U.S.A. v. Taylor

• Decision Date: 21 August 2000
• Docket Number: No. 99-2608,99-2608
• Citation: 226 F.3d 593
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Tracee L. Taylor, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 593

226 F.3d 593 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Tracee L. Taylor, Defendant-Appellant.

No. 99-2608

In the United States Court of Appeals For the Seventh Circuit

Argued May 9, 2000

Decided August 21, 2000

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 97 CR 167--Rudy Lozano, Judge. [Copyrighted Material Omitted]

Before Manion, Kanne and Rovner, Circuit Judges.

Kanne, Circuit Judge.

Tracee Taylor joined two confederates in a vicious carjacking during which the trio trapped a pregnant woman in her car, shot her in the chest and stole the automobile. Taylor was convicted of committing a carjacking in violation of 18 U.S.C. sec. 2119, and aiding and abetting the use of a weapon in connection with a violent felony in violation of 18 U.S.C. sec. 924(c). He appeals on three grounds, all of which we reject.

I. History

During the morning of December 8, 1997, Lakesha Wade was driving to pick her son up from school in Gary, Indiana. Wade, who was four months pregnant, noticed a blue 1995 Mitsubishi Mirage tailing closely behind her 1986 Pontiac Parisienne. At first, Wade thought nothing of it, but she became alarmed when the Mitsubishi continued to pursue her through a number of turns. Wade accelerated to escape her pursuer, but the Mitsubishi raced faster in pace. Wade panicked, running a red light, almost hitting another car and driving indecisively all over Gary while trying to decide where to go. She eventually raced to her sister's residence and skidded to a halt in the front yard. Wade jammed her car horn, hoping that someone would come to the door and let her in the house, but no one answered. Her sister Lasonia Williams was home but asleep upstairs. Moments later, the Mitsubishi sped into the driveway and blocked Wade's exit.

Kevin Wilson leapt out of the Mitsubishi menacingly wielding a .38-caliber handgun. He screamed, "Bitch, bitch, get out of the car. Get out of the car, bitch. I ain't playing with you, bitch. Get out of the car or I'll kill you, bitch." Wilson ran at Wade, who was still sitting in her car, and shot her through the car door window. The bullet tore through Wade's upper left arm and struck her left breast. Wilson then opened the driver-side door, pulled Wade from the car and sat down in the driver's seat. Wade ran to her sister's door, but Williams, now awake from the mayhem outside, feared for herself and refused to open the door. Wilson soon noticed Williams watching him from inside the house and fired three or four shots at her as she escaped upstairs. Wade ran and hid inside a postal truck parked nearby.

Defendant Tracee Taylor remained inside the Mitsubishi this entire time. The Mitsubishi had been stolen from Taylor's neighbor the day before, and Taylor, Wilson and Patrick Lucas used it to chase down Wade. At this point, Wilson could not get Wade's Pontiac started so he and Lucas pushed it into the street. Taylor slipped into the driver's seat of the Mitsubishi and drove it down the street pushing the Pontiac along. After the threesome departed and the police arrived, Wade was receiving emergency medical treatment from paramedics when she noticed the Mitsubishi returning to the scene of the crime. Aided by Wade's tip, Gary police officer Luis Donald soon spotted the Mitsubishi and chased it until it spun out of a sharp turn and crashed into a car parked along the curb. The three men inside the Mitsubishi sprinted off in different directions, but Donald tackled Wilson and other police captured Taylor in the vicinity. A key ring, which Taylor's sister identified as belonging to Taylor, was found in the Mitsubishi and held keys matching the locks to Taylor's home. The Federal Bureau of Investigation later discovered that Wade's Pontiac, stolen by Taylor, Wilson and Lucas during the carjacking, was originally manufactured in Fairfax, Kansas.

A federal grand jury promptly issued a two- count indictment charging Taylor with violating the federal carjacking statute and aiding and abetting Wilson's use of a firearm during a crime of violence. On August 14, 1998, after a four-day trial, the jury convicted Taylor on both counts of the indictment.

II. Analysis

Taylor raises three claims on appeal: (1) Taylor challenges the sufficiency of the evidence to establish that he intended to aid and abet Wilson's use of a firearm in violation of 18 U.S.C. sec. 924(c); (2) Taylor argues that the federal carjacking statute, 18 U.S.C. sec. 2119, exceeds Congress's constitutional authority under the Commerce Clause; (3) Taylor argues the district court's omission of a jury instruction on "serious bodily injury" for his carjacking conviction was plain error.

