USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 94-1697
UNITED STATES,
Appellee,
v.
JORGE PEREZ-GARCIA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gene Carter,* U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Kevin G. Little on brief for appellant.
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Antonio R. Bazan, Assistant United States Attorney, Jose A.
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Quiles-Espinosa, Senior Litigation Counsel, and Guillermo Gil, United
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States Attorney on brief for appellee.
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June 6, 1995
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*Of the District of Maine, sitting by designation.
STAHL, Circuit Judge. Defendant-appellant Jorge L.
STAHL, Circuit Judge.
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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.
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BACKGROUND
BACKGROUND
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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,
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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.
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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
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3. The buckets did not contain jewelry as Rosado had
thought, but instead contained U.S. currency, totalling
$654,100.
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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
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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."
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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.
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DISCUSSION
DISCUSSION
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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
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Rosado Rosario, by force, violence and
intimidation . . . said motor vehicle
having been transported, shipped or
received in interstate or foreign
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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,
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slip op. at 4 (1st Cir. Mar. 28, 1995). Accordingly, Perez-
Garcia's double jeopardy claim fails.
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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
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456, 462 (1st Cir. 1993); see also United States v. Tormos-
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Vega, 959 F.2d 1103, 1115 (1st Cir.), cert. denied, 113 S.
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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
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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."
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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
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Tormos-Vega, 959 F.2d at 1115).
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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
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Cong., 2d Sess. 5 (1992), reprinted in 1992 U.S.C.C.A.N.
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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.,
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Collins v. McDonald, 258 U.S. 416, 420 (1922) ("taking
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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
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Cir.), cert. denied, 328 U.S. 850 (1946); Weisman v. United
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States, 1 F.2d 696, 698 (8th Cir. 1924); Mays v. State, 335
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So.2d 246, 248 (Ala. Crim. App. 1976); Mitchell v. State, 329
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So.2d 658, 659 (Ala. Crim. App. 1976) (citing DeFranze v.
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State, 241 So. 2d 125, 127 (Ala. Crim. App.)), cert. denied,
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329 So. 2d 663 (Ala. 1976); People v. Adams, 359 N.E.2d 840,
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842 (Ill. App. Ct. 1977); State v. Constantine, 342 A.2d 735,
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736 (Me. 1975); Williams v. State, 256 A.2d 776, 778 (Md. Ct.
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Spec. App. 1969); Commonwealth v. Lashway, 634 N.E.2d 930,
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932 (Mass. App. Ct.), review denied, 640 N.E.2d 475, 641
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N.E.2d 1352 (Mass. 1994); State v. Reddick, 184 A.2d 652, 654
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(N.J. Super. Ct. App. Div. 1962); State v. Webber, 513 P.2d
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496, 498 (Or. Ct. App. 1973); State v. Howard, 693 S.W.2d
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365, 368 (Tenn. Crim. App. 1985); Garland v. Commonwealth,
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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.
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CONCLUSION
CONCLUSION
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For the foregoing reasons, the judgment below is
Affirmed.
Affirmed.
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