United States v. Perez-Garcia

Procedural entryThis page is a short order in United States v. Perez-Garcia. Read the opinion of the Court — 56 F.3d 1 →

Court of Appeals for the First Circuit·Decided June 6, 1995·No. 94-1697·Published

Opinion

USCA1 Opinion

United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________

No. 94-1697

UNITED STATES,

Appellee,

v.

JORGE PEREZ-GARCIA,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gene Carter,* U.S. District Judge] ___________________

____________________

Before

Boudin, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________

____________________

Kevin G. Little on brief for appellant. _______________
Antonio R. Bazan, Assistant United States Attorney, Jose A. __________________ ________
Quiles-Espinosa, Senior Litigation Counsel, and Guillermo Gil, United _______________ _____________
States Attorney on brief for appellee.

____________________

June 6, 1995
____________________

_____________________
*Of the District of Maine, sitting by designation.

STAHL, Circuit Judge. Defendant-appellant Jorge L. STAHL, Circuit Judge. _____________

Perez-Garcia challenges his conviction for carjacking, in

violation of 18 U.S.C. 2119 (West 1992),1 and using a

firearm in relation to a crime of violence, in violation of

18 U.S.C. 924(c).2 We affirm.

I. I. __

BACKGROUND BACKGROUND __________

On October 8, 1993, four gunmen, one of whom was

later identified as Perez-Garcia, forcibly entered the home

of Maria de los Angeles Rosado Rosario ("Rosado") in Bayamon,

____________________

1. The 1992 version of 2119 provides:

Whoever, possessing a firearm, . . .
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, shall--
(1) be fined under this title or
imprisoned not more than 15 years, or
both.

2. Section 924(c) provides:

Whoever--
(1) uses a firearm to commit any
felony for which he may be prosecuted in
a court of the United States, or
(2) carries a firearm unlawfully
during the commission of any felony for
which he may be prosecuted in a court of
the United States, shall, in addition to
the punishment provided for the
commission of such felony, be sentenced
to a term of imprisonment for not less
than one year nor more than ten years.

-2- 2

Puerto Rico. The gunmen tied up Rosado's family and

threatened to kill them if Rosado did not meet their demands

for money and jewelry.

In response to their threat, Rosado offered to

bring the gunmen to her parents' farm in Barranquitas where a

friend had allegedly buried some jewelry. Perez-Garcia

instructed Rosado to give him her car keys. Perez-Garcia and

one of his accomplices then forced Rosado to ride with them

in her car to Barranquitas to recover the jewelry while the

other gunmen remained at Rosado's house, holding her family

hostage.

When they arrived at the farm, Perez-Garcia and his

accomplice forced Rosado, her mother, brother, and sister-in-

law, all of whom were home at the time, to dig for the

jewelry. After Rosado and the others unearthed six five-

gallon buckets of valuables,3 at the gunmen's direction,

they loaded them into the trunk of Rosado's car. The gunmen

then forced Rosado and her sister-in-law into the car and

ordered Rosado to return to Bayamon.

Upon reaching Bayamon, Perez-Garcia instructed

Rosado to stop at a public telephone. Perez-Garcia remained

in the car while his accomplice ran across the street to

____________________

3. The buckets did not contain jewelry as Rosado had
thought, but instead contained U.S. currency, totalling
$654,100.

-3- 3

place a call. While Perez-Garcia waited for his accomplice

to return, three police officers approached Rosado's car with

their weapons drawn and ordered Perez-Garcia to get out.4

Perez-Garcia instructed Rosado to drive away. When she

refused, Perez-Garcia pushed her out of the car and drove

off. After a brief pursuit, Perez-Garcia was apprehended.

On November 3, 1993, a federal grand jury returned

a two-count indictment, charging Perez-Garcia with

carjacking, in violation of 2119 ("Count I"), and using a

firearm in relation to a crime of violence, in violation of

924(c) ("Count II"). Before trial, Perez-Garcia filed a

Free access — add to your briefcase to read the full text and ask questions with AI

USCA1 Opinion




United States Court of Appeals
                            United States Court of Appeals

                                For the First Circuit
                                For the First Circuit

                                 ____________________



        No. 94-1697



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                 JORGE PEREZ-GARCIA,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO


[Hon. Gene Carter,* U.S. District Judge]
                                           ___________________



                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
                                        _____________

                            Bownes, Senior Circuit Judge,
                                    ____________________

                              and Stahl, Circuit Judge.
                                         _____________



                                 ____________________



            Kevin G. Little on brief for appellant.
            _______________

            Antonio  R.  Bazan, Assistant  United  States  Attorney,  Jose  A.
            __________________                                        ________

        Quiles-Espinosa, Senior  Litigation Counsel, and Guillermo Gil, United
        _______________                                  _____________

        States Attorney on brief for appellee.



