United States v. Soler

• Decision Date: 22 July 2014
• Docket Number: Docket Nos. 12–2077–cr, 12–3831–cr.
• Citation: 759 F.3d 226
• Parties: UNITED STATES of America, Appellee, v. William SOLER, Sami Waters, Defendants–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

759 F.3d 226

UNITED STATES of America, Appellee,

v.William SOLER, Sami Waters, Defendants–Appellants.

Docket Nos. 12–2077–cr, 12–3831–cr.

United States Court of Appeals, Second Circuit.

Argued: April 4, 2014.

Decided: July 22, 2014.

Richard M. Tucker (Emily Berger, W. David Sarratt, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

David A. Lewis, Assistant Federal Public Defender, Federal Defenders of New York, Inc., New York, NY, for Defendant–Appellant Soler.

Tina Schneider, Portland, ME, for Defendant–Appellant Waters.

Before: KATZMANN, Chief Judge, WALKER and DRONEY, Circuit Judges.

KATZMANN, Chief Judge:

This appeal calls upon us to interpret language in the federal carjacking statute, 18 U.S.C. § 2119 (the “carjacking statute”), that defines how near a robbery victim must be to his or her stolen automobile to render the robber criminally liable for carjacking. That is, this case requires us to decide what the federal carjacking statute means when it criminalizes the forcible taking of an automobile “from the person or presence” of the victim, id.

Defendant–Appellant William Soler, joined by his co-defendant Sami Waters, ¹ contends that he should have been acquitted of carjacking because the statutory phrase “person or presence of another” should be read to describe only the area that is immediately near the victim. He asserts that because he robbed his victim of the keys to her automobile inside of her home—while her car was parked on a curb outside her home, beyond a closed front door and a tall fence—he is not criminally liable for the federal offense of carjacking.

Both Soler and Waters made this argument before Judges Dearie and Gershon, respectively, in motions for acquittal at the close of their trials, and each judge rejected their interpretive argument.² Judge Dearie held that the denial of Soler's motion was a matter of “common sense,” while Judge Gershon cited the holding of several of our fellow circuits that “property is in the presence of a person if it is so within his reach, observation, or control that he could, if not overcome by violence or prevented by fear, retain possession of it,” Waters App. 255. For the reasons that follow, we adopt the same interpretation of “presence” as that endorsed by Judge Gershon and several of our fellow courts of appeals. We therefore affirm both judgments.

Background

For the purpose of advancing their interpretation of the carjacking statute on appeal, the defendants do not dispute that evidence at their trials established that on August 10, 2010, they entered a home in Brooklyn, New York, and violently robbed the three residents therein of several things of value. As they left the home, the defendants demanded that one of the residents give them the keys to a car parked in front of the house. This victim testified that the car was parked on a curb “10 to 15 feet” or “a five second walk” from the front door to the house, Soler App. 51, and that while a person could have seen the car “from [the] front door,” she “couldn't at th[e] moment [the defendants asked for the keys] because [she] was laying down,” Soler App. 47. After the defendants demanded the keys, the victim retrieved her keychain from a shelf near the front door and handed it to them. She then sat near the two defendants as the two turned to flee the scene, though from her vantage point she was unable to observe the defendants' behavior as they left the home.

Photographs of the front of the home introduced into evidence show that the interior of the house in which the victim was robbed of her keys is separated from the street by a solid front door, a short driveway (the transiting of which would account for the “five second walk” described in the victim's testimony), a wrought iron fence, and a sidewalk. The victim also testified that the car could be unlocked from the front door using a remote attached to her keychain.

Both Soler's and Waters's counsel moved, pursuant to Federal Rule of Criminal Procedure 29, for acquittal as to the carjacking count as well as a related count charging the unlawful use of a firearm in violation of 18 U.S.C. § 924(c).

Judge Dearie deemed Soler's motion to have been made both at the close of the government's case and at the close of all the evidence, but did not decide the motion until the first day of sentencing.³ In support of his motion, Soler argued that even though he had “knowingly participated in an uncharged home invasion robbery with his co-defendant, Sami Waters,” his taking of the victim's keys inside her home and subsequent taking of her automobile outside her home did not satisfy the statutory requirement that the car be taken from the “person or presence of the victim.” Soler App. 207. Judge Dearie denied Soler's motion, and sentenced him to three years' imprisonment on the carjacking count.

