United States v. Wills ( 2003 )

Filed: December 3, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 01-4630(L)
(CR-99-396)
United States of America,
Plaintiff - Appellee,
versus
Christopher Andaryl Wills, etc.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed October 7, 2003, and
reported at 346 F.3d 476 as follows:
On page 30, first full paragraph, line 8 -- the date of “July
25" is corrected to read “June 25.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4630
CHRISTOPHER ANDARYL WILLS, a/k/a
Ed Short, a/k/a Michael Wills,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4813
CHRISTOPHER ANDARYL WILLS, a/k/a
Ed Short, a/k/a Michael Wills,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4964
CHRISTOPHER ANDARYL WILLS, a/k/a
Ed Short, a/k/a Michael Wills,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-99-396)
Argued: April 4, 2003
Decided: October 7, 2003
Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.
____________________________________________________________
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Wilkinson and Judge Motz concurred.
____________________________________________________________
COUNSEL
ARGUED: Jonathan D. Hacker, O'MELVENY & MYERS, L.L.P.,
Washington, D.C., for Appellant. James L. Trump, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Alan H. Yamamoto,
Alexandria, Virginia, for Appellant. Paul J. McNulty, United States
Attorney, Kevin V. Di Gregory, Assistant United States Attorney,
Vincent L. Gambale, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
____________________________________________________________
OPINION
WIDENER, Circuit Judge:
The defendant, Christopher Andaryl Wills, was convicted of kid-
napping resulting in death, in violation of 18 U.S.C. § 1201(a)(1), and
interstate stalking resulting in death, in violation of 18 U.S.C.
§ 2261A. On appeal, Wills raises a multitude of issues, challenging
his convictions and sentence. For the reasons that follow, we affirm
Wills' convictions and sentence.1
I.
At approximately 2:00 a.m. on April 4, 1998, Zabiullah Alam
returned home from work to the apartment that he shared with his two
____________________________________________________________
1
On March 6, 2003, Wills filed a pro se motion for leave to file a sup-
plemental memorandum of law out of time. We grant the motion.
2
aunts and a cousin. Upon his return, Alam discovered an intruder,
whom he later identified as the defendant, Christopher Wills, in the
living room of his apartment holding his aunt's purse. Wills fled by
jumping off the apartment balcony, taking with him Alam's aunt's
purse and his cousin's pants and wallet. After a high speed chase, the
Fairfax County, Virginia police arrested Wills and charged him with
burglary.
On June 15, 1998, a preliminary hearing was held in the Fairfax
County General District Court. During the hearing, Alam appeared as
the Commonwealth's sole witness and identified Wills as the person
whom he had discovered burglarizing his home. The court determined
that there was probable cause to believe that Wills committed the bur-
glary and bound the case over to the state grand jury. The grand jury
was scheduled to meet on July 20, 1998, and Wills, if indicted, would
have been arraigned on July 21, 1998. Wills was then released on
bond.
During the evening of June 15, 1998, Wills spoke via telephone to
his brother, Michael Wills, who was incarcerated at the Augusta Cor-
rectional Facility near Staunton, Virginia. The facility monitored and
recorded its prisoners' telephone conversations. During the call, Wills
discussed the preliminary hearing which took place earlier that day.
Wills described how Alam identified him at the hearing and made
several statements indicating that he was formulating a plan to stop
Alam from testifying against him.2
____________________________________________________________
2
After Wills recounted Alam's identification of him at the hearing,
Wills stated, "But I ain't got time to leave it at that" and then stated,
"That ain't no joke." Later during the conversation, Wills and his brother
further discussed the hearing and indicated plans to stop Alam:
Michael Wills: You know what happened today, right?
Christopher Wills: Huh?
Michael Wills: You know what happened today for you,
when you, when you went —
Christopher Wills: When I went where I went?
Michael Wills: Yes.
Christopher Wills: Um-hum.
3
On or about June 17, 1998, a man, later identified by sales repre-
sentative Reginald Johnson to be Christopher Wills, obtained Cellular
____________________________________________________________
Michael Wills: You can't think on that, Shorty.
Christopher Wills: Huh?
Michael Wills: You can't think on it.
Christopher Wills: Come on now, who you talking to?
Michael Wills: (Unintelligible.)
Christopher Wills: All it is. I gotta do it and do it and now, you
know what I mean?
Michael Wills: Yeah, check it out.
Christopher Wills: I'm, I'm just thinking on how, you know.
Michael Wills: Yeah.
Christopher Wills: On the strength of basically all that I know.
You know what I mean? Understand, it, it's
[sic] spot, location.
Michael Wills: Yeah.
Christopher Wills: And look.
Michael Wills: Yeah.
Christopher Wills: I need to know wheels; you know what I'm
saying?
Michael Wills: I got you. I got you. I got you. I got you.
Christopher Wills: The other —
Michael Wills: I got you.
Christopher Wills: And then I can tee it on it perfect.
Michael Wills: I got you.
Christopher Wills: Other than that, I've got to use some trick-
ery.
Michael Wills: Hey.
Christopher Wills: Ah, but it's gonna get done through, you
know, that.
During another conversation on June 15, 1998, Wills further described
the preliminary hearing and appeared to describe how he had his "peo-
ples" follow Alam:
4
One service for a pre-existing cell phone at a Radio Shack in Wash-
ington, D.C., using the fictitious name "Ed Short." He prepaid for the
service in cash and listed what was later determined to be a fictitious
address in Temple Hills, Maryland as his residence. On or about June
18, 1998, a flier was left under Alam's door advertising a grounds
keeping job at an apartment complex, which paid $11.00 an hour plus
benefits. The flier listed the telephone number of the cellular service
activated by "Ed Short." On June 18, 1998, Wills spoke with his
brother and stated that he had put "Plan A in action, right."
On or about June 18, 1998, Wills returned to the same Radio
Shack, complaining that the cell phone did not function properly. On
June 19, 1998, or sometime thereafter, the government contends that
a handwritten note dated "6/19/98" was left at Alam's apartment
which read, "Wer'e [sic] sorry that our phones were down yesterday
6/18/98 Please! Try our line again. Were [sic] open 7 days a week.
Jobs!!"3 At the bottom of the note the same telephone number was
____________________________________________________________
Christopher Wills: They, they they did, 'cause I had my peo-
ples on, on Baywatch.
Michael Wills: Yeah.
****
Christopher Wills: The peoples was undercover, Shorty. You
know how I play.
Michael Wills: Yeah.
Christopher Wills: People's undercover sittin' right with him.
Michael Wills: Yeah.
Christopher Wills: And peoples stayed on him for me.
Michael Wills: Yeah.
Christopher Wills: But they slipped up. I told them to check
wheels, and they, they slipped on that. You
understand?
Michael Wills: Yeah.
Christopher Wills: They slipped on that, ``cause when them
people put the cuffs, they lost their mind.
Told them they can't do that, see? "``Cause
by trippin', you just cost me the wheels."
3
Alam's aunt found the note with tape stuck to it among Alam's papers
in November 1998 and turned it over to the police.
5
listed. On the evening of June 19, 1998, Wills again spoke with his
brother and referred to being at Radio Shack and to the fliers and indi-
cated that the phone which he had activated was not functioning prop-
erly.4
Prior to his disappearance, Alam told his family and friends that he
had called the number listed on the fliers to arrange an interview for
the grounds keeping job. Alam told them that he had scheduled the
job interview for 5 p.m. on June 25, 1998 in Washington, D.C. Also
prior to Alam's disappearance, Alam's cousin took a telephone mes-
sage for Alam from a man who identified himself as Feleec or Felliece5
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4
The following is an excerpt from the June 19, 1998 conversation:
Christopher Wills: I haven't been do sh- — I'm trying to get
this dude, man. If I don't, my ass is grass.
Michael Wills: Yeah.
Christopher Wills: You hear what I am saying?
