris testified that the Mustang broke down in Lubbock,

and, at some point on the way there, he tossed the gun out of the

car. Harris claimed that he removed bullets from the back of

Ceniceros’s car, and dumped them later in an alley in Monahans.

The record is void of any evidence, aside from Harris’s own

testimony at trial, regarding how Harris and Ceniceros got into the

Mustang together or arrived at the remote oil field where

Ceniceros’s body was found. Indeed, the record lacks any evidence

relating to the moment Harris demanded or took control of the

vehicle.

At the close of the Government’s case, Harris’s Rule 29 motion

for instructed verdict based upon insufficient evidence was denied.

Harris renewed his motion at the close of all evidence, and it was

again denied. On June 25, 2003, the jury: (1) convicted Harris of

carjacking under 18 U.S.C. § 2119; (2) convicted Harris of use of

a firearm during a crime of violence, in violation of 18 U.S.C. §

924(c)(1) and (j); and (3) found by special verdict that Harris’s

killing of Ceniceros constituted voluntary manslaughter. Harris

now challenges his convictions.

Discussion

Harris argues that: (1) there was insufficient evidence to

satisfy all elements of the carjacking conviction under 18 U.S.C.

§ 2119; (2) the district court erred in its instructions to the

jury regarding the elements of the carjacking statute, 18 U.S.C.

7
2119; and (3) the district court erred in dismissing juror Jon

Clavin.

I. Insufficiency of Evidence to Prove Carjacking

At the close of the Government’s case in chief, Harris moved

for a judgment of acquittal and then reurged that motion at the

close of the evidence. See FED. R. CRIM. P. 29(a). Thus, as to his

carjacking conviction, Harris preserved the usual standard of

review for challenges to the sufficiency of evidence. See United

States v. Guerrero, 169 F.3d 933, 938-39 (5th Cir. 1999). We

review the record to “determine whether a rational trier of fact,

after considering all the evidence and reasonable inferences drawn

therefrom in a light most favorable to the verdict, could have

found the defendant guilty beyond a reasonable doubt.” United

States v. Walker, 148 F.3d 518, 523 (5th Cir. 1998) (citing United

States v. Carrillo-Morales, 27 F.3d 1054, 1064 (5th Cir. 1994));

see also United States v. Cornett, 195 F.3d 776, 781-82 (5th Cir.

1999) (quoting Walker, 148 F.3d at 523); Guerrero, 169 F.3d at 939

(quoting United States v. Pankhurst, 118 F.3d 345, 352 (5th Cir.),

cert. denied, 522 U.S. 1030 (1997)). This review is de novo.

United States v. Alarcon, 261 F.3d 416, 421 (5th Cir. 2001) (citing

United States v. Brown, 186 F.3d 661, 664 (5th Cir. 1999)).

This Court must affirm if “a rational trier of fact could have

found the evidence established the essential elements of the

offense beyond a reasonable doubt.” United States v. Westbrook,

8
119 F.3d 1176, 1189 (5th Cir. 1997). On the other hand, this panel

must reverse the carjacking conviction, “under the de novo

standard, if ‘the evidence is such that a reasonably minded jury

must have a reasonable doubt as to the existence of any element of

the crime,’ or ‘the evidence [viewed in the light most favorable to

the verdict] gives equal or nearly equal circumstantial support to

a theory of guilt and a theory of innocence.’” Alarcon, 261 F.3d

at 421 (quoting United States v. Gonzalez, 617 F.2d 104, 106 (5th

Cir. 1980); Brown, 186 F.3d at 664)); see also United States v.

Pennington, 20 F.3d 593, 597 (5th Cir. 1994) (citations omitted).

“The only question is whether a rational jury could have found each

essential element of the offense beyond a reasonable doubt.”

Pennington, 20 F.3d at 597 (citation omitted).

Harris argues that the evidence is insufficient to sustain the

carjacking conviction because the Government presented no evidence

that would permit a rational jury, even upon reasonable inferences

from the evidence, to find the requisite nexus between the taking

of the car and the requisite intent to cause death or serious

bodily harm.

Section 2119 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,

9
 (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.

18 U.S.C. § 2119.

The statute’s mens rea element, that is, “with the intent to

cause death or serious bodily harm,” is at primary issue in this

appeal. See id.1 In Holloway v. United States, the Supreme Court

addressed whether § 2119's intent element “requires the Government

to prove that the defendant had an unconditional intent to kill or

harm in all events, or whether it merely requires proof of an

intent to kill or harm if necessary to effect a carjacking.” 526

U.S. 1, 3 (1999). Resolving that the latter correctly described

Congress’s meaning expressed in § 2119, the Court relied upon the

placement of the mens rea element within the context of the statute

in holding that the text requires a connection in time between the

intent to kill or cause serious bodily harm and the demand for or

taking of the car. Id. at 7-8.

