                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-3400
                                     ___________

United States of America,             *
                                      *
      Plaintiff - Appellee,           *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Minnesota.
Varle Caprice Wright, also known as   *
"Petey,"                              *
                                      *
      Defendant - Appellant.          *
                                 ___________

                              Submitted: May 9, 2000

                                   Filed: April 17, 2001
                                    ___________

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.
                            ___________

JOHN R. GIBSON, Circuit Judge.

       Varle Caprice Wright appeals his conviction for taking a motor vehicle in
violation of 18 U.S.C. § 2119 (1994), commonly referred to as carjacking. He argues
that the evidence was insufficient to support the jury's verdict finding him guilty; that
the district court1 instructed the jury erroneously; and that section 2119 impermissibly
federalizes a state crime. We affirm.

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
      Wright was indicted after he stole a Nissan Pathfinder from the enclosed valet
parking lot of a Minneapolis restaurant. The government's principal witness was Kurt
Nierste, one of the two valets working at the time.

       A customer drove his Pathfinder into the parking lot of the restaurant and
delivered it and a tip to Nierste. Nierste pulled the Pathfinder forward, put it in reverse
and into a handicapped parking spot. He put it into park, and left it with its engine
running while he helped another customer. Exhibits show that the parking space
abutted the fence surrounding the lot.

       Nierste parked the other car some twenty yards away, and, as the valets were
constantly doing, started running back to the Pathfinder. When he focused on the
vehicle twenty yards away, he noticed that there was someone in it. He estimated that
this was thirty seconds, maybe less, after the Pathfinder had pulled into the lot. Nierste
continued running toward the Pathfinder and stopped in front of it. On direct
examination he stated that he then stood ten feet in front of the vehicle, but on cross
gave the distance as two to three feet, then five, or approximately "zero to ten." He
said "he definitely wasn't touching it," but was close. Nierste began yelling loudly and
aggressively for the person to get out and made sweeping arm gestures to the same
effect. He said the occupant then put the car into drive, pulled it forward, "hit the
brakes, and then he sat there for a fraction of a second, and then hit the gas again."
Asked where he was when the driver "did that," Nierste responded that he was "[o]n
the hood of the vehicle." Later, when questioned whether he tried to get away, Nierste
answered, "I didn't have a choice. It happened like that (witness snaps fingers)."

       The vehicle traveled about twenty yards with Nierste on the hood. Then, the
driver "hit the brakes pretty hard," and Nierste slid off, landing on his feet. The driver
began to reverse, and Nierste ran to the driver's side door and opened it, got halfway
into the Pathfinder with the driver, struggled with him, and tried to yank him from the
vehicle. As that started, the driver put the Pathfinder into drive and began to drive out

                                           -2-
of the lot. Nierste continued struggling with the driver as the vehicle moved twenty to
thirty yards, until the driver managed to "eject" him from the Pathfinder by forcibly
pushing or shoving him. Nierste then ran away from the Pathfinder and watched it exit
the parking lot.

        When the Pathfinder was recovered it had a large dent on the hood and dents and
very significant scratches on the driver's side front fender and door. Nierste suffered
bruises and scrapes from the incident, but said that it was "nothing serious." He
admitted that he did not see the driver brandish a gun or other weapon, but told the jury
that, after it was all over, he thought that the person in the Pathfinder was trying to kill
him and could have succeeded.

       Wright stipulated at trial that he was the person inside the Pathfinder.

                                             I.

       Wright argues that the evidence is insufficient to support his conviction. The
government's burden in a criminal case is to prove all elements of an offense beyond
a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). In considering the
sufficiency of the evidence on appeal, we view the evidence in the light most favorable
to the government, accepting all reasonable inferences that support the jury's verdict.
Glasser v. United States, 315 U.S. 60, 80 (1942). We must uphold the verdict if there
is substantial evidence that would allow any rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); Glasser, 315 U.S. at 80.

       18 U.S.C. § 2119, often called the federal carjacking statute, provides:

              Whoever, with the intent to cause death or serious bodily harm
       takes a motor vehicle that has been transported, shipped, or received in

                                            -3-
      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 . . . .

       In order to obtain a conviction under the statute, the government must prove
three basic elements: (1) the defendant took or attempted to take a motor vehicle from
the person or presence of another by force and violence or by intimidation; (2) the
defendant acted with the intent to cause death or serious bodily harm; and (3) the motor
vehicle involved has been transported, shipped, or received in interstate or foreign
commerce. United States v. Williams, 136 F.3d 547, 550 (8th Cir. 1998).