Michael Wills: Yeah.
Christopher Wills: And the joint that I got plugged in for him
to dial was fucked up, so they could have
been calling me.
Michael Wills: Yeah.
Christopher Wills: You know what I mean? I'm getting, I'm,
I'm, I'm hitting with the draw-out moves,
to come to come (unintelligible). You know
what I mean?
Michael Wills: Yeah.
Christopher Wills: I got this and I, I already got the fliers out
and everything, so I'm just waiting, you
know, for them to get it and call, and, I
ain't got no calls yet, man. I — and I'm,
and I'm — I don't wanna give them up;
you know what I mean? I'm, I'm trying to,
you know, figure out how to go at him.
Michael Wills: Yeah, yeah, yeah. I got it.
5
At trial, the government offered evidence that the same name was
used twice in 1998 by a man calling the Augusta Correctional Center
who claimed to be an attorney for Michael Wills. During those calls,
"Feleec" gave Christopher Wills' telephone number as his own. He also
gave Wills' Washington, D.C. home address and his business address as
his own.
6
(phonetic) and who said that he was calling with regard to the grounds
keeping job. The man gave the number listed on the fliers as his tele-
phone number.
On June 25, 1998, the day of his scheduled interview, Alam
returned a page message that he had received while he was with his
friend, Ali Muradi. While Muradi listened, Alam discussed the
grounds keeping job with a Mr. Felliece and later told Muradi that he
was to meet Mr. Felliece's secretary at Union Station. At approxi-
mately 5 p.m. that night, Alam left Muradi's apartment in Fairfax
County, Virginia for the job interview. At 6:03 p.m., Alam was
stopped by a District of Columbia police officer on the 1200 block of
F Street, N.W., Washington, D.C., and was given a citation for not
wearing his seat belt.
On June 26, 1998, after not hearing from Alam since he left for his
interview, Alam's family reported him missing to the Fairfax County
police. Also on June 26, Michael Wills called Christopher Wills and
asked him, "You handle the business?" Wills replied, "Yeah." Then
Michael Wills asked, "Everything taken care of?" and Wills replied,
"Taken care of." In a second conversation on June 26, Wills attempted
to describe what had taken place by using references to the movie,
CASINO.6 In a later conversation, Michael Wills asked his brother,
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6
The conversation was as follows:
Christopher Wills: Hey, I'm gonna tell you some things right.
Michael Wills: Yeah.
Christopher Wills: But you know I can't say it on the phone,
'cause it pertains to something, you know.
Michael Wills: Yeah.
Christopher Wills: But anyway, I'm going to tell you about it.
You know me, I'm, I'm, I'm, I'm, I'm, I'm,
I'm, I'm Casino.
Michael Wills: Yeah.
Christopher Wills: You see the movie?
Michael Wills: Yeah.
Christopher Wills: All right.
Michael Wills: No, I ain't seen the movie.
7
"You got rid of all of that, didn't you?" and Christopher Wills
responded, "why you had to go there?" Wills then told his brother,
Michael, that his "people" were "on the scene, but they don't know
disposal" and "[a]ll they can say is I saw, but take us to, can't do."7
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Christopher Wills: You didn't?
Michael Wills: No. We don't see that shit down here.
Christopher Wills: Good God Almighty. Well anyway, I was
doing a Casino joint, right?
Michael Wills: Yeah.
Christopher Wills: Do you know — Mike?
Michael Wills: Yeah.
Christopher Wills: Going down, sweating ass naked, getting
shit ready, right?
Michael Wills: Yeah.
7
The complete conversation was as follows:
Michael Wills: You know, you know, you know, you
move, you move yet?
Christopher Wills: Huh?
Michael Wills: You know, did (unintelligible) you already
moved?
Christopher Wills: What about it?
Michael Wills: You got rid of all of that, didn't you?
Christopher Wills: Mike, what you — why you had to go
there?
Michael Wills: (Unintelligible)
Christopher Wills: Mike.
Michael Wills: What?
Christopher Wills: I've been in jail for eight years. I've done
seen every motherfucking Unsolved Mys-
tery, every America's Most Wanted, every
Cops, every motherfucking New York
Undercover, every NYPPD, everything.
I've read every newspaper came out every
day, every Metro section, every paper Cou-,
County West. Come on, listen, who are you
8
On July 28, 1998, the police discovered Alam's car abandoned in
____________________________________________________________
talking to? Goddamn, man. What — where,
where you at?
Michael Wills: You know. You know, but them people,
your peoples don't, ah —
Christopher Wills: But see, see, see, see.
Michael Wills: But your people don't have the scoop do
they?
Christopher Wills: Listen.
Michael Wills: What?
Christopher Wills: What you don't understand. See I'm not
even going to picket. I'll talk to you tomor-
row.
Michael Wills: Okay.
Christopher Wills: You, you talking about went, went, went,
went. The nigger ain't went a motherfuck-
ing place. See, that's where you sleeping at.
I know what I'm doing, nigger. I ain't have
to show my face, nigger. I know what the
fuck I'm doing. I got this. I got this.
Michael Wills: All right.
Christopher Wills: Nigger, I know what the fuck I'm doing.
Ain't nobody going nowhere and showing
up nowhere or nothing, nigger. I ain't no
fool, you understand?
Michael Wills: So what, but, but —
Christopher Wills: Baby, I handle, I handle my business, nig-
ger. I ain't had to show my face, period.
Michael Wills: The people at the (unintelligible), they ain't
— them people ain't got no scoop, do they?
Christopher Wills: Who?
Michael Wills: Your people.
Christopher Wills: What?
9
an apartment parking lot in Prince George's County, Maryland. Alam
has not been seen since June 25, 1998.
On November 3, 1999, a federal grand jury sitting in the Eastern
District of Virginia returned an indictment charging Christopher Wills
with one count of kidnapping in violation of 18 U.S.C. § 1201(a)(1).
On December 9, 1999, a superseding indictment was returned which
included one count of interstate stalking resulting in death in violation
of 18 U.S.C. § 2261A. On February 3, 2000, a second superseding
indictment was returned, which included minor changes.
On December 13, 1999, Wills appeared in court for arraignment on
his superceding indictment. While he was there, Wills spoke with
another prisoner, James Black, who commented that Wills would be
eligible to receive the death penalty, if convicted. In response to
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Michael Wills: Your people ain't got no scoop, do they?
Christopher Wills: Yeah. They was on the scene, but they
don't know disposal. You see what I'm
saying?
Michael Wills: Huh?
Christopher Wills: They could. I said they're on the scene.
Michael Wills: Yeah.
Christopher Wills: You understand?
Michael Wills: Yeah.
Christopher Wills: Go sit down, Crystal.
Michael Wills: (Laughs.)
Christopher Wills: All they could say is I saw, but take us to,
can't do. You understand?
Michael Wills: Yeah.
Christopher Wills: You see what I'm saying? Oh, I, I don't
know what your talking about. They're
lying. They're just making it up.
Michael Wills: Yeah.
Christopher Wills: You understand?
Michael Wills: Yeah.
10
Black's comment, Wills said that he would not receive the death pen-
alty because "they'll never find the body." Alonzo Nichols, another
prisoner in court that day, overheard Wills' conversation with Black.
Nichols recalled Wills telling Black, "They can't give me the death
penalty because they ain't never going to find the body."
On December 16, 1999, Wills filed a motion to dismiss Count One
of the indictment (the kidnapping count) for lack of subject matter
jurisdiction and for insufficiency of the offense charged. On February
4, 2000, Wills filed a motion to dismiss Count Two of the indictment
(the interstate stalking count), arguing that the facts were insufficient
for a grand jury to find probable cause to indict him for interstate
stalking.
