United States v. Carmona , 38 F. App'x 875 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
DONALD HARRY CARMONA, a/k/a
Harry Donald Carmona, a/k/a Lou
Morales, a/k/a Robert Montoya,  No. 01-4309
a/k/a Franco Hernandez, a/k/a Gary
De Los Santos, a/k/a Henry Donald
Carmone, a/k/a Henry Donald
Carbone, a/k/a Vince Carlucci,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-00-22)
Argued: May 7, 2002
Decided: June 6, 2002
Before WILKINSON, Chief Judge, and NIEMEYER and
LUTTIG, Circuit Judges.
Affirmed by unpublished opinion. Judge Luttig wrote the opinion, in
which Chief Circuit Judge Wilkinson and Judge Niemeyer joined.
COUNSEL
ARGUED: David Bruce Freedman, WHITE & CRUMPLER,
Winston-Salem, North Carolina, for Appellant. Lawrence Patrick
2 UNITED STATES v. CARMONA
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee. ON BRIEF: Anna Mills Wagoner, United States Attor-
ney, Paul A. Weinman, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
LUTTIG, Circuit Judge:
Donald Harry Carmona tricked his victim into taking a trip from
North Carolina to Ohio, where he raped her numerous times. A jury
convicted him of, inter alia, kidnaping, in violation of 18 U.S.C.
§ 1201, and violation of the Mann Act, 18 U.S.C. § 2422(a). Carmona
appeals, challenging the sufficiency of the evidence used to convict
him.
I.
The victim of Carmona is Sara DuSablon, who was 20 years old
in 1999, when the crime was committed. The facts, which are quite
peculiar, come mostly from her testimony; Carmona did not take the
stand.
In 1999, DuSablon was a junior at Duke University. She was raised
in rural North Carolina, in a devoutly Catholic, French-speaking
home, with nine younger siblings. She was home-schooled, did not
date, use a computer, or watch television.
At some point during her studies at Duke, she "discovered" internet
chat rooms. In October, 1999, she began corresponding with "Henry
Carmone" (Carmona). Henry described himself as a 24-year-old,
employed as a Special Agent with the United States Secret Service,
working mainly on counterfeit and drug cases. Henry and DuSablon
UNITED STATES v. CARMONA 3
started exchanging e-mails; in his messages, Henry often described
his "work." Henry also apparently professed a desire to have a large
family, striking the right chord with DuSablon, who herself is very
fond of children. Eventually, Henry confessed to have fallen in love
with DuSablon. He also asked her to send him pictures of herself; she
complied by sending a nude picture.
DuSablon’s friends and roommate cautioned her against involve-
ment with Henry, whose stories they found unbelievable. To quell any
doubts, DuSablon then called the Charleston Secret Service Office,
asking to speak with Special Agent Carmone. Remarkably, the opera-
tor responded that Carmone was not there, but could be reached at the
number he left. As it turns out, Henry had contacted the Secret Ser-
vice Office and, representing himself as an agent, left a message with
the operator for DuSablon. When DuSablon called the provided num-
ber, Henry answered. That, for DuSablon, not surprisingly, confirmed
Carmone’s story.
In November of 1999, DuSablon agreed to meet Henry at Duke.
When she saw Henry, who came by her apartment one morning, she
was quite shocked — he was significantly older than 24, smelled, was
shabby in appearance, short, and overweight. Henry insisted, how-
ever, that she should stay in bed while he made her breakfast. After
eating what he cooked, she felt "lethargic" and "blurry." J.A. 167-68.
Henry then made some advances, which resulted in some sexual con-
tact. DuSablon then told Henry that she was not attracted to him, but
he continued to profess his love for her. He also expressed his desire
to take care of her including financially, claiming that he had a large
inheritance, which was currently tied up in court.
Henry spent the rest of the weekend with DuSablon, sleeping on
the couch in her dorm room, although prior to his visit, he had prom-
ised to stay in a motel. Henry told DuSablon and her roommate count-
less stories of "undercover" work and showed them some self-defense
tricks, which he allegedly learned in the Secret Service. Henry also
asked DuSablon about her worst fears; she confessed that she was
afraid of being tied up, hit, suffocated, and raped. Henry responded
that he was taught in the Secret Service that one must face one’s fears
to overcome them.
4 UNITED STATES v. CARMONA
After he left, Henry and DuSablon continued their correspondence.