      Wright challenges the sufficiency of the evidence supporting the first and second
elements of the offense. He contends that there was insufficient evidence that he took
the Pathfinder from Nierste's presence by force and violence or by intimidation by
repeatedly arguing that the taking of the Pathfinder occurred when he entered the
unoccupied car, with Nierste twenty-five or so yards away. He expresses an alternative
argument that the taking occurred when Nierste was ten feet away. The thrust of his
arguments are that any force Wright used was after the taking and meant only to deter
Nierste's attempts to recover the car. The government counters that the taking was not
accomplished until Wright threw Nierste from the moving Pathfinder and left the valet
parking lot.

       "Taking" for purposes of section 2119 is "the acquisition by the robber of
possession, dominion or control of the property for some period of time." See United
States v. DeLaCorte, 113 F.3d 154, 156 (9th Cir. 1997); United States v. Moore, 73
F.3d 666, 669 (6th Cir. 1996).

      When Nierste ran back to the Pathfinder and stood in front of it, with his
estimates varying from two to three, or five, or possibly ten feet, yelling and gesturing


                                          -4-
for Wright to get out, and before the car moved, the jury certainly could have found that
a taking had not yet occurred.

       The situation changed, however, when the car moved forward. In Nierste's
words, "The driver of that car put that car into drive and pulled it forward" when he
was "in front of the vehicle." Next, the driver "hit the brakes, and then he sat there for
a fraction of a second, and then hit the gas again." When he did that, Nierste was "on
the hood of the vehicle." When the car came toward him, Nierste said "I didn't have
a choice. It happened like that (witness snaps his fingers)."

       Based on this testimony about Wright's moving the car forward toward Nierste,
who was claiming control of the car, a reasonable jury could find that Wright took the
Pathfinder from Nierste's presence by force and violence or by intimidation. A
reasonable jury could find that in causing the car to move forward by putting it into
drive and stepping on the gas, Wright was exercising possession, dominion, or control
over the vehicle. With the developing split-second occurrence, the sudden stop and
hitting the gas again, a reasonable jury could find that Wright exerted possession,
dominion, and control not only as the car moved forward initially, but also that he
continued to do so as Nierste went onto the hood. Further at that point, the jury could
find that Wright was taking the motor vehicle from the presence of Nierste, who stood
in front of it two to three, five, or ten feet, blocking the vehicle's path out of the
handicapped parking spot. See United States v. Edwards, 231 F.3d 933, 935-37 (5th
Cir. 2000) ("person or presence of another" requirement satisfied by proof that the
victim was close enough to the vehicle to have prevented taking absent the defendant's
forceful or intimidating conduct); see also United States v. Brown, 200 F.3d 700, 705
(10th Cir. 1999), cert. denied, 528 U.S. 1178 (2000) (victim need not be "within easy
touch" of vehicle so long as defendant's conduct caused victim to hesitate from trying
to prevent the theft). When Wright moved the vehicle forward, a reasonable jury could
find that he was using it as a weapon, capable of exerting force or violence against


                                           -5-
Nierste and that he intended to and did strike Nierste with sufficient force to throw
Nierste up onto the hood.

       Wright also argues that there was no evidence that he intended to cause death
or serious bodily injury to Nierste. The Supreme Court interpreted section 2119's intent
requirement in Holloway v. United States, 526 U.S. 1 (1999). The Court held:

       The 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 12. The Court stated that an "empty threat, or intimidating bluff, . . . standing on
its own, is not enough to satisfy § 2119's specific intent element." Id. at 11. When a
victim has lost control over her car without the defendant attempting to inflict or
actually inflicting serious bodily harm, the government must prove beyond a reasonable
doubt that "the defendant would have at least attempted to seriously harm or kill the
driver if that action had been necessary to complete the taking of the car." Id. at 11-12.