On February 15, 2000, the district court granted Wills' motion to
dismiss Count One of the indictment (the kidnapping count) for lack
of jurisdiction and denied his motion to dismiss Count Two of the
indictment (the interstate stalking count). The government filed an
interlocutory appeal with this court. In United States v. Wills, 234
F.3d 174 (4th Cir. 2000) (hereinafter Wills I ), this court addressed the
issue of "whether jurisdiction is established under the Federal Kidnap-
ping Act when a victim, acting because of false pretenses initiated at
the instance of the defendant, transports himself across state lines
without accompaniment by the alleged perpetrator or an accomplice."
Wills I, 234 F.3d at 176. This court found that"[t]he plain language
of the [Federal Kidnapping] Act does not require that the defendant
accompany, physically transport, or provide for the physical transpor-
tation of the victim. Rather the Act only requires that the victim ``is
willfully transported.'" Wills I at 178. Because the facts supported a
finding that Alam was "willfully transported" we vacated the district
court's order and remanded the case. See United States v. Wills, 234
F.3d 174, 179 (4th Cir. 2000) (Wills I).
On September 4, 2001, a three-week jury trial commenced, in
which Wills appeared pro se with two attorneys acting as standby
counsel. During the trial, the government introduced transcripts of
Wills' telephone conversations with his brother, including the conver-
sation in which Wills referred to the movie, CASINO. When the gov-
ernment sought to introduce the entire movie as an exhibit, the court
suggested that the parties attempt to reach a stipulation regarding the
11
content of the movie. After the parties were unable to reach a stipula-
tion, the court entered the entire movie into evidence and allowed
both parties to play excerpts of the movie for the jury.
The government also introduced records of Cingular Wireless, suc-
cessor to Cellular One, through the testimony of its Asset Protection
Manager, Neal Carver. These records showed that on June 17, 1998,
a man identifying himself as Edward Short or Ed Short purchased
pre-paid Cellular One service at a Radio Shack located at 1528 Ben-
ning Road, N.E., Washington, D.C. The records further indicated that
an electronic serial number (ESN) change, or phone change, was
made on June 22, 1998 to allow the phone number given to Edward
Short to be used with a telephone previously used with another Cellu-
lar One account in the name of Christopher Wills.
At trial, Carver explained that all cell phones have an ESN that is
unique to each and is permanent. ESN is an electronic record number
imbedded in the phone by the manufacturer. He further testified that
an ESN change occurs when a customer switches telephones on an
account while retaining the same telephone number. Once an ESN
change is made, the ESN, or phone, previously associated with the
telephone number will not work.
Cellular One records documented calls made from Edward Short's
phone number to Alam's home telephone on June 23 and June 24. In
addition, the records indicated that three calls were made from Short's
phone number to Alam's pager on June 25.
At trial, Wills attempted to explain the ESN change by claiming
that his telephone began to receive mysterious calls. Notably, Wills,
however, did not account for the outgoing calls made from his phone
to Alam's home number and pager.
During trial, the government argued that there was also no evi-
dence to suggest that Alam's failure to return home was anything but
involuntary. The government presented testimony that when Alam
left for his interview, he did not give any indication that he would not
be returning home. Alam never returned to his job at the Fish Market
Restaurant in Old Town Alexandria, Virginia and never collected his
paycheck. Alam also took little cash with him and had no credit cards,
12
passport, or travel documents. The government presented further evi-
dence that Alam was about to become a United States citizen and had
no desire to return to Afghanistan.
On October 1, 2001, the jury returned a guilty verdict on both the
kidnapping count and the interstate stalking count. After a separate
penalty hearing on October 4, 2003, the jury recommended a sentence
of life imprisonment without parole on the kidnapping count. The dis-
trict court sentenced Wills to life imprisonment without parole on
both counts, to be served concurrently; five years of supervised
release on each count to be served concurrently; and a $200 special
assessment. This appeal followed.
II.
A. Federal Jurisdiction
As an initial matter, Wills argues that the government failed to
establish federal jurisdiction because the government did not prove
that Alam was "willfully transported in interstate commerce" under 18
U.S.C. § 1201(a)(1).8 In addition, Wills argues that the government
failed to prove that Wills or someone acting at his direction traveled
in interstate commerce in kidnapping Alam.
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8
18 U.S.C. § 1201 provides, in pertinent part:
(a) Whoever unlawfully seizes, confines, inveigles, decoys,
kidnaps, abducts, or carries away and holds for ransom or reward
or otherwise any person, . . . when —
(1) the person is willfully transported in interstate or foreign
commerce, regardless of whether the person was alive when
transported across a State boundary if the person was alive when
the transportation began;
***
shall be punished by imprisonment for any term of years or for
life and, if the death of a person results, shall be punished by
death or life imprisonment.
18 U.S.C. § 1201(a) (2000).
13
In Wills I, we held that the "willfully transported" element of 18
U.S.C. § 1201(a)(1) did not contain an accompaniment requirement
and found that "the fact that Wills caused unaccompanied travel over
state lines [was] sufficient to confer jurisdiction." Wills I, 234 F.3d at
179. We adhere to our decision in Wills I and are of opinion that fed-
eral jurisdiction has been established.9
B. Res Judicata, Collateral Estoppel, & Double Jeopardy
Wills argues that the district court dismissed Count One (the kid-
napping count) of the indictment in two distinct rulings: (1) a legal
ruling that the government had failed to establish federal jurisdiction
because Alam drove unaccompanied across state lines, and (2) a fac-
tual ruling that the government had failed to establish that Alam had
been restrained or held at any point in Virginia prior to his interstate
travel. Wills contends that because this court only addressed the dis-
trict court's ruling on unaccompanied interstate travel, the district
court's factual finding on the holding element became final. Thus,
Wills argues that relitigation of the kidnapping count was barred by
the district court's prior decision on the holding element. Wills con-
tends that the district court's subsequent trial on the kidnapping count
constituted double jeopardy. We disagree.
In dismissing the kidnapping count, the district court explicitly
stated that it was accepting as true the allegations as stated in the
indictment. The district court then determined that the indictment had
failed to establish federal jurisdiction because the allegations did not
state that Alam was not transported in interstate commerce by Wills
or by someone acting on his behalf. In denying the government's
motion for reconsideration, the district court stated that the
"[d]efendant argues that the indictment fails to allege facts sufficient
to satisfy other elements such as the requirement that the defendant
be held. Because the indictment's failure to satisfy the jurisdictional
element is fatal, we do not address these other arguments." See United
States v. Christopher Wills, No. 99-396, slip op. at 2 n.1 (E.D. Va.
Mar. 17, 2000). Thus, the district court did not make any factual find-
____________________________________________________________
9
Accordingly, we find without merit Wills' claim that the district court
erred in failing to dismiss Count One of the indictment (the kidnapping
count) for lack of jurisdiction and failure to allege a federal offense.
14
ings in dismissing Count One of the indictment. Furthermore, the dis-
missal for lack of jurisdiction was not an adjudication on the merits
or an acquittal. Therefore, the principles of collateral estoppel, res
judicata, or double jeopardy are inapplicable and Wills' argument is
without merit.
C. Venue
Wills also contends that the district court was without venue pursu-
ant to 18 U.S.C. § 3237(a) to conduct the trial on the kidnapping
count. Wills argues that the kidnapping occurred in Washington,
D.C., not in the Eastern District of Virginia, because a kidnapping
offense does not begin until the victim is involuntarily seized and
held. Wills claims that Alam was not held until he transported himself
into Washington, D.C.
Kidnapping is a continuing crime which begins the moment that
the victim is unlawfully seized, confined, inveigled, decoyed, kid-
napped, abducted, or carried away. See United States v. Rodriguez-
Moreno, 526 U.S. 275, 281-82 (1999) ("Kidnaping . . . was commit-
ted in all of the places that any part of it took place, and venue for
the kidnaping charge . . . was appropriate in any of them."); see also
United States v. Seals, 130 F.3d 451, 461-63 (D.C. Cir. 1997). Thus,
venue was appropriate in the Eastern District of Virginia, where Alam
was inveigled and decoyed. Accordingly, we hold that Wills' lack of
venue claim is without merit.
