ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (D.C. Criminal No. 96-cr-00161)
Before: Becker, Chief Judge, Cowen, and Alito, Circuit Judges
The opinion of the court was delivered by: Alito, Circuit Judge
This is an appeal from a judgment in a criminal case. After a jury trial, the defendant, Hilton A. Lake, was convicted under 18 U.S.C. § 924(c)(1) of using or carrying a firearm during and in relation to a crime of violence, namely, a carjacking (see 18 U.S.C. § 2119). Lake challenges his conviction on numerous grounds, the most substantial of which is that he did not violate the carjacking statute because, he argues, he did not take the motor vehicle in question "from the person or presence" of the victim. We reject this and Lake's other arguments, and we therefore affirm.
The events that led to Lake's prosecution occurred at Little Magen's Bay in St. Thomas, United States Virgin Islands. The road to the beach at Little Magen's Bay ends at the top of a hill. There is a steep path bordered by vegetation and rocks that leads from the road down to the beach, and the road cannot be seen from the beach.
On the day in question, Lake hitchhiked to Little Magen's Bay and encountered Milton Clarke, who was sitting on the beach reading a newspaper. Lake asked whether Clarke owned a white car parked up on the road. Clarke said that he did, and Lake initially walked away. However, Lake returned a few moments later and asked to borrow the car. When Clarke refused, Lake stated that it was an
emergency. Clarke again refused, and Lake walked off. When Lake returned yet again, Clarke said:
[L]isten, think about it. If I walked up to you and asked you, can I borrow your car[,] [a]re you going to lend it to me? Of course not. So why don't you leave me the hell alone. I'm here to have a nice time. Just chill. Go someplace else.
Lake walked off and sat on a rock, while Clarke anxiously watched him out of the corner of his eye, but Lake soon returned with the same request. When Clarke swore again, Lake asked if he could have a drink from Clarke's cooler. Clarke said: "[D]on't you get it? Leave me alone." App. 141A. Lake then lifted up his shirt, showed Clarke the handle of a gun, and said: "[Y]ou know what that is?" App. 141A. Clarke stood up and started backing away, but Lake pulled the gun from his waist band, put it against Clarke's face, and demanded the car keys. App. 142A. Clarke said that he did not have the keys and started walking toward the water with Lake following. Clarke waded into waist-deep water, and Lake walked out onto a promontory overlooking the water. App. 143A-48A.
While Clarke was in the water, his friend, Pamela Croaker, appeared on the beach. Clarke shouted a warning, prompting Lake to approach Croaker. Lake demanded that Croaker surrender her car keys, and Croaker said:"I don't even know you. Why would I give you the keys to the car?" App. 183A. Lake then grabbed the keys, and the two wrestled for possession of the keys. When Croaker saw the gun, she surrendered the keys but asked to keep her house keys. App. 184A-86A. Lake went up the steep path to the parking area where Croaker had parked her car out of sight of the beach. Lake then drove away in Croaker's car after leaving her house keys on the hood of Clarke's car. App. 192A. As we will discuss later in more detail, both Croaker and Clarke followed him up the path, but when they arrived, he was driving away.
Later that day, the police apprehended Lake in the stolen car at a McDonald's restaurant. When questioned by the police and an FBI agent, Lake stated that he had used a toy
gun and that he had thrown it in a swamp. He refused to take the officers to the site where he had allegedly disposed of the gun, and when asked to tell the truth about whether the gun was really a toy, he responded that he "would think about it." The gun was never recovered.
Lake was indicted for carjacking, in violation of 18 U.S.C. § 2119, and for using and carrying a firearm during and in relation to a crime of violence (the carjacking), in violation of 18 U.S.C. § 924(c)(1). At the close of the evidence in his jury trial, Lake moved unsuccessfully for a judgment of acquittal. The jury subsequently returned a verdict of not guilty of the carjacking charge but guilty of thefirearms offense. Lake ...