                                                                                       PUBLISH

                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                                 ________________________            U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                        No. 97-5998                         06/22/99
                                 ________________________               THOMAS K. KAHN
                                                                             CLERK
                               D. C. Docket No. 97-42-CR-LCN

UNITED STATES OF AMERICA,
                                                                               Plaintiff-Appellee,

                                             versus

DERRICK KIMBLE, CURTIS BLOUNT,
                                                                         Defendants, Appellants.

                                 ________________________

                         Appeals from the United States District Court
                             for the Southern District of Florida
                               _________________________
                                       (June 22, 1999)

Before BLACK and BARKETT, Circuit Judges, and CUDAHY*, Senior Circuit Judge.

BARKETT, Circuit Judge:

       Derrick Kimble and Curtis Blount appeal their convictions for: (1) violating the Hobbs

Act, 18 U.S.C. § 1951(b)(1) by committing an armed robbery; (2) violating 18 U.S.C. § 924(c)

by using and carrying a firearm during an armed robbery; (3) carjacking in violation of 18 U.S.C.

§ 2119; and (4) using and carrying a firearm during a carjacking in violation of 18 U.S.C. 924(c).

The two men were convicted of robbing a Fuddruckers restaurant in Dade County, Florida and

_________________
*Honorable Richard D. Cudahy, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by
designation.
then carjacking the restaurant manager’s car and using it to escape. During the robbery, they

held the manager at gunpoint and demanded the keys to his car, which was parked outside the

restaurant. Kimble and Blount then used the car to escape and were apprehended following a

chase. Both men were convicted at trial; Kimble was sentenced to 421 months and Blount to

408 months.

        On appeal, Kimble and Blount argue that their convictions should be reversed because

the district court erred by not suppressing as unduly suggestive and unreliable the police show-

up at which they were identified and that the district court’s jury instruction on the Hobbs Act

charge improperly removed the Act’s interstate commerce component from the jury’s

consideration. They also argue that their carjacking convictions should be reversed, first because

the government presented insufficient evidence to show that they had the specific intent to cause

death or serious bodily harm to the manager whose car they took, see 18 U.S.C. § 2119

(including as an element of the crime the intent to cause death or serious bodily harm), and

second, that taking car keys from a victim not in the immediate vicinity of the motor vehicle

does not constitute taking the vehicle from the victim’s “person or presence” as required by §

2119. Blount additionally argues that his conviction should be vacated because the district court

erred by not granting his motion for severance.

        We discuss only the claims arising under the carjacking statute, 18 U.S.C. § 2119, and

affirm. We likewise affirm as to Blount and Kimble’s other claims, finding no reversible error in

the district court’s rulings. See 11th Cir. R. 36.1.

Background




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       On October 31, 1996, Kimble and Blount entered a Fuddruckers restaurant in Dade

County, Florida shortly before it opened. Kimble gathered the employees at gun-point and

ordered them to lie face down on the floor. When a mentally retarded employee did not obey his

directive, Kimble hit him in the back of the head with his gun. Blount went to the restaurant’s

back office where supervisor Robert Wilcher was talking on the phone. Wilcher laid the phone

down but did not hang up. Blount pointed his gun at Wilcher and ordered him to give him

money. He then briefly left Wilcher alone at which time Wilcher picked up the phone and

instructed his friend to call the police. When Blount returned, he ordered Wilcher to open the

safes and empty their contents into a bag. Wilcher did so, filling the bag with approximately

$6,700. Blount then joined Kimble, who was standing guard over the other employees, and they

proceeded to rob the employees of some of their personal effects.

       Blount and Kimble then demanded to know who among the employees had a car.

Wilcher responded that he did and, after ascertaining its make, model and that it was parked

alongside the building, one of the assailants reached into Wilcher’s pocket and took his keys.

They then left through the back door and Wilcher immediately called 911. The police responded

and chased Kimble and Blount, apprehending them inside of a housing complex near where they

had crashed Wilcher’s car. At a show-up conducted shortly thereafter, Kimble and Blount were

identified by three Fuddruckers employees. Inside the car, the police found $6,708 in cash and a

.380 caliber handgun, as well as a “skully” hat of the type worn by one of the robbers during the

robbery. In addition, a loaded nine millimeter pistol was found near the car. Shortly thereafter,

Blount confessed to the robbery after waiving his Miranda rights. A redacted version of this

tape-recorded confession omitting all reference to Kimble was played at trial.