D. Indictment for Interstate Stalking
Also as an initial matter, Wills argues that the district court erred
in failing to dismiss Count Two of the indictment (the interstate stalk-
ing count) for insufficiency of the alleged facts to support the offense
charged. More specifically, Wills claims that the facts alleged in the
indictment were insufficient to support the fear element of interstate
stalking.
This court has held that courts lack authority to review the suffi-
ciency of evidence supporting an indictment, even when a mistake
was mistakenly made. See United States v. Mills, 995 F.2d 480, 487
15
(4th Cir. 1983); see also Costello v. United States, 350 U.S. 359, 363-
64 (1956) ("Petitioner urges that this Court . . . establish a rule permit-
ting defendants to challenge indictments on the ground that they are
not supported by adequate or competent evidence. No persuasive rea-
sons are advanced for establishing such a rule. It would run counter
to the whole history of the grand jury institution, in which laymen
conduct their inquiries unfettered by technical rules."). Furthermore,
"[a]n indictment returned by a legally constituted and unbiased grand
jury, . . . if valid on its face, is enough to call for trial of the charges
on the merits." Mills, 995 F.2d at 487. Because the indictment tracks
the language of 18 U.S.C. § 2261A (the interstate stalking statute) and
properly alleges each element of the statute, the indictment is valid on
its face. Thus, we hold the district court correctly did not dismiss
Count Two of the indictment.
III.
Wills raises several challenges to the district court's evidentiary
rulings, each of which we will address individually.
A. Admission of Movie, CASINO, into Evidence
Wills argues that the district court erred by allowing the govern-
ment to play an excerpt from the movie, CASINO. The parties dispute
whether Wills objected to the admission of the movie into evidence.
The defense maintains that Wills noted timely objections to the
admission of the movie while the government contends that Wills
failed to object contemporaneously. After a review of the record, we
agree with the government that Wills did not contemporaneously
object to the admission of the film into evidence.10 Thus, we review
____________________________________________________________
10
Prior to trial, on September 4, 2001, Wills filed a motion in limine
requesting the court to prohibit the government from using the movie as
evidence. The district court stated that the movie was relevant because
Wills referred to the movie during a conversation with his brother. The
court suggested that the parties attempt to reach a stipulation as to the
content of the movie. After the parties were unable to agree upon a stipu-
lation, the court entered the movie into evidence and noted that half of
the jury had already seen the movie. Wills responded, "Thank you."
16
the district court's decision for plain error. See United States v.
Olano, 507 U.S. 725 (1993).
We are of opinion that the district court did not commit error, plain
or otherwise. The court ruled that the movie was relevant. This ruling
as to relevance was not an abuse of discretion because Wills men-
tioned CASINO in the taped telephone conversations with his brother,
and the movie undoubtedly explained the meaning of the conversa-
tion. Thus, there was no error because the evidence was relevant and
the district court's decision was not an abuse of discretion.
B. Admission of Recorded Telephone Conversations
Wills contends that the district court improperly admitted recorded
telephone conversations between Wills and his brother, Michael
Wills, and transcripts of those conversations. We decided some years
ago that such transcripts are admissible. See United States v. Soc'y of
Indep. Gasoline Marketers of Am., 624 F.2d 461, 474 (4th Cir. 1979)
(Widener, Circuit Judge, concurring). Wills argues that Michael
Wills' recorded statements were hearsay and that admission of those
statements violated his Sixth Amendment right to confront the wit-
nesses against him.
Christopher Wills' own statements, which were recorded during
those conversations, were admissions by a party-opponent and were
admissible pursuant to Federal Rule of Evidence 801(d)(2)(A). We
agree with the district court, as it held that Michael Wills' statements
were also admissible. They were reasonably required to place Christo-
pher Wills' responses into context. Accordingly, Michael Wills' state-
ments were properly admitted to make Christopher Wills' statements,
____________________________________________________________
Later during the trial, the district court entered the movie into evi-
dence. When the government requested permission to play an excerpt of
the movie, Wills' standby counsel, Mr. Shapiro, approached the bench
and stated, "I am constrained to do this. But I think that I must put my
personal objection on the record to the playing of this tape. I want the
record to reflect that it is over my strenuous objection, but Mr. Wills, it
is his decision." Hence, Wills did not object to the playing of the movie
excerpt.
17
so far as they constituted incriminating admissions, "intelligible to the
jury and recognizable as admissions." United States v. Lemonakis,
485 F.2d 941, 948 (D.C. Cir. 1973). Thus, the district court did not
err by admitting the tapes and transcripts.
C. Admission of Cell Phone Records
Wills also argues that the records of Cingular Wireless, formerly
known as Cellular One, were erroneously admitted as business
records because they contained information provided by Radio Shack
sales representatives. Wills claims that the district court erred in rul-
ing that the records were reliable because the court failed to determine
the truthfulness of the information provided by Radio Shack to Cellu-
lar One pursuant to Federal Rule of Evidence 803(6).11
We are of opinion that the method of compilation of the records
does not indicate a lack of trustworthiness. Cellular One's Asset Pro-
tection Manager testified that Cellular One offered its services to the
public through various distribution channels, including retail centers
like Radio Shack. The retail centers must transmit the cell phone's
unique ESN to Cellular One in order for the customer to receive Cel-
lular One service. Thus, the information submitted by Radio Shack to
Cellular One occurred in the regular course of business and does not
show a lack of trustworthiness, either in source of preparation or in
method of preparation. Therefore, the district court did not err in
admitting the documents as business records.
____________________________________________________________
11
Fed. R. Evid. 803(6) provides an exception to the hearsay rule:
A memorandum, report, record, or data compilation, in any form,
of acts, events, conditions, opinions, or diagnoses, made at or
near the time by, or from information transmitted by a person
with knowledge, if kept in the course of a regularly conducted
business activity to make the memorandum, report, record, or
data compilation, all as shown by the testimony of the custodian
or other qualified witness . . . unless the source of information
or the method or circumstances of preparation indicate lack of
trustworthiness.
18
IV.
Wills asserts that the district court's exclusion of certain testimony
and exhibits offered by Wills prevented Wills from presenting his
defense and effectively representing himself.
A. Photo Spread
Four days before the preliminary hearing in the Virginia court at
which Alam identified Wills as the man whom he had discovered bur-
glarizing his home, Fairfax County Police Detective Michael Feight-
ner showed Alam a six picture photo spread containing Wills' picture.
Alam identified Wills from this spread as the burglar. On February
11, 2000, a motions hearing was held in the district court, at which
Detective Feightner testified that during the photo lineup prior to the
Virginia preliminary hearing, he had told Alam that Wills' picture
was among those displayed. The district court denied Wills' motion
to suppress the photo identification. At trial, the district court reiter-
ated that any suggestive procedures used in the photo identification
were irrelevant because Alam had identified Wills later at the prelimi-
nary hearing. The district court did not permit Wills to question
Detective Feightner about the photo identification or his investigation
of the burglary stating that both issues were irrelevant. Wills now
argues that he should have been able to examine Detective Feightner
about the photo identification because it was relevant to Wills' posi-
tion that he was not the burglar.
We agree with the district court in its decision that whether Wills
was the actual burglar was not the issue in the trial in the district
court. The government did not offer the out-of-court photo identifica-
tion into evidence at the trial, rather it relied upon Alam's identifica-
tion of Wills at the preliminary hearing to support its theory of
motive. Therefore, any suggestive measures employed by Detective
Feightner at the earlier photo identification were irrelevant, and the
district court did not abuse its discretion in excluding testimony
related to the photo identification. The issue was not whether Wills
was the burglar, but whether Alam had identified him as such.