       In this case, the evidence showed that Nierste stood a few feet in front of the
Pathfinder as Wright shifted it into drive, pulled the car forward, brought it to a stop for
an instant, and hit the gas again, directing the Pathfinder at Nierste with sufficient force
to send Nierste up onto the hood. This is sufficient evidence from which a reasonable
jury could conclude that, at the moment Wright took control over the Pathfinder, he
possessed the conditional intent to seriously harm Nierste had it been necessary to do
so in order to steal the Pathfinder. Cf. United States v. Malone, 222 F.3d 1286, 1292
(10th Cir.), cert. denied, 121 S. Ct. 605 (2000) (intent to harm victim seriously if
necessary shown by evidence that defendants tied up victim's family, held gun to
victim's head, and shoved victim to ground several times); United States v. Williams,
136 F.3d 547, 552 (8th Cir. 1998) (intent element satisfied by proof that defendant tried

                                            -6-
to force victim into car, held gun at victim, and fled scene after another vehicle entered
lot). Wright argues that because Nierste was not actually hurt in the struggle and
because no force was used in taking the wheel, the intent element was not proved.
However, Wright's failure to actually harm Nierste is not determinative of his
willingness to do so had Nierste further resisted the theft. Malone, 222 F.3d at 1292.

     The government presented sufficient evidence to allow a reasonable jury to find
Wright guilty beyond a reasonable doubt.

                                            II.

       Wright argues that the district court erred in refusing to instruct the jury that the
taking of a vehicle must be concurrent with the intent to cause serious bodily harm and
with any force and violence or intimidation. He requested an instruction stating that the
government must prove that "at the precise moment the vehicle was taken, [the
defendant] intended to kill or cause serious bodily harm. That is, . . . the government
must show that the defendant fully contemplated, planned for, and intended to kill or
cause serious bodily harm." He also asked that the jury be told that "the violence or
intimidation conduct must occur at the same time as the theft [or] immediately before
it."

      The district court declined to give either instruction and instead included in the
charge that the government had to prove beyond a reasonable doubt:

              First. The Defendant took a . . . Nissan Pathfinder . . . from the
       person or presence of another.
              Two. The Defendant took the motor vehicle by the use of force
       and violence or by intimidation.
              Three. At the moment the Defendant demanded or took control
       over the motor vehicle, the Defendant possessed the intent to cause the
       death of another or cause serious bodily harm to another.

                                            -7-
             Four. The vehicle had been transported, shipped or received in
      interstate or foreign commerce.

      The district court defined "to take property" as "to get one's hands or into one's
possession, power or control, by force or stratagem," and "taking property" as "simply
the acquisition by the robber of possession, dominion or control of the property for
some period of time."

        Wright contends that the district court's specific intent instruction was overly
permissive and that the instruction defining "taking property" was erroneous because
it did not specify at what point in time a person acquires dominion and control over the
property.

       A district court has wide discretion in crafting appropriate jury instructions.
United States v. Ervasti, 201 F.3d 1029, 1035 (8th Cir. 2000). "A defendant is not
entitled to a particularly worded instruction where the instructions given adequately and
correctly cover the substance of the requested instruction." Id. (quoting United States
v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987)). On appeal, we evaluate jury instructions
by viewing them as a whole and affirm if the instructions fairly and adequately
submitted the issues to the jury. Kelly v. Armstrong, 206 F.3d 794, 800 (8th Cir.
2000). If we conclude that the district court erred in giving an instruction, we reverse
only if the error affected the defendant's substantial rights. See id. at 801.

        We see no merit in Wright's contentions. The district court's specific intent
instruction is taken nearly verbatim from Holloway v. United States, 526 U.S. 1 (1999),
and accurately conveys the substance of that decision. See id. at 12 ("The 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 . . . ."). The omission of the
adjective "precise" before the term "moment" did not render the instruction erroneous.

                                          -8-
See id. at 8, 12 (referring to the appropriate time period for assessing the statutory mens
rea once as the "precise moment," once as "that moment," and once as "the moment").
Neither is the instruction defining "taking property" flawed. This definition, when read
with the charge on the force and violence or intimidation element, instructed the jury
members that a guilty verdict required their finding that Wright used force and violence
or intimidation to acquire possession, dominion, or control over the Pathfinder. This
correctly states the relationship between a defendant's violent or intimidating conduct
and the taking of the motor vehicle; it is not misleading.

       The district court's instructions, taken as a whole, fairly and adequately conveyed
the law to the jury.

                                           III.

       Lastly, Wright contends that section 2119 impermissibly federalizes a state
crime. This Tenth Amendment argument has been foreclosed in this circuit since we
decided United States v. Robinson, 62 F.3d 234, 236 (8th Cir. 1995) (section 2119
valid exercise of Congress's commerce power).

                                *    *    *         *   *   *

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                              -9-
