United States v. Kenneth Bailey, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4109
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH LEE BAILEY, JR., a/k/a Simba,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:14-cr-00193-NCT-1)
Argued: March 24, 2016 Decided: April 12, 2016
Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded with instructions by published opinion.
Senior Judge Davis wrote the opinion, in which Judge Duncan and
Judge Thacker joined.
ARGUED: Gregory Davis, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Winston-Salem, North Carolina, for Appellant. Kyle David
Pousson, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: Louis C. Allen, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, North Carolina, for Appellee.
DAVIS, Senior Circuit Judge:
Following a two-day trial, a jury in the Middle District of
North Carolina convicted Kenneth Lee Bailey, Jr., of carjacking
in violation of 18 U.S.C. § 2119. Bailey appeals on the ground
that the government adduced insufficient evidence to support the
jury’s determination that he acted with the requisite intent to
sustain a federal carjacking conviction. 1 We hold that, under
the teaching of Holloway v. United States, 526 U.S. 1 (1999),
the evidence was insufficient to support a rational finding
beyond a reasonable doubt that Bailey possessed the specific
intent, conditional or otherwise, to kill or seriously harm his
victim when he took control of the vehicle. Accordingly, we
vacate the judgment and remand with instructions that a judgment
of acquittal be entered forthwith.
I
Viewed in the light most favorable to the government, see
United States v. Perry, 757 F.3d 166, 175 (4th Cir. 2014), the
record may be summarized as follows.
On the night of April 17, 2014, while sitting in a marked
patrol car at the intersection of Railroad and Liberty Streets
in Durham, North Carolina, Durham Police Officer Kimberly
1Bailey also challenges his sentence, but we need not
examine that issue.
2
Schooley (“Officer Schooley”) observed a burgundy Nissan Maxima
driven by Bailey turn onto Railroad Street. As the Maxima
passed her, Officer Schooley noticed that both of the vehicle’s
tag lights were out and that it had heavily tinted windows.
Officer Schooley decided to make a traffic stop.
After watching the Maxima make several quick turns, Officer
Schooley maneuvered behind the vehicle and activated the lights
on her patrol car. The Maxima then made an additional turn and
proceeded to drive in the wrong direction down a one-way street
toward downtown Durham. Officer Schooley believed the Maxima to
be traveling approximately 60 miles per hour -- 25 to 30 miles
above the speed limit in that area. Not wanting to follow the
vehicle the wrong way down a one-way street, Officer Schooley
turned off her siren and proceeded on a parallel street,
following the Maxima toward downtown Durham.
As Officer Schooley approached downtown, she came upon the
Maxima, which had crashed head-on into a stone wall enclosing a
small plaza near city hall. Officer Schooley observed Bailey
and two female passengers standing outside the Maxima. With her
weapon drawn, she ordered Bailey to raise his hands. As she got
closer to the accident, however, Officer Schooley heard the
cries of a child and noticed that one of the female passengers
was attempting to remove a small child from the car’s backseat.
3
Officer Schooley then holstered her weapon and went to the
vehicle’s passenger side to determine if the child was injured.
With Officer Schooley’s attention diverted, Bailey fled on
foot toward a nearby McDonald’s parking lot. Once Officer
Schooley determined that the child did not need attention and
another officer had arrived on the scene, she drove to the
McDonald’s and discovered Devin Watkins, a college-aged male,
“frantically waving and screaming” that his truck had just been
stolen. J.A. 23.
At trial, Watkins testified that he had been sitting in his
Toyota pickup truck with two friends when he saw a panicked and
bloodied man (Bailey) whom he did not recognize running toward
his truck. As Bailey got close, Watkins heard him say, “I’ll
pay you. I’ll pay you. I’ll pay you. Can I get a ride?” J.A.
37. Watkins refused, saying “no” multiple times, and attempted
to lock his doors and put the truck in reverse. Id.
In a flurry of activity, however, Watkins accidentally
unlocked the truck’s doors for a brief moment, and Bailey opened
the driver’s side backdoor. Watkins attempted to keep Bailey
from getting into the vehicle by quickly reversing the truck,
but Bailey climbed inside behind Watkins. Both of Watkins’s
passengers quickly exited the vehicle, and Bailey told Watkins
to “[d]rive, drive, drive, drive.” J.A. 38. Bailey then placed
something “hard and cold” to the back of Watkins’s neck. J.A.