Section 2119 permits federal prosecution of “a particular kind

of robbery,” and the intent requirement “modifies” the act of the

taking of the car. Id. at 8. The intent to kill or harm element

of the crime “directs the factfinder’s attention to the defendant’s

1
For brevity’s sake, we refer to “the intent to cause death
or serious bodily harm” as simply “intent to kill or harm.” See
Holloway v. United States, 526 U.S. 1, 3 (1999).

10
state of mind at the precise moment he demanded or took control

over the car ‘by force and violence or by intimidation.’ If the

defendant has the proscribed state of mind at that moment, the

statute’s scienter element is satisfied.” Id. (emphasis added).

Holloway’s “at the precise moment” language imbues to the language

of § 2119 a required element of contemporaneousness between the

intent to kill or harm and the taking or demand of the car on the

basis of the Court’s interpretation of congressional meaning. Id.;

United States v. Applewhaite, 195 F.3d 679, 685 (3rd Cir. 1999).

Arguing that Holloway requires the Government to prove a nexus

between the intent to kill and the appropriation of the automobile,

Harris contends the evidence was insufficient for a rational jury

to convict. This Circuit has yet to address the Supreme Court’s

treatment of the scienter requirement of § 2119 in Holloway.2 As

such, Harris supports his argument with the law of our sister

Circuits. See United States v. Adams, 265 F.3d 420, 424 (6th Cir.

2001); United States v. Diaz, 248 F.3d 1065, 1096 (11th Cir. 2001);

Applewhaite, 195 F.3d 686.

Reversing a carjacking conviction due to insufficient evidence

2
In a case decided before Holloway, this Circuit upheld a §
2119 conviction under a sufficiency of evidence challenge where
the defendants approached the car with a shotgun and ax handle
and pointed the gun at a passenger’s head. United States v.
Harris, 25 F.3d 1275, 1279 (5th Cir. 1994) (stating, without
addressing intent, that the “defendants’ motive in taking the car
is irrelevant”).

11
of intent to kill or harm, the Third Circuit addressed the

requirement of a nexus between intent and the taking of the car and

held that no carjacking is effected under § 2119 “unless the

threatened or actual force is employed in furtherance of the taking

of the car.” Applewhaite, 195 F.3d at 686. There, Applewhaite and

his co-defendant paramour plotted the murder of the woman’s former

husband. Luring the victim to his former wife’s home, Applewhaite

knocked him unconscious, put the victim in the victim’s van, and

drove away. The victim awoke in the back of the van, driven by

Applewhaite, attempted to regain control of the van, and in the

struggle was shot by Applewhaite. Id. at 682-83. Although clear

that sufficient evidence supported an intent to kill or harm, the

Third Circuit, relying on Holloway, determined that neither the

intent, nor the force used to accomplish that intent, “had any

nexus to the subsequent taking of [the victim’s] van.” Id. at 685.

“Although the defendant[] clearly intended to seriously harm or

kill [the victim] neither . . . evil intent, nor the force . . .

employed in furtherance of it, had any nexus to the subsequent

taking of [the] van.” Id.

