United States v. Coleman

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

___________________________

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,

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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

7
 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.")

11
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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