United States v. Perry ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5224
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVON PERRY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:08-cr-00165-JFM-1)
Argued: March 25, 2010 Decided: June 3, 2010
Before NIEMEYER and KING, Circuit Judges, and Eugene E.
SILER, Jr., Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Siler wrote the
opinion, in which Judge Niemeyer and Judge King joined.
ARGUED: Thomas J. Saunders, Baltimore, Maryland, for Appellant.
Michael Joseph Leotta, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Traci L. Robinson, Assistant United
States Attorney, Nick Stewart, Law Clerk, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
SILER, Senior Circuit Judge:
Davon Perry appeals his jury conviction of carjacking, 18
U.S.C. § 2119 (Count One), and use of a firearm in furtherance
of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii) (Count
Two). He alleges that there was insufficient evidence as to his
intent for the carjacking conviction, and that his firearm
conviction must also be vacated. He also challenges the jury
instruction given for § 2119’s intent element. For the
following reasons, we AFFIRM.
I. FACTUAL & PROCEDURAL BACKGROUND
Latia Skeens started dating Perry in December 2006. She
ended their relationship after it became abusive, sought help
from a domestic violence center, and obtained a protective order
against Perry in August 2007. Nonetheless, he continued to
call, follow, and threaten her. In February 2008, Perry asked
Skeens to attend a Super Bowl party with him. She declined, but
he called her between twenty and thirty times on February 3,
2008, the night of the Super Bowl, while she was at a friend’s
party. Skeens left the party between 10:30 p.m. and 11 p.m. to
visit her friend Angel.
While she was at Angel’s house, Skeens called Perry and
left a voice message on his phone. Perry eventually returned
Skeens’s call and she told him that she was at Angel’s house.
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After their conversation, Skeens left Angel’s house to drive
around before picking up her sister. She parked about a block
away from Angel’s house, behind a tow truck.
While Skeens was still parked, Perry bumped Skeens’s car
from behind with his car. Skeens tried to get out of her car,
but Perry told her to stay in the car and to open the passenger
door. Skeens let Perry in the car because he had a gun and the
tow truck prevented her from driving away. After Perry got into
the car, he yelled at Skeens, told her she was going to die, and
punched her in her face. Perry ordered her to drive to a
studio, where he said he was going to kill her.
When they arrived at the studio, they both exited the car.
Skeens broke away, however, and got back into her car. As she
accelerated it, Perry ran toward her car, pointing the gun at
her. Skeens hit a wall, and put the car in reverse, running
over Perry. Two men approached the scene and spoke with Perry.
Skeens heard him tell the men “to get the chopper [gun] and to
shoot [her],” and saw him hand them the gun. Skeens then found
her phone and called 911. When police arrived, both Skeens and
Perry were sent to the hospital for treatment.
Perry objected to the government’s jury instruction number
30, which described intent under § 2119. The proffered
instruction stated that “To establish this element the
Government must prove that at the moment the defendant demanded
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or took control over the vehicle the defendant possessed an
intent to seriously harm or kill the driver, if necessary, to
steal the car, or for any other reason.” Perry objected to the
inclusion of the clause “or for any other reason.” The district
court suggested striking the phrase “if necessary to steal a car
or for any other reason.” Perry did not object to that
resolution and stated that he “tend[ed] to agree with the
Court.”
Perry was convicted on both counts and sentenced to 180
months on each count, to run consecutively.
II. ANALYSIS
A. Sufficiency of the Evidence
“[A] jury’s verdict must be upheld if there is substantial
evidence in the record to support it.” United States v. Foster,
507 F.3d 233, 244 (4th Cir. 2007) (citing Glasser v. United
States, 315 U.S. 60, 80 (1942)). To secure a conviction under §
2119, the government 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 intimidation.” Id. at
246-47 (internal quotation marks and citation omitted). Perry
only disputes whether the government produced sufficient
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evidence of his intent, the first element. Specifically, he
argues that there was not sufficient evidence of his intent,
because whatever intent he had to harm Skeens “had nothing to do
with the car itself.”
In Holloway v. United States, 526 U.S. 1 (1999), the
Supreme Court rejected the petitioner’s argument that intent
under § 2119 only encompasses unconditional intent—“the intent
to harm or kill even if not necessary to complete a carjacking.”