The Eleventh Circuit, distinguishing Applewhaite, upheld

carjacking convictions where the evidence established that the

defendants gained control of cars as part of an extortion plan and

where the appropriation was “an important step in the extortion

scheme and not a mere afterthought.” Diaz, 248 F.3d at 1096. Diaz

12
restated the intent requirement, in light of Holloway, as satisfied

when sufficient evidence and reasonable inferences therefrom

support a rational jury’s conclusion beyond a reasonable doubt that

the defendant, “at the moment [he] demanded or took control over

the driver’s automobile, possessed the intent to seriously harm or

kill . . . if necessary to steal the car.” Id. at 1098 (relying in

part on United States v. Brown, 200 F.3d 700 (10th Cir. 1999),

cert. denied, 528 U.S. 1178 (2000)). The Sixth Circuit similarly

upheld a carjacking conviction where undisputed evidence

demonstrated that the defendant threatened the carjacking victims

with a gun. Adams, 265 F.3d at 424-25 (finding a physical touching

of a victim with a weapon per se sufficient to support that threat

of physical harm is imminent and defendant intends to act

violently). Finally, the First Circuit found the carjacking

scienter element satisfied, and upheld the conviction, where

evidence showed that one defendant placed a gun against the

driver’s head and threatened him at the inception of the

carjacking. United States v. Lebron-Cepeda, 324 F.3d 52 (1st Cir.),

cert. denied, Caraballo-Gonzalez v. United States, 540 U.S. 892

(2003). That evidence permitted the inference that the defendant

would have shot the driver had the driver failed to relinquish

control of the car, and that reasonable inference was sufficient to

satisfy Holloway’s requirement that intent to kill or harm modify

the car’s taking. Id. at 57 (stating that defendant “would have

13
shot” victim if victim “failed to comply” with demand to turn over

the car).

Harris relies primarily on Holloway and Applewhaite to argue

that the evidence adduced at trial supports, even with reasonable

inferences, only a homicide and a misappropriation of Ceniceros’s

car, but not a carjacking as defined by § 2119. Harris argues that

he logically took the car after killing Ceniceros, in order to

leave the scene (an oil field some 20 miles from the nearest town)

and avoid detection. Also, Harris argues the evidence supports

possibilities other than the Government’s theory, including that

the killing of Ceniceros was motivated by animus toward

homosexuals, was a “thrill” killing, or was done in self-defense.

These latter arguments, of course, address the weight of the

evidence and witness credibility, neither of which is relevant to

evidence sufficiency review. See United States v. Garcia, 995 F.2d

556, 561 (5th Cir. 1993). We do not evaluate Harris’s alternative

explanations of the events surrounding Ceniceros’s killing.

Rather, we look to the evidence in the light most favorable to the

verdict, and ask whether it and reasonable inferences from it

demonstrate that, at the precise moment Harris took Ceniceros’s

Mustang, Harris intended to cause death or serious bodily harm.

See Holloway, 526 U.S. at 8, 11-12.

The Government concedes there was no direct evidence as to how

Harris came to be in the same car with Ceniceros but argues the

14
circumstantial evidence supported a reasonable conclusion that

Harris formed an intent to kill or harm Ceniceros in order to gain

his car and that Harris took the car by killing Ceniceros. The

Government argues that the jury might have rejected Harris’s

testimony of the two men riding around together in the earlier

morning hours because Harris did not mention the phone calls made

by Ceniceros and instead concluded Harris’s first contact with

Ceniceros was after 4:14 a.m. on May 25, 2002, the time of the last

call. The Government also contends the evidence supports the

reasonable conclusion that Harris possessed the black handgun,

which killed Ceniceros, before the night and early morning in

question, when he came into contact with Ceniceros; that Harris

explained to others later that “the faggot will never touch anybody

again” and that he had shot “a Spanish guy” 10 or 11 times; that

Harris complained every time he tried to leave Texas, something

went wrong; and that Harris could not leave Texas because the car

he stole had broken down. Based upon all of this evidence and

reasonable inferences from it, the Government argues a reasonable

jury could conclude that sometime early in the morning of May 25,

2002, Harris decided to take Ceniceros’s car for the purpose of

leaving Texas and killed Ceniceros in order to do so.

But even permitting inferences and viewing the evidence in the

light most favorable to the verdict, there was no evidence, aside

from Harris’s own testimony, of the “precise moment” that Harris

demanded or took control of the car. The Government need not show

15
why Harris took the car; but it must show that, at the moment he

did, he intended to kill or harm Ceniceros. See Holloway, 526 U.S.

at 8, 11-12. No reasonable inference can be made from the

Government’s case or from its cross-examination of Harris which

permits a rational jury to conclude that Harris intended to kill or

harm Ceniceros when he demanded or took control of the car. To the

contrary, the record makes clear that the two in some manner found

themselves in Ceniceros’s car together and ultimately stopped in a

remote oil field; that Harris, if his intention were to leave Texas

by car, had a habit of requesting and gaining permission to borrow

his father’s car when needed; that about the time of the killing,

Harris possessed a car titled in his father’s name; that Harris

shot Ceniceros outside of the car, to which Harris clearly, in

order to arrive at the remote field, had already gained access.

The record does not resolve in any respect whether Harris initially

gained access to the car by Ceniceros’s consent or encouragement.

