Where a man used a gun to carjack a van carrying Peloton bicycles, his motion to set aside the jury convictions for Hobbs Act robbery, carjacking and use of a firearm in relation to a crime of violence were denied.
On Aug. 25, 2021, Douglas Damon Whitley and Kindal Robinson, who reside together and have an infant child, left their Washington, D.C. apartment. Robinson, Whitley and the infant traveled in a black Toyota Camry into Fairfax County.
Around 7:45 a.m., a van carrying Peloton bicycles pulled into the parking lot of a strip mall in Fairfax County, with the black Toyota Camry following closely behind. While one Peloton employee was in the 7-Eleven, Whitley exited from the passenger seat of the Camry, approached the Peloton van from behind and ordered the second employee out of the van. At this point, the Camry drove out of the parking lot, and the Peloton van – now driven by the man in the bucket hat – followed it.
A grand jury returned a three-count indictment charging Whitley and Robinson with Hobbs Act robbery and carjacking. Whitley was also charged with using, carrying and brandishing a firearm during and in relation to a crime of violence. A jury convicted both defendants of all counts. Now before the court are defendants’ motions for judgment of acquittal.
Robinson argues that there was no evidence presented showing that she intended Whitley to use force or violence when taking the van and therefore no evidence to find that she intended Whitley to commit either a robbery or carjacking. The court disagrees.
From the facts, it would also have been reasonable to infer that Robinson knew someone was still in the van, given (1) that she pulled behind the van as if to help Whitley approach it while undetected by anyone inside it, which would not have been necessary if the van was unoccupied; (2) her proximity to the van and (3) how little time had passed between the van parking and Whitley approaching the van. And because it would have been reasonable to infer that Robinson knew someone was in the van, it therefore also would have been reasonable to infer that Whitley would have to use force to take the van from that person’s possession.
However, there was no direct evidence that Robinson knew Whitley had a loaded gun. The evidence only shows that Whitley left his apartment with a backpack and that the Peloton employee testified that Whitley pulled a gun out of that backpack as Whitley was entering the Peloton van. The court finds that a reasonable juror could not have concluded that Robinson knew Whitley had a firearm and intended to use it when he took the Peloton van. For these reasons, Robinson’s conviction on Count Two has been reversed, and she has been acquitted of that charge.
Robinson, along with Whitley, argues that there was insufficient evidence to establish the interstate commerce elements of the carjacking offense, which requires that the Peloton van had previously crossed state lines. The court disagrees. A reasonable jury could infer that Maryland plates were attached to the van in Maryland, absent any evidence to the contrary. Second, there was uncontested evidence that Peloton regularly made deliveries throughout Virginia, D.C. and Maryland.
Whitley first argues that convictions for both Hobbs Act robbery and carjacking violate the Double Jeopardy Clause of the Fifth Amendment, because robbery is a lesser included offense of carjacking. In an unpublished decision, the Fourth Circuit has rejected this argument. At least one other circuit has reached the same conclusion. Even aside from precedent, it is clear that each of the two offenses requires proof of a fact that the other does not.
Whitley next argues that the government did not prove, as is required for a carjacking conviction, that he “possessed a conditional intent to kill or seriously injure the car’s driver should such violence become necessary.” The Fourth Circuit has neither adopted nor rejected the “brandishing-plus” standard. Moreover, the out-of-circuit case cited by Whitley recognized that pointing a gun directly at a victim while directing the victim to exit a vehicle – which is exactly what Whitley did – supports a finding of the required intent.
Regarding his brandishing conviction, Whitley argues that no reasonable juror could find that he possessed a “firearm” because there was insufficient evidence that the gun described by Hawkins was real and operable as opposed to a fake gun, for which § 924(c) would not impose liability. That argument is unpersuasive. A reasonable juror could have found that Whitley had a gun not only from Hawkins’s testimony, but also from Hawkins’s conduct.
Robinson’s motion for judgment of acquittal granted in part, denied in part.
Whitley’s motion for judgment of acquittal denied.
United States v. Whitley, Case No. 1:21-cr-227, June 3, 2022. EDVA at Alexandria (Brinkema). VLW 022-3-237. 13 pp.