4.18.2119 Carjacking, 18 U.S.C. § 2119 See Statute

[Defendant] is charged with carjacking. It is against federal law to take a motor vehicle by force and violence or intimidation with intent to cause death or serious bodily injury. For you to find the defendant guilty of this crime you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that [defendant] knowingly took a motor vehicle from [name] by force and violence or by intimidation;

Second, that the motor vehicle previously had been transported, shipped, or received across state or national boundaries;

Third, that [defendant] intended to cause death or seriously bodily harm at the time [he/she] demanded or took control of the motor vehicle; [and]

[Fourth, that serious bodily injury [death] resulted].

“Intimidation” is actions or words used for the purpose of making someone else fear bodily harm if he or she resists. The actual courage or timidity of the victim is irrelevant. The actions or words must be such as to intimidate an ordinary, reasonable person.

“Bodily injury” means a cut, abrasion, bruise, burn, disfigurement, physical pain, illness; or impairment of the function of a bodily member, organ or mental faculty; or any other injury to the body, no matter how temporary.

“Serious bodily injury” means bodily injury that involves a substantial risk of death or extreme physical pain or protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty. It “resulted” from the carjacking if it was caused by the actions of the carjacker at any time during the commission of the carjacking.

“Knowingly” means that the act was done voluntarily and intentionally and not because of mistake or accident.

Comment(s)

(1) The fourth element affects the available sentence. Under Jones v. United States, 526 U.S. 227, 252 (1999), unless the aggravating conduct is charged and proven beyond a reasonable doubt as part of the offense, the sentence enhancements will not apply (maximum of 15 years without the fourth element; maximum of 25 years if serious bodily injury results; maximum of life imprisonment or death if death results). 18 U.S.C. § 2119(1)-(3).

(2) According to United States v. Rosario-Diaz, 202 F.3d 54, 63 (1st Cir. 2000), the Supreme Court held in Holloway v. United States, 526 U.S. 1, 8 (1999), that “the mental state required by the statute (‘intent to cause death or serious bodily harm’) is measured at the moment that the defendant demands or takes control of the vehicle. The focus of the statute is narrow.” The intent may be conditional or unconditional. In other words, it is sufficient that the defendant intends to cause death or serious bodily harm only in the face of resistance by the victim. Holloway, 526 U.S. at 7-10. If the charge is aiding and abetting, “the government must prove that the [aiding and abetting] defendant intended to cause death or serious bodily injury.” United States v. Otero-Mendez, 273 F.3d 46, 52 (1st Cir. 2001). The First Circuit has not decided whether that means to a “practical certainty” or only that the defendant be “on notice.” Id. at 52. It has also described the scope of aider and abettor liability as “interesting” and “intriguing” and the case law as “remarkably silent.” Ramirez-Burgos v. United States, 313 F.3d 23, 31 (1st Cir. 2002).

(3) The word “knowingly” is inserted because of this language in United States v. Rivera-Figueroa, 149 F.3d 1, 4 (1st Cir. 1998) (internal citations omitted): “[W]e may assume that a defendant who ‘takes a motor vehicle’ must know what he is doing, and that this knowledge must be possessed by a defendant who merely directs another to act (and so is liable as a principal), or assists the taker (and is so liable as an aider and abettor). But nothing in the statute requires that the taking be an ultimate motive of the crime. It is enough that the defendant be aware that the action in which he is engaged, whether by himself or through direction or assistance to another, involves the taking of a motor vehicle.”

(4) The definitions of bodily injury and serious bodily injury come from 18 U.S.C. § 1365(g)(3), cross-referenced in the carjacking statute. The list should be shortened to the ones pertinent to the offense charged. If the conduct is within the special maritime and territorial jurisdiction, certain sex offenses are also included. 18 U.S.C. §§ 2241-42. The definition of “resulted” comes from Ramirez-Burgos v. United States, 313 F.3d 23, 30 n.9 (1st Cir. 2002), where the court also said: “We do not here set forth the temporal limits of a carjacking under § 2119. But we reaffirm, without hesitation, the commission of a carjacking continues at least while the carjacker maintains control over the victim and her car.”

(5) The statute requires that the motor vehicle have been transported, shipped or received in interstate or foreign commerce. “Commerce” is defined in 18 U.S.C. § 10 as respectively “commerce between one State, Territory, Possession, or the District of Columbia, and another State, Territory, Possession, or the District of Columbia” or “commerce with a foreign country.” “The jurisdictional element of 18 U.S.C. § 2119 requires that the government prove that the car in question has been moved in interstate commerce, at some time.” Otero-Mendez, 273 F.3d at 51.

(6) In cases of interpretive difficulty, it may be helpful to remember that the Supreme Court has said that the carjacking statute is modeled on three other statutes 18 U.S.C. § 2111, 2113 and 2118. Jones, 526 U.S. at 235 & n.4.