United States v. Kristen Smith , 831 F.3d 793 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3442
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KRISTEN LAUREN SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 14-cr-24-jdp — James D. Peterson, Judge.
____________________
ARGUED MAY 29, 2015 — DECIDED APRIL 28, 2016
____________________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Kristen Smith took her half-sister’s
newborn son from his bassinette in the middle of the night
and started out on the long drive from Beloit, Wisconsin, to
her home in Colorado. When she reached eastern Iowa, she
learned that police in Wisconsin were pursuing leads on the
missing infant and wanted to interview her. She spoke by
2 No. 14-3442
phone with a Beloit police officer who told her to pull over
so that local law enforcement could speak with her.
In the pre-dawn hours, Smith pulled off the interstate,
wrapped the baby in blankets, placed him in a plastic con-
tainer, and put the container behind a gas station. There she
left the infant to freeze in subzero mid-winter temperatures.
She then drove to another gas station, called the Beloit
officer back, and was eventually arrested by Iowa police on
an unrelated warrant. When the police and FBI agents
questioned her, she persistently denied any knowledge of
the child’s whereabouts. It was only after the baby was
found alive the next day that she admitted taking him. A
federal jury convicted her of kidnapping.
Smith raises many issues on appeal. She claims that her
statements to law enforcement were the product of coercion.
She argues that a subset of her statements—those the district
court suppressed based on a Miranda violation—were im-
properly admitted for impeachment purposes. She objects to
the government’s inquiry during her cross-examination
about the crime for which the arrest warrant was issued.
Finally, she asks us to reverse on the ground that no rational
jury could conclude that she lacked parental permission to
take the child or that she attained a benefit from the kidnap-
ping. We reject these arguments and affirm.
I. Background
A. Kayden’s Disappearance
Brianna Marshall and her boyfriend, Bruce Powell, start-
ed trying to conceive a baby in April 2013, and Brianna soon
became pregnant. Not long after she announced her preg-
nancy, Kristen Smith, her estranged half-sister, unexpectedly
No. 14-3442 3
contacted her via Facebook. Smith lived in Aurora, Colora-
do; Brianna and Bruce lived in Beloit, Wisconsin. The reunit-
ed half-sisters began communicating regularly on Facebook
and by text.
A short time later, Smith announced on her Facebook
page that she too was pregnant with twins, a boy and a girl.
When Smith later learned that Brianna was having a boy, she
told her half-sister that she had lost the female twin but was
still carrying a healthy male. In August 2013 Smith offered to
let Brianna come to Colorado and stay with her and her
husband. Brianna declined.
On October 23 Smith posted a sonogram on her Facebook
page, claiming it was an image of the child she was carrying.
It was not. The original sonogram, dated November 16, 2007,
had been downloaded to Smith’s computer, and she had
changed the mother’s name to her own.
Between August 2013 and November 2013, Smith’s com-
puter and eBay account were used to search for fake preg-
nancy bellies and to view websites titled “How to Create a
Fake Pregnancy Belly,” “Breastfeeding your Adopted Baby
or Baby Born by Surrogate,” and “How to Get a Birth Certif-
icate for a Newborn.” On January 16, 2014, Smith sent her
mother-in-law a sonogram image via text. This one, too, was
altered.
On February 1, 2014, Brianna gave birth via C-section to a
baby boy and named him Kayden. On February 3 Smith
emailed her employer saying she was having labor induced
that evening and would not be at work that week. She then
left Colorado, alone, and drove to Wisconsin, arriving in
Beloit on February 4. She stopped at a Walmart and bought
4 No. 14-3442
an electric blanket, and then went to the hospital, unan-
nounced, to visit Brianna and Kayden.
Mother and baby were discharged that day; Smith ac-
companied them, with Bruce, to Brianna’s mother’s house,
where they were promptly told they were not welcome.
(Brianna’s mother apparently disapproved of her daughter’s
relationship with Bruce.) The foursome—Bruce, Brianna,
baby Kayden, and Smith—went to stay with Brianna’s
grandmother instead. Smith told Brianna’s grandmother that
she was pregnant and due in two weeks. That same day
Smith emailed her employer announcing that she had given
birth to a 6-pound-10-ounce baby boy named “Kaysin.”
Brianna’s son Kayden weighed 6 pounds, 10 ounces when he
left the hospital.
