U.S. v. Oliver, s. 93-10770

• Citation: 60 F.3d 547
• Decision Date: 12 December 1994
• Docket Number: Nos. 93-10770,93-10775 and 93-10779,s. 93-10770
• Parties: , 95 Daily Journal D.A.R. 8956 UNITED STATES of America, Plaintiff-Appellee, v. Donovan Dwayne OLIVER; Darryl Lee McMillan; Nathaniel Jones, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 547

60 F.3d 547

64 USLW 2052, 95 Daily Journal D.A.R. 8956

UNITED STATES of America, Plaintiff-Appellee, v. Donovan Dwayne OLIVER; Darryl Lee McMillan; Nathaniel

Jones, Defendants-Appellants.

Nos. 93-10770, 93-10775 and 93-10779.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 12, 1994. ^*

Decided July 6, 1995.

Anthony P. Capozzi, Fresno, CA, for defendant-appellant Oliver; Richard G. Cenci, Fresno, CA, for defendant-appellant McMillan (on the briefs); and Francine Zepeda, Asst. Federal Public Defender, Fresno, CA, for defendant-appellant Jones.

Patrick Hanley, Asst. U.S. Atty., Fresno, CA, for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of California.

Before: HUG, CANBY, and HAWKINS, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

Defendants Donovan Dwayne Oliver, Darryl Lee McMillan, and Nathaniel Jones appeal their convictions and sentences for carjacking/aiding and abetting, in violation of 18 U.S.C. Secs. 2 and 2119, and using a firearm during a crime of violence/aiding and abetting, in violation of 18 U.S.C. Secs. 2 and 924(c). We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part, and vacate and remand in part.

I. Background

The evidence at trial disclosed the following facts: On December 7, 1992, Oliver, Jones and McMillan drove to a liquor store in Bakersfield, California. In the liquor store parking lot, they approached Ali Nassar Mutanna and Abdullah Mardaie, who were in Mardaie's parked car. After ordering Mutanna and Mardaie out of the car, Oliver held them at gunpoint. Oliver stuck the barrel of his firearm into Mutanna's left ear and held it there to ensure that Mutanna would not move, causing Mutanna's ear to bleed profusely. Meanwhile, Jones and McMillan searched Mutanna's and Mardaie's pockets. Oliver then forced Mutanna behind the liquor store, ordered him to lie on the ground, and struck him in the head while he was lying there. Oliver told Mutanna that Oliver would kill him if he moved. Oliver then got into Jones' car, which was being driven by McMillan, and fired a shot as they drove away.

Jones had forced Mardaie into Mutanna's car, and Jones followed Oliver and McMillan as they left the scene. After they travelled a short distance, Jones ordered Mardaie out of the car.

After defendants left, Mutanna flagged down a police car. Police officers located Mutanna's car a few blocks away from the liquor store. Jones fled in Mutanna's car when he noticed the police car approaching. After a short car chase, Jones crashed Mutanna's car and was apprehended. Jones' car was also located nearby, with the gun used by Oliver in the back seat. Oliver and McMillan were arrested shortly thereafter.

Defendants were indicted on December 30, 1992, with one count of carjacking/aiding and abetting, in violation of 18 U.S.C. Secs. 2 and 2119, and one count of using a firearm during a crime of violence/aiding and abetting, in violation of 18 U.S.C. Secs. 2 and 924(c). On July 29, 1993, defendants were convicted by a jury on all counts. Defendants were sentenced under the 25-year (300 months) statutory maximum set forth in Sec. 2119(2), because Mutanna suffered serious bodily injury during the crime. Defendants were each sentenced to a total of 300 months on the carjacking count and a consecutive 60 months for the use of a weapon.

Defendants timely appealed their sentences and convictions on December 17, 1993.

II. Grand Jury Indictment

Defendants Oliver and McMillan first argue that the district court lacked jurisdiction because the indictment against them was returned in a courtroom closed to the public. See Rule 6(f), Fed.R.Crim.P. ("indictment[s] shall be returned by the grand jury to a federal magistrate in open court"). "[E]rrors in the grand jury indictment procedure are subject to harmless error analysis unless 'the structural protections of the grand jury have been compromised as to render the proceedings fundamentally unfair.' " United States v. Lennick, 18 F.3d 814, 817 (9th Cir.1994) (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 254-57, 108 S.Ct. 2369, 2373-75, 101 L.Ed.2d 228 (1988)). Because defendants do not claim prejudice as a result of the indictment being returned in a closed courtroom, any defect was harmless. In any event, defendants did not raise this issue before the district court, so they waived the right to raise the issue on appeal. United States v. Kahlon, 38 F.3d 467, 469 (9th Cir.1994) (objection based upon the failure to return an indictment in open court is not jurisdictional and is waived if not raised prior to trial); Rule 12(b)(1), Fed.R.Crim.P.

