12-2077 (L) United States v. Soler & Waters UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2013
(Argued: April 4, 2014 Decided: July 22, 2014)
Docket Nos. 12‐2077‐cr, 12‐3831‐cr
UNITED STATES OF AMERICA,
Appellee,
—v.—
WILLIAM SOLER, SAMI WATERS,
Defendants‐Appellants.
B e f o r e:
KATZMANN, Chief Judge, WALKER and DRONEY, Circuit Judges.
Appeal from two judgments of conviction entered by the United States District Court for the Eastern District of New York (Dearie, J., and Gershon, J.) following jury trials in which Defendants‐Appellants were found guilty of, inter alia, one count of carjacking in violation of 18 U.S.C. § 2119. Both defendants contend that the district court erred in denying their motions for a judgment of acquittal as to the carjacking count because in forcibly taking the keys to an automobile parked on the curb outside the home in which the robbery took place, the defendants did not take an automobile from the “presence” of the victim as required by the carjacking statute. We join our fellow circuits in construing the term “presence” in the carjacking statute to accord with the meaning given to that term in the common law crime of robbery, and therefore hold that an automobile is taken from the victim’s presence when the victim is sufficiently within reach, inspection, or observation of the vehicle that the victim could have retained his or her possession of it if not overcome by violence or prevented by fear. Because evidence at trial demonstrated that the taken automobile was sufficiently within the presence of the victim to satisfy this definition, we conclude that the district court properly denied the motions for acquittal.
JUDGMENTS AFFIRMED. _______________
RICHARD M. TUCKER (Emily Berger, W. David Sarratt, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
DAVID A. LEWIS, Assistant Federal Public Defender, Federal Defenders of New York, Inc., New York, NY, for Defendant‐ Appellant Soler.
TINA SCHNEIDER, Portland, ME, for Defendant‐Appellant Waters.
KATZMANN, Chief Judge:
This appeal calls upon us to interpret language in the federal carjacking
statute, 18 U.S.C. § 2119 (the “carjacking statute”), that defines how near a
2 robbery victim must be to his or her stolen automobile to render the robber
criminally liable for carjacking. That is, this case requires us to decide what the
federal carjacking statute means when it criminalizes the forcible taking of an
automobile “from the person or presence” of the victim, id.
Defendant‐Appellant William Soler, joined by his co‐defendant Sami
Waters,1 contends that he should have been acquitted of carjacking because the
statutory phrase “person or presence of another” should be read to describe only
the area that is immediately near the victim. He asserts that because he robbed his
victim of the keys to her automobile inside of her home—while her car was
parked on a curb outside her home, beyond a closed front door and a tall fence—
he is not criminally liable for the federal offense of carjacking.
Both Soler and Waters made this argument before Judges Dearie and
Gershon, respectively, in motions for acquittal at the close of their trials, and each
1 While Defendant‐appellant Waters joins the relevant portions of Soler’s brief regarding the issue of statutory interpretation we discuss in this opinion, we note that Waters’s appeal principally argues that the district court erred in denying his motion to suppress certain evidence and erred in imposing sentence. We address those arguments in a summary order filed simultaneously with this opinion.
3 judge rejected their interpretive argument.2 Judge Dearie held that the denial of
Soler’s motion was a matter of “common sense,” while Judge Gershon cited the
holding of several of our fellow circuits that “property is in the presence of a
person if it is so within his reach, observation, or control that he could, if not
overcome by violence or prevented by fear, retain possession of it,” Waters App.
255. For the reasons that follow, we adopt the same interpretation of “presence”
as that endorsed by Judge Gershon and several of our fellow courts of appeals.
We therefore affirm both judgments.