At some point, Henry told DuSablon about a family of drug dealers
and their six-year-old daughter, Samantha, who had been sexually
abused. After Thanksgiving, Henry disclosed to DuSablon that he
needed to travel in connection with this case. He then announced that
both Samantha’s parents had been killed, but that the mother voiced
a dying wish that DuSablon take care of Samantha. Because of
DuSablon’s involvement in this case, Henry cautioned DuSablon that
other Secret Service men watched her; she also received some e-mails
from them, which included stories of Henry’s heroism and love for
DuSablon.
Henry then made arrangements for DuSablon to correspond by e-
mail with Samantha. DuSablon became so attached to Samantha, that
upon researching applicable law, she decided to adopt her. Henry told
DuSablon that because of his position as a Secret Service agent, he
would be able to help her with the adoption.
Henry visited Duke again in December; he began teaching
DuSablon how to face her fears, by tying her up, striking her, and
simulating rape.
By that time, DuSablon was determined to adopt Samantha and
planned to go see her in Ohio, where Samantha allegedly resided.
However, Henry insisted on coming along; he warned DuSablon that
she would not be able to see the girl, who was in a safe house, without
him. As DuSablon testified, it was her voluntary choice to go on a
plane to Ohio, but her motivation was to see Samantha, whom, by that
time, she considered to be her daughter. J.A. 485.
Because of the alleged difficulties with Henry’s inheritance,
DuSablon bought tickets for both of them. They arrived in Columbus
on December 15. In response to DuSablon’s persistent requests to see
Samantha, Henry, after making excuses for two days, announced on
December 17 that Samantha had accidentally shot herself with a gun.
Henry added that Samantha wanted DuSablon to commit suicide so
they would be together in heaven.
Throughout their stay, DuSablon felt drowsy, similarly to how she
felt after Henry fed her when he first arrived to Duke. She experi-
UNITED STATES v. CARMONA 5
enced similar sensations when she was given a prescription sedative
in the hospital after the ordeal was over. Henry raped her several
times; because of her impaired physical and mental state, she could
not resist.
He persistently suggested that she should commit suicide. He gave
her sleeping pills, which he made her throw up because he had not
had sufficient time to enjoy her sexually. He made her walk outside
in wet clothes; injected some salt solution into her arm; placed a plas-
tic bag over her head so that she could not breathe; all in an effort to
help her commit suicide.
He also warned her that Secret Service agents were watching her
home and her family. DuSablon testified that she feared that even if
she could escape, she and her family would be in danger. J.A. 326,
503. Throughout the trip, she felt disoriented; several people testified
that she appeared to be on some kind of drug, unhygienic, and scared.
At some point, Henry called DuSablon’s parents, asking them to
wire money. They refused. They then alerted the police and traveled
to Columbus, where they found their daughter. Later, Henry was
arrested.
As DuSablon found out, Henry is actually a 45-year-old homeless
man, who at one point worked as an informant, but had no association
with the Secret Service at the time he met DuSablon. Samantha and
her family were fictions, as were the other Secret Service agents from
whom DuSablon received e-mails.
II.
The kidnaping statute, 18 U.S.C. § 1201, authorizes punishment for
whoever "unlawfully seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away and holds for ransom or reward or otherwise
any person" when "the person is willfully transported in interstate . . .
commerce."
The Mann Act, 18 U.S.C. § 2422(a), authorizes punishment for
whoever "knowingly transports any individual in interstate . . . com-
6 UNITED STATES v. CARMONA
merce . . . with intent that such individual engage in . . . any sexual
activity for which any person can be charged with a criminal offense."
On this charge, the government argued that Carmona caused
DuSablon to travel across state lines with the purpose of raping her,
in violation of Ohio law.
Carmona contends that no rational jury could have found violations
of either the kidnaping statute or the Mann act, because, he argues,
DuSablon consented to the trip and to the sexual relations. Appel-
lant’s Br. at 23 ("Ms. DuSablon was, albeit ill-advisedly, both an initi-
ator and participant in this sad tale."). In fact, he claims that because
his stories were so unbelievable, she could not have accepted them at
face value and thus, was a willing participant in their activities and
travels. Id. at 28.
A.
