U.S. v. Lake

• Citation: 150 F.3d 269
• Decision Date: 21 July 1998
• Docket Number: No. 97-7462,97-7462
• Parties: UNITED STATES of America v. Hilton A. LAKE, Hilton A. Lake, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 269

150 F.3d 269

UNITED STATES of America v. Hilton A. LAKE Hilton A. Lake, Appellant.

No. 97-7462.

United States Court of Appeals Third Circuit.

Argued March 30, 1998

Decided July 21, 1998.

Thurston T. McKelvin, Federal Public Defender, Patricia Schrader-Cooke (Argued), Asst. Federal Public Defender, Christiansted, VI, for Appellant.

James A. Hurd, Jr., United States Attorney, Kim L. Chisholm (Argued), Assistant U.S. Attorney, Charlotte Amalie, VI, for Appellee.

Before: BECKER, Chief Judge, COWEN, and ALITO, Circuit Judges

OPINION OF THE COURT

ALITO, Circuit Judge

This is an appeal from a judgment in a criminal case. After a jury trial, the defendant, Hilton A. Lake, was convicted under 18 U.S.C. § 924(c)(1) of using or carrying a firearm during and in relation to a crime of violence, namely, a carjacking (see 18 U.S.C. § 2119). Lake challenges his conviction on numerous grounds, the most substantial of which is that he did not violate the carjacking statute because, he argues, he did not take the motor vehicle in question "from the person or presence" of the victim. We reject this and Lake's other arguments, and we therefore affirm.

I.

The events that led to Lake's prosecution occurred at Little Magen's Bay in St. Thomas, United States Virgin Islands. The road to the beach at Little Magen's Bay ends at the top of a hill. There is a steep path bordered by vegetation and rocks that leads from the road down to the beach, and the road cannot be seen from the beach.

On the day in question, Lake hitchhiked to Little Magen's Bay and encountered Milton Clarke, who was sitting on the beach reading a newspaper. Lake asked whether Clarke owned a white car parked up on the road. Clarke said that he did, and Lake initially walked away. However, Lake returned a few moments later and asked to borrow the car. When Clarke refused, Lake stated that it was an emergency. Clarke again refused, and Lake walked off. When Lake returned yet again, Clarke said:

[L]isten, think about it. If I walked up to you and asked you, can I borrow your car[,] [a]re you going to lend it to me? Of course not. So why don't you leave me the hell alone. I'm here to have a nice time. Just chill. Go someplace else.

App. 140A.

Lake walked off and sat on a rock, while Clarke anxiously watched him out of the corner of his eye, but Lake soon returned with the same request. When Clarke swore again, Lake asked if he could have a drink from Clarke's cooler. Clarke said: "[D]on't you get it? Leave me alone." App. 141A. Lake then lifted up his shirt, showed Clarke the handle of a gun, and said: "[Y]ou know what that is?" App. 141A. Clarke stood up and started backing away, but Lake pulled the gun from his waist band, put it against Clarke's face, and demanded the car keys. App. 142A. Clarke said that he did not have the keys and started walking toward the water with Lake following. Clarke waded into waist-deep water, and Lake walked out onto a promontory overlooking the water. App. 143A-48A.

While Clarke was in the water, his friend, Pamela Croaker, appeared on the beach. Clarke shouted a warning, prompting Lake to approach Croaker. Lake demanded that Croaker surrender her car keys, and Croaker said:"I don't even know you. Why would I give you the keys to the car?" App. 183A. Lake then grabbed the keys, and the two wrestled for possession of the keys. When Croaker saw the gun, she surrendered the keys but asked to keep her house keys. App. 184A-86A. Lake went up the steep path to the parking area where Croaker had parked her car out of sight of the beach. Lake then drove away in Croaker's car after leaving her house keys on the hood of Clarke's car. App. 192A. As we will discuss later in more detail, both Croaker and Clarke followed him up the path, but when they arrived, he was driving away.

Later that day, the police apprehended Lake in the stolen car at a McDonald's restaurant. When questioned by the police and an FBI agent, Lake stated that he had used a toy gun and that he had thrown it in a swamp. He refused to take the officers to the site where he had allegedly disposed of the gun, and when asked to tell the truth about whether the gun was really a toy, he responded that he "would think about it." The gun was never recovered.

Lake was indicted for carjacking, in violation of 18 U.S.C. § 2119, and for using and carrying a firearm during and in relation to a crime of violence (the carjacking), in violation of 18 U.S.C. § 924(c)(1). At the close of the evidence in his jury trial, Lake moved unsuccessfully for a judgment of acquittal. The jury subsequently returned a verdict of not guilty of the carjacking charge but guilty of the firearms offense. Lake was sentenced to imprisonment for 60 months plus a three-year term of supervised release. He then took this appeal.