BACKGROUND
For the purpose of advancing their interpretation of the carjacking statute
on appeal, the defendants do not dispute that evidence at their trials established
that on August 10, 2010, they entered a home in Brooklyn, New York, and
violently robbed the three residents therein of several things of value. As they left
the home, the defendants demanded that one of the residents give them the keys
2 For reasons that are not relevant to this appeal, Soler and Waters were each tried separately for offenses charged in the same indictment. The indictment charged the defendants with carjacking, 18 U.S.C. § 2119 (Count 1); the unlawful use and brandishing of a firearm, 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2); and being felons in possession of a firearm, 18 U.S.C. § 922(g)(1) (Count 3 as to Soler and Count 4 as to Waters, to account for a difference in the applicable penalty provisions). 4 to a car parked in front of the house. This victim testified that the car was parked
on a curb “10 to 15 feet” or “a five second walk” from the front door to the house,
Soler App. 51, and that while a person could have seen the car “from [the] front
door,” she “couldn’t at th[e] moment [the defendants asked for the keys] because
[she] was laying down,” Soler App. 47. After the defendants demanded the keys,
the victim retrieved her keychain from a shelf near the front door and handed it to
them. She then sat near the two defendants as the two turned to flee the scene,
though from her vantage point she was unable to observe the defendants’
behavior as they left the home.
Photographs of the front of the home introduced into evidence show that
the interior of the house in which the victim was robbed of her keys is separated
from the street by a solid front door, a short driveway (the transiting of which
would account for the “five second walk” described in the victim’s testimony), a
wrought iron fence, and a sidewalk. The victim also testified that the car could be
unlocked from the front door using a remote attached to her keychain.
5 Both Soler’s and Waters’s counsel moved, pursuant to Federal Rule of
Criminal Procedure 29, for acquittal as to the carjacking count as well as a related
count charging the unlawful use of a firearm in violation of 18 U.S.C. § 924(c).
Judge Dearie deemed Soler’s motion to have been made both at the close of
the government’s case and at the close of all the evidence, but did not decide the
motion until the first day of sentencing.3 In support of his motion, Soler argued
that even though he had “knowingly participated in an uncharged home invasion
robbery with his co‐defendant, Sami Waters,” his taking of the victim’s keys
inside her home and subsequent taking of her automobile outside her home did
not satisfy the statutory requirement that the car be taken from the “person or
presence of the victim.” Soler App. 207. Judge Dearie denied Soler’s motion, and
sentenced him to three years’ imprisonment on the carjacking count.
Judge Dearie explained from the bench that although this Court has not yet
decided the issue, other courts have reached “the common sense conclusion that
person or presence does [not] necessarily require the immediate presence of the
3 Soler’s sentencing proceedings began on March 28, 2012, but were adjourned. His sentence was eventually imposed on April 4, 2012.
6 victim.” Soler App. 166.4 Without elaborating a positive definition of “presence,”
the district court concluded that it would be a “silly result” to interpret
“presence” so that the carjacking of a victim in a grocery store parking lot would
no longer be carjacking if the victim were instead robbed of her keys after she
walked into the grocery store. See id.
Judge Gershon denied a nearly identical motion in Waters’s case. In an
opinion explaining her decision, Judge Gershon correctly observed that “all
circuits that have considered the issue have held that ‘property is in the presence
of a person if it is so within his reach, observation, or control that he could, if not
overcome by violence or prevented by fear, retain possession of it,’” Waters App.
255, and that the facts of the defendants’ robbery here involved no greater a
distance between the victim and her automobile than several carjacking
convictions affirmed by our fellow circuits. See id.
This appeal ensued, in which the defendants renew their argument that the
victim’s car was not within her “presence” when they forcibly took her keys from
her inside her home.
4 Although Judge Dearie indicated at sentencing that he would issue a written opinion denying Soler’s Rule 29 motion, no such opinion appears in the record. 7 DISCUSSION
We review the district courts’ interpretation of a federal statute de novo.
United States v. Aleynikov, 676 F.3d 71, 76 (2d Cir. 2012). We similarly review the
denial of a Rule 29 motion arguing sufficiency of the evidence de novo, United
States v. Amico, 486 F.3d 764, 780 (2d Cir. 2007), and view all evidence “in the light
most favorable to the government,” id. That said, however, the defendants’
argument on appeal exclusively turns on which of the competing interpretations
of the statutory language of “presence” we adopt. There is no contention that the
evidence at the two trials was insufficient to meet the government’s broader
definition of “presence,” and the defendants acknowledge that their appeal relies
upon our willingness to construe (contrary to the district court) the statutory term
“presence” to mean “in front of, or in the area immediately around, a person.” See
Br. for Defendant‐Appellant Soler at 13. We therefore turn to the question of
statutory interpretation that is before us.
