UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 95-40071
___________________________
UNITED STATES OF AMERICA,
Appellant,
VERSUS
DONALD RAY COLEMAN,
Appellee.
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
____________________________________________________
March 5, 1996
Before JOLLY, DAVIS, and DENNIS, Circuit Judges.
DAVIS, Circuit Judge:
Donald Ray Coleman was convicted by a jury on three counts:
one count of carjacking in violation of 18 U.S.C. § 2119 and two
counts of using and possessing firearms in violation of 18 U.S.C.
§ 924(c)(1). Coleman makes two arguments on appeal: (1) the
district court erred in admitting evidence of other carjacking
attempts; and (2) the enactment of 18 U.S.C. § 2119 was not a valid
exercise of congressional power under the Commerce Clause. We find
no merit in either argument and affirm the district court.
I.
On April 19, 1994, a yellow Mercedes Benz belonging to Mr. and
Mrs. John E. Luttig was carjacked from their driveway in Tyler,
Texas. The carjacking occurred at approximately 11:00 p.m. as they
were exiting the vehicle following a trip to Dallas. During the
carjacking, Mr. Luttig was shot and killed.
Earlier on April 19, 1994, around 5:00 p.m., Donald Ray
Coleman ("Coleman"), his brother Cedrick Demond Coleman
("Cedrick"), and Napoleon Beasley ("Beasley") drove from their
hometown of Grapeland, Texas, to Corsicana, Texas, a distance of 78
miles. Beasley was driving his mother's Ford Probe.
Coleman later told investigators that, on the way to
Corsicana, Beasley discussed models of cars he would like to
carjack. The trio stopped in a Walmart parking lot in Corsicana
and spotted a Lexus automobile which they followed for about 71
miles to Tyler, Texas. According to Coleman, Cedrick started
driving on the way to Tyler. Beasley rode in the front passenger
seat holding a .45 caliber pistol and Coleman was in the back seat
with a sawed-off shotgun. After losing the Lexus, they pulled into
the parking lot of the El Chico restaurant in Tyler where they
attempted to carjack a parked Mercedes Benz. Coleman believed the
attempt was unsuccessful because the driver of the Mercedes
retreated into the restaurant when he saw Beasley get out of the
car, cocking his gun.
The trio left the parking lot headed for Grapeland, but turned
around after deciding to carjack a vehicle in Tyler. At a red
light, they spotted the Luttigs in their yellow Mercedes Benz.
They followed the Mercedes into a residential neighborhood where
the Luttigs pulled up a driveway into a garage. Cedrick drove the
Ford Probe past the house. Beasley, carrying the pistol, ran up
the driveway. Coleman followed with the shotgun. Beasley shot Mr.
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Luttig in the head, fired at Mrs. Luttig, and then shot Mr. Luttig
again. Mr. Luttig died as a result of the second gunshot to his
head. Beasley then took Mr. Luttig's keys and entered the Mercedes
Benz on the driver's side. Coleman stepped over Mrs. Luttig, who
was lying face down on the garage floor, removed her foot from the
car, and entered the car on the passenger's side.
While backing out of the driveway, Beasley ran into a
landscape retaining wall, damaging the Mercedes. Beasley continued
driving away from the Luttig's home with Cedrick following in the
Ford Probe. He eventually abandoned the Mercedes not far from the
Luttig's home. Cedrick, Coleman and Beasley returned to Grapeland,
approximately 80 miles from Tyler.
Based on a Crimestoppers tip, the Federal Bureau of
Investigation and local law enforcement officials began an
investigation in Grapeland and questioned Cedrick and Coleman.
After initially denying involvement, Coleman gave a recorded
statement when he learned Cedrick was cooperating with the
officers. Coleman was placed under arrest and transported to
Tyler, Texas, where he gave a second recorded statement after
officers learned that his first statement had not been completely
truthful.