4
40. Watkins testified that, while he did not see Bailey with a
weapon and was not sure what the item was that Bailey pressed to
his neck, he believed that Bailey “was about to kill [him].”
J.A. 41, 47. Because he feared for his life, Watkins quickly
placed the truck in park and jumped from the vehicle into some
nearby bushes. Bailey then moved to the front seat and rapidly
drove the car out of the McDonald’s parking lot.
After briefly speaking with Watkins, Officer Schooley
pursued Bailey through an area of downtown Durham with heavy
pedestrian traffic. Officer Schooley estimated that Bailey was
traveling between 50 and 60 miles per hour. After making
several quick turns, Bailey jumped from the truck and continued
to flee on foot. The truck continued rolling until it crashed
into a bollard positioned outside a local park.
Officer Schooley and Watkins testified as described above
on behalf of the government at trial. Bailey called a single
witness, Natalie Nicole Lane, one of the two female passengers
that had been traveling with Bailey in the Nissan Maxima. She
testified that she had been with Bailey the entire day leading
up to the car accident and Bailey’s arrest and that she never
saw Bailey with a weapon. (Officer Schooley also testified that
she never saw Bailey with a weapon.) The parties stipulated
that Bailey was the person who ran from the crashed Maxima and
took Watkins’s truck and that the Toyota pickup truck had been
5
transported, shipped, or received in interstate or foreign
commerce.
On August 27, 2014, after the district court denied
Bailey’s motion for judgment of acquittal, the jury found Bailey
guilty of carjacking in violation of 18 U.S.C. § 2119, and the
district court sentenced Bailey to 105 months in prison and
three years of supervised release. Bailey filed this timely
appeal.
II
This Court must uphold a jury’s verdict “if there is
substantial evidence in the record to support it.” United
States v. Wilson, 198 F.3d 467, 470 (4th Cir. 1999). “In
determining whether the evidence in the record is substantial,
we view the evidence in the light most favorable to the
government and inquire whether there is evidence that a
‘reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.’” Id. (quoting United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc)).
A person commits the crime of carjacking if he, “with the
intent to cause death or serious bodily harm[,] 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
6
do so.” 18 U.S.C. § 2119. To satisfy the intent element, the
government must show that the defendant unconditionally intended
to kill or seriously injure the car’s driver or that the
defendant possessed a conditional intent to kill or seriously
injure the car’s driver should such violence become necessary –-
i.e., “that the defendant was conditionally prepared to” kill or
seriously harm the driver if the driver “failed to relinquish
the vehicle.” United States v. Foster, 507 F.3d 233, 247 (4th
Cir. 2007).
Bailey contends that, because the government failed to
present sufficient “evidence that [he] intended to seriously
harm or kill [Watkins] if necessary to take the truck,” the
jury’s verdict must be vacated. Appellant’s Br. 8. The
government counters by emphasizing the following evidence that
it says is sufficiently probative of Bailey’s conditional intent
to sustain the jury’s verdict: (1) Bailey’s reckless driving
during the two high-speed chases he engaged in to avoid arrest,
which risked his own life and the lives of his initial
passengers -- including a five-year-old boy -- and countless
pedestrians; (2) Bailey’s frantic and desperate appearance when
he approached Watkins for a ride and forced himself into the
vehicle despite being told that no ride would be provided and
despite the vehicle being in motion; and (3) Bailey’s implied
threat when he placed a cold, hard object to the back of
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Watkins’s neck and said “[d]rive, drive, drive, drive.” J.A.
38. The government argues that the totality of this evidence
provided the jury with substantial evidentiary support to
“reasonably find that [Bailey] possessed the requisite intent to
cause death or serious bodily harm in the taking of the truck.”
Appellee’s Br. 12. We disagree with the government’s
contention.
We and our sister circuits have frequently been asked to
review federal carjacking convictions in response to sufficiency
of the evidence challenges, and a great many of the cases
specifically focused on whether sufficient evidence of the
criminal defendant’s intent had been presented to the jury.
