U.S. v. Martinez

Citation49 F.3d 1398
Decision Date07 March 1995
Docket NumberNo. 93-50803,93-50803
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Carlos Gregorio MARTINEZ, aka Carlos Martinez Estrada, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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.

I 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.

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

II Intent

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, 431 F.2d 7 (9th Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269 (1970).

III Double Jeopardy

Martinez next argues that his convictions pursuant to section 924(c)(1) and section 2119 violate the Double Jeopardy Clause of the Fifth Amendment because both statutes punish the same conduct. Whether punishment under both of these statutes is barred raises a question of first impression in this Circuit.

The Double Jeopardy Clause does not prevent the government from attempting to prove violations of two different criminal statutes based on the same course of conduct provided that Congress clearly intended to subject defendants to punishment for each of them. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). In our view, Congress clearly expressed its intent to subject armed carjackers to punishment under both section 924(c)(1) and section 2119. 6

The text of section 924(c)(1) states that the enhanced punishment under 924(c)(1) for the use of a weapon during a crime of violence shall be "in addition to the punishment provided for such crime of violence." 18 U.S.C. Sec. 924(c)(1). In other words, the punishment for carjacking with the use of a firearm under 924(c)(1) is separate and distinct from any punishment provided by the carjacking statute. Moreover, any lingering doubt as to Congress' intent was removed by the inclusion of the additional mandate that a term of imprisonment imposed under 924(c)(1) shall not "run concurrently with any other term of imprisonment including that imposed for the crime of violence ... in which the firearm was used or carried." Id.

In sum, we follow seven of our sister circuits in holding that the text clearly illustrates that Congress intended to authorize cumulative punishment for use of a weapon during any crime of violence, including carjacking. See United States v. Moore, 43 F.3d 568 (11th Cir.1994); United States v. Overstreet, 40 F.3d 1090 (10th Cir.1994); United States v. Jones, 34 F.3d 596 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995); United States v. Johnson, 32 F.3d 82 (4th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 650, 130 L.Ed.2d 554 (1994); United States v. Mohammed, 27 F.3d 815 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 451, 130 L.Ed.2d 360 (1994); United States v. Johnson, 22 F.3d 106 (6th Cir.1994); United States v. Singleton, 16 F.3d 1419 (5th Cir.1994). Thus, Martinez was not subjected to double jeopardy.

Notwithstanding the clarity of the text of section 924(c)(1), Martinez argues that Congress' intent to authorize cumulative punishment in this case is not clear. First, he argues that section 924(c)(1) does not authorize cumulative punishment for statutory offenses that require use of a firearm as an element, such as carjacking, rather than merely to enhance a defendant's sentence.

As it was originally enacted, section 924(c)(1) applied to "any crime of violence." In 1984, Congress amended section 924(c)(1) to clarify that the term "any crime of violence" includes "a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device." 18 U.S.C. Sec. 924(c)(1) (emphasis added). 7 Martinez claims that section 924(c)(1) still does not apply to crimes for which possession of a firearm is an element. This argument lacks merit.

There is no reasonable motive that we can attribute to Congress for authorizing double punishment for crimes that contain a penalty enhancement for use of a firearm, but not for crimes that require use of a firearm as an element. See, e.g., Singleton, 16 F.3d at 1424-25 (rejecting this argument). Section 924(c)(1) establishes a categorical rule that applies to all crimes of violence, with no apparent exceptions. Moreover, the legislative history accompanying the 1984 amendment indicates that 924(c)(1) was revised "to ensure that all persons who commit Federal crimes of violence" are covered. S.Rep. No. 225, at 312-13, 1984 U.S.C.C.A.N. at 3182, 3490-91.

Finally, we have considered and rejected this argument with respect to the application of section 924(c)(1) in conjunction with another federal firearms provisions, for which...

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