Coleman and Cedrick were charged by indictment with one count
of carjacking in violation of the Anti-Car Theft Act of 1992, 18
U.S.C. § 2119, and two counts of using or carrying a firearm during
a crime of violence in violation of 18 U.S.C. § 924(c)(1). The
brothers were tried separately. Coleman was found guilty by a jury
of all three counts. The district court sentenced him to a total
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term of imprisonment of 525 months. Coleman filed a timely notice
appealing his conviction but not his sentence.
II.
A.
Coleman first argues that he is entitled to a new trial
because the district court erred in admitting evidence of Coleman,
Cedrick, and Beasley's efforts to follow the Lexus and to carjack
the Mercedes in the El Chico parking lot. Evidence of these "other
acts" was admitted solely through Coleman's videotaped statements.
Coleman argues that this extrinsic evidence was inadmissible under
Fed. R. Evid. 404(b) and that the government failed to prove he
committed these acts. The government argues that this evidence is
intrinsic and not subject to Rule 404(b).
The evidentiary rulings of a district court with respect to
intrinsic or extrinsic evidence are reviewed under an abuse of
discretion standard. United States v. Dillman, 15 F.3d 384, 391
(5th Cir.), cert. denied, 115 S.Ct. 183 (1994). Even if we find
that the district court abused its discretion, the error is not
reversible unless the defendant was prejudiced. Id.
To determine whether "other acts" evidence was erroneously
admitted, first we must determine whether the evidence was
intrinsic or extrinsic. "'Other act' evidence is 'intrinsic' when
the evidence of the other act and evidence of the crime charged are
'inextricably intertwined' or both acts are part of a 'single
criminal episode' or the other acts were 'necessary preliminaries'
to the crime charged." United States v. Williams, 900 F.2d 823,
4
825 (5th Cir. 1990). This evidence is admissible to complete the
story of the crime by proving the immediate context of events in
time and place. United States v. Kloock, 652 F.2d 492, 494-95 (5th
Cir. 1981); see also, United States v. Royal, 972 F.2d 643, 647
(5th Cir. 1992), cert. denied, 507 U.S. 911, 113 S.Ct. 1258 (1993)
(intrinsic evidence admissible so the jury may evaluate all the
circumstances under which the defendant acted). Intrinsic evidence
does not implicate Rule 404(b), and "consideration of its
admissibility pursuant to Rule 404(b) is unnecessary." United
States v. Garcia, 27 F.3d 1009, 1014 (5th Cir.), cert. denied, 115
S.Ct. 531 (1994).
In the instant case, Coleman contends that he simply followed
Beasley up the driveway to see what would happen. Evidence that
Coleman, Cedrick, and Beasley followed the Lexus and attempted to
carjack a Mercedes at the El Chico helped place the entire events
of the evening in context and tended to negate Coleman's assertion
that he did not know what Beasley planned to do. Placing the
events of the evening in context assisted the government in
establishing the elements of the charged crimes: aiding and
abetting, carjacking, and use and possession of a firearm during a
crime of violence.1 The government had to prove that Coleman
1
The elements of these three crimes were stated in United
States v. Harris, 25 F.3d 1275, 1278 (5th Cir.), cert. denied,
115 S.Ct. 458 (1994):
In order to convict defendants of carjacking in
violation of 18 U.S.C. § 2119, the government must
prove that: the defendant, (1) while possessing a
firearm, (2) took from the person or presence of
another (3) by force and violence or intimidation (4) a
motor vehicle which had moved in interstate or foreign
commerce. In order to convict defendants of using a
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knowingly possessed a firearm during the carjacking at the Luttig
home, the extent of his participation in the carjacking, and his
intent to make the carjacking succeed. Coleman's narrative about
the earlier efforts to carjack the Lexus and the Mercedes was
probative and helpful to the jury in evaluating these issues. This
evidence was particularly helpful in evaluating Coleman's
opportunity to use the weapon and his knowledge of Beasley's intent
to use a weapon to carjack an automobile, and in generally placing
Coleman's conduct regarding the charged offenses in proper context.
Thus, the district court did not err in admitting this intrinsic
evidence.
B.
