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United States v. Petruk

United States District Court, Eighth Circuit

September 4, 2013

UNITED STATES OF AMERICA,
v.
Elfred William Petruk, Defendant.

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter came before the undersigned United States Magistrate Judge upon Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 26] (hereinafter, "Motion to Suppress Evidence"); his Motion to Suppress Eyewitness Identifications, [Docket No. 27] (hereinafter "Motion to Suppress ID"); his Motion to Suppress Statements, Admissions, and Answers, [Docket No. 28] (hereinafter "Motion to Suppress Statements") (collectively, "suppression motions"); and his Motion to Dismiss Count One Based on an Unsupportable Carjacking Theory, [Docket No. 41] (hereinafter "Motion to Dismiss"). The case has been referred to the Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. The Court held a hearing on August 16, 2013, regarding the parties' motions for discovery, [1] and Defendant's motions for severance, [2] suppression and dismissal. For the reasons outlined below, the Court recommends that Defendant's motions for suppression and dismissal, [Docket Nos. 26-28, 41], be DENIED.

I. Background

Elfred William Petruk ("Defendant") is charged with one count of carjacking, alleging that on June 18, 2012, he took a 1989 GMC Sierra pickup truck (the "vehicle") from the person or presence of a person identified as "TRB" by "force and violence and intimidation, " in violation of 18 U.S.C. § 2119(1); and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). (See Indictment [Docket No. 1], at 1-3).[3] Defendant was indicted on June 18, 2013, and subsequently, he made his suppression motions, [Docket Nos. 26-28], on July 12, 2013, and his Motion to Dismiss, [Docket No. 41], on August 14, 2013.

II. Defendant's Motion to Dismiss Count One Based on an Unsupportable Carjacking Theory [Docket No. 41]

Defendant argues that the carjacking charge must be dismissed because the "taking" of the vehicle occurred before Defendant's encounter with TRB and was achieved without the use of force or intimidation. (See Docket No. 41).

A. Facts

For purposes of the present motion, the Government and Defendant have stipulated to the following facts:

Around 2:00 a.m. on [June 18], [4] 2012, [TRB] received a call from his mother that his truck had been stolen from their garage. [TRB] was out driving in another truck at the time he received the phone call, and started heading home. As [TRB] drove home, he noticed his truck drive past him on the road. [TRB] did a u-turn and followed the truck, eventually flashing the truck over to the side of the road. The driver of his stolen truck got out, and when [TRB] started to get out of his car, the driver got back into the truck and took off. [TRB] followed his stolen truck onto some rural roads, where it pulled over. [TRB] pulled over behind his stolen truck. The driver of the truck got out and approached [TRB] with something behind his back. As the driver approached [TRB]'s window, he swung a hammer at [TRB], who grabbed it with his hands. The driver pulled the hammer out of [TRB]'s hands. [TRB] engaged his vehicle and starting driving away, and the driver swung the hammer and struck the driver's rear window, breaking it as [TRB] drove away. The driver got back in the stolen truck and drove away. The truck was later discovered abandoned in a rural ditch. The government alleges that Mr. Petruk is the driver/car thief.

(Mot. Dismiss [Docket No. 41], at 1-2); see also Gov't's Mem. Opp. Mot. Dismiss [Docket No. 52] (hereinafter, "Gov't's Mem."), at 1 ("For purposes of deciding the defendant's motion, the government has no objection to the Court considering the facts proferred in the Defendant's motion to dismiss, but reserves the right to contest these facts at trial.").

B. Standard of Review

Defendant's motion to dismiss is made pursuant to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure, which governs motions alleging sufficiency defects in the indictment.[5] The Eighth Circuit has repeatedly held that:

An indictment adequately states an offense if: it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted.

United States v. Hayes , 574 F.3d 460, 472 (8th Cir. 2009) (quoting United States v. Sewell , 513 F.3d 820, 821 (8th Cir. 2008) (quotation omitted)). "An indictment is normally sufficient if its language tracks the statutory language." Sewell , 513 F.3d at 821 (citing Hamling v. United States , 418 U.S. 87, 117 (1974)).