                                 ____________________



                                     June 6, 1995

                                 ____________________



        _____________________

        *Of the District of Maine, sitting by designation.



STAHL, Circuit Judge.  Defendant-appellant Jorge L.
                      STAHL, Circuit Judge.
                             _____________



            Perez-Garcia challenges  his  conviction for  carjacking,  in



            violation  of  18 U.S.C.    2119  (West  1992),1 and  using a



            firearm in relation to  a crime of violence, in  violation of



            18 U.S.C.   924(c).2  We affirm.



                                          I.
                                          I.
                                          __



                                      BACKGROUND
                                      BACKGROUND
                                      __________



                       On October 8, 1993, four  gunmen, one of whom  was



            later  identified as Perez-Garcia,  forcibly entered the home



            of Maria de los Angeles Rosado Rosario ("Rosado") in Bayamon,


____________________



            1.  The 1992 version of   2119 provides:



                           Whoever, possessing a firearm, . . .

                      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, shall--

                           (1)  be  fined under  this  title or

                      imprisoned  not more  than  15 years,  or

                      both.


2.  Section 924(c) provides:



                      Whoever--

                           (1) uses  a  firearm to  commit  any

                      felony for which he  may be prosecuted in

                      a court of the United States, or

                           (2)  carries  a  firearm  unlawfully

                      during the commission  of any felony  for

                      which he may be  prosecuted in a court of

                      the United States, shall, in  addition to

                      the    punishment   provided    for   the

                      commission of such  felony, be  sentenced

                      to a  term of imprisonment  for not  less

                      than one year nor more than ten years.



                                         -2-
                                          2



Puerto  Rico.    The  gunmen  tied  up  Rosado's  family  and



            threatened  to kill them if Rosado did not meet their demands



            for money and jewelry.



                      In  response  to their  threat,  Rosado offered  to



            bring the gunmen to her parents' farm in Barranquitas where a



            friend  had  allegedly  buried some  jewelry.    Perez-Garcia



            instructed Rosado to give him her car keys.  Perez-Garcia and



            one of his accomplices  then forced Rosado to ride  with them



            in her car to  Barranquitas to recover the jewelry  while the



            other gunmen  remained at Rosado's house,  holding her family



            hostage.



                      When they arrived at the farm, Perez-Garcia and his



            accomplice forced Rosado, her mother, brother, and sister-in-



            law,  all  of whom  were home  at the  time,  to dig  for the



            jewelry.   After Rosado and  the others  unearthed six  five-



            gallon buckets  of  valuables,3 at  the  gunmen's  direction,



            they loaded them into the trunk of  Rosado's car.  The gunmen



            then  forced Rosado  and her  sister-in-law into the  car and



            ordered Rosado to return to Bayamon.



                      Upon  reaching   Bayamon,  Perez-Garcia  instructed



            Rosado to stop at a  public telephone.  Perez-Garcia remained



            in  the car  while his  accomplice ran  across the  street to


____________________



            3.  The  buckets  did  not  contain  jewelry  as  Rosado  had

            thought,  but  instead  contained  U.S.  currency,  totalling

            $654,100.


-3-
                                          3



place a call.   While Perez-Garcia waited for  his accomplice



            to return, three police officers approached Rosado's car with



            their  weapons drawn  and ordered  Perez-Garcia to  get out.4



            Perez-Garcia  instructed  Rosado to  drive  away.   When  she



            refused, Perez-Garcia  pushed her  out of  the car  and drove



            off.  After a brief pursuit, Perez-Garcia was apprehended.