Coleman argues next that 18 U.S.C. § 2119 is not a valid
exercise of congressional power under the Commerce Clause in light
of United States v. Lopez, 115 S.Ct. 1624 (1995).
In Lopez, the Supreme Court invalidated, as beyond the powers
of Congress under the Commerce Clause, the Gun-Free School Zones
Act which made it a federal offense to possess a firearm within
1000 feet of a school. Id. at 1629.
The Supreme Court identified three categories of activity that
Congress may regulate under the Commerce Clause. "First, Congress
firearm in the commission of a crime of violence in
violation of 18 U.S.C. § 924(c)(1), the government must
prove: (1) that defendant knowingly used or carried a
firearm, and (2) the use or carrying of the firearm
occurred during and in relation to a crime of violence.
Finally, to prove aiding and abetting, the government
must show that defendants: (1) associated with the
criminal enterprise; (2) participated in the venture;
and (3) sought by action to make the venture succeed.
Id. (Internal quotations and citations omitted).
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may regulate the use of the channels of interstate commerce. . . .
Second, Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activity." Id. Third, "Congress' commerce authority
includes the power to regulate those activities having a
substantial relation to interstate commerce." Id. at 1629-30.
The Court found that the Lopez statute did not meet either of
the first two categories and thus could only be upheld if the
statute regulated an activity that "substantially affected
interstate commerce." Id. In holding that the Gun-Free School
Zones statute did not fall within the third category, the Court
concluded that: (1) the statute by its terms "has nothing to do
with commerce or any sort of economic enterprise, however broadly
one might define those terms;" id. at 1630; (2) the statute
"contains no jurisdictional element which would ensure, through
case-by-case inquiry, that the firearm possession in question
affects interstate commerce;" id., and (3) no congressional
findings existed to enable the Court "to evaluate the legislative
judgment that the activity in question substantially affected
interstate commerce." Id.
The carjacking statute, 18 U.S.C. § 2119, was enacted as part
of the Anti-Car Theft Act of 1992. The statute specifically
provides that:
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
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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
(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.
In reviewing an act of Congress passed pursuant to the
Commerce Clause, courts traditionally defer to Congress because
"[t]he Commerce Clause grants Congress extensive power and ample
discretion to determine its appropriate exercise." Lopez, 115
S.Ct. at 1634 (Kennedy, J., concurring). The proper inquiry on
review is "whether a rational basis existed for [Congress]
concluding that a regulated activity sufficiently affected
interstate commerce." Id. at 1629.2
In enacting the Anti-Car Theft Act, Congress chose to attack
interstate trafficking in stolen automobiles and auto parts in
areas which they felt were the most serious or that had the
greatest need for federal coordination. The Act was designed to
lower the incentive for auto theft by decreasing the profits and
increasing the penalties. Therefore, the Act not only criminalizes
carjacking, but also increases the sentences for importation,
exportation, and interstate transportation of stolen vehicles, and
possession of such vehicles; establishes a national information
2
This view is equally shared by Justice Breyer in his
dissent. "[T]he specific question before us, as the Court
recognizes, is not whether the 'regulated activity sufficiently
affected interstate commerce,' but, rather, whether Congress
could have had a 'rational basis' for so concluding." Lopez, 115
S.Ct. at 1658 (Breyer, J., dissenting).
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system to check motor vehicle titles; decreases illicit trafficking
in stolen auto parts by increasing the requirements on
manufacturers to identify auto parts and by establishing a national
information system for stolen auto parts; and tightens the
supervision of customs on exported autos.
Before the Anti-Car Theft Act was enacted, Congress held
hearings and made findings that auto theft was a national problem
because of the large volume of stolen cars or stolen car parts that
were transported in interstate and international trade. In United
States v. Bishop, 66 F.3d 569 (3rd Cir.), cert. denied, 116 S.Ct.
681 (1995), the Third Circuit extensively discussed the
congressional findings and concluded:
Congress specifically found that auto theft is an interstate
problem-both that it is often an interstate business itself
(albeit an illegal one) and that it gnawed away at the innards
of the American economy by imposing other costs on society as
well. Congress believed that auto theft was a vast, illicit
trade substantially affecting interstate and foreign commerce.