Judge Dearie explained from the bench that although this Court has not yet decided the issue, other courts have reached “the common sense conclusion that person or presence does [not] necessarily require the immediate presence of the victim.” Soler App. 166.⁴ Without elaborating a positive definition of “presence,” the district court concluded that it would be a “silly result” to interpret “presence” so that the carjacking of a victim in a grocery store parking lot would no longer be carjacking if the victim were instead robbed of her keys after she walked into the grocery store. See id.

Judge Gershon denied a nearly identical motion in Waters's case. In an opinion explaining her decision, Judge Gershon correctly observed that “all circuits that have considered the issue have held that ‘property is in the presence of a person if it is so within his reach, observation, or control that he could, if not overcome by violence or prevented by fear, retain possession of it,’ ” Waters App. 255, and that the facts of the defendants' robbery here involved no greater a distance between the victim and her automobile than several carjacking convictions affirmed by our fellow circuits. See id.

This appeal ensued, in which the defendants renew their argument that the victim's car was not within her “presence” when they forcibly took her keys from her inside her home.

Discussion

We review the district courts' interpretation of a federal statute de novo. United States v. Aleynikov, 676 F.3d 71, 76 (2d Cir.2012). We similarly review the denial of a Rule 29 motion arguing sufficiency of the evidence de novo, United States v. Amico, 486 F.3d 764, 780 (2d Cir.2007), and view all evidence “in the light most favorable to the government,” id. That said, however, the defendants' argument on appeal exclusively turns on which of the competing interpretations of the statutory language of “presence” we adopt. There is no contention that the evidence at the two trials was insufficient to meet the government's broader definition of “presence,” and the defendants acknowledge that their appeal relies upon our willingness to construe (contrary to the district court) the statutory term “presence” to mean “in front of, or in the area immediately around, a person.” See Br. for Defendant–Appellant Soler at 13. We therefore turn to the question of statutory interpretation that is before us.

We begin with our traditional interpretive tools, turning first to the text of the statute in an attempt to discern whether the plain and ordinary meaning of the term “presence” settles the matter. See Raila v. United States, 355 F.3d 118, 120 (2d Cir.2004) (noting that “[s]tatutory construction begins with the plain text, and, ‘where the statutory language provides a clear answer, it ends there as well’ ”) (quoting Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999)).

In pertinent part, the carjacking statute imposes criminal penalties upon “[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, or attempts to do so.” 18 U.S.C. § 2119. As many of our fellow courts of appeals have noted, the critical term—“presence”—does not yield a straightforward ordinary meaning. See, e.g., United States v. Kimble, 178 F.3d 1163, 1166 (11th Cir.1999). General purpose dictionaries published around the time of the statute's enactment define “presence” as “the part of space within one's ken, call, or influence: the vicinity of or the area immediately near one: the place in front of or around a person.” Webster's Third New International Dictionary 1793 (1993). As is obvious from this definition, consulting the available dictionaries does not yield a meaning for “presence” that would decisively limit the statute's scope. Words like “ken,” “vicinity,” and “near” leave us with the same ambiguity with which we started our inquiry. Indeed, as another contemporary dictionary explains, when the word “presence” is used with a possessive or the word “of,” as in the carjacking statute, it communicates “a vague sense of the place or space in front of a person, or which immediately surrounds him.” 12 Oxford English Dictionary 394 (2d ed.1989). Just so in this very case, in which the ordinary meaning of “presence” is vague and fails to communicate a precise limitation upon the statute's prohibition.

The legislative history is just as equivocal with respect to the intended scope of the carjacking statute, and it is utterly silent as to the meaning of “presence.” To be sure, the legislative history of the larger Anti Car Theft Act of 1992, Pub.L. No. 102–519, 106 Stat. 3384, of which the carjacking statute was a part, reflects Congress's preoccupation with a surfeit of “auto kleptomania ... sweeping the nation,” Anti–Car Theft Act of 1992: Hearings Before the Subcomm. on Crime & Criminal...