UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 93-7554
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GREGORY HARRIS and TERENCE HOSKINS,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Mississippi
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(June 29, 1994)
Before WISDOM, DAVIS, and DUHÉ, Circuit Judges.
DAVIS, Circuit Judge:
Gregory Harris and Terence Hoskins challenge their convictions
and sentences for aiding and abetting each other in a "carjacking"
in violation of 18 U.S.C. § 2119, and for using and carrying a
firearm in the commission of a crime of violence in violation of 18
U.S.C. § 924(c)(1). We affirm.
I.
On December 12, 1992, Barbara Scott lent her 1976 Buick
Electra1 to Michael Anderson. At 10:00 p.m. that same day, Michael
Anderson lent the car to his nephew, Frank Anderson, and Frank's
1
The car was manufactured in Flint, Michigan, and titled
in Arkansas and Mississippi.
friend, Christopher Williams, so that the two boys could take the
girl next door to a club. After dropping the girl off, the boys
drove past other clubs, but did not stop. They then picked up
Johnny Bradberry and Herbert Williams. After riding around for
awhile, the boys were taking Herbert Williams home when they were
flagged down by Michael Anderson. Defendants, Gregory Harris and
Terence Hoskins, were standing across the street from where the car
stopped.
At trial, Frank Anderson testified that he was talking to his
uncle, when Hoskins and Harris approached the car. Hoskins was
carrying an ax handle and grabbed the car door that Frank Anderson
was getting in and held it open. Harris was armed with a 12 gauge
sawed-off shotgun and went around to the passenger's side and
pointed the gun across the top of the car at Anderson.
As they approached, Hoskins and Harris demanded to know why
the car's occupants had "jumped" them. After the occupants denied
the accusation, Harris opened the back door and put the gun to
Herbert Williams' head. Frank Anderson testified that:
Then him [Gregory Harris] and Terence started hollering,
get out the car. Get out the car. And then when he
cocked it, we got out of the car and we started running.
Hoskins then jumped into the car and drove away, while Harris
chased the occupants of the car through a field. Frank Anderson's
testimony was corroborated by the other occupants of the car.
After Hoskins drove away, the former occupants of the car
called the police. They reported what had happened and identified
Harris and Hoskins by name. Sgt. Keith White was one of the
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officers who responded to the call. About 30 minutes later, Sgt.
White responded to a report of a possible robbery of a Double Quik
store by two men. He parked a block away and approached the store
on foot. He observed one man with panty hose on his head standing
in front of the store, but did not see a second man and assumed he
was inside. Sgt. White observed the man outside for about five
minutes, until the man walked around the corner and discovered Sgt.
White.
When they confronted each other, Sgt. White had his gun drawn
and placed the man against a wall. White asked him where his
"partner" was, and he said he had gone across the street; the man
identified himself as Terence Hoskins. Recognizing the name as one
of the two reported to have taken the car, Sgt. White placed
Hoskins under arrest and asked him: "Where did Harris go?"
Hoskins responded: "I told you he went across the street." White
then asked where the car was, and Hoskins told him. Finally, White
asked where the car keys were, and Hoskins said in his pocket.
Hoskins and Harris were subsequently charged in a two-count
indictment with aiding and abetting each other in a "carjacking" in
violation of 18 U.S.C. § 2119 (count 1), and with using and
carrying a firearm in the commission of a crime of violence in
violation of 18 U.S.C. § 924(c)(1) (count 2). A jury convicted the
defendants on both counts, and the district court sentenced each
defendant to 41-months imprisonment on count 1, and 60 months on
count 2, the terms to be served consecutively.
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II.
A.
On appeal, defendants argue first that the district court
abused its discretion in denying their motion to change venue.
Defendants contend that because the offense was committed in
Greenville, Mississippi, and all the witnesses, counsel, and
defendants were located there, the court violated Fed. R. Crim. P.
18 in fixing the place of trial at the Oxford Division.2 Because
"[a] district court judge has 'broad discretion in determining
whether transfer is warranted,'" we review a denial of a motion to
transfer under an abuse of discretion standard. United States v.
Dickie, 775 F.2d 607, 609-10 (5th Cir. 1985).
In response to defendants' motion to transfer the case to the
Greenville Division, the district court stated:
In this particular instance, all parties have alluded to
the fact that . . . these defendants are alleged to be
members of some organization or gang there and the
alleged victims belong to another gang.
Having recognized the fact that this possibly could
create some security problems for the trial of this case
. . . the Court had requested of the United States
Marshal that they make a security evaluation for the
trial of this case and where it should be tried. . . .
The home station of this court, the headquarters of the
Court for the Northern District is in Oxford,
Mississippi. . . . As we do with any case that involves
more than ordinary security, we try to schedule those
2
Rule 18 provides that:
Except as otherwise permitted by statute or by these
rules, the prosecution shall be had in a district in
which the offense was committed. The court shall fix the
place of trial within the district with due regard to the
convenience of the defendant and the witnesses and the
prompt administration of justice.
