USA. v. Morgan

• Decision Date: 31 January 2001
• Docket Number: Nos. 99-10509,99-10553,s. 99-10509
• Citation: 238 F.3d 1180
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee Cross-Appellant, v. JERRY LEE MORGAN, Defendant-Appellant Cross-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1180

238 F.3d 1180 (9th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee Cross-Appellant, v. JERRY LEE MORGAN, Defendant-Appellant Cross-Appellee.

Nos. 99-10509, 99-10553

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 10, 2001

Filed January 31, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Michael K. Powell, Assistant Federal Public Defender, Reno, Nevada, for the defendant-appellant/cross-appellee.

Brian L. Sullivan, Assistant United States Attorney, Reno, Nevada, for the plaintiff-appellee/cross-appellant.

Appeal from the United States District Court for the District of Nevada Edward C. Reed, Jr., District Judge, Presiding. D.C. No. CR-99-00001-ECR

Before: Alfred T. Goodwin, Susan P. Graber, and Richard A. Paez, Circuit Judges.

GRABER, Circuit Judge:

Defendant Jerry Lee Morgan was convicted by a jury of one count of kidnapping, 18 U.S.C. 1201(a)(1), and one count of carjacking, 18 U.S.C. 2119(2). The district court imposed concurrent sentences of 328 and 300 months in prison. Defendant appeals his conviction and sentence; the government cross-appeals the sentence. We affirm on the appeal, reverse on the cross-appeal, and remand for resentencing.

FACTUAL AND PROCEDURAL HISTORY

Defendant Jerry Lee Morgan and his co-defendant, Billy Johnson, met the victim, Frank Klein, at a truck stop in Cheyenne, Wyoming, on a freezing December night in 1998. Defendant approached Klein and asked him to jump-start Defendant's car. Klein agreed, and Defendant left, saying that he would return with jumper cables. Because it was cold outside, Klein and Johnson waited for Defendant in Klein's car. Defendant returned, informed Klein that someone else would bring jumper cables soon, and asked if he could wait in the car with Klein and Johnson. Klein agreed. Once Defendant was inside the car, Johnson produced a large knife and held it to Klein's throat. Defendant told Klein not to do anything stupid or he would be killed.

Defendant removed a license plate from his own car and transferred his luggage from his car to Klein's. Klein was instructed to get on Interstate 80 and drive west. He did so. When Klein had driven a few miles, Defendant told him to pull over. After Klein stopped the car, Defendant and Johnson bound his wrists with duct tape and placed him in the passenger seat and, later, in the back seat. Defendant began driving. Klein heard Defendant and Johnson arguing about what they were going to do. Defendant urged that they should kill Klein.

When the car reached Salt Lake City, Utah, Defendant bound Klein with fresh duct tape and forced him into the trunk. Later, when the car stopped in Carlin, Nevada, Klein complained that he could not feel his hands and legs because of the cold and asked if he could sit in the car. When Johnson left the car to use the restroom, Defendant opened the trunk and beat Klein on the head between 40 and 50 times with a piece of metal pipe, causing him to bleed heavily. Then Defendant closed the trunk. After Johnson returned, Defendant began driving again.

Sometime later, Defendant stopped at a rest area. Again, Johnson left to use the restroom, and again Defendant opened the trunk and beat Klein on the head with a piece of metal pipe. When Johnson returned this time, Defendant pulled Klein's head back and told Johnson to cut him. Johnson made several shallow cuts across Klein's throat and stabbed him in the shoulder.

Defendant and Johnson shut the trunk, returned to the passenger compartment of the car, and drove to an area near Emigrant Pass, Nevada, just off Interstate 80. They stopped there, and Defendant opened the trunk. Klein pretended to be dead. Defendant and Johnson removed Klein from the trunk, kicked and rolled him down a hill, and covered him with snow, sticks, and brush. Defendant and Johnson drove away.

After waiting for 15 or 20 minutes, Klein dug himself out, crawled back to the highway, and flagged down a passing snowplow. He was taken to a hospital. There, his cuts were stitched and stapled, and he was treated for frostbite. The hospital took x-rays of Klein's chest, neck, and skull, which were negative. However, a subsequent CT scan revealed a fracture of the frontal sinus, in the area of the right eyebrow. Klein was discharged from the hospital three days later.