See, e.g., United States v. Davis, 591 F. App’x 187 (4th Cir.
2014) (unpublished) (per curiam); United States v. Franklin, 545
F. App’x 243 (4th Cir. 2013) (unpublished); United States v.
Moore, 402 F. App’x 778 (4th Cir. 2010) (unpublished) (per
curiam); United States v. Foster, 507 F.3d 233 (4th Cir. 2007);
United States v. Granger, 250 F. App’x 576 (4th Cir. 2007)
(unpublished) (per curiam); United States v. Davis, 233 F. App’x
292 (4th Cir. 2007) (unpublished) (per curiam); United States v.
Lebron-Cepeda, 324 F.3d 52 (1st Cir. 2003) (per curiam); United
States v. Adams, 265 F.3d 420 (6th Cir. 2001); United States v.
Wilson, 198 F.3d 467 (4th Cir. 1999); United States v. Lake, 150
F.3d 269 (3d Cir. 1998).
8
And while the specific evidence proffered by the government
to support a finding that the defendant possessed a conditional
intent to kill or seriously harm varied in each of the above
cases, what is clear is that, in each case, the evidence of
intent was much stronger than the evidence presented to the jury
regarding Bailey’s state of mind. See, e.g., Davis, 591 F.
App’x at 189-90 (evidence that defendant demanded victim’s car
keys at gunpoint and, when victim did not comply, defendant hit
victim in the head with his gun); Franklin, 545 F. App’x at 249
(evidence that defendant and co-conspirator pointed gun at
victims when demanding that they surrender their vehicles, read
aloud one victim’s name and address to threaten victim’s future
safety, and groped another victim); Moore, 402 F. App’x at 781-
82 (evidence that defendants charged and grabbed victim, forced
victim into the back of his vehicle, and made threats that they
would kill victim by burning him in his car); Foster, 507 F.3d
at 247 (evidence that defendant placed a gun to victim’s head,
ordered victim out of the vehicle, and refused to let victim re-
enter the vehicle); Granger, 250 F. App’x at 578 (evidence that
defendant handed a gun to one of his accomplices who then robbed
victim and took victim’s vehicle); Davis, 233 F. App’x at 296
(evidence that defendants entered victim’s home with a shotgun,
overpowered victim, and stole victim’s keys); Lebron-Cepeda, 324
F.3d at 57 (evidence that defendant placed a loaded gun against
9
victim’s head and made a verbal threat); Adams, 265 F.3d at 425
(evidence that defendant physically touched three victims with
his gun, entered into a physical altercation with one victim,
and almost ran over another victim’s head); Wilson, 198 F.3d at
469-71 (evidence that defendants held a gun to one victim’s head
and “probably would have beat her, dragged her, [and] might have
even shot her” if she resisted); Lake, 150 F.3d at 272 (evidence
that defendant placed a gun near victim’s head when demanding
that she relinquish her keys).
In contrast to the defendants in the above cases, in which
the evidence showed that they threatened their victims with
actual weapons, made affirmative threatening statements, and/or
physically assaulted their victims, Bailey initially suggested
that he would pay Watkins for a ride, and only when Watkins
refused did Bailey enter the vehicle, place a “cold and hard”
item to Watkins’s neck, and say “[d]rive, drive, drive, drive.”
J.A. 38, 40. Bailey admits (for good reason) that, by entering
the truck, touching something to Watkins’s neck, and ordering
Watkins to drive, he hoped that he would scare Watkins.
Appellant’s Br. 8. And as one can readily imagine, Watkins
testified that, at the time, he was fearful that Bailey was
going to kill him. J.A. 38, 41.
Importantly, however, as became clear during the testimony
of Officer Schooley, J.A. 28, Watkins, J.A. 46, and Lane, J.A.
10
54, no one ever saw Bailey with a weapon, and the government has
not argued on appeal that Bailey possessed a weapon that simply
went unseen or undiscovered, or even that there is substantial
evidence to support an inference that he might have had a
weapon.