The next day (February 5) Brianna and Bruce discussed
with Smith the possibility of moving to Colorado to live with
her in light of the turbulence in their family situation in
Wisconsin. Smith told them that she would need to call her
husband and clear the idea with him. She did so, and Bri-
anna and Bruce then announced to Brianna’s family that they
planned to relocate to Colorado. It didn’t go over well;
Brianna’s half-brother Byron was upset by the news and
grew increasingly agitated with Bruce during the course of
the conversation.
At some point later that day, Smith told the couple that
she would get a head start on the move and planned to leave
for Colorado late that evening or very early the next morn-
ing, taking some of Brianna’s belongings with her. She
promised to return immediately with her husband and drive
Brianna, Bruce, and Kayden back to Colorado.
No. 14-3442 5
Bruce went to bed early that evening because he had a
headache. Brianna and her grandmother stayed up until
shortly after midnight. At about 1:30 a.m. on February 6,
while the rest of the household was asleep, Smith quietly
lifted Kayden from his bassinette, placed him in the back of
her car, and took off for Colorado. Brianna woke up at about
4:30 a.m. to discover her baby missing. She awakened every-
one else and frantically searched the house for Kayden, then
called Smith in “hysterics,” telling her the baby was gone.
Smith, of course, had Kayden with her, but she did not
inform her half-sister of that fact.
Brianna immediately called the police to report the kid-
napping. She and Bruce initially suspected that Byron had
taken the baby. Beloit police officers arrived within minutes.
At 4:54 a.m. Smith called back, and Brianna’s grandmother
handed the phone to one of the officers, who began ques-
tioning Smith about the missing infant. She gave her name
as “Kristen Andrews” with a date of birth of July 10, 1985.
She denied any knowledge of Kayden’s whereabouts and
blamed his disappearance on Byron. The officer instructed
her to pull over as soon as possible to meet with local law
enforcement to discuss the matter further. She said she
would do so.
Smith did pull off the highway, but not to meet with the
police—at least not right away. Instead, she exited I-80 in
West Branch, Iowa, and pulled into a BP gas station. There
she wrapped Kayden in blankets (including the electric
blanket she purchased in Beloit) and put him in a plastic
container. She closed the lid, placed the container on the
ground behind the station, and left the baby there. The
6 No. 14-3442
temperature in West Branch early that morning
was -11 degrees Fahrenheit, with a windchill of about -20.
Smith then drove a few hundred yards to a different gas
station. At 5:21 a.m. she called the Beloit officer back to
report her location. This information was immediately
transmitted to local police. While Smith was still on the line
with the Beloit officer, a West Branch police squad pulled
into the gas station. On the Beloit officer’s instruction, Smith
flagged down the local officer and gave him her cell phone
so he could speak with the Beloit officer.
The West Branch officer then questioned Smith for a few
minutes in the parking lot. She identified herself as Kristen
Rose Smith with a date of birth of January 11, 1983. She told
him that she first learned about Kayden’s disappearance
when Brianna called her at around 4:30 a.m. She permitted
the officer to search her car, but of course the baby wasn’t
there. The officer asked if she was pregnant; she said, “Yes.”
Another West Branch officer arrived to assist, and the dis-
patcher relayed information about Smith’s criminal history. It
turned out she was wanted by Texas on a 2013 warrant for
falsifying government documents—specifically, military-
deployment orders—to fraudulently break a lease. The
officers arrested Smith on the Texas warrant and took her to
the Cedar County Jail.
Once in police custody, Smith was Mirandized but not
questioned until FBI agents arrived at the jail to take over the
investigation. Special Agents James McMillan and Carlton
Morgan arrived at about noon and began a videotaped
interrogation.
No. 14-3442 7
During the first hour or two of questioning, Agent
McMillan asked for consent to search Smith’s car and phone.
Smith agreed and signed a consent form, but she repeatedly
gave the agents an incorrect access code to unlock her
phone. When they confronted her about this evasion, she
responded: “[I]f I was being difficult[,] then why wouldn’t I
be like, ‘I don’t want to talk to you; I want an attorney’?” She
eventually provided the correct code, and the agents took
the phone for forensic examination. At some point Smith
also agreed to submit to a polygraph examination.
In the meantime West Branch police did an inventory
search of Smith’s car. They recovered clothing, storage
containers, a baby car seat, and a prosthetic belly.
Early that evening Agent Riessen of the Iowa State Police
arrived at the jail to administer the polygraph. Before begin-
ning, he delivered fresh Miranda warnings and read aloud
from a polygraph consent form. When Agent Riessen asked
Smith to confirm that no one was forcing her to take the
polygraph, she replied, “Yes, they are.” Agent Riessen
reiterated that no one was forcing her to take the polygraph.
