Conditional intent to kill is enough for federal carjacking conviction.

• Author: Norborg, Chris
• Position: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure

Holloway v. United States, 119 S. Ct. 966 (1999)

1. INTRODUCTION

   In Holloway v. United States,(1) the United States Supreme Court considered whether the scienter requirement of the federal carjacking statute(2) was satisfied where the assailant's intent to cause death or serious bodily harm(3) was conditioned upon the victim's refusal to give up the vehicle. The Court stated that because the statute's mens rea element describes the defendant's state of mind at the exact moment he takes the vehicle, and because neither conditional nor unconditional intent are mentioned specifically, the most reasonable reading of [sections] 2119 encompasses both species of intent.(4) Further, the Court argued that requiring proof of unconditional intent to kill would exclude from coverage the vast majority of crimes that the law obviously intended to federalize. The Court found that it was "reasonable to presume that Congress was familiar with the cases and the scholarly writing that have recognized that the `specific intent' to commit a wrongful act may be conditional."(5) Thus, over the dissents of two Justices,(6) the Court held that proof of conditional intent was sufficient for conviction.(7) Finally, the majority stated that because Congress' intent in enacting this statute was clear, the rule of lenity was inapplicable.(8)

   This Note argues that the majority in Holloway erred in holding that proof of conditional intent to kill satisfies the scienter requirement of [sections] 2119. Contrary to the Court's conclusion, the most reasonable interpretation of the statute does not cover conditional intent. Moreover, the legislative history is unclear, and it is entirely plausible that Congress intended this statute to cover only a specific type of carjacking. At the very least, the statute is ambiguous, and therefore the rule of lenity should apply.

2. BACKGROUND

   1. CONDITIONAL INTENT IN THE CRIMINAL COMMON LAW

      A survey of the criminal common law reveals two competing approaches to the issue of whether conditional intent(9) is sufficient for conviction where a statute requires proof of intent. In the majority of jurisdictions, conditional intent is enough.(10) However, a significant number of courts have held the opposite.(11)

      1. Conditional Intent is Sufficient: The Connors Position

         Although it was decided almost ninety years ago, the leading case for the proposition that conditional intent is sufficient remains the Supreme Court of Illinois' People v. Connors.(12) Connors involved a confrontation between two rival labor unions. The members of one union pointed guns at the members of the other and threatened to "fill [them] full of holes" if they didn't stop work.(13) The workers obeyed, and no one was hurt.(14) The gunmen were convicted of assault with intent to murder, and the court upheld their conviction.(15)

         In so holding, the court asserted that the intent to kill may be conditional.(16) The court argued that it would be unjust to allow criminal defendants to insulate themselves from conviction where intent is required merely by coupling this intent with an "unlawful condition or demand."(17) Where such coupling occurs, the court declared that "the unlawful character of the demand eliminates it from consideration and the act will be judged in its naked criminality."(18)

      2. Conditional Intent is Not Enough: Irwin and Kinnemore

         Despite the influence of Connors, however, there is a considerable amount of precedent that holds the opposite: where "intent" is required by statute, proof of conditional intent is insufficient for conviction.(19) Two cases, State v. Irwin(20) and State v. Kinnemore,(21) are representative of this approach.

         In Irwin, the North Carolina Court of Appeals considered the case of a foiled jailbreak.(22) The defendant was briefly released from behind bars to answer a phone call, and instead of returning to his cell he grabbed a jail matron, held a knife to her neck, and said "[D]on't any of [you] be no damn hero, I will kill this woman."(23) The court held that this threat was evidence of a conditional intent to kill and that such an intent was insufficient to fulfill the charge of assault with a deadly weapon with intent to kill.(24) In so holding, the court reasoned that "[t]he State's evidence shows only that the defendant committed an assault with the intent to intimidate."(25) Because the prosecution failed to prove that Irwin had a specific intent to kill by means of the assault, the conviction was reversed.(26)

