Spring 2000
Prof. Mayo

May 5, 2000
Three hours

1. Be sure to place your exam number/PIN number on all bluebooks.

2. This is a three-hour, open-book examination. You may consult only the assigned text, class handouts, your class notes, and your own outline (including an outline that you prepared with your study group, if any).

3. The exam consists of three parts. All parts should be answered in a bluebook.

a. Questions I is an essay question. Suggested time for Question I is 90 minutes; Question I is worth one-half of your exam grade.

b. Question II is an essay question. Suggested time is 30 minutes; Question II is worth one-sixth of your exam grade.

c. Question III consists of six short-answer questions. Suggested time is one hour; Question III is worth one-third of your exam grade.

4. If you believe that insufficient facts are provided in order to resolve an issue, identify those additional facts that would be necessary for your analysis.

5. Unless the question states otherwise, the relevant jurisdiction is federal, references to "the court(s)" are to federal courts, and references to “the legislature” or “the statute” are to Congress and federal statutes.

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1. The Statute

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 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.

During 1993, Congress was considering extensive new criminal legislation, which included an array of new death penalties. Members of both houses proposed amendments to the newly-minted carjacking statute. The Senate bill proposed an amendment that would provide for the death penalty in cases where a carjacking results in death. S. 942, 103d Cong., 1st Sess. (1993). Senator Lieberman proposed a further amendment to this death penalty provision that would eliminate the requirement that such cases involve the use a firearm by the carjacker. In his remarks to the Senate in support of his proposed amendment, Senator Lieberman observed:

If a carjacking occurs and a death occurs as a result of that, does it really matter whether a firearm was used, whether a knife was used, whether physical force was used, or whether a mother, as in the Basu case, was dragged to her death because she wanted to make every effort to save the life of her child? . . . . .

In this case, the very bill I am amending has the death penalty for carjacking. All I am doing here is taking a small but I think significant additional step in saying, if the death penalty is going to be enacted into law for cases of carjacking where death occurs, then we ought not to require that that death has to involve a firearm. If the person in a carjacking is killed as a result of a knife or other weapon or just as a result of the carjacking, then the criminal ought to be subject to death himself. This amendment will broaden and strengthen the law so our U.S. attorneys have every possible tool available to them to attack the problem. That is why I propose the amendment. [139 Cong. Rec. S15295, S15301, S15303 (1993) (statement of Sen. Lieberman)]

Thus, with respect to carjackings resulting in death, the Senate bill eliminated the firearm requirement and provided for the death penalty. Because such a statute could authorize the death penalty for an accomplice who neither killed a victim nor intended to kill or harm the victim, it would have been subject to attack under the Eighth Amendment. See Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. .2d 1140 (1982). Thus, the conference report for the bill modified the Senate death penalty amendment for carjacking by adding an intent requirement – the "intent to cause death or serious bodily harm." H.R. Rep. No. 103-694, 103d Cong., 2d Sess. (1994), U.S. Code Cong. & Admin. News 1994, p. 1801. An amendment was offered on the floor of the House after the conference committee reported its bill back to both houses, which would have inserted the words, “if necessary,” after “harm,” but the amendment was defeated.

These combined efforts resulted in the following provision of the Violent Crime Control and Law Enforcement Act of 1994:

Sec. 6003. (a) . . . .

(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 title," and inserting ", with the intent to cause death or serious bodily harm."

Pub. L. No. 103-322, Title VI, § 6003(a)(14), 108 Stat. 1796, 1970 (1994). Since the 1994 amendments, there have been several unsuccessful legislative initiatives introduced in Congress to remove the intent portion of the carjacking statute. See The Violent Crime Control and Law Enforcement Act of 1995, S. 3, 104th Cong. § 717 (1995) (titled "Elimination of Unjustified Scienter Element for Carjacking"); Omnibus Crime Control Act of 1997, S. 3, 105th Cong. § 807 (1997) (titled "Elimination of Unjustified Scienter Element for Carjacking").

As amended, 18 U.S.C. § 2119 now reads as follows:

Whoever, 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, 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, or sentenced to death.

The Department of Justice’s Manual for United States Attorneys states that § 2119’s intent requirement could be satisfied by either an unconditional intent to cause death (which the manual describes as “the rare carjacking case”) or by the conditional intent to cause death if the driver of the car does not cooperate or resists. On this latter point, the Manual continues:

State law has been familiar with the idea of “conditional intent” at least since 1912. The leading case is People v. Connors, 253 Ill. 266, 97 N.E. 643 (1912), in which the Illinois Supreme Court affirmed the conviction of a union organizer who had pointed a gun at a worker and threatened to kill him forthwith if he did not take off his overalls and quit work. The court held that the jury had been properly instructed that the "specific intent to kill" could be found even though that intent was "coupled with a condition" that the defendant would not fire if the victim complied with his demand. That holding has been repeatedly cited with approval by other courts in Michigan, Indiana, Maryland, and Tennessee (although rejected by the courts of Alabama, North Carolina, and Ohio) and by scholars. Moreover, it reflects the views endorsed by the authors of the Model Criminal Code, which endorsed the idea that "[a]n intent to kill, in the alternative, is nevertheless an intent to kill." This conclusion would clearly be correct in those state jurisdictions that define “intent” to include “conditional intent (see, e.g., Del. Code Ann., Tit. 11, § 254 (1995); Haw. Rev. Stat. § 702-209 (1993); 18 Pa. Cons. Stat. § 302(f) (1998)); the federal penal code has no such definition.