Similarly, the District of Minnesota has held that, in order to survive a criminal defendant's Rule 12 motion to dismiss:

an Indictment must allege that the defendant performed acts which, if proven, would constitute a violation of the law under which he has been charged. See United States v. Polychron , 841 F.2d 833, 834 (8th Cir. 1988). As a result, if the acts, that are alleged in the Indictment, do not constitute a criminal offense, then the Indictment should be dismissed. See, e.g., United States v. Coia , 719 F.2d 1120, 1123 (11th Cir. 1983), cert. denied, 466 U.S. 973 , 104 S.Ct. 2349, 80 L.Ed.2d 822 (1984). In reviewing the sufficiency of an Indictment, or of any of its Counts, we are to determine whether the Indictment sufficiently sets forth the elements of the offenses alleged, as to the offenses that are said to have occurred, in order to place the defendant on fair notice of the charges against him, and to enable him to raise an acquittal, or conviction, so as to prevent his double jeopardy for a single offense. See Hamling v. United States , 418 U.S. 87, 117 (1974); United States v. Hall , 20 F.3d 1084, 1087 (10th Cir. 1994).

United States v. Hughson , 488 F.Supp.2d 835, 840 (D. Minn. 2007) (Erickson, C.M.J.), adopted by 488 F.Supp.2d 835 (D. Minn. 2007) (Doty, J.).

C. Discussion

In the present case, the facts to which the Government and Defendant have stipulated for purposes of the present motion are sufficient to allege that Defendant committed a carjacking in violation of 18 U.S.C. § 2119(1). The carjacking statute at issue provides:

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.

18 U.S.C. § 2119(1). Thus, the Eighth Circuit has identified the elements of the offense as "(1) the defendant took or attempted to take a motor vehicle from the person or presence of another by force and violence or by intimidation; (2) the defendant acted with the intent to cause death or serious bodily harm; and (3) the motor vehicle involved has been transported, shipped, or received in interstate or foreign commerce." United States v. Wright , 246 F.3d 1123, 1126 (8th Cir. 2001) (citing United States v. Williams , 136 F.3d 547, 550 (8th Cir. 1998)).

Defendant challenges the indictment with regard to the first element-in particular, the use of "force and violation or... intimidation"-arguing that:

the initial taking of the car was not accompanied by the use of force. The car was stolen and [TRB] had lost control and possession of it well before the subsequent roadside incident. [TRB] never regained control or possession of his truck such that there was a subsequent "taking." Since the initial taking of the car did not involve force, violence or intimidation, this case does not involve a "carjacking" but a car theft followed by a roadside assault/damage to property claim.

(Mot. Dismiss [Docket No. 41], at 4).[6] The Court is not persuaded by Defendant's argument.

The facts to which the parties have stipulated for purposes of the present motion, and which the Court accepts as true for purposes of the present motion, demonstrate that: (1) Defendant did initially "take" the vehicle at issue without the use of force, violence or intimidation in the initial taking;[7] but that (2) the owner of the vehicle pursued the defendant; and that (3) upon realizing that he was being pursued, Defendant stopped and exited the vehicle and, wielding a hammer as a weapon, did with force physically confront his pursuer, cause or attempt to cause injury to the pursuer, and did damage the pursuer's vehicle in order to terminate the pursuit at the scene of the confrontation so as to finally effectuate the theft of the vehicle without further pursuit. See Part II.A, supra.

Defendant's argument appears to flow from the premise that a vehicle, once taken without force, cannot subsequently be re-taken by the same perpetrator such that the second taking would fall within the bounds of the carjacking statute. The Court has been unable to locate any legal authority in support of this interpretation of the carjacking statute. In fact, the Eighth Circuit rejected a similar argument in United States v. Wright. 246 F.3d 1123 (8th Cir. 2001) .

In Wright, the defendant was convicted of carjacking for his theft of a vehicle from an enclosed valet parking lot. Id. at 1125. The defendant found the vehicle unattended with its engine running and sat himself in the driver's seat before being confronted by one of the two valets working at the time. Id . The defendant then accelerated, running into the valet, and drove about twenty yards with the valet on the hood. Id . The defendant hit the brakes, causing the valet to slide off the hood. Id . The defendant then began to reverse, but the valet was able to open the driver's side door. Id . A struggle ensued, ending when the defendant succeeded in shoving the valet from the vehicle. Id . The defendant then fled the parking lot. Id . At trial, the defendant stipulated that he was the person in the vehicle when it was stolen. Id . On appeal, he argued that there was insufficient evidence to convict him of carjacking because the taking of the vehicle occurred when he entered the vehicle, and that "any force [the defendant] used was after the taking and meant only to deter [the valet]'s attempts to recover the car." Id. at ...


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