A. Sufficiency of the Evidence for 18 U.S.C. sec. 924(c)

The jury found Taylor guilty of violating 18 U.S.C. sec. 924(c) by virtue of his assistance to Wilson's use of a firearm during the carjacking, but Taylor challenges the sufficiency of the evidence to establish that he knew beforehand of Wilson's intent to use a firearm. Typically, we review the sufficiency of the evidence in the light most favorable to the government and reverse only if the record is devoid of evidence from which the jury could reach a finding of guilt. See United States v. Johnson-Nix, 54 F.3d 1295, 1302 (7th Cir. 1995); United States v. Rosalez-Cortez, 19 F.3d 1210, 1215 (7th Cir. 1994). However, our review here requires an even higher showing from Taylor because he failed to renew his motion for acquittal at the close of all evidence or within seven days of the verdict under Fed. R. Crim. P. 29. See United States v. Hickok, 77 F.3d 992, 1002 (7th Cir. 1996) (citations omitted). As a result, "under well- established precedent in this circuit, [the defendant] has waived an appellate challenge to the sufficiency of the evidence and may obtain a reversal only if he demonstrates 'a manifest miscarriage of justice.'" Id.

To convict for aiding and abetting under 18 U.S.C. sec. 924(c), the jury must find that the defendant knowingly and intentionally assisted the principal's use of a dangerous weapon in a violent felony. See United States v. Woods, 148 F.3d 843, 848 (7th Cir. 1998). This requires finding that (1) the defendant knew, either before or during the crime, of the principal's weapon possession or use; and (2) the defendant intentionally facilitated that weapon possession or use once so informed. See id. However, "[m]erely aiding the underlying crime and knowing that a gun would be used or carried cannot support a conviction under 18 U.S.C. sec. 924(c)." Id.; see also United States v. Bancalari, 110 F.3d 1425 1430 (9th Cir. 1997); United States v. Medina, 32 F.3d 40, 45 (2d Cir. 1994). Instead, "the defendant must aid and abet the use or carrying of the firearm." Woods, 148 F.3d at 848.

In this case, the government introduced no direct evidence showing that Taylor knew in advance that Wilson would use a firearm to commit the carjacking. In contrast to the evidence presented in United States v. Woods, 148 F.3d 843, there was no testimony that Taylor asked Wilson before the crime whether Wilson had his gun, then watched Wilson load the gun and bring it with him. However, a reasonable jury could infer from the inherently violent character of carjackings that Taylor either anticipated or knew that Wilson was going to use a weapon. Moreover, during the extended pursuit of Wade, Taylor rode along in the Mitsubishi with Wilson, who was carrying his handgun this entire time, and the jury could reasonably infer that Taylor noticed or learned during the ride that Wilson possessed a weapon.

Even if Taylor did not discover Wilson's planned use of the weapon by this point, Taylor must have so understood once Taylor and his cohorts had trapped their victim at her sister's residence. There, Wilson charged out of Taylor's car wildly brandishing his weapon, shot Wade in the arm and fired three or four shots into the house. Taylor remained just yards away from Wilson this entire time and cannot credibly claim to have missed Wilson's use of a firearm during the carjacking. See, e.g., Haugh v. Booker, 210 F.3d 1147, 1151 (10th Cir. 2000) (inferring knowledge based on the defendant's presence during his confederate's use of a firearm). If Wilson was physically distant or otherwise removed from Taylor's vantage at the time Wilson brandished and used the firearm, we could not automatically presume Taylor's observation and actual knowledge of weapon use. See United States v. Spinney, 65 F.3d 231, 239 (1st Cir. 1995); United States v. Dinkane, 17 F.3d 1192, 1197 (9th Cir. 1994). Such was not the case here; Taylor was present on the scene within yards of Wilson when Wilson shot Wade from close range and discharged several shots into the residence.

At this point, after learning of Wilson's firearm use and while the commission of the carjacking was still ongoing, Taylor continued to participate in the carjacking and facilitated Wilson's escape. Taylor backed the Mitsubishi out of the front yard and used it to push Wade's Pontiac down the road, thus knowingly aiding Wilson's escape from a violent felony in which Wilson used a firearm. Taylor's acts of assistance are more than sufficient to meet the facilitation element, which "once knowledge on the part of the aider and abettor is established, . . . does not take much to satisfy." Woods, 148 F.3d at 848 (quoting United States v. Bennett, 75 F.3d 40, 45 (1st Cir. 1996)). Less has met the requirement of facilitation in the past. For example, in United States v. Price, 76 F.3d 526, 530 (3d Cir. 1996), the Third Circuit found that the defendant had knowingly facilitated the use of a firearm when he continued to collect money from cash drawers during a bank robbery after the principal had threatened bank employees with a gun. See also Bazemore v. United States, 138 F.3d 947, 949-50 (11th Cir. 1998) (finding facilitation when the defendant drove...