United States v. Tyrone ( 1999 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50383
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RUBY JEAN TYRONE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(W-96-CR-44-ALL)
May 10, 1999
Before JONES, DUHÉ and BARKSDALE, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:1
A jury convicted Ruby Jean Tyrone (“Defendant”) of carjacking
pursuant to 18 U.S.C.A. § 2119 (West Supp. 1999), receiving and
concealing a stolen firearm pursuant to 18 U.S.C.A. § 922(j) (West
Supp. 1999), and using a firearm in connection with a crime of
violence pursuant to 18 U.S.C.A. § 924(a)(2) & (c) (West Supp.
1999). On appeal, she raises five issues: (1) § 2119 requires
proof of an unconditional intent to cause death or serious bodily
harm, and no jury could reasonably infer unconditional intent from
the facts of the case. (2) The district court failed to instruct
the jury concerning § 2119's unconditional intent requirement. (3)
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Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Even, if § 2119 requires only conditional intent, there was
insufficient evidence to support a jury’s finding of that intent.
(4) Because we should reverse the predicate carjacking conviction,
we should also reverse her conviction for using a firearm in the
commission of a crime of violence. (5) Her conviction for
receiving or concealing a stolen firearm should be reversed because
§§ 922 & 924 are unconstitutionally beyond Congress’ Commerce
Clause power. We disagree and affirm.
BACKGROUND
This case stems from the repossession of a car. Chris
Blakely, (“Blakely”) an employee of General Motors Acceptance
Corporation (“GMAC”), repossessed Babylin Crockett’s (“Crockett”)
car at Crockett’s request, because Crockett realized she was unable
to make the payments. At the time, Crockett lived with Tyrone,
because she was dating Tyrone’s son. After the car’s repossession,
Tyrone repeatedly telephoned GMAC complaining that she was
receiving notices indicating that she owed money to GMAC. When
GMAC informed Tyrone that any correspondence sent to her was an
error, she requested that GMAC send someone to her home to examine
the notices, insisting that she speak with a field representative
face-to-face. In response to Tyrone’s request, Blakely made an
appointment to visit Tyrone at her home.
Blakely drove to Tyrone’s home where she was met by Tyrone who
identified herself as “Robbie”. “Robbie” told Blakely that Tyrone
was at work, and that they needed to go to an attorney’s office to
view the documents sent by GMAC.
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Tyrone rode in Blakely’s car giving directions to the
attorney’s office. Unable to find the office, Blakely stopped in
a park and telephoned her office on a cell phone to find the
address. Tyrone produced a handgun from her purse. Blakely
testified that Tyrone was about to aim the gun at her when she
grabbed Tyrone’s hand and the gun fearing for her life. Tyrone
told Blakely, “I’m going to do to you what I did to Ruby.”2 During
the struggle over the gun, Tyrone pulled the keys out of the car’s
ignition and hit Blakely in the head with the barrel of the gun.
Blakely managed to escape from the car and run towards a man
working nearby. Tyrone drove away in Blakely’s car. The workman
contacted the police, who discovered Blakely’s car abandoned.
The police arrested Tyrone shortly after the incident, and
Blakely identified her as the assailant. The police found a gun in
Tyrone’s purse which was later discovered to have been stolen from
the residence of Brian Pardo where Tyrone worked during the prior
week. Pardo purchased the gun in Alabama, and it was manufactured
in Massachusetts. A jury convicted Tyrone of the three counts
discussed above, and she appeals.
DISCUSSION
I. Carjacking
A. Intent
Tyrone contends that conditional intent, i.e. the intent to
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The meaning of Tyrone’s statement is unclear. One option is
that she meant “I’m going to do to you what [you] did to Ruby.” In
other words, Tyrone was going to take Blakely’s car just as Blakely
had taken a car from Ruby Tyrone’s house.
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cause death or serious bodily harm only if the victim refuses to
relinquish his car, is insufficient to satisfy § 2119, relying on
United States v. Randolph, 93 F.3d 656, 665 (9th Cir. 1996)
(holding “[t]he mere conditional intent to harm a victim if she
resists is simply not enough to satisfy § 2119's new specific
intent requirement.”) Circuits were split concerning this issue.
See United States v. Williams, 136 F.3d 547, 551 (8th Cir. 1997);
United States v. Romero, 122 F.3d 1334, 1339 (10th Cir. 1997);
United States v. Arnold, 126 F.3d 82, 89 (2nd Cir. 1997); United
States v. Anderson, 108 F.3d 478, 485 (3rd Cir. 1996). However,
the Supreme Court recently resolved this split, holding that the
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.”
Holloway v. United States, 119 S. Ct. 966, 972 (1999). As a
result, Tyrone’s arguments that the government failed to prove
intent and that the district court erred in not instructing the
jury on unconditional intent fail.