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criminal cases in Oxford because that is the headquarters
of the United States Marshals Service. We have more
officers and more equipment available to us to handle any
situation that might arise there at Oxford.
Now, there is another factor. The Court must take
into consideration . . . the fact that I have other cases
scheduled, other criminal cases scheduled at the same
time there in Oxford. Therefore, it is important to this
court that I conduct any trial at a place and a time when
I can expeditiously and efficiently handle the business
of the Court. . . .
The Court is also . . . persuaded that in order to
avail itself of the suggested security arrangements of
the Marshals Service, that the trial of this case should
be held at the headquarters of the Court, and the
headquarters of the Marshals Service, the courtroom there
in Oxford, so that we can avail ourselves of the proper
and maximum security arrangements. Therefore, the Court
declines to move the case to Greenville for trial.
To accommodate the defendants, the district court ordered that
their witnesses be compelled to attend at government expense. At
trial, defendants called five witnesses and at no time complained
of any prejudice or inconvenience.
As we have noted, "[i]n deciding the place of trial within the
district the court must balance the statutory factors of the
convenience of the defendant and witnesses with the prompt
administration of justice." In re Chesson, 897 F.2d 156, 159 (5th
Cir. 1990). In this case, the district court considered
defendants' interest in a trial in Greenville, but found it
outweighed by the security measures available in Oxford and the
trial of other criminal cases in Oxford at the same time.
Rule 18 allows a court to consider "the prompt administration
of justice" in fixing the place of trial, and "matters of security
clearly fall within that consideration." United States v.
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Afflerbach, 754 F.2d 866, 869 (10th Cir. 1985), cert. denied, 472
U.S. 1029 (1985). In addition, "the prompt administration of
justice includes more than the case at bar; the phrase includes the
state of the court's docket generally. The court must balance not
only the effect of the location of the trial will have upon the
defendants and their witnesses, but it must weigh the impact the
trial location will have on the timely disposition of the instant
case and other cases." Chesson, 897 F.2d at 159. We therefore
conclude that the district court did not abuse its discretion in
denying defendants' motion for change of venue.
B.
Defendants argue next that the government failed to present
sufficient evidence to convict them of aiding and abetting each
other in the commission of a carjacking and in the use of a firearm
in relation to a crime of violence. They argue that they and the
occupants of the car were members of rival gangs, and that their
intent in forcing the occupants out of the car was to retaliate for
an incident that occurred earlier in the evening. In addition,
Hoskins maintains that he drove away in the car as an afterthought,
and Harris claims that he had no idea that Hoskins was going to do
so.
In evaluating the sufficiency of the evidence, we must
"determine whether, viewing the evidence and the inferences that
may be drawn from it in the light most favorable to the verdict, a
rational jury could have found the essential elements of the
offense beyond a reasonable doubt." United States v. Sparks, 2
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F.3d 574, 579 (5th Cir. 1993), cert. denied, 114 S.Ct. 899 (1994).
We must accept all credibility choices that support the jury's
verdict. Id.
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."
United States v. Singleton, 16 F.3d 1419, 1422 (5th Cir. 1994). In
order to convict defendants of using a 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." United
States v. Zukinta, 830 F. Supp. 418, 421 (E.D. Tenn. 1993).
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. United States v. Mergerson, 995 F.2d 1285, 1290-
91 (5th Cir. 1993), cert. denied, 114 S.Ct. 1310 (1994).
In this case, the government presented sufficient evidence to
allow a rational jury to convict defendants on both counts. When
Hoskins and Harris approached the car, Harris was armed with a
sawed-off shotgun, and Hoskins had an ax handle. Hoskins grabbed
the driver's door and held it open. Harris went around to the
other side and leveled the gun at Anderson across the top of the
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car. Harris opened the back door, stuck the gun in the car, and
pointed it at Herbert Williams' head. Harris and Hoskins began
hollering "get out the car. Get out the car." When Harris cocked
the gun, the passengers all jumped out and ran, and as they fled,
Hoskins jumped in the car and drove away.
From this evidence, the jury was entitled to conclude that
Harris knowingly possessed a firearm, and that both men used force
and intimidation in taking the car. The defendants' motive in
taking the car is irrelevant. The government therefore presented
sufficient evidence to allow a rational jury to convict defendants
as charged.
C.
Defendants argue next that the carjacking statute is
unconstitutionally vague. They contend that it is flawed because
it lacks an element of intent, and because it applies only to
vehicles that have been transported in interstate commerce.
Defendants also argue that the statute was intended to apply only
to thefts for profit and not to gang violence.