B. Testimony that Alam was not Held
Wills further asserts that he was denied his right to self-
representation when the district court prevented Wills from cross-
19
examining government witnesses as to whether Alam was held prior
to leaving for his interview or whether Alam was forced to go to the
interview. The district court correctly determined that based upon this
court's decision in Wills I and the government's theory that Alam was
inveigled, the use of force or being held prior to interstate transporta-
tion was irrelevant.
C. Wills' Affidavit
Wills further challenges the district court's refusal to allow into
evidence a handwritten affidavit signed by Wills on November 30,
1999, which stated that he would not speak to any other prisoners
about his case. Wills attempted to offer this affidavit into evidence to
corroborate his testimony that he never spoke to James Black during
his arraignment. The district court determined that the affidavit was
a "preemptive strike" and did not have any probative value. We are
of opinion that the district court properly exercised its discretion in
refusing to admit the affidavit into evidence.
D. Tape Recording
During its case-in-chief, the government offered a portion of a
recorded conversation from May 25, 1998 between Wills and his
brother, Michael, of which there was no transcript, in which Wills
stated that, "I ain't going back to jail." Wills now claims that this
statement is at least partially inaccurate. The judge correctly permitted
Wills to play the tape and instructed the jury as follows:
I've already instructed them that it's their hearing that
must be what guides their understanding of the transcript —
of the tape. And you can argue that a particular transcript is
not accurate. We don't need to hear testimony to that effect.
This was the correct ruling.
E. Closing Argument
Wills made several objections during the government's closing
argument regarding the government's characterization of the evi-
20
dence. The district court instructed Wills not to so object and told
Wills that he could present his version of the evidence during his own
closing argument. Wills now argues that he was denied his right to his
defense and to effective self-representation.
We have held that "[t]he district court is afforded broad discretion
in controlling closing arguments and is only to be reversed when there
is a clear abuse of its discretion. ``A reversal may be required where
counsel is restricted within unreasonable bounds.'" United States v.
Rhynes, 196 F.3d 207, 236 (4th Cir. 1999). The district court
informed Wills that he would be given the opportunity during his own
closing argument to present his own counter arguments to the govern-
ment's interpretation of the evidence. Thus, the court did not place
unreasonable restrictions on Wills by preventing him from objecting
during the government's closing arguments and did not abuse its dis-
cretion.
F. Interview of Witnesses
Wills further argues that he was denied his right to self-
representation because he was unable to interview defense witnesses
prior to their testifying at his trial. When Wills raised this argument
to the district court, the court responded that because Wills was in
custody he had to defend his case within the security arrangements of
the United States Marshal and the institution in which he was incar-
cerated. It properly called to Wills' attention that the reason was that
he had chosen to represent himself. We find no error in that decision
of the district court.
V.
Wills raises various challenges to the district court's jury instruc-
tions, each of which we will address individually. In reviewing jury
instructions, we "accord the district court much discretion and will not
reverse provided that the instructions, taken as a whole, adequately
state the controlling law." Teague v. Bakker, 35 F.3d 978, 985 (4th
Cir. 1994).
A. Willfully Transported Element of Kidnapping Statute
Wills argues that the district court incorrectly instructed the jury on
the "willfully transported in interstate commerce" element of 18
21
U.S.C. § 1201(a)(1). More specifically, Wills argues that in order for
Wills to have transported Alam in interstate commerce, the kidnap-
ping statute requires that Wills "have taken or carried Alam across
state lines or have been in actual control or command of Alam's car
or Alam's free volition."
In Wills I, we held that unaccompanied travel across state lines may
satisfy the "willfully transported" element of 18 U.S.C. § 1201(a)(1).
The district court instructed the jury that each element of the kidnap-
ping statute must be proven beyond a reasonable doubt and provided
the following instruction on the "willfully transported" element:
To prove that the defendant willfully transported the vic-
tim in interstate commerce, the government is not required
to prove that the defendant actually accompanied or physi-
cally transported or provided for the physical transportation
of the victim; in other words, a defendant willfully trans-
ports a victim in interstate commerce if the defendant will-
fully causes the victim to travel or even transport himself
unaccompanied across state lines. We are of opinion that
this instruction adequately stated the controlling law as
interpreted by our decision in Wills I.12
B. Unlawful Restraint and Holding Element of Kidnapping Statute
Wills also asserts that the district court erroneously instructed the
jury on the unlawful restraint and holding element of § 1201(a)(1) by
failing to instruct the jury that the government had the burden of prov-
ing beyond a reasonable doubt that Alam was unlawfully restrained
or held prior to being transported over state lines.
As to the unlawful restraint and holding element, the district court
instructed the jury as follows:
____________________________________________________________
12
Wills further contends that due to the district court's jury instruction
on the willfully transported element of § 1201(a)(1), the court construc-
tively and impermissibly amended the indictment. We hold this claim is
without merit.
22
To hold means to detain, seize, or confine a person in some
manner against that person's will.
***
The government must prove beyond a reasonable doubt
that the defendant held his victim for some benefit and that
the defendant willfully transported the victim in interstate
commerce. It is not necessary that the government prove
that the holding occurred prior to the transportation in inter-
state commerce. Indeed, in this case, the government has
alleged that the transportation in interstate commerce
occurred prior to the victim's being held.
We are of opinion that this instruction is consistent with controlling
law. The statute has no requirement of prior restraint. "Nothing in the
policy [disregard of State borders in pursuit] justifies rewarding the
kidnapper simply because he is ingenious enough to conceal his true
motive, until he is able to transport . . . [his victim] into another juris-
diction." United States v. Hughes, 716 F.2d 234, 239 (4th Cir. 1983).
We also hold the instruction did not amend the indictment.
C. Interstate Stalking
Wills also argues that the district court erred in instructing the jury
on the interstate stalking count by failing to instruct that the govern-
ment must prove that Wills traveled from Washington, D.C., to Fair-
fax County, Virginia and placed Alam in fear in Virginia as a result
of Wills' acts in Virginia. Wills argues that the following instructions
allowed the jury to find that Alam was placed in fear as a result of
Alam's own travel to Washington, D.C., not as a result of Wills'
travel from Washington, D.C., to Fairfax County, Virginia. Wills fur-
ther argues that the instructions allowed him to be convicted of inter-
state stalking based on interstate travel outside of the time frame
specified in the indictment. The court instructed the jury as follows
on the interstate stalking count:
Count 2 charges that between on or about June 15, 1998,
and on or about June 25, 1998, the defendant, Christopher
23
Andaryl Wills, did knowingly travel across a state line, that
is, from Washington, D.C., to Fairfax County, Virginia, in
the Eastern District of Virginia, with the intent to injure and
harass Zabiullah Alam and in the course of and as a result
of such travel, place Mr. Alam in reasonable fear of death
and serious bodily injury, the actions of Christopher Anda-
ryl Wills resulting in the death of Zabiullah Alam, in viola-
tion of Title 18, United States Code, Sections 2261 [A],
2261(b)(1), and Section 2.
***
Section 2261[A] of Title 18 of the United States Code
provides in pertinent part that whoever travels in interstate
commerce with the intent to injure or harass and in the
course of or as a result of such travel places that person in
reasonable fear of the death of or serious bodily injury to
that person shall be guilty of an offense against the United
States.
There are three essential elements to the crime of inter-
state stalking. First, the government must prove beyond a
reasonable doubt that the defendant, Christopher Wills, trav-
eled in interstate commerce;
Two, they must prove beyond a reasonable doubt that
such interstate travel was with the intent to injure or harass
Mr. Alam;
Three, they must prove beyond a reasonable doubt that
during or after such travel, the defendant, Christopher Wills,
committed an act of placing Mr. Alam in reasonable fear of
death or serious bodily injury.
