56 F. 3d 1 - United States v. Perez-Garcia

Defendant-appellant Jorge L. Perez-Garcia challenges his conviction for carjacking, in violation of 18 U.S.C. Sec. 2119 (West 1992),1 and using a firearm in relation to a crime of violence, in violation of 18 U.S.C. Sec. 924(c).2 We affirm.

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, 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 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 Sec. 2119 ("Count I"), and using a firearm in relation to a crime of violence, in violation of Sec. 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 Secs. 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 the indictment. The district court denied the motion and, on February 9, 1994, Perez-Garcia was found guilty on both 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.

On appeal, Perez-Garcia argues that the evidence was insufficient to support a conviction under Sec. 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 commerce. All in violation of [18 U.S.C. Sec. 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, --- U.S. ----, ----, 113 S.Ct. 191, 192, 121 L.Ed.2d 135 (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 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 Sec. 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. Secs. 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, 42 S.Ct. 326, 328, 66 L.Ed. 692 (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, 66 S.Ct. 1118, 90 L.Ed. 1623 (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, 57 Ala.App. 601, 329 So.2d 658, 659 (Crim.App.1976) (citing DeFranze v. State, 46 Ala.App. 283, 241 So.2d 125, 127 (Crim.App.)), cert. denied, 295 Ala. 412, 329 So.2d 663 (1976); People v. Adams, 45 Ill.App.3d 334, 4 Ill.Dec. 7, 9, 359 N.E.2d 840, 842 (1977); State v. Constantine, 342 A.2d 735, 736 (Me.1975); Williams v. State, 7 Md.App. 683, 256 A.2d 776, 778 (Ct.Spec.App.1969); Commonwealth v. Lashway, 36 Mass.App.Ct. 677, 634 N.E.2d 930, 932, review denied, 418 Mass. 1106, 418 Mass. 1109, 640 N.E.2d 475, 641 N.E.2d 1352 (1994); State v. Reddick, 76 N.J.Super. 347, 184 A.2d 652, 654 (Ct.App.Div.1962); State v. Webber, 14 Or.App. 352, 513 P.2d 496, 498 (1973); State v. Howard, 693 S.W.2d 365, 368 (Tenn.Crim.App.1985); Garland v. Commonwealth, 18 Va.App. 706, 446 S.E.2d 628, 629 (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.

For the foregoing reasons, the judgment below is

Affirmed.