Upon reviewing the testimony of DuSablon and those who
observed her and Carmona at Duke and in Ohio, we conclude that
there was sufficient evidence to convict Carmona of kidnaping. He
inveigled DuSablon into traveling to Ohio by inventing stories about
his occupation and about a girl in need of a loving parent. Carmona
made DuSablon believe that traveling across state lines would enable
her to see that girl and adopt her. And, he tricked DuSablon, drugged
her, threatened her, and manipulated her with the purpose of control-
ling her for his sexual and financial benefit. Carmona’s "induced mis-
apprehension of his intent negates the contention that [DuSablon]
[departed on a trip to Ohio] willingly." United States v. Hughes, 716
F.2d 234, 237 n.5 (4th Cir. 1983)(affirming a kidnaping conviction
where the defendant misled the victim as to the purpose and destina-
tion of the trip across state lines). Carmona induced DuSablon to
believe that they were going to Ohio to see Samantha; "knowing that
[DuSablon’s] belief as to their purpose . . . [wa]s different from his
actual illicit purpose" of sexual exploitation and financial enrichment,
Carmona "interfered with, and exercised control over, her actions." Id.
at 239.
Carmona’s contentions notwithstanding, that DuSablon did not
seek help of the clergy when she visited a church in Ohio or of police-
men does not undermine the reasonableness of the conclusion that she
UNITED STATES v. CARMONA 7
was kidnaped, given her unrebutted testimony that she feared for her
family’s safety. See United States v. Childress, 26 F.3d 498, 502 (4th
Cir. 1994) (failure to seize upon arguable opportunities to escape does
not render the transportation across state lines consensual where the
defendant forcibly took and transported the victim in his car, continu-
ously threatening to kill her).
Carmona also seeks to establish consent to the trip and the ensuing
sex and torture from the fact that he and DuSablon had consensual
sexual relations when he first visited her at Duke. However, to pre-
vail, Carmona needs to show that it was unreasonable for any fact
finder to conclude that prior consent did not establish valid consent
nearly two months later. That he did not do. Moreover, the jury could
have concluded that Carmona drugged DuSablon during their first
encounter as well.
Carmona points to testimony given by those who had seen them in
Ohio regarding displays of affection between himself and DuSablon.
J.A. 658 (testimony by the witness that he saw them holding hands
but not kissing). However, other testimony given by DuSablon and
other witnesses indicated that DuSablon appeared to be on drugs and
disoriented, and thus unable to consent in any meaningful sense.
Finally, "the monumental credulity" DuSablon displayed is of no
consequence, see United States v. Neiswender, 590 F.2d 1269, 1275
(4th Cir. 1979); that she unreasonably, though honestly, relied on his
misrepresentations is not a defense to a kidnaping charge.
Carmona’s reliance on United States v. Chancey, 715 F.2d 543(11th Cir. 1983) (reversing a federal kidnaping conviction due to
insufficiency of the evidence), is misplaced. Although initially taken
by force, by the time the victim in Chancey was transported across
state lines several days after being abducted, she was clearly enjoying
the defendant’s company, both in public and in private. At trial, her
testimony was "replete with claimed lack of knowledge or loss of
memory when she was questioned about matters damaging to her con-
tention of involuntariness." Id. at 547. In the case sub judice, given
the unwavering testimony by DuSablon, the jury could have reason-
ably concluded that she labored under a misconception of Henry’s
identity and was sincerely hoping to adopt Samantha.
8 UNITED STATES v. CARMONA
Accordingly, we are satisfied that we can answer the question of
"whether after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of [kidnaping] beyond a reasonable doubt," Hughes, 716
F.2d at 239 (internal citations omitted), in the affirmative.
B.
The evidence also supports the jury’s verdict with respect to the
Mann Act. Carmona knowingly caused DuSablon to travel to Ohio
with the intent of engaging in unlawful sexual conduct. Carmona’s
contention that no unlawful sexual conduct occurred is not credible,
for the only support he marshals is DuSablon’s initial statement to the
police that she was not raped. However, as revealed by her testimony,
she believed at the time of the initial questioning that one is not raped
unless one actually says "no." But, more importantly, Carmona did
not carry the heavy burden of proving that no rational fact finder
could have concluded that the purpose of the trip was to take advan-
tage of DuSablon sexually.*
CONCLUSION
For the reasons stated herein, we affirm the judgment of the district
court.
AFFIRMED
*We reject the remaining challenges to certain evidentiary rulings, jury
instructions and sentencing calculations as meritless.