We begin with our traditional interpretive tools, turning first to the text of
the statute in an attempt to discern whether the plain and ordinary meaning of
the term “presence” settles the matter. See Raila v. United States, 355 F.3d 118, 120
8 (2d Cir. 2004) (noting that “[s]tatutory construction begins with the plain text,
and, ‘where the statutory language provides a clear answer, it ends there as
well’”) (quoting Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999)).
In pertinent part, the carjacking statute imposes criminal penalties upon
“[w]hoever, 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.” 18 U.S.C. § 2119. As many of our fellow courts
of appeals have noted, the critical term—“presence”—does not yield a
straightforward ordinary meaning. See, e.g., United States v. Kimble, 178 F.3d 1163,
1166 (11th Cir. 1999). General purpose dictionaries published around the time of
the statute’s enactment define “presence” as “the part of space within one’s ken,
call, or influence: the vicinity of or the area immediately near one: the place in
front of or around a person.” Webster’s Third New International Dictionary 1793
(1993). As is obvious from this definition, consulting the available dictionaries
does not yield a meaning for “presence” that would decisively limit the statute’s
scope. Words like “ken,” “vicinity,” and “near” leave us with the same ambiguity
9 with which we started our inquiry. Indeed, as another contemporary dictionary
explains, when the word “presence” is used with a possessive or the word “of,”
as in the carjacking statute, it communicates “a vague sense of the place or space
in front of a person, or which immediately surrounds him.” 12 Oxford English
Dictionary 394 (2d ed. 1989). Just so in this very case, in which the ordinary
meaning of “presence” is vague and fails to communicate a precise limitation
upon the statute’s prohibition.
The legislative history is just as equivocal with respect to the intended
scope of the carjacking statute, and it is utterly silent as to the meaning of
“presence.” To be sure, the legislative history of the larger Anti Car Theft Act of
1992, Pub. L. No. 102‐519, 106 Stat. 3384, of which the carjacking statute was a
part, reflects Congress’s preoccupation with a surfeit of “auto kleptomania . . .
sweeping the nation,” Anti‐Car Theft Act of 1992: Hearings Before the Subcomm. on
Crime & Criminal Justice of the H. Comm. on the Judiciary, 102d Cong. 1 (1991)
(Opening statement of Rep. Schumer). Read in context with the aims of the
broader Anti Car Theft Act, it is clear that in enacting the carjacking statute,
Congress was legislating to address the ever‐growing problem of auto theft in this
10 country. Thus the broader Anti Car Theft Act also aims to reduce trafficking in
stolen vehicles by addressing the phenomena of “chop shops,” “title washing,”
and export “rings” that use shipping containers to ship stolen cars abroad. See
H.R. Rep. No. 102‐851, pt. 1, at 14 (1992); see also Kimble, 178 F.3d at 1167–68
(noting the statute’s purpose of curbing a “rash of car robberies” and explaining
that “[j]ust as with other types of robbery, the victim’s proximity . . . is a predicate
of the crime”). That Congress had in mind the general problems of auto theft and
auto robbery suggests that “presence” could be read to embrace a general class of
robberies involving automobiles, even those that may seem to fall outside the
prototypical meaning of “carjacking.”
On the other hand, the legislative history that describes the particular
mischief Congress sought to remedy in passing the carjacking statute makes
repeated reference to what one would consider the ordinary meaning of
“carjacking”: that is, “[t]he stealing or commandeering of an occupied car by
threatening the driver with violence,” carjacking, n., OED Online, www.oed.com
(search “carjacking”) (last visited May 9, 2014). At the forefront of this legislative
history are repeated references to the shocking death of a mother who was
11 dragged to her death after her vehicle was carjacked in the Washington, D.C. area.
See, e.g., 138 Cong. Rec. 24809 (1992) (statement of Sen. Cohen); 138 Cong. Rec.
