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UNITED STATES v. NORWOOD

November 15, 1996

UNITED STATES OF AMERICA
v.
MICHAEL NORWOOD



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 Defendant, Michael Norwood, who is pro se, has filed post-trial motions: (1) for a judgment of acquittal as to Counts Four and Six of the Second Superseding Indictment pursuant to Fed. R. Crim. P. 29(c); (2) for a bifurcated trial; (3) to preclude the United States from making any reference to the Defendant's post-arrest silence; and (4) to have Lori Koch, Esq., relieved as stand-by counsel for the Defendant.

 Defendant's Motion for Judgment of Acquittal of Count Four of the Second Superseding Indictment, which charges a violation of the 1994 amendment to the federal carjacking statute, 18 U.S.C. § 2119, requires this Court to address an issue, as yet undecided in the Third Circuit, regarding the meaning of the amendatory language of the statute, that a defendant possess the "intent to cause death or serious bodily harm." The only two federal courts to consider this issue have reached different conclusions. Compare United States v. Holloway, 921 F. Supp. 155 (E.D.N.Y. 1996)(a defendant's conditional intent to cause death or serious bodily harm if the victim does not surrender his or her automobile is sufficient to satisfy the element of intent), with United States v. Randolph, 93 F.3d 656 (9th Cir. 1996)(a defendant's mere conditional intent to cause death or serious bodily harm is insuffient to satisfy the intent element of the statute). For the reasons set forth below, I join the Holloway court in concluding that the Government need only prove conditional intent, that the Defendant intended to cause death or serious bodily harm only if the alleged carjacking victim refused to surrender his or her vehicle.

 I. Factual and Procedural Background

 On April 13, 1996, Defendant, Michael Norwood, was arrested by the New Jersey State Police in Holmdel, New Jersey, and charged in state court with unlawful possession of a handgun, two counts of aggravated assault, conspiracy to commit carjacking, theft and attempted motor vehicle theft arising out of a bank robbery that occurred on April 12, 1996, at Amboy National Bank in Old Bridge, New Jersey, and a carjacking of a 1987 Chrysler LeBaron on the Garden State Parkway later that same day.

 On April 24, 1996, the Grand Jury in and for the District of New Jersey returned a one-count indictment charging the defendant with a violation of the federal carjacking statute, in violation of 18 U.S.C. §§ 2119 and 2. Shortly thereafter, on May 22, 1996, the Grand Jury in and for the District of New Jersey returned a six-count superseding indictment charging the defendant with the following crimes: bank robbery, in violation of 18 U.S.C. § 2113(a) (Count One); assault on bank employees and customers by the use of a dangerous weapon, specifically a handgun, in violation of 18 U.S.C. § 2113(d) (Count Two); carrying a handgun during the bank robbery, in violation of 18 U.S.C. § 924(c) (Count Three); theft of a motor vehicle that had traveled in interstate commerce, in violation of 18 U.S.C. § 2119 (Count Four); carrying a handgun during the carjacking, in violation of 18 U.S.C. § 924(c) (Count Five); and possession of a handgun by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count Six). The Defendant was arraigned on the first superseding indictment on May 31, 1996, and entered pleas of "not guilty" to all charges. A second superseding indictment was returned on July 19, 1996, amending certain dates set forth in the first superseding indictment. *fn1"

 The trial of this case commenced on September 9, 1996, and concluded with the declaration of a mistrial by this Court on September 23, 1996, after the jury was unable to return a verdict after several days of deliberation. The re-trial of this case is scheduled to commence on Monday, December 2, 1996, at 9:30 a.m.

 II. Discussion

 A. Defendant's Motions for Judgment of Acquittal as to Counts Four and Six

 On a motion for judgment of acquittal under Rule 29(c), the court must determine whether, when viewing the evidence in the light most favorable to the United States, there is sufficient evidence upon which a reasonable jury could base a guilty verdict. United States v. Eufrasio, 935 F.2d 553, 577 (3d Cir. 1991), cert. denied, 502 U.S. 925 (1991); United States v. Ashfield, 735 F.2d 101, 106 (3d Cir.), cert. denied, 469 U.S. 858 (1984); Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979).

 A finding of insufficiency of evidence must "be confined to cases where the prosecution's failure is clear." United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984) (quoting Burks v. United States, 437 U.S. 1, 17, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978)); United States v. Binstein, 1996 U.S. Dist. LEXIS 260, No. 94-386, 1996 WL 19132, *2 (D.N.J. Jan. 3, 1996)) In order to be sufficient, "the evidence need not unequivocally point to the defendant's guilt as long as it permits the jury to find the defendant guilty beyond a reasonable doubt." United States v. Pungitore, 910 F.2d 1084, 1129 (3d Cir. 1990), cert. denied, 500 U.S. 915 (1991); Binstein, 1996 U.S. Dist. LEXIS 260, 1996 WL 19132, *2.

 "A defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992); United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990), cert. denied, 499 U.S. 982, 113 L. Ed. 2d 733, 111 S. Ct. 1637 (1991). A motion for judgment of acquittal must be denied if "a reasonable jury believing the government's evidence could find beyond a reasonable doubt that the government proved all the elements of the offenses." United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991), cert. denied, Washington v. United States, 502 U.S. 1110, 117 L. Ed. 2d 451, 112 S. Ct. 1213 (1992).

 In applying these criteria to the facts of this case, for the reasons that follow, I will deny Defendant's motions for judgment of acquittal as to Counts Four and Six, respectively, of the Second Superseding Indictment

 (i) Count Four

 Count Four of the Second Superseding Indictment charges the Defendant with a violation of the federal carjacking statute, which is set forth in Title 18, United States Code, Section 2119. Specifically, the Defendant is charged with knowingly, willfully, and with intent to cause death and serious bodily harm, taking a motor vehicle that had been transported, shipped, and received in interstate and foreign commerce, namely a 1987 Chrysler Le Baron, from the person and presence of another by force and violence and intimidation.

 Title 18, United States Code, Section 2119 provides, in relevant part, that:

 
Whoever, with intent to cause death or serious bodily injury 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) if serious bodily injury . . . results, be fined under this title or imprisoned not more than 25 years, or both, and (3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.

 There are five essential elements that must be proved beyond a reasonable doubt in order to establish the offense charged in Count Four of the Second Superseding Indictment:

 
(1) That the defendant took or attempted to take a motor vehicle from the person or presence of another;
 
(2) That the defendant did so by force, violence or intimidation;
 
(3) That the defendant intended to cause death or serious bodily harm;
 
(4) That the motor vehicle was either transported or shipped or received in interstate ...

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