U.S. v. Kenneth Bailey, Jr., No. 15-4109 (4th Cir. WIN!) a/k/a Why You Should Use Uber Instead
Excellent win for the Winston-Salem office of the North Carolina Federal Public Defender! Another recent win in the Fourth Circuit for lack of sufficiency of evidence! See also U.S. v. Blue, 13-4069, No. 15-4153 (4th Cir. 2015) (drug sale). After a two day trial, Bailey was convicted of carjacking in violation of 18 U.S.C §2119. He appealed on the grounds that the Government did not provide sufficient evidence of his intent to support the conviction.
This happened in Durham, NC. On the night of April 17, 2014, a police officer noticed that Bailey’s car had its tag lights out and that it also had heavily tinted windows. The police officer decided to conduct a traffic stop. She followed him, saw him make a couple of quick turns, and then she activated the lights of her patrol car. Bailey’s car then made an additional turn and drove, in the wrong direction, down a one-way street. The cop estimated that he was driving about 25-30 miles over the speed limit. She then turned onto a parallel street to follow him. When she caught up with his car, she saw that Bailey had crashed into a stone wall near city hall. She saw Bailey and two females standing outside the car. As she got closer, the cop heard a child crying and saw one of the females attempting to remove a small child from the car’s backseat. As the police officer was focusing on that, Bailey fled to a nearby McDonald’s parking lot. Once she figured the child was not injured, law enforcement went to the McDonald’s where they found a college-aged male “frantically waving and screaming” that his truck had just been stolen.
At trial, this guy (“Watkins”) testified he had been sitting in his truck when he saw a panicked and bloody man (Bailey) run towards his car. Bailey said “I’ll pay you. I’ll pay you. I’ll pay you. Can I get a ride?” Watkins refused, attempted to lock his doors and put his truck in reverse. Watkins, however, accidentally unlocked his doors and Bailey opened the backdoor. The other passengers got out of the car, and Bailey told Watkins to “drive, drive, drive.” Bailey then put something “hard and cold” on the back of Watkin’s neck. Watkins testified he feared for his life, and so placed the truck in park and jumped from his truck into the bushes. Significantly, Bailey admitted that he placed a cold object on Watkin’s neck to scare him. Not enough for a federal carjacking, as it turns out (but that does NOT mean it’s a good idea!)
The officer then followed Bailey through Durham, and estimated that Bailey was driving about 50-60 miles per hour. After a couple of quick turns, Bailey jumped from the truck and fled on foot. The truck crashed outside of a local park.
At trial, Baileys’ witness, one of the female passengers, testified that she had been with Bailey the entire day and had not seen him with a weapon. Bailey was convicted of carjacking and sentenced to 105 months in prison + 3 years’ supervised release.
Under federal law, a person commits the crime of carjacking if he, “with the intent to cause death or serious bodily harm[,] 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.” 18 U.S.C. §2119. To prove intent, the government must show that the defendant unconditionally intended to kill or seriously injure the car’s driver or that the defendant possessed a conditional intent to kill or seriously injure the car’s driver should such violence become necessary—i.e. “that the defendant was conditionally prepared to” kill or seriously harm the driver if the driver “failed to relinquish the vehicle.” United States v. Foster, 507 F.3d 233, 247 (4th Cir. 2007).
Under Holloway v. United States, 526 U.S.1 (1999), the United States Supreme Court explained that “an empty threat, or intimidating bluff . . . standing on its own, is not enough to satisfy §2119’s specific intent element.” (But seriously, don’t do it.) Here, there was never any real suggestion that Bailey actually had a weapon, nor was there any evidence that Bailey intended to harm Watkins. The law requires that the factfinders look “to the defendant’s state of mind at the precise moment he demanded or took control over the car.” Id. at 8, 12. The Fourth Circuit concluded: “Applying Holloway, we have no hesitation in concluding that evidence of generalized recklessness and desperation, coupled with an unconsummated implied threat or “bluff” provided insufficient evidentiary support from which a jury could reasonably find beyond a reasonable doubt that Bailey possessed the specific intent, conditional or otherwise, to kill or seriously harm Watkins when he took control over Watkin’s truck.”
A great result under the unique facts of this case . . . but don’t try this one at home. Ever. It may have worked out for Mr. Bailey, but it will not work out for you.