Wills also challenges the supplemental instruction given in
response to the following jury question submitted to the court during
jury deliberations:
As to Count 2, element 3, we have this question: Did Mr.
Alam himself have to experience or be aware of his death
24
or bodily injury? For example, if Mr. Alam was shot without
any warning and died instantly, would that preclude a find-
ing of reasonable fear of death or bodily injury?
The district court responded to the jury as follows:
The question is, "Did Mr. Alam himself have to experi-
ence or be aware of the fear of his death or bodily injury?"
The answer is yes. The government must prove that beyond
a reasonable doubt to satisfy the third element of [the stalk-
ing] count.
Then you asked for an example: "If Mr. Alam was shot
without any warning and died instantly, would that preclude
a finding of reasonable fear of death or bodily injury?"
I can't really comment on a hypothetical other than to tell
you again that the burden is on the government to prove
beyond a reasonable doubt that at some point, the victim -
the alleged victim became — was reasonably fearful of
death or serious bodily injury. If the evidence is not there to
support that, then that element has not been met.
Wills filed a written objection to the instructions on the fear ele-
ment and then renewed his written objections prior to the original jury
instructions. However, Wills failed to object to the supplemental
instruction on fear. Thus, we review his objections to the supplemen-
tal instruction for plain error. See United States v. Nicolaou, 180 F.3d
565, 569 (4th Cir. 1999).
The instructions clearly indicated the period of the alleged travel
and twice stated that the defendant, traveled in interstate commerce
from Washington, D.C. to Virginia. Furthermore, the jury instruction
tracks the language of both the interstate stalking statute and of the
indictment.13 Neither the original jury instruction nor the supplemen-
____________________________________________________________
13
Accordingly, we find Wills' argument that the district court construc-
tively and impermissibly amended the indictment by instructing the jury
that it need only find that Wills traveled in interstate commerce, rather
than that Wills traveled from Washington, D.C., to Virginia and placed
Alam in reasonable fear of death or serious bodily injury without merit.
25
tal instruction suggest that the interstate travel element could be satis-
fied by the victim's travel or by Wills' travel outside the alleged time
period. Thus, we are of opinion that neither the original instruction,
nor the supplemental instruction, was error, plain or otherwise. We
also decide that the instruction did not amend the indictment.
D. Allen Charge14
Wills further contends that the district court coerced the verdict as
to the interstate stalking count by giving an Allen charge after the jury
informed the court that it had reached a decision as to the kidnapping
count but was deadlocked as to the fear element of the interstate stalk-
ing count. We review the court's decision to provide an Allen charge
and the content of that charge for an abuse of discretion. See United
States v. Cropp, 127 F.3d 354, 359-60 (4th Cir. 1997).
We find that the district court properly gave the Allen charge after
being informed that the jurors had reached an impasse in their deliber-
ations. See Cropp, 127 F.3d 359-60. In addition, the charge given
properly instructed those jurors in the minority to reconsider the
majority's views and those in the majority to reconsider the minori-
ty's views. See United States v. Burgos, 55 F.3d 933, 937-38 (4th Cir.
1995). The Allen charge further instructed the jurors that they should
not change their opinions solely to reach an unanimous decision.
Thus, the charge did not in anyway request the jurors to surrender
their conscientious convictions. See Burgos, 55 F.3d at 939 ("The
most egregious mistake that can be made in the context of an Allen
charge is for the district court to suggest, in any way, that jurors sur-
render their conscientious convictions."). Accordingly, the district
court did not err in giving an Allen charge or in the content of the
charge.
E. Aiding & Abetting Instruction
Wills argues that the district court erroneously instructed the jury
under 18 U.S.C. § 2(a) (aiding and abetting) although it was not
charged in the indictment. He argues that the court's instructions con-
____________________________________________________________
14
Allen v. United States, 164 U.S. 492 (1896).
26
structively amended the indictment because the government's theory
of the case rested on the causation language of 18 U.S.C. § 2(b) and
not under the aiding and abetting language of § 2(a).15
Both the kidnapping and the interstate stalking counts of the indict-
ment expressly charged a violation of 18 U.S.C. § 2, and neither indi-
cated a specific subsection of that statute. Therefore, we are of
opinion that the district court's instruction under § 2(a) (aiding and
abetting) did not amount to a constructive amendment of the indict-
ment. In all events, a conviction under 18 U.S.C. § 2 may be obtained
although the defendant was not indicted under § 2. United States v.
Duke, 409 F.2d 670 (4th Cir. 1969).
VI.
Wills next contends that the evidence was insufficient to convict
him of interstate kidnapping resulting in death in violation of 18
U.S.C. § 1201(a)(1). In reviewing a conviction for sufficiency of the
evidence, "[t]he verdict of a jury must be sustained if there is substan-
tial evidence, taking the view most favorable to the government, to
support it." Glasser v. United States, 315 U.S. 60, 80 (1942). To
establish a violation of 18 U.S.C. § 1201(a)(1), the government must
show, beyond a reasonable doubt that, the defendant (1) unlawfully
seized, confined, inveigled, decoyed, kidnapped, abducted, or carried
away the victim; (2) held the victim for ransom, reward, or otherwise;
and (3) willfully transported the victim in interstate commerce. See
Wills I, 234 F.3d 174, 176-77 (4th Cir. 2000).
Wills asserts that the evidence was insufficient to prove that he kid-
napped Alam or that the kidnapping resulted in Alam's death. Wills
____________________________________________________________
15
18 U.S.C. § 2 provides:
(a) Whoever commits an offense against the United States or
aids, abets, commands, induces or procures its commission,
is punishable as a principal.
(b) Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense
against the United States, is punishable as a principal.
18 U.S.C. § 2 (2000).
27
argues that, at most, the evidence was only sufficient to convict him
of conspiracy to kidnap. Giving the job fliers to Alam, arranging the
job interview, and arranging the false cell phone number and the
phone calls to Alam are certainly evidence of decoying and inveigle-
ment. Wills' expressed intent to eliminate Alam as a witness to Wills'
burglary is evidence of the reason for Alam's kidnapping. Alam's
travel from Fairfax County to the District of Columbia is a sufficient
jurisdictional connection. Alam left his job unpaid, he made no travel
plans, he was about to become a United States citizen, his identifica-
tion of Wills as a burglar, and Wills' conversations with his brother
and Black all are evidence to support the finding of the jury that Alam
died as a result of being kidnapped.
The government presented evidence that Wills inveigled and
decoyed Alam into meeting him for a job interview by leaving fliers
at Alam's home on June 18, 1998 and June 19, 1998. Wills discussed
his plan with his brother shortly after the preliminary hearing, stating
that he would have to use "some trickery." On June 18, the same day
that the first flier was left at Alam's house, Wills informed his brother
that he had put "Plan A" into action. Then on June 19, Wills alluded
to the fliers in telephone conversations with his brother stating, "I
already got the fliers out and everything, so I'm just waiting, you
know, for them to get it and call, and, I ain't got no calls yet, man."
The government also presented evidence that the phone number
listed on the fliers contained a number which was directly linked to
Wills. Reginald Johnson, a sales representative at Radio Shack, iden-
tified Wills as the man who had purchased pre-paid cellular service
for a pre-existing cell phone using the name "Ed Short" on or about
June 17, 1998. Johnson also testified that on or about June 18, 1998,
Wills returned to the Radio Shack complaining that the cell phone did
not function properly. Johnson's testimony is consistent with Wills'
June 19, 1998 conversation with his brother, during which Wills indi-
cated that he had been at Radio Shack and that his cell phone had not
been functioning properly. Also, on or about June 19, a handwritten
note dated "6/19/98" and listing the same telephone number was left
at Alam's apartment which read, "Were [sic] sorry that our phones
were down yesterday 6/18/98 Please! Try our line again. Were [sic]
open 7 days a week. Jobs!!" Neal Carver, Cingular Wireless' Asset
Protection Manager, testified that Cellular One's records indicated
28
that on June 22, 1998 the cell phone number given to Ed Short was
transferred to a phone previously used by Christopher Wills.