B. Sufficiency of the Evidence
Tyrone argues that, even if § 2119 only requires conditional
intent, the government’s evidence is insufficient to support her
conviction. She points to the following facts in her favor: 1)
Tyrone did not attempt to harm Blakely when Blakely looked in her
trunk for a phone book; 2) Tyrone did not point the gun at Blakely
when Tyrone pulled the gun out of her purse; 3) Tyrone did not
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point the gun at Blakely when Blakely ran from the car; and 4)
Tyrone did not say anything indicating that she would shoot Blakely
if she did not get out of the car.
The government contends that a defendant’s ability to obtain
a car without resorting to the infliction of death or serious
bodily harm does not negate the intent to cause such harm in order
to obtain the car. Anderson, 108 F.3d at 484. The government
points to the following facts suggesting that Tyrone possessed the
intent to cause death or serious bodily harm if Blakely did not
relinquish the car: 1) Tyrone created an elaborate plan to lure
Blakely to her home, contacting GMAC and complaining of non-
existent notices; 2) Tyrone lured Blakely to an isolated place so
she could steal Blakely’s car; 3) Tyrone pulled a loaded and fully
operable firearm from her purse and, in an ensuing struggle, struck
Blakely on the head with it; and 4) Tyrone told Blakely, “I’m going
to do to you what I did to Ruby.”
On appeal, we will uphold a jury’s verdict if a rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt. See United States v. Payne, 99 F.3d 1273, 1278
(5th Cir. 1996). The jury is free to choose from among all
reasonable constructions of the evidence. See United States v.
Chaney, 964 F.2d 437, 448 (5th Cir. 1992). We must determine
whether the evidence, when considered in the light most favorable
to the government, proved Tyrone’s guilt beyond a reasonable doubt.
See United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir.
1997), cert. denied, 118 S. Ct. 1059-60 (1998).
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Tyrone carried out a plan to lure a GMAC representative to her
house. Because GMAC previously repossessed a car that was parked
at Tyrone’s house and belonged to the girlfriend of Tyrone’s son,
the jury could have inferred that Tyrone’s plan was to take some
measure of revenge against GMAC, or specifically against Blakely.
The jury also could have inferred that Tyrone pulled the gun from
her purse as a means of intimidating Blakely into relinquishing the
car and that if Blakely did not relinquish the car, Tyrone would
use deadly force to accomplish her plan. Tyrone’s words and
actions, including battering and threatening Blakely with the gun,
evidence her intent to cause serious bodily harm or death if
Blakely did not acquiesce in Tyrone’s plan. For the above reasons,
we find the evidence sufficient to support Tyrone’s carjacking
conviction pursuant to § 2119, and therefore also affirm her
conviction for use of a firearm during a crime of violence pursuant
§ 924.
II. Receiving or concealing a stolen firearm
Tyrone argues we should reverse her firearms conviction
because the statute is beyond Congress’ power under the Commerce
Clause. Section 18 U.S.C.A. § 922(j) requires that the defendant
receive or conceal a stolen firearm that has been shipped or
transported in interstate commerce. 18 U.S.C.A. § 922(j) (West
Supp. 1999). Tyrone contends that the prohibited conduct has
nothing to do with interstate commerce; therefore, it is an
impermissible exercise of Congress’ Commerce Clause power. She
relies on United States v. Lopez, 514 U.S. 549, 567-68 (1995),
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where the Court held that the federal government could not,
consistent with its power under the Commerce Clause, criminalize
the mere interstate possession of a firearm in or near a school,
because the statute did not regulate the channels or
instrumentalities of commerce, nor did the prohibited conduct have
“[anything] to do with ‘commerce’ or any sort of economic
enterprise.” Id. at 561.
We recently held that § 922(j) is a constitutional exercise of
Congress’ Commerce Clause power. United States v. Luna, 165 F.3d
316, 320-21 (5th Cir. 1999). This forecloses Appellant’s position.
The firearm Tyrone used during the carjacking was manufactured in
Massachusetts, purchased in Alabama, and taken to Texas by its
owner. Evidence that a gun was manufactured in one state and
possessed in another state is sufficient to establish a connection
between the firearm and interstate commerce. See United States v.
Pierson, 139 F.3d 501, 503-04 (5th Cir. 1998). For the above
reasons, we affirm Tyrone’s conviction pursuant to § 922(j).
CONCLUSION
Because we hold the conditional intent to cause death or
serious bodily harm if the victim does not relinquish his car
satisfies § 2119, the district court did not err in not instructing
on unconditional intent, the evidence is sufficient to support the
jury’s carjacking conviction, and § 922(j) is a permissible
exercise of Congress’ Commerce Clause power, we affirm Tyrone’s
convictions.
AFFIRMED
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