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       At trial, Kimble and Blount were found guilty of robbery, carjacking, and using a firearm

in the commission of these crimes. Kimble was acquitted of another, unrelated charge of armed

robbery under the Hobbs Act. This appeal followed.

Discussion

       18 U.S.C. § 2119 provides:

       Whoever, with 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, shall –
       (1) be fined under this title or imprisoned not more than 15 years, or both,
       (2) if serious bodily injury . . . results, be fined under this title or imprisoned not
       more than 25 years, or both, and
       (3) if death results, be fined under this title or imprisoned for any number of years
       up to life, or both, or sentenced to death.

Blount and Kimble first argue that the statute requires a specific intent to cause death or serious

bodily harm while taking the victim’s car and that there is no evidence that they had such an

intent. Alternatively, they argue that even if conditional intent were all that was required, there

is still insufficient evidence to convict because they did not directly threaten anyone and their

behavior does not indicate that they were willing to cause harm.

       Subsequent to the convictions in this case, the Supreme Court decided Holloway v.

United States, 119 S.Ct. 966 (1999), holding that “[t]he intent requirement of § 2119 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 (or, alternatively, if unnecessary to steal the car).” Id. at 972

(emphasis added). In this case, we are satisfied that the evidence of the defendants’ actions

throughout the robbery meets this standard. Both men came into the restaurant wielding loaded,


                                                  4
semi-automatic pistols. They pointed their guns directly at several of the employees and,

although Kimble announced that if everybody did what he said no one would get hurt, they

brandished these automatic weapons, forced the employees to lie face down on the floor, and hit

one employee with a gun when he refused to comply. Under the facts of this case, we are

satisfied that the defendants’ actions throughout the robbery would permit a reasonable jury to

determine that Kimble and Blount “would have at least attempted to seriously harm or kill [one

or more of their victims] if that action had been necessary to complete the taking of the car.”

Holloway, 119 S.Ct at 972.

       Second, Blount argues that there was insufficient evidence that the car was taken from

the “person or presence” of Wilcher and that he therefore should not have been convicted of

carjacking. See 18 U.S.C. § 2119. He contends that taking car keys from a victim not in the

immediate vicinity of the motor vehicle does not constitute taking the vehicle from the victim’s

“person or presence” as required by § 2119, suggesting that the carjacking statute was enacted to

deter robbers from forcing people from their cars and that the requirement of “person or

presence” necessitates an immediate proximity to the car. Blount argues that because the keys

were taken from Wilcher inside the building while the car was parked outside of it, the car was

not taken from Wilcher’s presence. Thus, we must determine whether robbing a victim of his or

her keys and then taking the victim’s car which was parked right outside the building from which

the keys were taken constitutes the taking of “a motor vehicle . . . from the person or presence of

another” within the meaning of § 2119.

       When attempting to discern the meaning of a statutory term, we look first to the plain

language of the statute. See Gonzalez v. McNary, 980 F.2d 1418, 1420 (11th Cir.1993).


                                                 5
However, the phrase “takes a motor vehicle . . . from the person or presence of another,” 18

U.S.C. § 2119, is not defined in the statute. The dictionary definition is similarly unhelpful.

Webster’s Third New International Dictionary defines presence as “the vicinity of, or area

immediately near one.” We cannot know from this definition how far away one can be from a

car and still be in its vicinity or the area immediately near it.

        When the meaning of the statute cannot be divined from its plain language, courts look to

Congress’ intent. See, e.g., Pyles v. United Airlines, Inc., 79 F.3d 1046, 1051 (11th Cir. 1996).

Here, the legislative history of § 2119 also provides little aid. Nothing in the legislative history

addresses the question before us. However, Congress chose to use the “person or presence”

language that is common to many robbery statutes and courts have had occasion to analyze the

meaning of that phrase in the context of those statutes. We therefore look to those cases for

guidance.

        In United States v. Burns, 701 F.2d 840, 843 (9th Cir. 1983), the Ninth Circuit addressed

the meaning of person or presence in the context of 18 U.S.C. § 2111, a federal statute treating

crimes of robbery committed within the United States’ territorial jurisdiction. In that case, the

victim’s car was taken after he was robbed of his keys at gunpoint while inside a nearby store.