II.

We will begin with Lake's argument that the evidence was insufficient to support his conviction under 18 U.S.C. § 924(c)(1) because the evidence did not show that he used or carried a "firearm" within the meaning of 18 U.S.C. § 921(a)(3). Lake contends that the evidence failed to establish that the gun was not a toy. Appellant's Br. at 18. Lake notes that he initially told Officer Griffin that the gun was a toy, that Croaker and Clarke both said that the gun looked like the type of gun used by cowboys in Westerns, and that Clarke said that he was not able to tell whether the gun was real. Id.

We recently addressed a similar argument in United States v. Beverly, 99 F.3d 570 (3d Cir.1996), and under Beverly the evidence here was sufficient. Both Clarke and Croaker stated that Lake had a gun and described it in some detail. See App. 141A-42A, 184A. Lake does not contend that their descriptions were inconsistent with that of a real gun. Both Clarke and Croaker testified that they experienced great fear, App. 151A, 184A, 186A, and Croaker manifested sufficient fear of the gun to surrender her keys. Moreover, although Lake originally told the authorities that the gun was a toy and that he had thrown it in a swamp, he refused to reveal its location, and when later asked whether he would tell the truth about whether the gun was real, Lake responded that he would "think about it." App. 171A-72A. In light of all of this evidence, a rational jury could find that the gun was real.

III.

Lake next argues that the evidence was insufficient to show that he violated the carjacking statute, 18 U.S.C. § 2119, and thus that he committed the predicate offense needed to support his 18 U.S.C. § 924(c)(1) conviction. Under the carjacking statute, 18 U.S.C. § 2119, the prosecution must prove that the defendant (1) "with intent to cause death or serious bodily harm" (2) took a motor vehicle (3) that had been "transported, shipped, or received in interstate or foreign commerce" (4) "from the person or presence of another" (5) "by force and violence or by intimidation." Lake contends that the evidence in this case was insufficient to prove elements one, three, and four. In reviewing the sufficiency of the evidence, we must decide whether the jury could have rationally found that each of the challenged elements had been established beyond a reasonable doubt. United States v. Carr, 25 F.3d 1194, 1201 (3d Cir.1994).

A. Intent to cause death or serious bodily injury. We see no merit in Lake's contention that the evidence was insufficient to show that he intended to cause death or serious bodily injury. As previously discussed, the evidence was sufficient to show that Lake's gun was real. In addition, the car jacking victim, Pamela Croaker, testified that Lake waved the gun in front of her and ordered her to give him the keys to her car. App. 184A. When she hesitated, she testified, Lake placed the gun close to her head and again told her to surrender the keys. App. 185A. Based on this testimony, a rational jury could find that Lake had the intent to kill or cause serious bodily injury to Croaker if she did not comply with his demands, and we have previously held that such a conditional intent is sufficient to satisfy the carjacking statute. United States v. Anderson, 108 F.3d 478, 481-85 (3d Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 123, 139 L.Ed.2d 74 (1997).

In arguing that the proof of intent was insufficient, Lake notes, among other things, that he "asked for Clarke's keys several times before he displayed the gun and placed it against Clarke's face" and that he initially asked for Croaker's keys and wrestled with her before pulling the gun on her. Appellant's Br. at 16. We agree that these facts suggest that Lake was at least reluctant to fire his gun, but we do not agree that a rational jury was compelled to infer that Lake would not have fired the gun in the end if Croaker had not given up the keys. On the contrary, we hold that the evidence amply supported the jury's finding that Lake possessed the requisite conditional intent to cause death or serious bodily injury.

B. From the person or presence of another. Lake maintains that the evidence did not show that he took Croaker's car "from [her] person or presence," as 18 U.S.C. § 2119 demands. Lake argues that he took her keys, not her car, from her person or presence and that the car was not in Croaker's presence when he took it because she could not see or touch the car at that moment.

The carjacking statute's requirement that the vehicle be taken "from the person or presence of the victim" "tracks the language used in other federal robbery statutes," H.R.Rep. No. 102-851(I), at 5 (1992), reprinted in 1992 U.S.C.C.A.N. 2829, 2834, such as 18 U.S.C. §§ 2111, 2113, and 2118. See United States v. Perez-Garcia, 56 F.3d 1, 3 (1st Cir.1995). Under these statutes, "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 his possession of it.' " United States v. Burns, 701 F.2d 840, 843 (9th Cir.1983). See also United...