Innumerable federal criminal statutes contain an intent requirement, ranging from intent to steal, see 18 U.S.C. § 2113, to intent to defeat the provisions of the Bankruptcy Code, see § 152(5), to intent that a vessel be used in hostilities against a friendly nation, see § 962, to intent to obstruct the lawful exercise of parental rights, see § 1204, to 21 U.S.C. § 841, which makes it a crime to possess certain drugs with intent to distribute them (possession alone is also a crime, but a lesser one, see § 844). Only one federal case has held that “intent” in one of these statutes is satisfied by proof of “conditional intent”: Shaffer v. United States, 308 F.2d 654 (5th Cir. 1962), cert. denied, 373 U.S. 939 (1963), which upheld a conviction of assault "with intent to do bodily harm" where the defendant had said that if any persons tried to leave the building within five minutes after his departure "he would shoot their heads off," 308 F.2d at 655. As for § 2119 itself, most Courts of Appeals have held that “conditional intent” satisfies the scienter requirement; but see U.S. v. Randolph, 93 F.3d 656 (9th Cir. 1996).

2. The Facts

Francois Holloway was indicted on three counts of carjacking, as well as several other offenses related to stealing cars. In each of the carjackings, Holloway and an armed accomplice identified a car that they wanted and followed it until it was parked. The accomplice then approached the driver, produced a gun, and threatened to shoot unless the driver handed over the car keys. The accomplice testified that the plan was to steal the cars without harming the victims, but that he would have used his gun if any of the drivers had given him a "hard time." When one victim hesitated, Holloway punched him in the face but there was no other actual violence.

The trial judge instructed the jury that if they found beyond a reasonable doubt that Holloway acted with the “conditional intent” described above, then the government would have met its burden of proof on the issue of intent. Holloway (along with his accomplice, who is not a party to this appeal) was convicted by a jury of violating the federal Anti Car Theft Act, 18 U.S.C. § 2119. Holloway appeals his conviction on three grounds: (1) that the federal statute is unconstitutional as applied to him, because the government adduced no evidence that the automobile he allegedly carjacked had previously moved in interstate commerce, (2) that the statute is unconstitutional on its face because it federalizes a purely local crime and has at most a pretextual connection to interstate commerce, and (3) that the judge’s instruction to the jury was based upon an erroneous interpretation of the intent element of the statute.

3. The Question on Appeal

Holloway contends that the amended statute prohibits only those carjackings in which the perpetrators unconditionally intend to kill or seriously injure their victims. Under this reading, the law would not prohibit the crimes committed by Holloway and his accomplice, where the intent of the carjackers allegedly was not to kill or injure people, but to get cars, and where the intent to cause bodily harm was merely “conditional” -- that is, dependent upon the resistance of their victims.

You are the law clerk to the appellate judge who is writing the opinion. The judge has asked you to draft the portion of the opinion that will deal with appellant’s statutory challenge (issue (3)). Your co-clerk will write the portion of that opinion that deals with the Commerce Clause arguments; you do not have to discuss whether the statute is constitutional. Consider all of the statutory-interpretation arguments that you would expect counsel on both sides to make and indicate how you would recommend the judge should rule.

The federal Rules of Decision Act provides:

The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

28 U.S.C. § 1652. This statute has retained its original wording since its passage as part of the first Judiciary Act of 1789.

In 1842, the Supreme Court interpreted the Rules of Decision Act to mean that in diversity cases federal courts were required to follow only state statutory law and were not bound by state common law. See Swift v. Tyson, 41 U.S. 1 (1842). Because federal courts now would share responsibility for the development of the common law, the Court reasoned that its decision would promote uniformity in the common law among the various states. After Swift, the federal courts enthusiastically, frequently, and at great length pronounced upon all manner of common-law questions (tort, contract, property, secured transactions, e.g.), implicitly or explicitly basing their opinions upon Swift’s interpretation of the Rules of Decision Act.

In the early part of the 20th century, legal scholars questioned Swift. One law review article marshaled the historical evidence and simply concluded the Swift Court got it wrong -- Congress intended that the Rules of Decision Act would incorporate state common law as well as statutory law.

In Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Supreme Court overruled Swift and its long-standing interpretation of the Rules of Decision Act. Under Erie, federal courts sitting in diversity cases must look to state common law (as well as statutory law, which they had been doing since 1789 anyway) for rules of decision. In reaching this conclusion, the Supreme Court relied on the scholarship mentioned in the previous paragraph and on evolving notions of federalism. The Court reasoned that (i) because the federal government is one of limited powers and (ii) because the Constitution did not give federal courts power under Article III to create general common law (at least, not in areas in which Congress could not or had not legislated pursuant to its Article I powers), then (iii) federal courts lacked the power to create a general federal common law. Therefore, under the Rules of Decision Act, federal courts had to look to state common law and statutory law for substantive law in diversity cases.

Erie sharply contrasts with cases we studied in which the Supreme Court has given unusually strong stare decisis effect to its previous interpretations of statutes. Defend the Supreme Court's decision to overrule Swift as an exception to the usual rule of stare decisis. You may use any of the materials we studied and are not limited to the state of the law in 1938.

This section consists of 6 short-answer questions.

• True/False questions get 1 point for the correct answer and up to 3 points for the explanation.

• Multiple-choice/short-answer questions get 3 points for the correct option (a., b., c., etc.) and up to 7 points for the explanation.

• Short essays may earn up to 14 points. I have provided page guidelines for these questions. Typists: Use your best judgment to conform to the page guidelines.