United States v. Johnson , 222 F. App'x 153 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-16-2007
USA v. Johnson
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4052
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
05-4052
UNITED STATES OF AMERICA
v.
CHAD JOHNSON,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 02-cr-00619-3)
District Judge: Hon. Legrome D. Davis
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 8, 2007
Before: McKEE, AMBRO and FISHER, Circuit Judges
OPINION
McKEE, Circuit Judge
Chad Johnson appeals his conviction as well as the sentence that was imposed
following that conviction for armed carjacking and conspiracy to commit armed
carjacking. He challenges the sufficiency of the evidence and claims that the sentencing
court erred in imposing a sentencing enhancement based only upon a preponderance of
the evidence. For the reasons that follow, we will affirm.
I. Sufficiency of the Evidence.
Because we write primarily for the parties, we need not recite the underlying facts
or procedural history of this case except insofar as may be helpful to our brief discussion.1
We review the sufficiency of the evidence in the light most favorable to the
government as verdict winner. See United States v. Stanisfield, 101 F.3d 909, 911 (3d
Cir. 1996). We must sustain the conviction “if any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States v. Dent,
149 F.3d 180, 187 (3d Cir. 1998).
In order to prove the offense of armed carjacking under 18 U.S.C. § 2119, the
government must establish beyond a reasonable doubt that the defendant “(1) ‘with intent
to cause death or serious bodily harm’ (2) took a motor vehicle (3) that had been
‘transported, shipped, or received in interstate or foreign commerce’ (4) ‘from the person
or presence of another’ (5) ‘by force and violence or by intimidation.’” United States v.
Lake, 150 F.3d 269, 272 (3d Cir. 1998) (quoting 18 U.S.C. § 2119).
Here, there is no dispute about three of these elements. Johnson does not contest
that he took (or attempted to take) motor vehicles that had been transported in interstate
or foreign commerce from the presence of another. However, he claims the evidence
1
At the outset we only note that, but for the potentially tragic consequences, the
actions of Johnson and his coconspirators could pass for a modern day parody of inept
cattle rustlers or a foiled stage coach robbery.
2
was not sufficient to establish that he had the required intent or that he used force,
violence or intimidation.
A. The Required Intent.
Under Holloway v. United States, 526 U.S. 1, 12 (1999), the intent requirement for
armed carjacking 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.” Thus, the
evidence has to be sufficient to allow a reasonable jury to conclude beyond a reasonable
doubt that Johnson intended to seriously injure or kill if otherwise unable to gain control
of the cars. Id. at 11-12. See also, United States v. Anderson, 108 F.3d 478 (3d Cir. 1997).
That intent may be established indirectly through his own actions, or through actions of
his coconspirators. See United States v. Augustin, 376 F.3d 135, 140 (3d Cir. 2004)
(finding conditional intent “to seriously harm or kill” based on the actions of a
coconspirator). The evidence here is clearly sufficient to prove that Johnson intended to
inflict serious bodily injury or death if that became necessary to gaining control of the
two cars.
Johnson tried to steal the cars even though he believed those cars belonged to a
violent drug dealer. A jury could certainly conclude that no one would attempt to steal
cars supposedly containing very large amounts of cash from a drug dealer unless he
intended to inflict serious bodily injury or death to accomplish that objective. Johnson
refused to alter his plan when he learned that the FBI was towing the cars targeted for
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carjacking. He entered the cab of one of the tow trucks in an attempt to commandeer it
and the car it was towing. The jury could infer that Johnson would not have entered the
cab of that tow truck to steal the towed cars unless he intended to do something more than
ask if he could drive.
The actions of Johnson’s conspirators were also relevant to his intent. See
Augustin, supra. Not content with a mere show of force, Johnson’s confederates opened
fire when the tow truck driver resisted Johnson’s attempts to gain control. Not
surprisingly, a tow truck driver and a bystander were shot in the process. Though
Johnson was apparently not armed himself, his confederates were. A reasonable jury
could certainly consider that in assessing whether he was part of a conspiracy that
intended to use deadly force to steal the two cars if that became necessary to get them.
See Nicholas v. Saul Stone & Co., 224 F.3d 179, 189 (3d Cir. 2000) (establishing aider
and abetter liability when defendant “(1) had knowledge of the principal’s . . . intent to
commit a violation of the Act; (2) had the intent to further that violation; and (3)
committed some act in furtherance of the principal’s objective”).2
Thus, the evidence is certainly sufficient to allow the jury to conclude beyond a
reasonable doubt that Johnson had the intent required under § 2119, and Johnson’s
arguments to the contrary are without merit.
B. Use of Force or Intimidation.
2
Although the discussion in Nicholas pertained to aider and abettor liability under
18 U.S.C. § 2, our analysis there is relevant to our inquiry here.
4
The act of forcefully entering the cab of the tow truck to steal the towed cars was
also sufficient by itself to establish the use of force or intimidation. However, there is
more. As we have just noted, the coconspirators shot a truck driver and a bystander, and
one of them threatened to shoot a passenger. Any suggestion that the evidence does not
establish the use of force or intimidation is patently frivolous.
Johnson incorrectly concludes that, because the jury acquitted him of using
firearms in relation to a crime of violence, the jury could not conclude that he used force
or intimidation as required by § 2119. See Appellant’s Br. at 23-25. However, that
argument ignores Johnson’s responsibility for the violence and intimidation of his
codefendants during the carjacking. Nicholas, supra.
Accordingly, Johnson’s challenge to his conviction is also without merit.
II. Sentencing Enhancement.
Johnson’s challenge to his sentence rests upon his claim that the District Court
erred in imposing an enhancement for the victims’ injuries based only upon a
preponderance of the evidence rather than requiring proof beyond a reasonable doubt. We
need not respond to that argument because it is now foreclosed by our recent decision in
United States v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc).
III. Conclusion.
Thus, for the reasons stated above, we will affirm the judgment of conviction and
the sentence that the District Court imposed.
5