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.]