24914 (1992) (statement of Rep. Goss); 138 Cong. Rec. 25146 (1992) (statement of
Rep. Bliley). Similarly, when Senator DeConcini rose to introduce a slightly
different (and ultimately unsuccessful) bill that aimed to address carjacking, he
began by describing the horrors of a crime “popularly known as carjacking,” 138
Cong. Rec. 25672 (1992), in which a “car is stolen while the driver is behind the
wheel,” id. A few days thereafter, Senator Lautenberg lamented the “most
disturbing . . . problem of violent carjackings” in which “thieves are using
violence and intimidation to force drivers to give up their cars.” 138 Cong. Rec.
27977 (1992).
Seizing upon these latter statements, Soler contends that the legislative
history buttresses the conclusion that “presence” should take the ordinary
meaning of something akin to “close proximity.” On Soler’s interpretation, the
carjacking statute prohibits the taking of a car that is “in front of, or in the area
immediately around” the victim. Br. for Defendant‐Appellant Soler at 13.
12 Given the absence of any clearly probative discussion of “presence” within
the legislative history, however, we are not persuaded that the legislative history
resolves the interpretive question. Indeed, in addition to the overarching
observation that the Anti Car Theft Act aimed to strike broadly at the problem of
car theft that Congress perceived to be sweeping the nation, we also note the
obvious fact that the statute does not adopt the language of “carjacking”—the
term appears nowhere in the statute’s language—and instead embraces the
distinct language of “tak[ing] . . . from the person or presence of another by force
and violence.” As we shall now explain, these words, and legislative history
explaining their appearance, suggest that the meaning of the word “presence”
ought to be resolved in favor of the district courts’ interpretation below.
By way of background, we note that we are not the first court of appeals to
construe the term “presence” in the federal carjacking statute. Indeed, the
government directs us to the decisions of no fewer than nine courts of appeals
that have come to the conclusion that the broader definition employed by Judge
Gershon is correct. See United States v. Savarese, 385 F.3d 15, 20 (1st Cir. 2004)
(construing U.S.S.G. § 2B3.1(b)(5)); United States v. Lake, 150 F.3d 269, 272–73 (3d
13 Cir. 1998); United States v. Davis, 233 F. App’x 292, 295 (4th Cir. 2007) (per curiam);
United States v. Edwards, 231 F.3d 933, 935–37 (5th Cir. 2000); United States v.
Boucha, 236 F.3d 768, 771–74 (6th Cir. 2001) (construing U.S.S.G. § 2B3.1(b)(5));
United States v. Casteel, 663 F.3d 1013, 1019–21 (8th Cir. 2011); United States v.
Murray, 56 F.3d 74, 1995 WL 295438, at *6 (9th Cir. 1995) (unpublished table
decision) (citing United States v. Burns, 701 F.2d 840, 843 (9th Cir. 1983) (per
curiam)); United States v. Brown, 200 F.3d 700, 705 (10th Cir. 1999); Kimble, 178 F.3d
at 1166–68.
While rejecting the typical tools of ordinary meaning, legislative history,
and legislative purpose to aid its interpretation of the statute, the government
asks us to adopt these other courts’ interpretation of the carjacking and federal
robbery statutes. Naturally, the decisions of our fellow courts of appeal inform
our analysis, but we emphasize that these decisions do not bind us of their own
force; they carry authoritative weight only insofar as they articulate persuasive
reasons favoring a particular interpretation of the statute in question.
That said, however, it is a fair observation to suggest that the genesis of
most courts’ interpretation of the word “presence” in the federal carjacking
14 statute is not the standard methodology of statutory interpretation, but rather the
gloss given to the term “presence” in the federal robbery statute, 18 U.S.C. § 2111
(“§ 2111”), by the Ninth Circuit’s opinion in United States v. Burns, 701 F.2d 840
(9th Cir. 1983).5 In Burns, the Ninth Circuit distinguished United States v. Culbert,
548 F.2d 1355 (9th Cir. 1977) (per curiam), in which it had interpreted “presence”
in the similarly framed federal bank robbery statute, 18 U.S.C. § 2113 (“§ 2113”),
to exclude bank robbery that was accomplished by the use of a telephone to make
threats of physical violence to a bank employee.6 After noting substantial criticism
of its prior decision in Culbert, see Burns, 701 F.2d at 843 n.4, the Ninth Circuit
approved of a jury instruction for the federal robbery statute (that is, § 2111) that
provided that an item of property is “in the presence of a person if it is ‘so within
18 U.S.C. § 2111, in pertinent part, proscribes the conduct of “whoever, within 5
the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes or attempts to take from the person or presence of another anything of value” (emphasis added).