         State v. Kinnemore involved the assault of a department store employee by an assailant armed with a pair of scissors.(27) The defendant grabbed the woman, pressed the scissors to her neck, and threatened to kill her if he was not allowed to leave.(28) The attempted escape was thwarted, however, and Kinnemore was disarmed, arrested, and charged with assault with intent to kill.(29) Appealing his subsequent conviction, the defendant claimed that his conditional intent did not satisfy the intent to kill required by statute.(30) The court agreed, stating "an assault coupled with a present intent to kill necessarily involves continuous, sequential, and uninterrupted conduct."(31) The evidence was sufficient to prove that Kinnemore assaulted his victim with intent to escape but not sufficient to show that he maintained the continuous intent to kill required for conviction.(32)

   2. CONDITONAL INTENT IN LEGAL SCHOLARSHIP

      In legal scholarship, an expression of conditional intent has generally been found to satisfy a statutory requirement of intent.(33) With regard to intent to kill, this view agrees with the Connors court that where such intent is conditioned on the surrender of property that the perpetrator has no right to demand, or the performance of an act that he has no right to expect, the statutory requirement of intent is satisfied.(34) Proponents of this position do, however, recognize that some courts have disagreed on the subject.(35)

      The Model Penal Code supports this general trend in legal scholarship. The Code specifically embraces the idea of conditional intent, stating "[w]hen a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense."(36) For example, if one takes money with the intent of returning it if he wins the lottery, this condition does not "negative the harm or evil" of theft. On the other hand, if one takes money believing it is rightfully his own and intends to return it if he discovers that it is not, the evil of the theft is negated.(38)

      There is, however, a line of legal thought that disagrees with the majority approach. Glanville Williams explained this position in his book The Mental Element in Crime.(39) Williams argues that conditional intent only rises to the required level of intent where the end is either desired or foreseen as inevitably accompanying the desired result; otherwise, such "conditional intent" is actually recklessness.(40) Thus, a man who threatens (and intends) to shoot another if he doesn't remove his overalls is only guilty under an "intent to kill" statute if the need to fire is "foreseen as the certain accompaniment" of the desired and demanded act.(41) If he can show at trail that he did not foresee that use of his gun would be inevitable, and further that he had no desire to shoot his victim, then the prosecution will be unable to prove the requisite intent to kill.(42)

   3. 18 U.S.C. [sections] 2119: THE CARJACKING STATUTE

      1. The Legislative History of 18 U.S.C. [sections] 2119

         In September 1992, two assailants stole a car belonging to a Maryland woman named Paula Basu.(43) The men forced her from the vehicle and sped away. Desperate in the realization that her infant daughter was still in the car, Ms. Basu clung to the door and was dragged to her death.(44)

         In the wake of this tragic event and the subsequent public outrage, Congress passed the Anti Car Theft Act of 1992, codified as 18 U.S.C. [sections] 2119.(45) As initially enacted, this law read:

         Whoever, possessing a firearm as defined in section 921 of this Title, 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 (as defined in section 1365 of this title) 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.(46) During 1993, the Congress added death penalty provisions to a number of federal criminal statutes, including 18 U.S.C. [sections] 2119.(47) Additionally, Congress broadened the statute's application by removing the firearm requirement. In doing so, the legislature federalized about 14,000 additional carjacking cases per year.(48) The statute was amended in the following manner:

         (14) CARJACKING--Section 2119(3) of Title 18, United States Code is amended by striking the period after "both" and inserting, "or sentenced to death."; and by striking, "possessing a firearm as defined in Section 921 of this Tide," and inserting, "with the intent to cause death or serious bodily harm."(49) A straightforward reading of this amendment reveals that it was intended to alter the language of only subsection (3) of [sections] 2119. However, because the firearm clause was not part of this penalty subsection, the new intent element was placed in the body of the law itself. As a result, the intent to cause death or serious bodily harm amendment is applicable to all violations of [sections] 2119, not only those resulting in death.(50)

         Congress considered removing the scienter element of 18 U.S.C. [sections] 2119 on three separate...