In Holloway, the case in which conditional intent was
established as a viable means of establishing mens rea for
purposes of federal carjacking, the Supreme Court explained that
“an empty threat, or intimidating bluff, . . . standing on its
own, is not enough to satisfy § 2119’s specific intent element.”
526 U.S. at 11. In this case, each trial witness with potential
knowledge of the matter testified uniformly that she or he never
saw Bailey possess a weapon, and the government never suggested
on appeal that Bailey actually possessed a weapon. 2 Nor is there
evidence of an actual threat to inflict harm on Watkins. Thus,
a rational trier of fact could only conclude that Bailey, in
holding a “cold and hard” object to Watkins’s neck and ordering
Watkins to drive, at most, and in the language of Holloway,
engaged in an empty threat or an intimidating bluff in hopes of
2 At oral argument, the government indicated that it had
argued to the jury that the “cold and hard” object was a weapon.
However, it failed to include its closing argument in the joint
appendix, and the government did not argue in its appellate
brief that Bailey possessed a weapon. We think it significant
that the government abandoned this argument on appeal.
11
coercing Watkins into aiding his escape from the pursuing law
enforcement officer.
To be sure, as the government points out, the jury had
before it evidence of Bailey’s episodes of reckless driving and
panicked state to consider. Holloway, however, requires
factfinders to look “to the defendant’s state of mind at the
precise moment he demanded or took control over the car” and
instructs that proof of the requisite mens rea can only be
satisfied if, at that precise moment, “the defendant possessed
the intent to seriously harm or kill the driver if necessary to
steal the car.” Id. at 8, 12 (emphasis added). 3 Bailey’s
panicked state and reckless driving to evade police clearly
evidenced his carelessness and desperation, and he obviously
placed his initial passengers and countless pedestrians in
harm’s way. Bailey’s conduct during the chase was certainly
probative of his state of mind, but insufficient for the
purposes for which it is proffered here. Applying Holloway, we
have no hesitation in concluding that evidence of generalized
3 Our reasoning is not inconsistent with that in United
States v. Basham, 561 F.3d 302, 328 (4th Cir. 2009). There, we
found no error in the district court’s admission under Federal
Rule of Evidence 404(b) of the defendant’s repeated statements
prior to the charged carjacking, in which the victim was
actually murdered, of his willingness to commit murder. As
Basham did not raise a sufficiency of the evidence challenge to
his conviction, Holloway was neither cited nor discussed.
12
recklessness and desperation, coupled with an unconsummated
implied threat or “bluff” provided insufficient evidentiary
support from which a jury could reasonably find beyond a
reasonable doubt that Bailey possessed the specific intent,
conditional or otherwise, to kill or seriously harm Watkins when
he took control over Watkins’s truck. 4
Thus, even when construed in the light most favorable to
the government, the evidence is insufficient to permit a
reasonable factfinder to conclude beyond a reasonable doubt that
Bailey had the intent to inflict serious bodily harm or to kill
Watkins if necessary to take Watkins’s truck.
4In denying Bailey’s motion for a judgment of acquittal,
the district court seemed to focus unduly on Watkins’s
understandable fear and apprehension that he would be killed,
stating:
It’s my understanding intent is determined by the
Defendant’s conduct and also by the interpretation of
the -- the victim’s interpretation of that conduct
with regard to the person’s intent. . . . Mr. Watkins
said he bailed out of the car because he thought he
was going to be killed if he didn’t.
J.A. 56, 59. We do not doubt that, on an appropriate
evidentiary foundation, apart from a perpetrator’s actual
conduct (obviously), evidence of a victim’s subjective reaction
to a perpetrator’s conduct and/or evidence of objective
manifestations of a victim’s state of mind, might well be
probative of a perpetrator’s specific intent to harm or kill.
This plainly is not such a case. Surely, virtually any robbery
victim such as Watkins will be intimidated and frightened and
will look to escape his predicament at the earliest opportunity.
Holloway requires more, however, to prove the specific intent
element of the federal offense of carjacking under § 2119.
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III
For the reasons set forth, the judgment is vacated, and we
remand the case for entry of a judgment of acquittal.
VACATED AND REMANDED WITH INSTRUCTIONS
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