The applicable standard permits sufficiency of evidence even in the

absence of direct evidence; but on this record, nothing supports a

reasonable inference as to Harris’s intent at the precise moment he

demanded or took control of the car. Speculation may resolve the

timing of Harris’s intent and actions that night, but speculation

on the basis of evidence does not a reasonable inference make. See

United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995) (noting

that “an inference must be more than speculation and conjecture to

16
be reasonable”). The jury had no evidence upon which to determine

whether Harris possessed intent to kill or harm at the moment of

the taking. Under the express language of § 2119, which permits

federal prosecutions of a particular type of robbery, and under

Holloway, such a gap is fatal to the Government’s case on this

record.

The evidence adduced in this case parallels that in

Applewhaite, where the carjacking conviction was reversed, in

important respects. In Applewhaite, the Third Circuit similarly

addressed Holloway’s nexus requirement in light of unusual factual

circumstances, as opposed to the typical facts of a carjacking. In

both Applewhaite and the instant case, the evidence of force used

against the victim constitutes minimally an assault, and in this

case a killing, but does not show, without pure conjecture, that

the force was the means of stealing the car. See Applewhaite, 195

F.3d at 686. Here, as in Applewhaite, it is uncontested that

Harris took Ceniceros’s car after Ceniceros was shot. “But that

does not establish that the force was used to get control of [the

car].” Id. at 685. Thus, here just as in Applewhaite, “the

prosecution failed to establish the required nexus” between the

intent to kill or harm and the taking of the car. See id.

Although intent to kill or harm may be reasonably inferred from the

evidence of violence or threat present in both cases (here, due to

the shooting), the element of contemporaneousness between the

17
taking and the intent to kill or harm cannot be shown when no

evidence exists in the record to reasonably determine that element

beyond a reasonable doubt. Here, reasonable inferences from the

evidence adduced against Harris in no way resolve whether the

taking of the car was a mere “afterthought” to the killing of

Ceniceros, see Applewhaite, 195 F.3d at 685, or whether at the

precise moment the car was taken, Harris intended to kill or harm

Ceniceros “if necessary to steal the car,” see Diaz, 248 F.3d at

1098.

Moreover, this case differs dramatically from the cases in

which other circuits have sustained convictions under § 2119 after

Holloway, finding sufficient evidence of intent to kill or harm at

the moment of the taking. Here, unlike Lebron-Cepeda and Adams,

there is no evidence that Harris threatened Ceniceros or used force

against him at the inception of the carjacking — that is, at the

moment Harris demanded control of the car. Cf. Lebron-Cepeda, 324

F.3d at 57 (finding evidence that defendant placed loaded gun to

the head of the victim and threatened victim at the moment he

demanded the victim turn over the car sufficient under Holloway);

Adams, 265 F.3d at 424-25 (finding threat of physical harm actual

and imminent where defendant touched victim with weapon at the

moment he demanded the car and attempted to enter the vehicle

against the will of the driver). See also, e.g., United States v.

Evans-Garcia, 322 F.3d 110 (1st Cir.), cert. denied, 540 U.S. 1027

18
(2003); United States v. Glover, 265 F.3d 337 (6th Cir. 2001),

cert. denied, 534 U.S. 1145 (2002); United States v. Wright, 246

F.3d 1123 (8th Cir.), cert. denied, 534 U.S. 919 (2001); United

States v. Malone, 222 F.3d 1286 (10th Cir.), cert. denied, 531 U.S.

1028 (2000); United States v. Wilson, 198 F.3d 467 (4th Cir. 1999),

cert. denied, 529 U.S. 1076 (2000); United States v. Jones, 188

F.3d 773 (7th Cir.), cert. denied, 528 U.S. 1033 (1999).

The Government must show a nexus between the intent to kill or

harm and the taking of the car at the precise moment of either the

taking of the car or the threat to do so. See Holloway, 526 U.S.

at 8; see also Diaz, 248 F.3d at 1096. On this record, the

Government has failed to carry its burden. Factually, the

circumstances, viewed in the light most favorable to the verdict,

upon which carjacking is based in this case are atypical. We note

the following significant differences between this case as compared

to more typical factual scenarios. Here, there is no testimony as

to the precise circumstances surrounding the moment in which the

defendant demanded or took control of the car, aside from the

defendant’s own testimony; nor is there physical evidence

illuminating that moment in time. Also, the record is void of

testimony that the defendant threatened the victim at the moment he

demanded or took control of the car. Finally, the record reveals

no evidence as to when and how the defendant came to be in the

victim’s car, except the defendant’s own testimony that he was

19
hitchhiking back to town and that Ceniceros volunteered to give him

a ride. The government’s speculation that Harris formed an intent

to kill Ceniceros if necessary to take Ceniceros’s car sometime in

the late evening or early morning of their ride together, based

solely upon Harris’s statement that every time he tries to leave

Texas something goes wrong and Harris’s possession of the gun, is

insufficient to bear a conviction under the statute as drafted by

Congress.