III. Commerce Clause

Defendants contend that Congress exceeded its power under the Commerce Clause in enacting the carjacking statute, because carjacking is not sufficiently related to interstate commerce. We recently rejected this argument in United States v. Martinez, 49 F.3d 1398, 1400-01 (9th Cir.1995). In so ruling, we joined with every other circuit court that had addressed the question.

The Supreme Court's recent decision in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), does not alter our view. In Lopez, the Supreme Court held that Congress exceeded its power under the Commerce Clause when it made it a federal offense for a person to possess a firearm within 1000 feet of a school. See 18 U.S.C. Sec. 924(q). The Court noted that "Sec. 922(q) contains no jurisdictional element which would ensure, through a case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at ----, 115 S.Ct. at 1631. It also explained that the statute does not seek to protect "an instrumentality of interstate commerce." Id. at ----, 115 S.Ct. at 1630. Finally, the Court pointed out that there was no showing of a substantial effect of the prohibited activity on interstate commerce, and Congress had made no findings that there was such an effect. Id. at ---- - ----, 115 S.Ct. at 1631-32.

The carjacking statute has a very different background. First, it applies only to the forcible taking of a car "that has been transported, shipped, or received in interstate or foreign commerce." 18 U.S.C. Sec. 2119. See United States v. Hanna, 55 F.3d 1456, 1462 n. 2 (9th Cir.1995) (holding that "[18 U.S.C. Sec. 922(g)'s] requirement that the firearm have been, at some time, in interstate commerce is sufficient to establish its constitutionality under the Commerce Clause"). Second, cars are themselves instrumentalities of commerce, which Congress may protect. See United States v. Watson, 815 F.Supp. 827, 831 (E.D.Pa.1993) (citing Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359, 28 L.Ed.2d 686 (1971), and upholding Sec. 2119 under the Commerce Clause because it protects an instrumentality of commerce).

Lastly, we note that Congress was not silent regarding the effect of carjacking on interstate commerce. As we stated in Martinez, Congress relied on, among other things, "the emergence of carjacking as a 'high-growth industry' that involves taking stolen vehicles to different states to retitle, exporting vehicles abroad, or selling cars to 'chop shops' to distribute various auto parts for sale." Martinez, 49 F.3d at 1400 n. 2 (citing legislative history). That Congress was addressing economic evils of an interstate nature differentiates the carjacking statute from the firearms statute invalidated in Lopez. "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Lopez, --- U.S. at ----, 115 S.Ct. at 1634. Carjacking, on the other hand, is exactly that sort of economic activity, as Congress clearly concluded. We accept that conclusion, and accordingly reject the defendants' contention.

IV. Equal Protection

Having complained that carjacking does not impact interstate commerce, defendants Oliver and McMillan next argue that the carjacking statute violates equal protection because it only prohibits the theft of cars previously "transported, shipped, or received" in interstate commerce, and does not prohibit the theft of cars that have not been "transported, shipped or received" in interstate commerce. Because defendants did not raise this issue before the district court, we decline to address it on appeal. See United States v. Cupa-Guillen, 34 F.3d 860, 863-64 (9th Cir.1994) (failure to present equal protection challenge to district court constitutes waiver of the claim).

V. Double Jeopardy

Defendants contend that their convictions under Sec. 2119 and Sec. 924(c) violate the Double Jeopardy Clause because both statutes punish the same conduct. This argument is also foreclosed by our recent opinion in United States v. Martinez, 49 F.3d at 1402.

VI. Sufficiency of Evidence

Defendant Jones argues that there was insufficient evidence to support his carjacking conviction under the aiding and abetting theory. Although Jones moved for judgment of acquittal at the close of the government's case, he did not renew the motion at the close of all evidence. We therefore review for plain error. United States v. Ramirez, 880 F.2d 236, 238 (9th Cir.1989).

Relying on United States v. Dinkane, 17 F.3d 1192 (9th Cir.1992), Jones contends that he was not properly convicted of carjacking because there was no evidence that he possessed a firearm. Dinkane involved a conviction for armed bank robbery under 18 U.S.C. Sec. 2113(d), an aggravated form of bank robbery under 18 U.S.C. Sec. 2113(a). We noted that to sustain a Sec. 2113(d) conviction for an aider and abettor, the government must show not only that the defendant knowingly and intentionally aided the act of bank robbery, but also the commission of the aggravating element. Id. at 1197. We therefore concluded that the defendant get-away driver could not be convicted of armed bank robbery under an aiding and...