U.S.A v. Brown, s. 98-3343

• Decision Date: 22 December 1999
• Docket Number: 98-3347,Nos. 98-3343,s. 98-3343
• Citation: 200 F.3d 700
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARL LANEILL BROWN, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LENARD CHAUNCY DIXON, Defendant - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 700

200 F.3d 700 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARL LANEILL BROWN, Defendant - Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LENARD CHAUNCY DIXON, Defendant - Appellant.

Nos. 98-3343, 98-3347

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 22, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. Nos. 98-40034-01 and 98-CR-40034-02)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] No. 98-3343 was submitted on the briefs:^*

James P. Moran, Assistant Federal Public Defender and Michael G. Katz, Federal Public Defender, Denver, Colorado, for the Defendant-Appellant Brown.

Gregory G. Hough, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the briefs), Topeka, Kansas, for the Plaintiff-Appellee.

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the briefs), Wichita, Kansas, for the Defendant-Appellant Dixon.

Before KELLY, McWILLIAMS, and HENRY, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Carl Laneill Brown and Defendant-Appellant Lenard Chauncy Dixon appeal from their convictions arising from an incident where the nineteen-year-old male victim was robbed and his car was taken. Mr. Brown and Mr. Dixon were convicted of conspiracy to commit a carjacking, 18 U.S.C. 2, 371, 2119 (count 1); carjacking, 18 U.S.C. 2, 2119 (count 2); and use of a firearm during and in relation to a crime of violence, 18 U.S.C. 2, 924(c)(1) (count 3). Mr. Brown also was convicted of carrying a firearm during and in relation to a crime of violence, 18 U.S.C. 2, 924(c)(1) (count 4), and possession of a firearm by a felon, 18 U.S.C. 922(g), 924(a)(2) (count 5). Mr. Brown and Mr. Dixon were sentenced to imprisonment of 410 and 123 months respectively. They also were sentenced to three years supervised release, and ordered to pay restitution of $4,948.

On appeal, Mr. Brown argues that (1) his conduct does not constitute a violation of the carjacking statute, a sufficiency of the evidence challenge; and (2) his conviction on count 4 should be vacated because conspiracy under 371 is not a crime of violence as defined by 924(c)(3). Mr. Dixon challenges (3) the victim's in-court identification of him as unreliable and violative of due process; (4) the government's use of gang affiliation evidence as violative of Fed. R. Evid. 404(b); (5) the sufficiency of the evidence, contending that his conduct does not constitute a violation of the carjacking statute; (6) the carjacking statute as lacking a substantial interstate nexus as required by the Commerce Clause; (7) the district court's denial of his motion to dismiss count 3 as violative of double jeopardy; (8) the government's promises to cooperating witnesses as contrary to the federal anti-gratuity statute; and (9) the district court's application of the Sentencing Guidelines, specifically enhancement for bodily injury under USSG 2B3.1(b)(3)(A). The court granted Mr. Brown's motion to join Mr. Dixon's brief. Our jurisdiction arises under 28 U.S.C. 1291 and 18 U.S.C. 3742(a) and we affirm.

Background

Mr. Dixon, Mr. Brown and two friends, Kyree McClelland and Alfred Reed, borrowed a 1992 white Chrysler New Yorker and traveled from Topeka, Kansas to Lawrence, Kansas to drop Mr. Reed off at a nightclub. Mr. Brown had two guns with him, a .357 and .38, and supplied the latter to Mr. McClelland. See 10 R. 366. Before arriving in Lawrence, Mr. Brown, Mr. Dixon and Mr. McClelland (the trio) discussed robbing someone. See 10 R. 369. After dropping Mr. Reed off, the trio observed the victim approaching his 1997 black Ford Explorer in the parking lot. See id. at 371-72. The trio waved to the victim and the victim waved back. See 8 R. 44-46; 9 R. 158-62. According to Mr. McClelland,¹ Mr. Brown said that the victim "looked like a good person to get." 10 R. 372. Mr. McClelland understood this to mean robbery, including getting the victim's Explorer. See id.

As the victim and his passengers drove out of the nightclub parking lot shortly after midnight, the trio followed them to a residence. Because the residence driveway was full, the victim pulled his vehicle into an adjacent driveway. The victim got out of his vehicle and said goodbye to his passengers. The victim left the motor running and his headlights on. 10 R. 385.

