
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