                      On November 3, 1993,  a federal grand jury returned



            a   two-count   indictment,   charging    Perez-Garcia   with



            carjacking, in violation of    2119 ("Count I"), and  using a



            firearm in relation to a crime of violence, in violation of  



            924(c)  ("Count II").    Before trial,  Perez-Garcia filed  a



            motion to dismiss Count II,  arguing that the Double Jeopardy



            Clause  barred simultaneous  prosecution  under     2119  and



            924(c).   The district court  denied the motion  and the case



            proceeded to trial.



                      At the close of  evidence, Perez-Garcia moved for a



            judgment of  acquittal  pursuant to  Fed.  R. Crim.  P.  29,5



            arguing that  there was  insufficient evidence to  prove that



            the car was taken  "from the person" of Rosado, as charged in


____________________



            4.  The gunmen remaining  at Rosado's house  had fled, and  a

            member Rosado's  family had called  the police to  report the

            incident and give them a description of Rosado's car. 



            5.  Fed. R. Crim. P.  29 provides:  "The  court on motion  of

            the defendant  . .  . shall  order the  entry of  judgment of

            acquittal of one or  more offenses charged in  the indictment

            or information after the evidence on either side is closed if

            the  evidence is insufficient to sustain a conviction of such

            offense or offenses."



                                         -4-
                                          4



the indictment.  The district court denied the motion and, on



            February 9, 1994,Perez-Garcia was found guilty onboth counts.



                      At  the  sentencing   hearing,  Perez-Garcia   made



            another  motion  to  dismiss  Count  II  on  double  jeopardy



            grounds.  The district court  denied the motion and sentenced



            Perez-Garcia  to 175  months'  imprisonment for  Count I  and



            sixty  months'  imprisonment  for  Count  II.    This  appeal



            followed.



                                         II.
                                         II.
                                         ___



                                      DISCUSSION
                                      DISCUSSION
                                      __________



                      On  appeal, Perez-Garcia  argues that  the evidence



            was  insufficient  to  support  a conviction  under     2119,



            because he had not taken the car "from the person" of Rosado,



            as charged in the indictment.6



                      Count  I  of  the  indictment charged  that  Perez-



            Garcia:



                      aided and abetted by persons to the Grand

                      Jury unknown and while in possession of a

                      firearm .  . .  did take a  motor vehicle

                      from the person  of Maria de los  Angeles
                      _______________

                      Rosado  Rosario,  by force,  violence and

                      intimidation  . .  .  said motor  vehicle

                      having   been  transported,   shipped  or

                      received   in   interstate   or   foreign



                                
            ____________________



            6.  Perez-Garcia also argues that  the Double Jeopardy Clause

            bars  cumulative  punishment   under      2119   and  924(c).

            However, the First Circuit recently  decided that "cumulative

            punishment under 18 U.S.C.    2119 and 924(c) does not offend

            the   Double   Jeopardy   clause   of   the   United   States

            Constitution."  United States v. Centeno-Torres, No. 94-1882,
                            _____________    ______________

            slip  op. at 4 (1st Cir. Mar. 28, 1995).  Accordingly, Perez-

            Garcia's double jeopardy claim fails.   



                                         -5-
                                          5



commerce.  All in violation of [18 U.S.C.

                        2119(1) and (2)].



            (emphasis   added).     Perez-Garcia,   in   challenging  his



            conviction, argues that the adduced facts belie the charge in



            the indictment.   He contends  that although he  was charged,



            convicted, and sentenced for taking a motor vehicle "from the



            person"  of Rosado,  the evidence  presented at  trial proved



            that  the motor  vehicle  was taken  "from  the presence"  of



            Rosado.7  We reject his argument.



                      Although  Perez-Garcia  frames  his  argument  as a



            sufficiency-of-the-evidence challenge, in effect, he contends



            that  there  was a  prejudicial  variance  between the  facts



            proved  at trial  and those  alleged in  the indictment.   "A



            variance occurs when the  charging terms remain unchanged but



            when  the  facts proved  at  trial are  different  from those



            alleged  in the indictment."  United States v. Fisher, 3 F.3d
                                          _____________    ______



            456, 462 (1st Cir.  1993); see also United States  v. Tormos-
                                       ___ ____ _____________     _______



            Vega,  959 F.2d 1103, 1115 (1st  Cir.),  cert. denied, 113 S.
            ____                                     _____ ______



            Ct.  191-92 (1992).  "A variance is grounds for reversal only



            if it affected the  defendant's 'substantial rights' -- i.e.,



            the  rights  to  'have  sufficient knowledge  of  the  charge



                                
            ____________________



            7.  Perez-Garcia  contends that he  effectively took Rosado's

            car when he obtained her  car keys, at which time  Rosado was

            inside her  house and  the car  was parked  on the street  in

            front of  the house. Perez-Garcia  concedes that the  car was

            taken from Rosado's observation or control -- i.e., "from the

            presence" of Rosado -- but argues that it was not taken "from

            the person" of Rosado, as charged in the indictment.  Section

            2119 criminalizes takings "from the person or presence."



