                             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

                                             7
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.



                                            13
                               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




                               14
