United States v. García-García

354 F. App'x 434
CourtCourt of Appeals for the First Circuit
DecidedDecember 4, 2009
DocketNo. 08-2259
StatusPublished

This text of 354 F. App'x 434 (United States v. García-García) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. García-García, 354 F. App'x 434 (1st Cir. 2009).

Opinion

BALDOCK, Circuit Judge.

A jury convicted Defendant-Appellant Sandry García-García of carjacking in violation of 18 U.S.C. § 2119(2) and of brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court denied Defendant’s motions for acquittal and a new trial and sentenced him to a total of 181 months. On appeal, Defendant first argues the district court “lacked jurisdiction” because the victim was not driving or a passenger in the vehicle when the alleged carjacking took place. Defendant, then, asserts that because he was not properly convicted of an underlying crime of violence, his firearm conviction cannot stand for “lack of jurisdiction.” Defendant also claims that because police only conducted photo lineups, the out-of-court identifications were imper-missibly suggestive.1 Exercising jurisdiction under 28 U.S.C. § 1291, we reject his arguments and affirm the district court.

I.

Because the attack on Federico López-Villafañe (“López”), which gave rise to Defendant’s present convictions, has already come before this court in United States v. García-Álvarez, 541 F.3d 8 (1st Cir.2008), we recite here only the minimum facts necessary to explain our holding. On the morning of April 12, 2006, López exited his apartment building and walked towards his car. As he approached his ear, four assailants attacked him. Three of the assailants covered their faces with t-shirts. At the moment of the attack, López was standing about a foot and half away from his car. According to López, two of the four attackers carried nickel-plated automatic pistols. During the scuffle, the assailants’ t-shirt-masks fell, revealing their faces. López would later testify that Defendant hit him with a nickel-plated pistol on his forehead, face, knees, and shins. The violence escalated. Another attacker used a rock to beat López while the others held him. They then forced him into his building’s basement. The attackers duct taped his feet, hands and eyes. They demanded money, held a gun to his head, and threatened to kill him if he did not cooperate. They took his house keys, car keys, and pocket money. At one point, the attackers went upstairs to Lopez’s apartment to search for money. Eventually, López fled the basement. A neighbor’s bodyguard arrived and called the police. López then saw his car leaving from the opposite side of the building. He was later taken to a hospital where he received stitches to his head and legs and, later, knee surgery.

Three days later, police showed López dozens of photographs at police headquarters. He marked about twenty, but did not definitively identify any one picture. A month later, police showed him four to five sheets, each containing six to nine photographs. From this array, López identified Defendant as one of the men [436]*436who assaulted him and took his car. He also later identified Defendant in court.

Lopez’s maid, Clemencia Lewis, also encountered the attackers when they searched his apartment for money. She testified that she came face-to-face with Defendant, another assailant pointed a silver gun at her, and a third person stood by. Lewis further testified Defendant pushed her onto the floor, tied her hands and feet, and covered her head with a towel. She identified Defendant as her attacker from a photo lineup the month following the attack and later identified him again in court.

II.

Defendant first argues the district court lacked jurisdiction as to his § 2119(2) conviction because López was not driving or a passenger in his vehicle when the alleged carjacking took place. “Whoever, 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 do so,” resulting in “serious bodily injury,” is guilty of the crime of carjacking punishable by up to twenty-five years in prison. 18 U.S.C. § 2119(2). Defendant argues the carjacking statute requires the Government to prove he intended to cause death or serious bodily harm at the precise moment he demanded or took control over the car by force or intimidation. He reasons that because the evidence at trial indicated he and the other assailants did not drive López’s car away for twenty to thirty minutes after they beat, bound, and stole the car keys from López, the Government failed to establish he possessed the intent to cause death or serious bodily harm at the time the car was actually stolen.

Defendant’s second argument flows from the first. Any person who brandishes a firearm during and in relation to any crime of violence shall be sentenced to a minimum of seven years in prison. 18 U.S.C. § 924(c)(1)(A)(ii). Defendant claims because his conviction of a crime of violence was improper for “lack of jurisdiction,” his § 924(c) (1)(A)(ii) firearm conviction is also fatally flawed for “lack of jurisdiction.”

We note for the sake of clarity and accuracy Defendant’s first and second arguments are inherently not jurisdictional. Essentially, he asserts the Government did not prove all elements of the crimes of §§ 2119(2) and 924(c)(1) because it failed, first, to show he intended to cause death or serious bodily harm at the moment of the taking of the vehicle and, second, that he was properly convicted of a crime of violence. Lack of evidence as to an element of a federal crime, however, means the Government has not met its bui’den sufficient to support a conviction, not that the district court is deprived of jurisdiction to adjudicate the case. See United States v. González-Mercado, 402 F.3d 294, 301 (1st Cir.2005) (explaining that the argument that the facts are insufficient to satisfy the “results in serious bodily injury” element of 18 U.S.C. § 2119(2) did not call into question the district court’s jurisdiction, but rather the sufficiency of the evidence relating to the defendant’s guilt). A federal criminal case generally lies within the subject matter jurisdiction of a district court if the indictment charges that the defendant committed a crime defined by Congress as a federal crime. United States v. González, 311 F.3d 440, 442 (1st Cir.2002). Therefore, unless Congress provided otherwise, subject matter jurisdiction existed in the present case because Defendant was charged in district court under §§ 2119(2) and 924(c)(1), which are federal criminal statutes. See id. (explaining that unless Congress provided other[437]*437wise, subject matter jurisdiction existed in the case because the defendant was charged in district court under 46 U.S.C.App. § 1903, which is a federal criminal statute).

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Bluebook (online)
354 F. App'x 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-garcia-garcia-ca1-2009.