An all-points bulletin was broadcast to law enforcement agencies in northern Nevada. The next morning, Chris Murphy, Chief of Police of Carlin, Nevada, saw Klein's car at a truck stop in Carlin. He went inside the truck stop and saw Defendant, but did not approach him because he had not received a description of Defendant. According to Murphy, Defendant saw him, watched him intently for a short time, and then left the truck stop.

Johnson was found, questioned, and arrested in the truck stop. Defendant was arrested later that morning in Elko, Nevada.

Defendant and Johnson were indicted on charges of kidnapping and carjacking. Both entered pleas of not guilty. Defendant filed a motion to sever, which became moot when Johnson pleaded guilty and agreed to testify for the government.

At trial, Defendant testified. He claimed that he did not plan the kidnapping, but was forced to participate by Johnson, who had attacked him in his motel room, tied him up, threatened him with a gun, and raped him twice. He also testified that Johnson had threatened Defendant and Klein with a gun on several occasions during the kidnapping and that Johnson, not Defendant, had beaten Klein. Finally, Defendant denied having seen Police Chief Murphy at the truck stop in Carlin and stated that he had left the truck stop because he was fleeing from Johnson.

Klein, Johnson, Murphy, and other witnesses testified for the prosecution. Their testimony contradicted Defendant's in most respects. For example, Klein testified that Defendant had beaten him, that Defendant had appeared to be in charge, and that he had not seen Johnson with a gun. Johnson testified that he had not had a gun, that he had not attacked or raped Defendant, that it was Defendant who had suggested that they kidnap and carjack Klein, and that only Defendant had beaten Klein. Murphy testified that Defendant had seen him in the truck stop and had watched him intently before leaving.

At the close of the evidence, Defendant requested and received a jury instruction on the defense of coercion. The jury rejected that defense and found Defendant guilty. In its sentencing memorandum, the government requested a six level upward adjustment for "permanent or life-threatening bodily injury," and two-level adjustments for "obstruction of justice," "aggravating role," and "vulnerable victim." The district court held a sentencing hearing. Afterward, the court denied the "vulnerable victim" adjustment but imposed "obstruction of justice" and "aggravating role " adjustments. The court also imposed a four-level adjustment for "serious bodily injury," rather than the six-level adjustment for "permanent or life-threatening bodily injury," which the government had requested.

After imposing those upward adjustments, the court sentenced Defendant to 328 months in prison on the kidnapping charge and 300 months in prison on the carjacking charge, to run concurrently. The court sentenced Johnson to 189 months in prison.

Defendant timely appealed, challenging his conviction and sentence. The government timely cross-appealed with respect to the district court's refusal to impose a six-level adjustment for "permanent or life-threatening bodily injury."

DISCUSSION

I. The Connection Between the Car and Interstate Commerce

The federal carjacking statute, 18 U.S.C. 2119, applies to "[w]hoever, 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." Defendant argues that the district court lacked jurisdiction because the government failed to prove a sufficient connection between Klein's car and interstate commerce.

As a threshold matter, we disagree with Defendant's assertion that our review is de novo. Defendant is not arguing that 18 U.S.C. 2119 is unconstitutional under the Commerce Clause,¹ or that the statute is insufficient in all cases to confer jurisdiction on district courts. Rather, he is challenging the sufficiency of the government's evidence that this car was "transported, shipped, or received in interstate or foreign commerce." That is a question of fact. See United States v. Nukida, 8 F.3d 665, 672 (9th Cir. 1993) (stating, in a prosecution for tampering with consumer products affecting interstate commerce, that "the determination of whether [the defendant's] actions resulted in sufficient effects on interstate commerce is essentially factual"); see also United States v. Newton, 65 F.3d 810, 811-12 (9th Cir. 1995) (in a prosecution for carjacking, treating the question of the car's nexus to interstate commerce as a question of fact). Because Defendant is challenging the sufficiency of the government's evidence on this factual element of the offense, the appropriate standard of review is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the government proved a sufficient connection to interstate commerce beyond a reasonable doubt. Id. at 812.

Defendant acknowledges that he failed to challenge the sufficiency of the government's evidence at trial."The proper way for [a defendant] to challenge the sufficiency of the government's evidence pertaining to the jurisdictional element of affecting interstate commerce is a motion for acquittal under Rule 29, presented at the close of the government's case-in chief." Nukida, 8 F.3d at 672-73. Because Defendant did not move for a judgment of acquittal, we review for plain error. United States v. Oliver, ...