The jury’s own special verdict supports our conclusion that

the evidence was insufficient to sustain the conviction. The jury

instruction, in relevant part, stated:

First: That the defendant intentionally took from a
person a motor vehicle described in the
indictment;
Second: That the motor vehicle had been transported in
interstate commerce;
Third: That the defendant did so by means of force and
violence;
Fourth: That the defendant intended to cause death or
serious bodily injury; and
Fifth: That death resulted.3

Upon the agreement of both counsel, the Court charged the jury

to answer a verdict form, which included the following special

interrogatory: “If you have found the Defendant guilty of Count

One [carjacking] and/or Count Two [use of a firearm during a crime

3
Although the instruction facially omits the requisite
element of connection in time between intent to kill or harm and
the taking of the car, we decline to address Harris’s arguments
of plain error in instruction, given that reversal is mandated on
grounds of insufficient evidence.

20
of violence], answer the following question: We the Jury find that

the killing of Paul John Ceniceros constitutes . . . 1st Degree

Murder/2nd Degree Murder/Voluntary Manslaughter/Involuntary

Manslaughter.” The jury both circled “Voluntary Manslaughter” and

wrote those words in the provided space.

With respect to the special verdict, the jury charge

instructed, in relevant part:

“Voluntary Manslaughter” means the unlawful killing
of a human being without malice. For you to find
the killing constitutes voluntary manslaughter, you
must be convinced that the government proved each
of the following beyond a reasonable doubt:
That the defendant unlawfully killed Paul John
Ceniceros [and]
That the defendant did so without malice, that
is, upon a sudden quarrel or heat of passion. . . .
The term “heat of passion” means a passion of
fear or rage in which the defendant loses his
normal self-control as a result of circumstances
that would provoke such a passion in an ordinary
person, but which did not justify the use of deadly
force.

In classifying Harris’s killing of Ceniceros as voluntary

manslaughter, the jury rejected a finding of murder which,

according to the instructions, required malice aforethought and

included killings accompanied by “an intent to kill.”4

In order to find that Harris’s killing constituted murder, the

jury was instructed:

“Murder” means the unlawful killing of a human being with

4
The instructions charged that to “kill ‘with malice
aforethought’ means either to kill another person deliberately
and intentionally, or to act with callous and wanton disregard
for human life.”

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 malice aforethought. Every murder perpetrated by poison,
lying in wait, or any other kind of willful, deliberate,
malicious, and premeditated killing; or committed in the
perpetration of, or attempt to perpetrate, any arson,
escape, murder, kidnapping, treason, espionage, sabotage,
aggravated sexual abuse or sexual abuse, burglary, or
robbery; or perpetrated from a premeditated design
unlawfully and maliciously to effect the death of any
human being other than him who is killed, is murder in
the first degree.

For you to find the killing constituted first degree
murder, you must be convinced that the government has
proved each of the following beyond a reasonable doubt:
That the defendant unlawfully killed Paul John
Ceniceros;
That the defendant killed [Ceniceros] with malice
aforethought;
That the killing was premeditated; and
That the killing took place within the territorial
jurisdiction of the United States.

To kill with “malice aforethought” means either to kill
another person deliberately and intentionally, or to act
with callous and wanton disregard for human life. To
find malice aforethought, you need not be convinced that
the defendant hated the person killed, or felt ill will
toward the victim at the time.

In determining whether the killing was with malice
aforethought, you may consider the use of a weapon or
instrument and the manner in which death was caused.

A killing is “premeditated” when it is the result of
planning or deliberation. The amount of time needed for
premeditation of a killing depends on the person and the
circumstances. It must be long enough for the killer,
after forming the intent to kill, to be fully conscious
of that intent.

Next, the court instructed the jury regarding the alternative

finding of second degree murder:

Any other murder is murder in the second degree. For you to
find the killing constitutes second degree murder, you must be
convinced that the government has proved each of the following
beyond a reasonable doubt:

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 That the defendant unlawfully killed [Ceniceros];
That the defendant killed [Ceniceros] with malice
aforethought;
That the killing took place within the territorial
jurisdiction of the United States.

To kill “with malice aforethought” means either to kill
another person deliberately and intentionally, or to act with
callous and wanton disregard for human life. To find malice
aforethought, you need not be convinced that the defendant
hated the person killed, or felt ill will toward the victim at
the time.

