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April 5, 1996

UNITED STATES OF AMERICA, against FRANCOIS HOLLOWAY, also known as "Abdu Ali," Defendant.

The opinion of the court was delivered by: GLEESON

 JOHN GLEESON, United States District Judge:

 Defendant Francois Holloway, also known as "Abdu Ali," was indicted on February 2, 1995. He was charged with conspiring to operate a "chop shop," in violation of 18 U.S.C. § 371, operating a chop shop, in violation of 18 U.S.C. § 2322, three counts of carjacking, in violation of 18 U.S.C. § 2119, and three counts of using and carrying a firearm during and in relation to the charged carjackings, in violation of 18 U.S.C. § 924(c). A jury trial was held in December 1995, after which Ali was found guilty of all charges.

 Ali now moves for a new trial pursuant to Fed. R. Civ. P. 33, claiming that such relief is required in the interest of justice. In the alternative, he seeks reconsideration of his unsuccessful motion pursuant to Fed. R. Cr. P. 29, which he made at trial. The issue raised by the motion was also the central issue at the trial: what must the government prove to satisfy the intent element of the carjacking statute, 18 U.S.C. § 2119? *fn1"

 There is no question that the conduct at issue in this case is precisely what Congress and the general public would describe as carjacking, and that Congress intended to prohibit it in § 2119. However, carelessness in the legislative process has produced a criminal statute that says something fundamentally different than what Congress obviously meant to say. As a result, Ali advances a colorable claim that his conduct here -- using a gun to terrorize motorists into giving up their cars -- is no longer prohibited by the carjacking statute. Indeed, it is likely that a 1994 amendment to the statute, which was explicitly intended to broaden the available penalties, in fact placed a large number of "carjackers" beyond its reach.

 Ali, however, is not among them. Though colorable, his argument fails for the reasons set forth below, and his motion is denied.

 A. The Facts

 Vernon Lennon's father, Teddy Arnold, operated a "chop shop" in Queens, New York. Lennon stole cars for his father to chop. His father would tell him what year and model cars he needed, and Lennon would locate such cars and steal them. He did not know how to disable alarms or "hot wire" cars, so Lennon's modus operandi was to take the cars from their owners at gunpoint. Lennon was a team player, always taking another robber with him to help locate the target car and steal it. Since Lennon liked to follow a targeted car, often to the driver's home, before committing the robbery, a teammate was a virtual necessity; if the robbery was successful, there were two cars that had to be driven away.

 Lennon has known the defendant Ali (whom Lennon knows as Francois Holloway) since they were boys. In approximately September 1994, he recruited Ali, who would hang around the chop shop, to steal cars with him. Lennon told Ali that Lennon would use a gun to steal the cars, and showed him the gun, a .32 caliber revolver. Ali agreed to help for a fixed fee per car stolen.

 On October 14, 1994, Lennon and Ali stole a 1992 Nissan Maxima. They followed the car to the home of its driver, 69 year-old Stanley Metzger, in Queens. As Metzger got out of his car, Lennon and Ali got out of theirs. Lennon approached Metzger, pointed the gun at him, and demanded the keys. Metzger was apparently not fast enough in complying, so Lennon threatened to shoot him. Metzger handed over the keys, and was then told to hand over his wallet. He did so, and the robbers drove off with his car and his money.

 On the next day, October 15, 1994, at approximately 8:00 p.m., Lennon and Ali spotted Donna DiFranco driving a 1991 Toyota Celica at the Whitestone Shopping Center in Queens. They followed her to her friend's house, and Lennon approached her after she exited her parked car. He pointed a gun at her and demanded her money and her car keys. She complied, and after some fumbling with the car alarm and an anti-theft device, Lennon and Ali took her car.

 On all three occasions, *fn2" Lennon and Ali intended to leave the victims unharmed. Lennon never fired the gun in any of the carjackings. An experienced criminal, he knew that if he did, he risked a lengthier prison term than he would receive for simply robbing the car. For each robbery, the plan was to use the firearm only to obtain possession of the car, not to shoot or otherwise harm the victim.

 However, in all three of the charged carjackings, Lennon was prepared to shoot the victims if their resistance made that necessary. In other words, he intended to kill or seriously injure the victims, but that intent was conditioned on their giving the robbers "a hard time." There was ample evidence from which a rational juror could infer that the defendant Ali shared that conditional intent.

 B. The Carjacking Statute And Its 1994 Amendment

 In September 1992, Paula Basu, a Maryland woman, had her car stolen from her by two men. The men forced her from her car and drove off. Because her infant daughter was in the car, Basu clung to it as the men drove away, and was dragged to her death.

 This horrific offense generated a public outcry, and focused attention on legislative efforts to make car robberies a federal crime. Those efforts resulted in the Anti Car Theft Act of 1992, codified at 18 U.S.C. § 2119. As initially enacted, this new federal offense read as follows:

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 ...

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