The carjacking statute, 18 U.S.C. § 2119, provides that:
Whoever, possessing a firearm as defined in section
921 of this title, takes a motor vehicle that has been
transported, shipped or received in interstate or foreign
commerce from the person or presence of another by force
and violence or by intimidation, or attempts to do so,
shall--
(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
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(3) if death results, be fined under this
title or imprisoned for any number of years up
to life, or both.
Although the statute does not include a scienter requirement, it is
supplied by "the general rule of construction that 'knowledge of
the facts constituting the offense is ordinarily implied' where a
'statute does not expressly mention any mental element.'" United
States v. Wilson, 884 F.2d 174, 178 (5th Cir. 1989).
Relying on their reading of the legislative history,
defendants argue next that Congress did not intend for the statute
to apply to the facts of this case. They focus on the
Congressional concern with "chop shops" and organized theft rings.
However, in resorting to the legislative history, defendants ignore
the first rule of statutory construction that: "the meaning of the
statute must, in the first instance, be sought in the language in
which the act is framed, and if that is plain, . . . the sole
function of the courts is to enforce it according to its terms."
Meredith v. Time Ins. Co., 980 F.2d 352, 356 (5th Cir. 1993).
Nevertheless, the legislative history makes clear that Congress
intended "to take effective measures to thwart all motor vehicle
theft, not just theft related to 'chop shops.'" H.R. Rep. No. 851,
102d Cong., 2d Sess., reported in 1992 U.S.C.C.A.N. 2829, 2844.
Defendants also argue that the statute is unconstitutionally
vague because it applies only to vehicles transported in interstate
commerce. Citing United States v. Cortner, 834 F. Supp. 242 (M.D.
Tenn. 1993), defendants contend that the statute would not apply to
a vehicle which never left its state of manufacture. However, as
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one court has held, it is a rational exercise of Congressional
power "to place the anti-carjacking statute within the traditional
statutory formulation that draws a distinction between interstate
and intrastate commerce regulations." United States v. Watson, 815
F. Supp. 827, 836 (E.D. Pa. 1993). Because the carjacking statute
applies to the facts of this case and because it properly applies
only to cars transported in interstate commerce, we conclude that
it is not unconstitutionally vague.
D.
Defendants argue next that the statute is unconstitutional
because it lacks a rational nexus to interstate commerce. The
Supreme Court has instructed that: "A court may invalidate
legislation enacted under the Commerce Clause only if it is clear
that there is no rational basis for a congressional finding that
the regulated activity affects interstate commerce, or that there
is no reasonable connection between the regulatory means selected
and the asserted ends." Hodel v. Indiana, 452 U.S. 314, 323-24
(1981).
Recently, in United States v. Johnson, ___ F.3d ___, 1994 WL
140293 (6th Cir.), the Sixth Circuit concluded that the carjacking
statute bears a rational relationship to interstate commerce:
It may well be that the carjacking statute is unwise
and encroaches on traditional views of federalism, as
Judge Wiseman observes in United States v. Cortner, 834
F. Supp. 242 (M.D. Tenn. 1993), but it is not
unconstitutional under current Commerce Clause doctrine.
So long as the activity regulated has an effect on
interstate commerce it makes no difference that the
transported item is now "at rest" and is no longer "in"
interstate commerce. A long line of cases establishes
the general or aggregate "economic effect" standard and
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does away with the requirement that the individual act at
issue must be "in interstate commerce" or involve
movement in interstate commerce . . . . It is obvious
that carjackings as a category of criminal activity have
an effect on interstate travel and the travel of foreign
citizens to this country. Thus we must reject
defendant's argument that the carjacking statute as
applied here is unconstitutional.
Id. at *3. A number of district courts also have upheld the
statute against Commerce Clause challenges. See United States v.
Payne, 841 F. Supp. 810 (S.D. Ohio 1994); United States v. Stith,
824 F. Supp. 128 (S.D. Ohio 1993); United States v. Eskridge, 818
F. Supp. 259 (E.D. Wis. 1993); United States v. Watson, 815 F.
Supp. 827 (E.D. Pa. 1993). Because of the obvious effect that
carjackings have on interstate commerce, we hold that the
carjacking statute is a valid exercise of Congress's Commerce
Clause powers.
E.
Finally, defendants argue that their convictions under 18
U.S.C. § 2119 and 18 U.S.C. § 924(c)(1) violate the Double Jeopardy
Clause. However, we expressly rejected this argument in United
States v. Singleton, 16 F.3d 1419, 1420 (5th Cir. 1994): "Although
we agree with the district court that the firearms offense is not
factually distinct from the carjacking offense, we hold that
Congress has clearly indicated its intention to impose cumulative
punishments."
III.
Because we find no merit in defendants' arguments, we affirm
their convictions and sentences.
AFFIRMED.
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