Necessarily, the jury’s finding of voluntary manslaughter

rejects the alternate choice of murder in either the first or

second degree, both of which encompass by definition an intent to

kill. The only evidence adduced of Harris’s interactions with

Ceniceros that would support a finding of “sudden quarrel” or

“passion of fear or rage,” which supports the finding of voluntary

manslaughter, arose from Harris’s own testimony. Thus, the jury’s

special verdict validating that testimony dictates that the jury

credited at least a portion of Harris’s testimony. At a minimum,

the jury credited the only evidence regarding Harris’s and

Ceniceros’s interaction at the moment of the shooting — that is,

Harris’s version of what happened at the moment Harris employed

force or violence that resulted in Ceniceros’s death.

In addition to the lack of sufficient evidence to support a

required element of the carjacking conviction, the jury’s ultimate

special finding that the killing was voluntary manslaughter

indicates that the jury considered the question of the timing of

Harris’s intent to kill or harm. Based upon the jury instructions,

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the jury could have characterized the homicide as “murder,” based

upon the contemporaneousness of the killing and a robbery of the

car.5 Also, the jury might have selected murder, on the basis of

the instructions, had it found sufficient evidence of intent to

kill. Were the taking of the car and the killing contemporaneous

in the absence of a heat of passion killing, the jury could have

found murder. The jury did not select murder, however, and instead

determined, by finding voluntary manslaughter, that the killing did

not occur during the course of a robbery or have the element of

malice.

We must, therefore, conclude that the jury determined the

nexus was lacking between the killing and the taking of the car.

In the absence of sufficient evidence to conclude that a reasonable

jury could have found a nexus and in the presence of a jury’s

special verdict positively indicating that it found no nexus

existed, it cannot be said that the Government proved beyond a

reasonable doubt that Harris intended to cause death or serious

bodily harm at the precise moment he took or attempted to take the

car from Ceniceros.

Considering the record in the light most favorable to the

verdict, the evidence adduced, including all reasonable inferences

permitted therefrom, requires a reasonable jury to conclude that a

reasonable doubt yet exists as to the requisite element that Harris

5
We note that “robbery” was not defined for the jury.

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intended to kill or harm “at the precise moment he demanded or took

control over the car ‘by force and violence or by intimidation.’”

See Holloway, 526 U.S. at 8; see also Alarcon, 261 F.3d at 421-22

(internal citations omitted). For this reason, what might have

successfully been prosecuted as a homicide in the state courts of

Texas fails to meet Congress’s requirements for federal prosecution

of carjacking under 18 U.S.C. § 2119.

After independent review of the record and based upon the

evidence adduced at trial, only speculation would permit a showing

of this requisite intent. Such a conjectural showing is

insufficient to support the conviction. Because a rational jury on

this record of unusual factual circumstances could not have

determined beyond a reasonable doubt that, at the precise moment

Harris demanded or took control over the car by force and violence

or by intimidation, Harris intended to cause Ceniceros death or

serious bodily harm, we reverse Harris’s conviction of carjacking

under count one of the indictment. In light of this disposition,

we need not reach Harris’s additional claims of error.

II. Conviction for Use of Firearm During Crime of Violence

Because we reverse Harris’s carjacking conviction, his count

two conviction for use of a firearm during a crime of violence,

under 18 U.S.C. § 924(c)(1) and (j), must necessarily be vacated.

In order to show such a violation, the Government must prove, in

part, that Harris committed a crime of violence. See 18 U.S.C. §

25
924(c)(1); see also United States v. Burton, 324 F.3d 768, 770-71

(5th Cir. 2003). Here, the jury was so instructed. The first of

four elements, required for a conviction under count two, was that

Harris “committed the crime alleged in Count One. I instruct you

that carjacking is a crime of violence.” In the absence of the

Government’s proof of the predicate crime of violence, here

carjacking, the conviction for use of a firearm during a crime of

violence is also reversed and the relevant sentence vacated. See

Burton, 324 F.3d at 770-71.

Conclusion

Based upon the foregoing, we REVERSE Harris’s convictions for

carjacking and use of a firearm during a crime of violence, in

violation of 18 U.S.C. §§ 2119 and 924(c)(1) and (j), and VACATE

his corresponding sentences. Accordingly, we REMAND to the

district court for entry of a judgment of acquittal on both counts.

REVERSED; VACATED; REMANDED with instructions for entry of judgment

of acquittal.

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