49 F.3d 1398 (9th Cir. 1995), 93-50803, United States v. Martinez

Docket Nº:93-50803.
Citation:49 F.3d 1398
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carlos Gregorio MARTINEZ, aka Carlos Martinez Estrada, Defendant-Appellant.
Case Date:March 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1398

49 F.3d 1398 (9th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,


Carlos Gregorio MARTINEZ, aka Carlos Martinez Estrada,


No. 93-50803.

United States Court of Appeals, Ninth Circuit

March 7, 1995

Argued and Submitted Oct. 5, 1994.

Page 1399

[Copyrighted Material Omitted]

Page 1400

Mary E. Maguire, Cohen & Hubachek, San Diego, CA, for defendant-appellant.

Larry A. Burns, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: D.W. NELSON, NORRIS, and BOGGS [*], Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Carlos Gregorio Martinez appeals his convictions for armed carjacking, 18 U.S.C. Sec. 2119, using or carrying a firearm during commission of a crime of violence, 18 U.S.C. Sec. 924(c)(1), and being an armed career criminal, 18 U.S.C. Sec. 924(e).

On appeal, Martinez argues that: (1) the Anti-Car Theft Act, 18 U.S.C. Sec. 2119, was enacted in violation of the commerce clause; (2) section 2119 is void for vagueness and ambiguity; (3) section 2119 requires specific rather than general intent for conviction; (4) the imposition of consecutive sentences under section 924(c)(1) and section 2119 is a violation of double jeopardy; and (5) the jury should have been instructed on the consequences of finding the defendant not guilty by reason of insanity.


Commerce Clause

Martinez argues that Congress exceeded its power under the Commerce Clause in enacting section 2119, which provides in relevant part:

Whoever, possessing a firearm ... 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, [is guilty of carjacking].

This argument has been rejected by every court that has addressed it, save one. 1 As the Sixth Circuit explained:

It may well be that the carjacking statute is unwise and encroaches on traditional views of federalism ... but it is not unconstitutional under current Commerce Clause doctrine.... It is obvious that carjackings as a criminal activity have an effect on interstate travel and the travel of foreign citizens to this country.

United States v. Johnson, 22 F.3d 106, 109 (6th Cir.1994).

We 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." Hodel v. Indiana, 452 U.S. 314, 323-24, 101 S.Ct. 2376, 2383, 69 L.Ed.2d 40 (1981). Here, Congress made a variety of findings showing that carjacking has at least a "de minimis effect" on interstate commerce. 2 Perez v. United States, 402 U.S. 146, 152-53, 91 S.Ct. 1357, 1360-61, 28 L.Ed.2d 686 (1971). We cannot say that Congress had no rational basis for its findings.

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Martinez also claims that the nexus between carjacking and commerce is insufficient because the statute requires only that the vehicle stolen has been in interstate commerce at one time. However, a present nexus between a regulated activity and interstate commerce is not required under the Commerce Clause. See United States v. Haddad, 558 F.2d 968, 972 (9th Cir.1977) (upholding a federal firearm statute against claim that prior interstate transfer was not sufficient under the Commerce Clause to prohibit subsequent receipt by a felon). The carjacking statute does not exceed Congress' power under the Commerce Clause. 3



Martinez argues that carjacking is a specific intent crime. The district court ruled that it was a general intent crime and refused to instruct on the defense of diminished capacity because that defense is only cognizable for specific intent crimes. See United States v. Sneezer, 983 F.2d 920, 922 (9th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 113, 126 L.Ed.2d 79 (1993); United States v. Twine, 853 F.2d 676, 679 (9th Cir.1988). We agree with the district court that the carjacking statute is a general intent statute.

When a statute does not contain any reference to intent, general intent is ordinarily implied. United States v. Sneezer, 983 F.2d at 923; United States v. Barber, 594 F.2d 1242, 1244 (9th Cir.), cert. denied, 444 U.S. 835, 100 S.Ct. 69, 62 L.Ed.2d 46 (1979). Martinez argues that this presumption should be overridden because carjacking is analogous to larceny, which is a specific intent crime. The structure, language, and legislative history of section 2119 indicate that the more appropriate analogy is to robbery. We have interpreted the federal bank robbery statute, which uses the same language as the carjacking statute, to require only general intent. 4 United States v. Darby, 857 F.2d 623, 626 (9th Cir.1988) (citing United States v. Hartfield, 513 F.2d 254 (9th Cir.1975)). Moreover, the House Judiciary Committee's report on section 2119 stated that "the definition of [carjacking] tracks the language used in other federal robbery statutes." H.R.Rep. No. 102-851(I), 102nd Cong., 2d Sess. 13-17, reprinted in 1992 U.S.C.C.A.N. 2829, 2833. We see no reason to distinguish between the bank robbery and carjacking statutes with respect to intent.

Finally, Martinez suggests that carjacking must be treated as a specific intent crime in this case because the district court instructed the jury that the defendant must act "willfully." However, the jury instruction did not transform carjacking into a specific intent crime. 5 While the district court's decision to give a specific intent instruction for a general intent crime may have created a "windfall" for the defendant, it did not entitle him to a diminished capacity defense, which is only cognizable for specific intent crimes. United States v. Porter...

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