6 The Culbert panel concluded that the attempt to extort $100,000 from a bank employee by instructing the employee to “drop the money at a specified site and then return to the bank” did not satisfy the statutory requirement that the taking be from the employee’s “person or presence.” 548 F.2d at 1356. Culbert is no longer good law, as the bank robbery statute has since been amended to expressly reach bank robberies that proceed by way of extortion. See Criminal Law and Procedure Technical Amendments Act of 1986, Pub. L. No. 99‐646, § 68, 100 Stat. 3592, 3616 (amendment codified as amended at 18 U.S.C. § 2113(a)). The Ninth Circuit’s decision was also reversed on other 15 his reach, inspection, observation or control, that he could if not overcome by
violence or prevented by fear, retain his possession of it.” Burns, 701 F.2d at 843.
For the sake of clarity, we will refer to this holding as the Burns definition of
“presence.”
The Ninth Circuit’s opinion in Burns gives little indication of the
provenance of this definition, nor does it offer an interpretive argument about
why this fairly elaborate definition ought to be read between the lines of
Congress’s use of the word “presence” in the federal robbery statute.
Nevertheless, the Burns definition of “presence” in § 2111 is the touchstone for the
many decisions of our sister circuits that have interpreted “presence” in § 2119,
the federal carjacking statute. That is to say that nearly all of these decisions read
the presence requirement of § 2119 to be consistent with the Burns definition of
§ 2111’s presence requirement. See, e.g., Savarese, 385 F.3d at 19 (citing Burns); Lake,
150 F.3d at 272 (same); Edwards, 231 F.3d at 936 (same); Boucha, 236 F.3d at 771–72
(same); Casteel, 663 F.3d at 1020 (same, and noting most circuit courts’ reliance on
Burns and its progeny); Murray, 1995 WL 295438, at *6 (same); and Kimble, 178
F.3d at 1167 (same). But the critical initial premise—that is, the reason why
grounds by United States v. Culbert, 435 U.S. 371 (1978). 16 “presence” in these federal statutes means what Burns panel said it means—
remains somewhat elusive.
We note, as have other courts of appeals, that the legislative history of the
carjacking statute indicates that Congress intended the statute’s language to
“track[] the language used in other federal robbery statutes (18 U.S.C. §§ 2111,
2113, 2118).” Anti Car Theft Act of 1992, H.R. Rep. No. 102‐851, pt. 1, at 17; see also
Lake, 150 F.3d at 272. But to say this much is to beg the question rather than to
answer it: each of these statutes uses the same cryptic “person or presence”
locution but is silent about Burns or any other judicial gloss on the crucial term.
One thus finds silence in the legislative history when one searches for the Burns
construction of “presence” in Congress’s work product.
In defining the “carjacking” offense by using the roundabout language of
“person or presence of another” (rather than simply criminalizing “carjacking”),
the statute adopts a peculiar turn of phrase with an old pedigree. Indeed, Soler’s
principal brief solves, in part, the riddle of the Ninth Circuit’s definition in Burns
by directing our attention to nineteenth‐century descriptions of the common law
offense of robbery. Crucially, the baroque definition of “presence” that has made
17 its way into the nine decisions of our fellow courts of appeals appeared at least as
early as 1844 in Massachusetts. That is to say that the Burns definition of
“presence” appears almost verbatim in a report on the penal code of
Massachusetts commissioned by that state’s legislature. The report describes the
offense of “robbery” as “larceny or stealing of a thing from the person of another,
or from his custody in his presence, by force or putting him in fear.” Report of the
Penal Code of Massachusetts, Prepared Under a Resolve of the Legislature, ch.