                                         -6-
                                          6



against  him  in order  to prepare  an effective  defense and



            avoid  surprise at trial, and to prevent a second prosecution



            for the  same offense.'"     Fisher, 3  F.3d at  463 (quoting
                                      _________



            Tormos-Vega, 959 F.2d at 1115). 
            ___________



                      The carjacking  statute does  not define "from  the



            person or presence," and neither do the robbery statutes upon



            which   2119  was based.  See H.R.  Rep. No. 102-851(I), 103d
                                      ___



            Cong.,  2d Sess.  5  (1992), reprinted  in 1992  U.S.C.C.A.N.
                                         _________  __



            2829,  2834 ("definition of  [carjacking] tracks the language



            used in other federal robbery statutes");  18 U.S.C.    2111,



            2113,  and 2118.  Courts  generally agree that  taking from a



            victim's  person  is understood  to  include  the common  law



            conception  of taking  from a victim's  presence.   See e.g.,
                                                                ___ ____



            Collins  v.  McDonald,  258  U.S. 416,  420  (1922)  ("taking
            _______      ________



            property  from the  presence  of another  feloniously and  by



            putting  him  in fear  is equivalent  to  taking it  from his



            personal  protection  and  is,  in  law,  a taking  from  the



            person");  Norris v.  United States,  152 F.2d 808,  809 (5th
                       ______     _____________



            Cir.), cert. denied, 328  U.S. 850 (1946); Weisman  v. United
                   _____ ______                        _______     ______



            States, 1 F.2d 696, 698  (8th Cir. 1924); Mays v. State,  335
            ______                                    ____    _____



            So.2d 246, 248 (Ala. Crim. App. 1976); Mitchell v. State, 329
                                                   ________    _____



            So.2d  658, 659  (Ala. Crim. App.  1976) (citing  DeFranze v.
                                                              ________



            State, 241 So.2d  125, 127 (Ala. Crim.  App.)), cert. denied,
            _____                                           _____ ______



            329 So.2d 663 (Ala.  1976); People v. Adams, 359  N.E.2d 840,
                                        ______    _____



            842 (Ill. App. Ct. 1977); State v. Constantine, 342 A.2d 735,
                                      _____    ___________


-7-
                                          7



736 (Me. 1975); Williams v. State, 256 A.2d 776, 778 (Md. Ct.
                            ________    _____



            Spec. App.  1969); Commonwealth  v. Lashway, 634  N.E.2d 930,
                               ____________     _______



            932  (Mass. App.  Ct.), review  denied, 640  N.E.2d 475,  641
                                    ______  ______



            N.E.2d 1352 (Mass. 1994); State v. Reddick, 184 A.2d 652, 654
                                      _____    _______



            (N.J. Super. Ct. App.  Div. 1962); State v. Webber,  513 P.2d
                                               _____    ______



            496, 498 (Or.  Ct. App.  1973); State v.  Howard, 693  S.W.2d
                                            _____     ______



            365, 368  (Tenn. Crim.  App. 1985); Garland  v. Commonwealth,
                                                _______     ____________



            446 S.E.2d 628, 629  (Va. App. 1994).   Here, it is  apparent



            that the vehicle was taken from the person of Rosado when the



            defendant forced  her to  ride with  him  in her  car to  the



            family farm.   Such a  taking was,  in law, a  taking of  the



            motor vehicle "from the  person" of Rosado.  Thus,  the facts



            proved  at trial and those  alleged in the  indictment do not



            amount to a variance.



                                         III.
                                         III.
                                         ____



                                      CONCLUSION
                                      CONCLUSION
                                      __________



                      For the foregoing reasons, the judgment below is   



                      Affirmed.
                      Affirmed.
                      _________


-8-
                                          8