When the victim returned, the trio's vehicle was parked directly behind him. Mr. Dixon, the driver of the trio's vehicle, summoned the victim, and a brief conversation ensued. Mr. Brown, a passenger, opened the glove box of the trio's vehicle and supplied the victim with a pen and paper to write down a telephone number. The victim testified that he was responsive to Mr. Dixon's inquiries so he could be on his way. Before the victim could get into his vehicle, however, Mr. Brown alighted from the trio's vehicle, cut him off, pointed a gun at him and demanded his money and wallet. The victim complied, and Mr. Brown then demanded his jewelry. Mr. McClelland testified on direct examination that Mr. Dixon then told Mr. McClelland to get into the victim's vehicle, 10 R. 383, (although on cross examination, Mr. McClelland admitted to a previous statement that it was Mr. Brown that told him to get into the vehicle, 11 R. 649). As the victim removed his jewelry, Mr. Dixon began hitting him on the right side of his face. According to the victim, Mr. Brown told Mr. Dixon to "chill out" and "take it easy, he's doing it." 8 R. 57.

Mr. Brown, with his gun pointed at the victim, ordered the victim to run down the street. The victim refused, testifying that he was certain he would be shot in the back. 8 R. 58-59. The victim was hit several more times. Then, one of the victim's passengers who had been dropped off at the residence apparently heard the commotion and yelled "What's going on?" 8 R. 59. This apparently distracted Mr. Brown and Mr. Dixon and allowed the victim time to run inside the residence and escape. Mr. McClelland drove the victim's vehicle away, following the trio's vehicle. Police quickly apprehended the trio.

Discussion

1 & 5. Sufficiency of the Evidence to Constitute Carjacking

The Defendants assert that there was insufficient evidence to convict them of carjacking in violation of 18 U.S.C. 2119. The statute states:

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 intimidation, or attempts to do so, shall-

(1) be fined under this title or imprisoned . . .

Defendants claim that (1) since the victim already was inside the house when they drove off, his car was not taken from his "person or presence;" (2) force was not used during the taking of the vehicle but only during the robbery; and (3) the intent to cause death or serious bodily harm was not tied to the act of taking the vehicle.

Although we review a challenge to the sufficiency of the evidence de novo, we do so while viewing "the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the government." United States v. Haslip, 160 F.3d 649, 653 (10th Cir. 1998), cert. denied, 119 S. Ct. 1346 (1999). We will reverse "'only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. at 652 (citation omitted).

a. Presence

A car is stolen from the "presence" of an individual if "the victim [is] sufficiently near to the vehicle for it to be within reach, inspection, or control and, absent threat or intimidation, to be able to maintain control of it." United States v. Kimble, 178 F.3d 1163, 1168 (11th Cir. 1999), petitions for cert. filed, Nos. 99-6293, 99-6309 (Sept. 20, 1999). Having left the motor running and the lights on, the victim stepped away from his vehicle only briefly before he was accosted. The vehicle was plainly within his reach, inspection and control. Absent the threats and intimidation of Mr. Brown and Mr. Dixon, the victim would have returned to his vehicle and driven away. Indeed, once the victim fled, Mr. McClelland merely put the car in gear and drove it away. 10 R. 385. That the victim was in the residence, having fled to protect his life, when the vehicle was actually driven away by Mr. McClelland is of no moment. Regardless, we follow the Third and Eleventh Circuits in holding that the presence requirement of 18 U.S.C. 2119 does not require "that the property be within easy touch" so long as "the car was close enough for the victim[] to have prevented its taking had fear of violence not caused [him] to hesitate." Kimble, 178 F.3d at 1167, 1168; United States v. Lake, 150 F.3d 269, 272 (3d Cir. 1998), cert. denied, 119 S. Ct. 839 (1999).

b. Force and Violence or Intimidation

Ample evidence exists that Mr. Brown and Mr. Dixon used force, violence and intimidation to take the victim's vehicle. Mr. Brown robbed him at gunpoint; Mr. Dixon hit him while he was complying with the demand for jewelry. The victim was hit again when he refused to run down the street. The victim escaped into a residence only when one of his friends called out to him, at which point Defendants drove off with the vehicle. To attempt to separate the violence used in the robbery from the taking of the vehicle is disingenuous. Had Defendants killed the victim during the course of the robbery and then stolen his vehicle, they could not argue that the violence attached solely to the first act of robbery because of the victim's demise. A strong nexus exists between the use of force and the taking of the vehiclethe victim was prevented from returning to his vehicle due to force, violence and intimidation; his subsequent flight into the residence merely allowed Defendants to complete the plan.

c. Intent

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