Id. at 8. Instead, it held that § 2119 allows for a conviction
when there is proof of either unconditional or conditional
intent—intent which is only fully formed if the driver of the
car refuses to relinquish control. Id. Thus, the Court
concluded that “[t]he intent requirement of § 2119 is satisfied
when the Government proves that at the moment the defendant
demanded or took control over the driver’s automobile the
defendant possessed the intent to seriously harm or kill the
driver if necessary to steal the car (or, alternatively, if
unnecessary to steal the car).” Id. at 12.
Although Foster only referred to Holloway’s conditional
intent language and did not quote the alternative, “if
unnecessary to steal the car” language, unconditional intent is
still a valid form of intent. Thus, a defendant who possesses
the intent to kill or seriously harm the driver of a vehicle may
be convicted of carjacking, even if his intent to harm is
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unrelated to the carjacking, so long as his intent is formed
when he takes control of the vehicle and he satisfies § 2119’s
other elements.
United States v. Applewhaite, 195 F.3d 679 (3d Cir. 1999),
is not contrary to this conclusion. In Applewhaite, the Third
Circuit concluded that there was insufficient evidence for the
jury to conclude that the defendants intended to kill or cause
serious bodily harm when they took control of the vehicle,
because there was no nexus between the assault on the victim and
the subsequent taking of his van. Id. at 685. Intent was not
established, because “the van was taken as an afterthought in an
attempt to get [the victim’s] limp body away from the crime
scene.” Id. at 685.
Unlike the defendants in Applewhaite, however, there was
sufficient evidence from which the jury could conclude that
Perry possessed the requisite intent at the moment he took
control over Skeens’s car. For example, Skeens said that Perry
had threatened her, used a gun to demand entry into her car and
to force her to continue driving, and continually stated he was
going to kill her. Under Holloway, it is irrelevant whether
Perry intended to kill or harm Skeens so that he could take her
car or whether he only wanted to kill her. The government
simply needed to prove that when he took control over her car—a
fact Perry does not dispute on appeal—he possessed the intent to
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kill her. Viewing the evidence in the light most favorable to
the government, there was sufficient evidence from which the
jury could conclude that he intended to kill or seriously harm
Skeens when he took control over her vehicle.
B. Jury Instruction
Although we typically review challenges to jury
instructions for an abuse of discretion, S. Atl. Ltd. P’ship v.
Riese, 284 F.3d 518, 530 (4th Cir. 2002), where the defendant
fails to challenge the instructions before the district court,
our review is for plain error, Foster, 507 F.3d at 249 (citing
United States v. Olano, 507 U.S. 725, 732 (1993)). Perry
challenged the government’s proposed jury instruction, but he
did not challenge the ultimate instruction adopted by the court
and even stated that he “tend[ed] to agree with the Court.”
Thus, we review for plain error.
“On plain error review, we will reverse the district court
if we (1) identify an error, (2) which is plain, (3) which
affects substantial rights, and (4) which seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.” Id. at 249. Even if a defendant demonstrates
plain error, we will only notice a forfeited error if a
“miscarriage of justice would result.” United States v.
Cedelle, 89 F.3d 181, 184 (4th Cir. 1996).
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The court’s instruction, in relevant part, was as follows:
The third element the Government must prove beyond a
reasonable doubt is that the defendant acted with
intent to cause death or serious bodily harm. . . .
Now to establish the third element the Government must
prove that at the moment the defendant demanded or
took over the vehicle, the defendant possessed the
intent to seriously harm or kill the driver.
Perry asserts that the instruction’s failure to include the “if
necessary to steal the car” phrase from Holloway, was erroneous.
However, this argument overlooks the remainder of the sentence
in Holloway: “or, alternatively, if unnecessary to steal the
car.” 526 U.S. at 12. The district court’s instruction
correctly allowed the jury to convict Perry under either
interpretation of intent, so long as that intent was formed at
the time Perry took control over the vehicle. Thus, we cannot
say that the district court committed any error, particularly
plain error. *
AFFIRMED
*
Because we affirm Perry’s conviction on Count One, his
arguments as to Count Two are moot.
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