XVI, § 1 (1844) (“1844 Report”). The 1844 Report continues that “[a] thing is in the
presence of a person, in respect to robbery, which is so within his reach,
inspection, observation, or control, that he could, if not overcome by violence or
prevented by fear, retain his possession of it.” Id. at § 1, ¶ 5.
This common law definition of “presence” was recited in the early decades
of the last century by the Massachusetts Supreme Judicial Court, see
Commonwealth v. Homer, 235 Mass. 526, 543, 127 N.E. 517, 520 (1920), and in the
late decades of the last century by the Supreme Court of California, see People v.
Hayes, 52 Cal. 3d 577, 626–27, 802 P.2d 376, 406–07 (1990). Moreover, under
California law, the common‐law definition goes so far as to resolve what it means
18 for an object to be in the “immediate presence” of the victim—the very ordinary
meaning that defendants urge us to adopt. See Hayes, 52 Cal. 3d at 626‐27, 802
P.2d at 406; accord Conde v. Henry, 198 F.3d 734, 737 (9th Cir. 1999). Thus the
reason why the Ninth Circuit approved of the district court’s jury instruction in
Burns is far less mysterious than it first appears.
Having identified the legal hook on which the Burns court could hang its
interpretation of “presence,” we turn to assess the legitimacy of the Burns
definition as a matter of statutory interpretation. In our view, the Ninth Circuit
was correct to read the common‐law definition of “person or presence” into the
federal robbery statute, as were the eight other courts of appeals that have
applied the Burns interpretation of “presence” to the carjacking statute. “It is a
settled principle of interpretation that, absent other indication, ‘Congress intends
to incorporate the well‐settled meaning of the common‐law terms it uses.’” Sekhar
v. United States, 133 S.Ct. 2720, 2724 (2013) (quoting Neder v. United States, 527 U.S.
1, 23 (1999)). This is because “where Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of practice, it
presumably knows and adopts the cluster of ideas that were attached to each
19 borrowed word in the body of learning from which it was taken and the meaning
its use will convey to the judicial mind unless otherwise instructed.” Morissette v.
United States, 342 U.S. 246, 250 (1952). In such cases, the common law furnishes an
extrinsic source to aid our interpretation of the disputed term because the
“absence of contrary direction may be taken as satisfaction with widely accepted
definitions, not as a departure from them.” Id.
While mindful that the common‐law meaning canon applies only where the
identity between the common law words and the statutory words is clear, see
United States v. Turley, 352 U.S. 407, 411 (1957) (holding that the common law
could not be used as an extrinsic source to interpret Congress’s use of the term
“stolen”), we note the exact parallelism between the common law terms and the
text of the carjacking statute. Like the text of the carjacking statute, the common
law crime of robbery was described as the taking of property from the “person”
or “presence” of another by force. See Collins v. McDonald, 258 U.S. 416, 420 (1922).
We also discern no contraindication that suggests that Congress intended to
depart from the common law meaning of “presence” in folding a near‐verbatim
definition of common law robbery into the carjacking statute. On the contrary, as
20 we have noted above, the committee report accompanying the statute expressly
indicates that the committee intended to “track” the federal robbery statutes. See
supra at 17. We note, moreover, that the civil forfeiture provision of Title 18 refers
to § 2119 by using the shorthand parenthetical “(armed robbery of automobiles),”
not by using the potentially narrower colloquial term “carjacking.” See 18 U.S.C.
§ 981(a)(1)(F)(iii). Given this context, the frequent use of the colloquialism of
“carjacking” in the legislative history cannot serve as a sufficient indication that
Congress intended to implicitly adopt a definition of “presence” that is otherwise
at odds with the common law definition of robbery.
In sum, the statute’s text does not use the argot of carjacking to define the
meaning of “person or presence”; instead the statute uses the language of
common law robbery. To borrow an oft‐repeated metaphor, because the term
“person or presence” was “obviously transplanted from another legal source,” we
will cultivate our interpretation of the statute in the “old soil” it brings with it. See
Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev.
