Skip to main content


United States Court of Appeals,Tenth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Marshal PAYNE, Defendant-Appellant.

No. 95-5102.

Decided: May 08, 1996

Before PORFILIO, McKAY and KELLY, Circuit Judges. Richard D. White, Jr. of White, Hack and Duke, P.A., Tulsa, Oklahoma, for Defendant-Appellant. Stephen C. Lewis, United States Attorney, and Allen J. Litchfield, Assistant United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

Mr. Payne was convicted of two counts of counts of carjacking, 18 U.S.C. §§ 2, 2119, based on a scheme where the victim would be abducted and forced to make cash withdrawals with an ATM card.   He now appeals.   Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

 Carjacking requires the government to prove that “the defendant, (1) while possessing a firearm, (2) took from the person or presence of another (3) by force and violence or intimidation (4) a motor vehicle which had moved in interstate or foreign commerce.”  United States v. Singleton, 16 F.3d 1419, 1422 (5th Cir.1994) (footnote omitted).   Accord United States v. Moore, 43 F.3d 568, 572 (11th Cir.), cert. denied, 516 U.S. 879, 116 S.Ct. 212, 133 L.Ed.2d 144 (1995).   Mr. Payne maintains that the government failed to prove element (2), that he took a motor vehicle.   According to Mr. Payne, the taking element requires an intent to steal or permanently deprive the victim of the motor vehicle, an intent which he lacked when he and his cohorts abducted their victims, commandeered their vehicles, and then abandoned those vehicles once the criminal purpose of the venture was achieved or thwarted by the victim.

 We disagree.   Carjacking is a general intent crime analogous to robbery.  United States v. Martinez, 49 F.3d 1398, 1401 (9th Cir.1995), cert. denied, 516 U.S. 1065, 116 S.Ct. 749, 133 L.Ed.2d 696 (1996);  United States v. Harris, 25 F.3d 1275, 1279-80 (5th Cir.), cert. denied, 513 U.S. 978, 115 S.Ct. 458, 130 L.Ed.2d 366 (1994).   An intent to permanently deprive a victim of a motor vehicle is not required by the “taking” element.  United States v. Moore, 73 F.3d 666, 669 (6th Cir.1996);  see also United States v. Lewis, 628 F.2d 1276, 1278-79 (10th Cir.1980) (bank robbery under 18 U.S.C. § 2113(a) did not require any more than temporary taking of funds), cert. denied, 450 U.S. 924, 101 S.Ct. 1375, 67 L.Ed.2d 353 (1981).   The carjacker's motive for stealing the vehicle, be it for profit, convenience or as an instrumentality of another crime, is irrelevant.   Harris, 25 F.3d at 1280.   When judged against these standards and in the light most favorable to the government, Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), the evidence is sufficient.


PAUL KELLY, Jr., Circuit Judge.

Was this helpful?

Thank you. Your response has been sent.

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go to Learn About the Law

Docket No: No. 95-5102.

Decided: May 08, 1996

Court: United States Court of Appeals,Tenth Circuit.

Get a profile on the #1 online legal directory

Harness the power of our directory with your own profile. Select the button below to sign up.

Sign up

Learn About the Law

Get help with your legal needs

FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.

Learn more about the law
Copied to clipboard