The court affirmed Burns’ conviction, endorsing as “a correct statement of the law” the district

court’s jury instruction defining a taking as being from one’s person or presence if “it is so

within his reach, inspection, observation or control, that [the victim] could if not overcome by

violence or prevented by fear, retain his possession of it.” Id.; see also United States v. W.T.T,

800 F.2d 780, 782 (8th Cir. 1986); (same) (citing Burns); People v. Raper II, 563 N.W.2d 709,

712 (Mich. Ct. App. 1997) (applying same definition of “person or presence” for state carjacking


                                                   6
statute). Presence, thus defined, requires a significant degree of nearness without mandating that

the property be within easy touch. For example, if the victim were immobilized in one room of

the house while the perpetrator took property located in another room, the crime committed

would be robbery because, but for the robber’s use of violence and intimidation, the victim could

have prevented the taking. See People v. Blake, 579 N.E.2d 861, 864 (Ill. 1991) (presence

requirement met where victims were immobilized on second floor of residence while property

was taken from the first floor). It would not, however, be robbery to use fear or intimidation to

immobilize a victim while an accomplice steals the victim’s property from a site several miles

away. Under that scenario, the property is far enough away that the victim, even if free from

intimidation or fear, could not prevent its taking. Consequently, the property would not be

within the victim’s presence and the defendant would not be guilty of robbery. See WAYNE R.

LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW § 8.11(c) (2nd ed. 1986) (explaining the

meaning of “person or presence” in the context of robbery statutes).

       The only appellate case that directly addresses this question in the context § 2119 is

United States v. Lake, 150 F.3d 269 (3rd Cir. 1998), in which the Third Circuit adopted the

definition of “person or presence” approved by the Ninth Circuit in Burns. In Lake, the

defendant demanded the keys from the victims at gunpoint. One victim and Lake wrestled

briefly but, after Lake brandished his gun and placed it close to her head, she relinquished the

keys. The taking of the keys occurred at the beach while the car was parked in a parking area, up

a steep path from the beach. After some initial hesitation, the two victims pursued Lake up the

path, arriving just in time to see him drive off. The Third Circuit, noting that § 2119's person or

presence requirement tracks the language used in other federal robbery statutes, adopted the


                                                 7
same definition used by the Ninth Circuit in Burns. It reasoned that if fear had not caused the

two victims to hesitate before pursuing Lake, they might have reached the parking lot in time to

prevent his taking the car. Because a rational jury could have found that the car owner from

whom Lake took the keys might have prevented Lake from taking the car had she not feared that

he would harm or kill her, the court concluded that the car was taken from her presence. See

Lake, 150 F.3d at 273.

       We are satisfied that this interpretation of “person or presence” from the robbery statutes

conforms with both the language and the purpose of § 2119. The statute was enacted following a

rash of car robberies where the victims were either forced from their cars or robbed just prior to

getting into the vehicles. Just as with other types of robbery, the victim’s proximity to the

property is a predicate of the crime. Under this interpretation, the victim must be sufficiently

near to the vehicle for it to be within reach, inspection, or control and, absent threat or

intimidation, to be able to maintain control of it. For a car to be within one’s reach or control, it

must be accessible. In Lake, the car was close enough for the victims to have prevented its

taking had fear of violence not caused them to hesitate. We agree that this degree of nearness is

sufficient to sustain a conviction under § 2119.1

       So too in the instant case, Wilcher was sufficiently near to his vehicle when Blount and

Kimble robbed him of it to sustain a conviction under § 2119. Wilcher’s car was not several


       1
         But see Lake 150 F.3d at 275-76 (Becker, C.J., dissenting) (arguing that, even under the
facts described in Lake, the defendant was at most guilty of “keyjacking”). In Judge Becker’s
thoughtful dissent, he argues that the car’s closeness to the victim is irrelevant to the inquiry.
We believe, however, that, because the statute explicitly requires the car to be within the victim’s
“person or presence” and presence requires an unspecified but nevertheless undeniable
proximity, nearness to the vehicle is a relevant criterion under § 2119 and must be evaluated
when determining guilt or innocence.

                                                    8
miles away, but parked right outside the restaurant. Had Wilcher not been in fear for his safety,

he could have reached the car and prevented its taking. Thus, his car was within his “presence”

when Blount and Kimble robbed him of it. Cf. Raper 563 N.W.2d at 712 -13 (removing keys

from victim’s lifeless body in order to steal his car which was 200 yards away constituted taking

the car from victim’s “presence” under Michigan carjacking statute); Mitchell v. State, 329

So.2d 658, 662-63 (Ala. Crim. App. 1976) (finding, under facts similar to the instant case, that

taking victim’s car keys during armed robbery and then stealing her car from behind the

restaurant constituted the taking of the car from her “presence” for purposes of robbery statute).

Accordingly, we likewise affirm Blount and Kimble’s conviction under § 2119.

       AFFIRMED.




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