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Click here for the full text of this decision FACTS:A jury found defendant-appellant, Travis James Harris, guilty of carjacking, in violation of 18 U.S.C. 2119, and use of a firearm during a crime of violence. Harris admits by his own testimony to shooting Paul John Ceniceros. The government and Harris disagree about the circumstances surrounding the shooting. While both agree that Harris committed homicide, the parties dispute whether the government succeeded at trial in proving a carjacking under 18 U.S.C. 2119. The government argued Harris killed Ceniceros in connection with Harris’ taking of Ceniceros’ car, a 1996 red Ford Mustang, and that the connection is sufficient to make the crime a carjacking under the statute’s language. Harris testified that he killed Ceniceros in self-defense, and Harris characterizes his theft of the automobile as a larcenous afterthought. It is undisputed that the two rode in Ceniceros’ car together for some time on the late night or early morning of Ceniceros’ death and that the two arrived in the car together at a secluded location where, outside of the car, Harris shot and killed Ceniceros. Harris claims he drove Ceniceros’ car away to escape from a deserted area and avoid detection. Harris argues this series of events, even according to the government’s evidence and reasonable inferences, constitutes only manslaughter and larceny, not a carjacking. HOLDING:Reversed; vacated; remanded with instructions for entry of judgment of acquittal. The mens rea element, of 18 U.S.C. 2119 is, “with the intent to cause death or serious bodily harm.” In Holloway v. United States, 526 U.S. 1 (1999), the U.S. Supreme Court addressed whether 2119′s intent element “requires the Government to prove that the defendant had an unconditional intent to kill or harm in all events, or whether it merely requires proof of an intent to kill or harm if necessary to effect a carjacking.” Resolving that the latter correctly described Congress’ meaning expressed in 2119, the court relied upon the placement of the mens rea element within the context of the statute in holding that the text requires a connection in time between the intent to kill or cause serious bodily harm and the demand for or taking of the car. The intent to kill or harm element of the crime “directs the factfinder’s attention to the defendant’s state of mind at the precise moment he demanded or took control over the car by force and violence or by intimidation.” If the defendant has the proscribed state of mind at that moment, the statute’s scienter element is satisfied.” Holloway’s “at the precise moment” language requires an element of contemporaneousness between the intent to kill or harm and the taking or demand of the car on the basis of the court’s interpretation of congressional meaning. United States v. Applewhaite, 195 F.3d 679 (3rd Cir. 1999). Harris relies primarily on Holloway and Applewhaite to argue that the evidence adduced at trial supports, even with reasonable inferences, only a homicide and a misappropriation of Ceniceros’ car, but not a carjacking as defined by 2119. Harris argued that he logically took the car after killing Ceniceros, in order to leave the scene (an oil field some 20 miles from the nearest town) and avoid detection. Even permitting inferences and viewing the evidence in the light most favorable to the verdict, there was no evidence, aside from Harris’ own testimony, of the “precise moment” that Harris demanded or took control of the car. The government need not show why Harris took the car; but it must show that, at the moment he did, he intended to kill or harm Ceniceros. No reasonable inference can be made from the government’s case or from its cross-examination of Harris which permits a rational jury to conclude that Harris intended to kill or harm Ceniceros when he demanded or took control of the car, the court concludes. The government must show a nexus between the intent to kill or harm and the taking of the car at the precise moment of either the taking of the car or the threat to do so. The government failed to carry its burden. The court notes significant differences between this case as compared to more typical factual scenarios: 1. There is no testimony as to the precise circumstances surrounding the moment in which the defendant demanded or took control of the car, aside from the defendant’s own testimony, nor is there physical evidence illuminating that moment in time; 2. The record is void of testimony that the defendant threatened the victim at the moment he demanded or took control of the car; and 3. The record reveals no evidence as to when and how the defendant came to be in the victim’s car, except the defendant’s own testimony that he was hitchhiking back to town and that Ceniceros volunteered to give him a ride. The government’s speculation that Harris formed an intent to kill Ceniceros if necessary to take Ceniceros’ car sometime in the late evening or early morning of their ride together, based solely upon Harris’ statement that every time he tries to leave Texas something goes wrong and Harris’ possession of the gun, is insufficient to bear a conviction under the statute as drafted by Congress, the court holds. In addition to the lack of sufficient evidence to support a required element of the carjacking conviction, the jury’s ultimate special finding that the killing was voluntary manslaughter indicates that the jury considered the question of the timing of Harris’ intent to kill or harm. The jury did not select murder, however, and instead determined, by finding voluntary manslaughter, that the killing did not occur during the course of a robbery or have the element of malice. The jury concludes that the jury determined the nexus was lacking between the killing and the taking of the car. OPINION:DeMoss, J.; Reavley, Higginbotham and DeMoss, JJ.

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