The government also presented evidence that Wills and Alam had
been speaking via telephone. Cellular One records revealed that calls
were placed from the phone number linked to Wills to Alam's home
phone number on June 23 and June 24, and to Alam's pager three
times on June 25. In addition, Alam's cousin and his friend, Ali
Muradi, testified that a man named Felliece had called Alam regard-
ing the grounds keeping job and gave the number advertised on the
fliers as his own. Muradi further testified that Alam was scheduled to
meet Felliece's secretary at Union Station. The government presented
evidence that Felliece was also the name of a man who called the
Augusta Correctional Center on two occasions claiming to be an
attorney for Michael Wills and that this man gave Christopher Wills'
address and telephone number as his own. Thus, we are of opinion
that the government presented sufficient evidence for a jury to con-
clude that Wills inveigled Alam into traveling from Virginia to Wash-
ington, D.C.
Wills further contends that the government presented insufficient
evidence for the jury to conclude that Wills held and killed Alam. At
oral argument, the defense argued that there was a lack of evidence
showing that Alam was held for an appreciable period. See Chatwin
v. United States, 326 U.S. 455, 460 (1946). No instruction was
requested or given on appreciable time nor did the defense file a
motion for acquittal based on appreciable time. Thus, this claim might
well be defaulted. However, there is sufficient evidence in the case to
show that an appreciable period elapsed between the time when Alam
was decoyed and inveigled and the point at which Alam was deter-
mined to be missing.
Wills argues that the government failed to present any direct evi-
dence of Alam's death or that Wills murdered Alam. However, the
government did present direct evidence in the form of James Black's
testimony that Wills told him, "they'll never find the body," and
Alonzo Nichols' testimony that he overheard Wills telling Black,
"They can't give me the death penalty because they ain't never going
to find the body." See United States v. Russell, 971 F.2d 1098, 1110
29
n.24 (4th Cir. 1992) ("Confessions and eyewitness or ear-witness tes-
timony, of course, are forms of direct evidence . . . .").
Nevertheless, we have held that when a victim's body has not been
found the corpus delicti may be established exclusively by circum-
stantial evidence. See Russell, 971 F.2d at 1110 n.24. The government
presented evidence that Wills told his brother, "I'm trying to get this
dude, man. If I don't my ass is grass." Furthermore, the government
presented evidence that although Alam's car was found in a Maryland
apartment complex parking lot on June 28, 1998, Alam has not been
seen since June 25, 1998, when he was given a citation for not wear-
ing his seatbelt. Prior to leaving his Virginia apartment on June 25,
Alam had told his family and friends that he was going to meet Mr.
Felliece's secretary at Union Station for a job interview for the
grounds keeping position advertised in the fliers.
Wills argues that the government's evidence is insufficient because
it fails to show that Wills, or someone acting on his behalf, ever met
with Alam. Wills also contends that the evidence does not indicate
that Alam ever went to Union Station. However, the government pre-
sented evidence that the day after Alam was last seen, Wills spoke to
his brother via telephone and answered in the affirmative when his
brother asked, "You handle the business?" and "Everything taken care
of?" Wills also told his brother, "I was doing a Casino joint," referring
to the movie, CASINO, in which a portion of the movie dealt with the
elimination of potential witnesses. Wills later told his brother that he
"handle[d] his business" and that his "people" were "on the scene, but
they don't know disposal."
Wills further contends that Alam may have voluntarily vanished
and may not wish to contact his family or friends. The government,
however, presented testimony that Alam gave no indication that he
did not intend to return home. Alam did not take any personal items
with him and he took very little cash. He had no credit cards, no pass-
port, and no travel documents. Furthermore, he never returned to his
job at the Fish Market, nor did he pick up his paycheck. Finally, the
police checked local morgues, other police agencies and police com-
puter files, and entered Alam's name into the national crime database
in an effort to locate him but these efforts were unsuccessful. After
viewing this evidence in the light most favorable to the government,
30
we are of opinion there was sufficient and substantial evidence for a
jury to conclude that Wills held and murdered Alam.
We therefore are of opinion that the government presented substan-
tial and sufficient evidence for the jury to convict Wills of kidnapping
in violation of 18 U.S.C. § 1201(a)(1).
VII.
Wills also claims that the government presented insufficient evi-
dence to convict him of interstate stalking resulting in death in viola-
tion of 18 U.S.C. § 2261A.
Again, in reviewing a conviction for the sufficiency of evidence
"[t]he verdict of a jury must be sustained if there is substantial evi-
dence, taking the view most favorable to the government, to support
it." Glasser v. United States, 315 U.S. 60, 80 (1942). To establish a
violation of 18 U.S.C. § 2261A, the government must show, beyond
a reasonable doubt, that the defendant (1) traveled across State lines;
(2) with the intent to injure or harass another person; and (3) in the
course of, or as a result of, such travel, placed that person in reason-
able fear of death or of serious bodily injury. See 18 U.S.C. § 2261A.
Because we have already held that the government presented suffi-
cient evidence from which a jury could conclude that Wills killed
Alam, we need not address that issue again, except to say that there
is substantial evidence to support the verdict of the jury that Alam
died as a result of being stalked.
Wills argues that the government failed to establish the interstate
travel requirement of § 2261A because, he contends, it presented evi-
dence that Alam, not Wills, traveled across state lines. However, the
government presented evidence that the interstate stalking began on
June 15, 1998 when Wills traveled from Washington, D.C., to Fairfax
County, Virginia, for the preliminary hearing in Fairfax County Gen-
eral District Court in which Alam identified Wills as the man whom
he had discovered burglarizing his home. Wills later told his brother
that his "peoples" were with him "undercover" at the preliminary
hearing to watch Alam and to find out what type of car Alam drove.
The government also presented evidence that Wills traveled to
Alam's apartment to leave fliers on June 17, 1998 and June 18, 1998,
31
which is consistent with Wills' statements to his brother, "I already
got the fliers out and everything . . ." and that he had put "Plan A"
into action. Thus, we are of opinion that there was sufficient evidence
for the jury to conclude that Wills traveled from his home in Wash-
ington, D.C., to Virginia.
Next we must determine whether the government presented suffi-
cient evidence from which a jury could find that Wills intended to
injure or harass Alam.16 After the preliminary hearing, Wills
described to his brother how Alam had identified him at the hearing
and stated, "I ain't got time to leave it at that." The government also
presented other statements made by Wills to his brother, including the
statement, "I'm trying to get this dude, man. If I don't my ass is
grass." In addition, after the fliers were left at Alam's apartment,
Wills told his brother, "I already got the fliers out and everything, so
I'm just waiting, you know for them to get it and call. . . I'm trying
to, you know, figure out how to go at him." Wills "Doing a Casino"
also at the very least inferred harm to Alam. After viewing this evi-
dence in the light most favorable to the government, we find that
there was substantial and sufficient evidence from which the jury
could have concluded that Wills intended to harm or harass Alam.
Wills contends that "[t]he record is completely devoid of any evi-
dence that Alam was placed in fear of death or serious bodily injury."
In response, the government argues that when viewed as a whole,
Wills' statements to his brother on June 26 and 27, particularly the
references to CASINO, and Wills' trial testimony, was sufficient evi-
dence from which a jury could reasonably have concluded that Alam
experienced fear prior to his death.
The government presented evidence that Alam was to meet Fell-
iece's secretary at Union Station and that Felliece was a name which
had been used by Christopher Wills in the past. The government
argues that the jury could have reasonably concluded that after Alam
met Felliece's secretary, Alam was taken by an accomplice to another
location. The government contends that this theory is supported by
statements Wills made to his brother, after Alam was missing: "I ain't
____________________________________________________________
16
On appeal, Wills has not raised a specific challenge to the suffi-
ciency of the evidence supporting his intent to injure or harass Alam.