Auto theft costs consumers both through the direct economic
losses caused by having their property taken from them, and
through increased insurance costs. Congress further believed
that carjacking was not mere joyriding, but a new and violent
form of the illicit interstate business of auto theft.
Finally, Congress believed that the national problem of auto
theft required a comprehensive, national response addressing
the many different aspects of the auto theft problem, because
prior state efforts had failed to combat the problem
effectively.
Id. at 580.
We hold that the carjacking statute is a valid exercise of
congressional authority under the Commerce Clause because Congress
could rationally believe that the activity of auto theft has a
substantial effect on interstate commerce, the third Lopez
category. Unlike other stolen commodities, a vast number of stolen
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cars will enter interstate and international commerce.3 Because
autos are inherently mobile, easy to identify (especially expensive
models) and hard to conceal, criminals often either drive a stolen
car a significant distance from the point of theft, dismantle a
stolen car rapidly into smaller, hard-to-trace parts, or sell the
stolen car in another state to "cleanse" the title.4 Thus, the
crime of auto theft rapidly expands into another state or country.
In trying to curb the interstate trafficking in stolen
3
[T]he problem of auto theft has increased substantially
in recent years. According to the uniform crime
report, between 1984 and 1991 motor vehicle theft
increased by 61 percent, to almost 1.7 million offenses
per year. Around the country, there is an average of
one motor vehicle theft every 19 seconds. The total
value of stolen vehicles now exceeds $8 billion
annually.
. . .
The National Highway Traffic Safety Administration
has reported estimates that between 10 and 16 percent
of all thefts occur in order to sell the parts for
profit. Others put that figure as high as 40 percent.
In any case, it's a major problem. And one reason is
that the market for stolen parts is enormous. Repair
shops can save substantial sums by purchasing parts on
the black market, and thieves often can deliver parts
more quickly than legitimate manufacturers.
138 Cong.Rec. S15,205 (daily ed. Sept. 25, 1992) (statement of
Sen. Lautenberg).
4
Auto thieves "turn stolen cars into money in three
ways": (1) bringing stolen vehicles to "chop shops,"
where they are taken apart and sold for parts; (2)
"washing" the titles by obtaining an apparently valid
title for stolen automobiles; and (3) exporting the
vehicles for sale abroad. "Enterprises using all three
profiteering methods regularly engage in interstate,
even international, trafficking of automobiles and auto
parts. Just as important, auto thieves have a severe
and deleterious effect on interstate commerce by
imposing significant costs on automobile consumers."
Bishop, 66 F.3d at 579 (quoting from House Report (Judiciary
Committee) No. 102-851(I) (Aug. 12, 1992), at 14-15, U.S.Code
Cong. & Admin. News 1992, p. 2831).
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automobiles, Congress focused on the crime of carjacking because of
its seriousness and recent escalation. Statements from the floor
during the vote on this bill discussed how carjacking was a high-
growth crime that was particularly violent, often resulting in
death.5 One senator expressed law enforcement officials' views
that "vehicle thieves find it easier to use force than to deal with
anti-theft devices installed in newer model cars. Additionally,
carjackers can obtain the keys and registration papers for the cars
they steal."6 Carjackers were reported to often cross state
lines,7 resulting in a need for effective interstate law
enforcement cooperation.8
In enacting § 2119, Congress could thus rationally believe
that carjacking had a substantial effect on interstate commerce and
that this national problem required action by the federal
government. Carjacking and other forms of auto theft are crucial
to the interstate commerce of stolen automobiles and auto parts and
5
138 Cong.Rec. H11,821 (daily ed. Oct. 5, 1992) (statement
of Rep. Hoyer) ("Carjacking has become a high-growth industry
that includes both professional thieves and parts shops that deal
in stolen auto parts, merchandise which can be worth up to 4
times as much as the car itself. And the crime is becoming more
and more linked to violence -- to severe beatings, and even
murder.").
