United States v. Soler, No. 12-2077-CR (2d. Cir. July 22, 2014) (Katzmann, Walker, and Droney), available here
The federal carjacking statute, 18 U.S.C. § 2119, criminalizes the forcible taking of an automobile “from the person or presence of another.” Following decisions by all the other Courts of Appeals to have addressed the question, the Circuit here held that an automobile is in the “presence” of a victim “if it is so within his or her reach, inspection, observation, or control that he or she could, if not overcome by violence or prevented by fear, retain possession of it.”
Defendants robbed a house and, on the way out, demanded that one of the occupants give them the keys to a car parked in front of the house. The car was parked on a curb 10-15 feet, or a 5-second walk, from the front door to the house. The victim testified that the car could be seen from the front door, but that she could not see the car at the time defendants demanded the keys because she was lying on the floor. Other trial evidence revealed that the interior of the house was separated from the car by a solid front door, a short driveway, a wrought iron fence, and a sidewalk. The car could be unlocked from the front door with a remote keychain.
On appeal, the Circuit rejected defendants’ argument that the statutory term “presence” means “in front of, or in the area immediately around, a person,” adopting instead the more expansive definition above. Nonetheless, this definition of presence “is not boundless,” but “implies a degree of physical proximity between the victim and the vehicle.” Citing with approval decisions of other Courts of Appeals affirming carjacking convictions where the automobiles stolen were parked outside the premises where the victims were robbed, the Circuit concluded that the evidence in this case likewise sufficed to prove presence.
[Disclosure: Federal Defenders of New York, Inc., represents one of the defendants, William Soler, in this case.]