32
had to show my face at all, period" and his "people" were "on the
scene, but they don't know disposal." Wills also told his brother, "I'm
gonna tell you some things . . . But you know I can't say it on the
phone, ``cause it pertains to something, you know." Wills then referred
to the movie, CASINO, saying, "I was doing a Casino joint, right?" In
the final part of CASINO, which the government played in court, two
mobsters are beaten, stripped of their clothing, and buried alive in
shallow graves in a remote cornfield. The government argues that it
was reasonable for the jury to conclude that Wills had killed Alam in
a similar manner and could have inferred that the phrase "sweating
ass naked" was a description of Alam, in fear, prior to his death. The
government further argues that it was reasonable for a jury to con-
clude from its observations of Wills' demeanor on the stand while he
testified and from hearing his recorded conversations that Wills had
placed Alam in fear of death or of serious bodily injury. We agree
with the government and conclude that the government presented sub-
stantial and sufficient evidence from which a jury could infer that
Wills had placed Alam in fear of death or of serious bodily injury.17
VIII.
Wills raises three additional issues relating to the element of death
as it relates to kidnapping and interstate stalking.
Wills first contends that the indictment was fatally defective
because it failed to allege the time and place of Alam's death as well
as the fatal blow that caused his death. In support of his claim, Wills
relies on the common law year and a day rule, which requires that the
____________________________________________________________
17
Wills also argues that the government failed to establish venue in the
Eastern District of Virginia for the interstate stalking count because it did
not present any evidence that Alam was placed in fear while he was in
Fairfax County, Virginia on any of the days that Wills was alleged to
have traveled to Virginia. Wills argues that stalking does not begin until
a person is placed in fear of death or of serious bodily injury. Therefore,
he argues that venue in the Eastern District of Virginia was inappropriate
because Alam was not placed in fear until he traveled to Washington,
D.C. We disagree. We are of opinion that venue was proper in both the
Eastern District of Virginia, where Wills left fliers at Alam's apartment,
and in the District of District of Columbia.
33
victim's death occur within a year and a day of the alleged fatal
stroke, blow, or injury perpetrated by the defendant. See United States
v. Chase, 18 F.3d 1166, 1169 (4th Cir. 1993).
Both counts of the indictment allege that the kidnapping and stalk-
ing offenses, including Alam's resulting death, occurred between June
15, 1998 and June 25, 1998. Thus, we conclude that the indictment
was sufficient to provide Wills with fair notice of his alleged criminal
conduct and that it complied with the year and a day rule.
Second, Wills asserts the court's instructions and findings at sen-
tencing as well as the government's arguments and presentment of
evidence constructively amended the indictment to charge Wills with
the premeditated, intentional, capital murder of Alam. Wills claims
that the indictment did not charge premeditated, intentional, or capital
murder of Alam because it did not allege how Alam died nor did it
allege a fatal stroke perpetrated by Wills.
We conclude that the jury instructions and the government's evi-
dence did not impermissibly broaden the bases for conviction beyond
those charged in the indictment. See United States v. Randall, 171
F.3d 195, 203 (4th Cir. 1999). The indictment explicitly charged
Wills with the kidnapping and interstate stalking of Alam which
resulted in Alam's death. The evidence presented by the government
was relevant to the elements of the charged offenses. Furthermore, as
to both counts of the indictment the court instructed the jury that it
"must determine whether Zabiullah Alam is dead . . . and if so,
whether his death resulted from the willful and intentional conduct of
the defendant." We are of opinion that these instructions did not con-
structively amend the indictment. Therefore, we find that Wills' argu-
ment lacks merit.
Finally, Wills argues that the district court erroneously instructed
the jury that Alam's death could be proven by circumstantial evi-
dence. In reviewing the adequacy of the instructions, we "accord the
district court much discretion and will not reverse provided that the
instructions, taken as a whole, adequately state the controlling law."
Teague v. Bakker, 35 F.3d 978, 985 (4th Cir. 1994).
As we have already stated, we have held that when a victim's body
has not been found "it is well settled that the corpus delicti in general,
34
and the victim's death, in particular, may be established exclusively
by circumstantial evidence." United States v. Russell, 971 F.2d 1098,
1110 & 1110 n.24 (4th Cir. 1992). Hence, the district court's instruc-
tion stated the controlling law in this circuit and the court did not err.
IX.
A.
The government having given the notice under 18 U.S.C. § 3593that it would seek the death penalty on the kidnapping charge, the
case was submitted to the jury on special verdict of two parts. To the
question "Has the government proven beyond a reasonable doubt that
. . . Wills kidnapped Zabiullah Alam?" the jury answered "Yes." To
the second question "Has the government proven beyond a reasonable
doubt that Zabiullah Alam died as a result of being kidnapped?" the
jury answered "Yes."
On a day following, the court conducted a special sentencing hear-
ing with the same judge and the same jury, pursuant to 18 U.S.C.
§ 3593. The sentencing hearing also was submitted to the jury by way
of special verdict, obviously prepared with care, in which the jury
answered 25 questions with respect to both aggravating and mitigat-
ing factors and recommended that Wills be sentenced to life imprison-
ment without the possibility of release.
The only objection made to the sentencing on the kidnapping count
is that the court erred in applying a cross reference in the Sentencing
Guidelines of § 2A1.1 for first-degree murder and a base offense level
of 43. Coupled with that, the claim is that the indictment is defective
for failing to elect any facts or factors establishing the element of
Alam's murder or death.
The Guideline for kidnapping, however, is § 2A4.1 which, in sub-
section (c) provides if the victim was killed under circumstances that
would constitute murder under § 1111, then the first-degree murder
Guideline should be applied. The special verdict form on the merits
provided that Alam "died as a result of being kidnapped," and the spe-
cial verdict on punishment provided that "WILLS intentionally partic-
35
ipated in an act of kidnapping, contemplating that the life of Zabiullah
Alam would be taken and/or intending that lethal force would be used
in connection with the kidnapping." Another statutory aggravating
factor found was that "WILLS committed the kidnapping offense
after substantial planning and premeditation to cause the death of
Zabiullah Alam." These facts certainly justify the reference to
§ 2A1.1, the first-degree murder Guideline.
The claim that the various aggravating factors had to be alleged in
the indictment is not required by Ring v. Arizona, 536 U.S. 584(2002) which does require, however, that they be submitted to the
jury, as they were in this case. The district court correctly followed
the applicable statutes and Sentencing Guidelines.
In all events, the government correctly claims that a life sentence
was required by the statute, without reference to the Sentencing
Guidelines, because the jury did not recommend the death sentence.
Section 1201(a)(5) in such a case requires punishment to be "by death
or life imprisonment."
B.
The stalking conviction was also submitted to the jury by way of
special verdict on the merits and was returned that the government
had "proven beyond a reasonable doubt that . . . Wills, stalked Zabiul-
lah Alam" and that the government had "proven beyond a reasonable
doubt that Zabiullah Alam died as a result of being stalked." The par-
ties are agreed that the offense level under the Sentencing Guidelines
for stalking was 43.
One of the jury's answers on the special verdict form as to kidnap-
ping was that Wills intentionally participated in the act of kidnapping,
and the district court found "The facts of this case established the pre-
meditated, deliberate, and malicious planning of kidnapping and kill-
ing of the victim." Thus, the district court was well within its
discretion in sentencing Wills to life imprisonment under
§ 2261(b)(1) which provides for a sentence of "life or any term of
years, if death of the victim results." So far as sentencing for stalking
may be considered to be an amendment to the indictment, it is like-
wise without merit.
36
The judgment of the district court is accordingly
AFFIRMED.18
____________________________________________________________
18
Any claims of error we may have not mentioned with particularity
have been considered and are likewise without merit.
37