6
138 Cong.Rec. S17,961 (daily ed. Oct. 8, 1992) (statement
of Sen. Pressler)
7
In this case, if Coleman and his cohorts had made their 200
mile trip in another part of the country, they could have easily
crossed several state lines.
8
138 Cong. Rec. H11,821-22 (daily ed. Oct. 5, 1992)
(statement of Rep. Norton) ("With good reason, H.R. 4542 makes
armed carjacking a Federal offense punishable by imprisonment for
up to 15 years. These thefts often cross state lines, and
indeed, to do an effective job, law enforcement agencies have had
to work regionally and nationally, rather than just locally.")
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affect the economy as least as much as wheat grown wholly for
personal consumption (Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82
(1942)), utilization of interstate supplies by restaurants
(Katzenbach v. McClung, 379 U.S. 294, 299-301, 85 S.Ct. 377, 381-
382 (1964)) or purely intrastate extortionate credit transactions
(Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357 (1971)).
Contrary to appellant's argument, in holding that § 2119 is
constitutional, we are not suggesting that Congress may criminalize
every local criminal activity by legislating pursuant to the
Commerce Clause. However, "if a criminal activity is rationally
believed to be one of the conduits of a nationwide and
international pipeline of illegal activity, Congress may
justifiably step in and regulate that activity although it is
wholly intrastate." Bishop, 66 F.3d at 585; see also, Perez, 402
U.S. at 155, 91 S.Ct. at 1362 (holding that Congress could regulate
purely intrastate extortionate credit transactions based on
findings that loansharking was a principal source of revenue to
organized crime).
In addition, when compared with the Lopez statute, the
carjacking statute has none of the deficiencies noticed by the
Supreme Court -- lack of any connection with commerce or economic
enterprise, broadly defined; lack of a jurisdictional element; and
lack of congressional findings on the nexus with interstate
commerce. Discussing these in reverse order, Congress made ample
findings to support a rational belief that a sufficient nexus
exists between carjacking, as a form of auto theft, and interstate
12
commerce. Additionally, the carjacking statute has a
jurisdictional element; i.e., the stolen car must have been
"transported, shipped, or received in interstate or foreign
commerce." 18 U.S.C. § 2119.
Finally, the carjacking statute by its nature implicates a
possible commercial or economic venture -- the taking of a vehicle
which in turn can be sold or "chopped" for parts. By contrast,
under the Gun-Free School Zones Act which the Supreme Court struck
down in Lopez, the criminal activity was simple possession of a
firearm within 1000 feet of a school. "The possession of a gun in
a local school zone is in no sense an economic activity that might,
through repetition elsewhere, substantially affect any sort of
interstate commerce." Lopez, 115 S.Ct. at 1634. In § 2119, the
criminal activity is auto theft which, as explained above, is an
intensely economic crime which has a strong nexus with interstate
commerce.
We join the other circuit courts that have considered this
issue in upholding the constitutionality of the carjacking statute
in light of Lopez. United States v. Bishop, 66 F.3d 569 (3rd Cir.
1995); United States v. Robinson, 62 F.3d 234 (8th Cir. 1995);
United States v. Oliver, 60 F.3d 547 (9th Cir. 1995); United States
v. Carolina, 61 F.3d 917, 1995 WL 422862 (10th Cir. 1995)
(Unpublished Disposition); and United States v. Washington, 61 F.3d
904, 1995 WL 424419 (6th Cir. 1995) (Unpublished Disposition). We
are content with our pre-Lopez decision in United States v. Harris,
25 F.3d 1275 (5th Cir. 1994), where we upheld § 2119 and stated:
"Because of the obvious effect that carjackings have on interstate
13
commerce, we hold that the carjacking statute is a valid exercise
of Congress's Commerce Clause powers." Id. at 1280 (citing United
States v. Johnson, 22 F.3d 106, 109 (6th Cir. 1994)). See also
United States v. Bell, 46 F.3d 442 (5th Cir. 1995).
III.
For the reasons stated above, we find no merit in defendant's
arguments and thus affirm the district court.
AFFIRMED.
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