527, 537 (1947); see also Sekhar, 133 S.Ct. at 2724. Consequently, we apply the
canon that the common law term “presence” in the context of the carjacking
21 statute takes the undisputed common law meaning reflected in Burns. See United
States v. Perez‐Garcia, 56 F.3d 1, 3 (1st Cir. 1995) (construing the phrase “from the
person . . . of another” in § 2119 and noting that “[c]ourts generally agree that
taking from a victim’s person is understood to include the common law
conception of taking from a victim’s presence.”).
As a final attack on the Burns definition of presence, Soler contends that the
interpretation given therein is boundless and suggests no natural limit. Because,
the argument goes, the proximity contemplated by the Burns view of “presence”
can expand according to a defendant’s capacity to retain possession if not
overcome by fear, the interpretation we adopt here would seem to allow for
criminal liability to hang on the results of a footrace. That is, where a victim could
have outrun his robber to the taken property—whatever the distance, even if the
length of the island of Manhattan separated the victim from his automobile—the
Burns definition would erroneously lead us to conclude that the property was
within the victim’s “presence.” Cf. Lake, 150 F.3d at 275–76 (Becker, C.J.,
dissenting). The argument is a red herring. The case law is replete with decisions
that test the limits of the common law’s relatively more elastic definition of
22 “presence.” Those decisions clarify that the extreme examples that worry the
defendant would clearly be foreclosed. See, e.g., Hayes, 52 Cal.3d at 627, 802 P.2d
at 905 (noting that the common law definition would not permit a robbery
conviction where a defendant forcibly demands a combination to a safe many
miles away). As the First Circuit has explained, “the presence requirement is not
boundless. . . . [C]ourts have required the victim to have both a degree of physical
proximity to the vehicle and an ability to control or immediately obtain access to
the vehicle,” Savarese, 385 F.3d at 20.7 Generally speaking, we view the First
Circuit’s description of the outer bounds of “presence” as fairly reflecting the
scope of the term as it is used in the carjacking statute. We are therefore not
moved to depart from the well settled canon that, in the absence of a contrary
indication, common law terms used in statutes should take their common law
meanings.
7 We also note that the 1844 Report includes an illustrative list to explain the meaning of presence, which confirms that at common law there must be some proximity between the owner and his property. The list includes among its examples “a horse standing by [the victim]”; the victim’s purse “thrown aside to prevent its being taken by the robber, but still being near at hand”; or “an article of apparel which has fallen from [the victim’s] person, but is still near at hand.” 1844 Report, ch. XVI, § 5; see also Wayne R. LaFave, 3 Substantive Criminal Law § 20.3(c), at 179 (2d ed. 2003) (“‘Presence’ in this connection is not so much a matter of eyesight as it is one of proximity and 23 We accordingly join our fellow courts of appeals in adopting, for the
purpose of interpreting the carjacking statute, the Burns definition of “presence”
as the law of our Circuit. A motor vehicle is in the presence of the victim if it is so
within his or her reach, inspection, observation, or control that he or she could, if
not overcome by violence or prevented by fear, retain possession of it. This
definition naturally implies a degree of physical proximity between the victim
and the vehicle.
There is no dispute that the evidence introduced at trial, viewed in the light
most favorable to the prosecution, easily met the Burns definition. Nor could there
be: the facts of this case present a degree of proximity and control that is either
identical or far greater than facts leading our fellow courts of appeals to affirm
carjacking convictions and carjacking‐related sentencing enhancements. See, e.g.,
Savarese, 385 F.3d at 20 (holding that a car parked “in the driveway” was in the
presence of victims who were robbed inside their home); Boucha, 236 F.3d at 776
(holding that cars parked “just outside” the place where the victims’ keys were
taken were in the victims’ presence); Kimble, 178 F.3d at 1166 (holding that a van
parked “right outside the restaurant” in which victim was robbed of his keys was
control . . . .”). 24 in the victim’s presence); United States v. Lopez, 271 F.3d 472, 486 (3d Cir. 2001)
(holding that a car parked outside the residence in which the victim was robbed
was in the presence of the victim).
The district court therefore properly denied each defendant’s motion for a
judgment of acquittal.
CONCLUSION
For the foregoing reasons, the judgments of the district court are
AFFIRMED.