Smith then signed the consent form and the examination
proceeded.
When the polygraph was finished, Agent Riessen deter-
mined that Smith had been deceptive. The FBI agents then
resumed the interrogation. At about 1:30 a.m. on February 7,
Smith stopped answering questions, so the agents said they
would take her to her cell to sleep. Before concluding the
interview for the night, Agent McMillan asked her to sign a
consent form to access her Yahoo! email account. Smith
refused, saying, “I want everything to go to an attorney.”
When asked to confirm what she meant, Smith said: “Every-
8 No. 14-3442
thing else I want an attorney to advise me.” The interroga-
tion immediately ceased and Smith was returned to her cell.
At around nine o’clock that morning, the agents returned
with a new Miranda waiver form. Smith read and signed it,
but counsel had not yet been provided. The interrogation
resumed, but word soon arrived that West Branch police had
discovered Kayden alive and unharmed in the plastic con-
tainer behind the BP station. When the agents told Smith the
baby had been found, she called her husband and told him
not to say anything to authorities and to get her out of jail as
quickly as possible. She eventually admitted to the FBI
agents that she left Wisconsin with Kayden, put him in the
plastic container, and placed the container behind the BP
station. She even drew a map of the station to show them
exactly where she put him.
Agents later searched Smith’s home in Colorado and re-
covered baby accessories and furniture, infant formula, a
hard copy of the altered sonogram she sent to her mother-in-
law, and a partially completed birth-certificate application
for an infant named “Kaysin Michael Smith.” The applica-
tion listed Smith and her husband as the parents and their
Colorado home as the place where “Kaysin” was born.
A federal grand jury indicted Smith for kidnapping. See
18 U.S.C. § 1201(a)(1). Because the victim was a minor, she
faced a minimum prison sentence of 25 years and a maxi-
mum term of life. Id. § 3559(f)(2).
B. The Suppression Hearing
Smith moved to suppress her custodial statements, alleg-
ing that the February 6–7 interrogation violated Miranda and
was coercive. At a hearing before a magistrate judge, Smith
No. 14-3442 9
took the position that all questioning should have ceased
when Agent Riessen asked her if anyone was forcing her to
take the polygraph and she answered, “yes, they are,” or at
the very latest when she stopped answering questions and
asked for an attorney at about 1:30 a.m. on February 7. 1
The magistrate judge found—and the district court
agreed—that Smith unequivocally requested counsel at
1:30 a.m. on February 7. At that point she stopped answering
questions, refused to sign a consent form to search her
Yahoo! account, and told the agents she wanted “everything
to go to an attorney.” The agents immediately halted the
interrogation and returned Smith to her cell. But they reiniti-
ated the interrogation the next morning without counsel
present (albeit with new Miranda warnings). Because Smith’s
request for counsel at 1:30 a.m. was unambiguous, the
district judge granted her suppression motion in part, bar-
ring the government from using anything she said after
1:30 a.m. in its case-in-chief. But the judge rejected her claim
of coercion and found her statements voluntary. That ruling
left the door open to using the suppressed statements for
impeachment if Smith testified. See Oregon v. Hass, 420 U.S.
714, 722–24 (1975) (holding that statements obtained in
1 Smith also argued that her verbal tussle with the agents over the access
code to her phone amounted to an invocation of her right to counsel. As
we’ve noted, she consented to the search but repeatedly gave the agents
an inaccurate access code to the phone. When they confronted her about
this, she replied: “If I was being difficult, why wouldn’t I be like, ‘I don’t
want to talk to you; I want an attorney’?” Smith argued in the district
court that this reference to an attorney amounted to an invocation of her
right to counsel. The district judge rejected this claim. Smith has wisely
abandoned the argument on appeal.
10 No. 14-3442
violation of Miranda, though excluded from the prosecution’s
case-in-chief, may be used to impeach the defendant’s testi-
mony if otherwise voluntary); Harris v. New York, 401 U.S.
222, 224–25 (1971).
C. The Trial
The government’s theory of the case was that Smith faked
a pregnancy to coincide with Brianna’s, kidnapped Kayden
to pass him off as her own, and disposed of the infant out of
fear that she would be caught. In its case-in-chief, the gov-
ernment introduced evidence establishing the narrative
we’ve recounted above.
Smith’s primary defense was that Bruce, the baby’s father,
had given her permission to take Kayden to Colorado. She
testified in her own defense and told the jury that she woke
up at around 1:30 a.m. on February 6 to get an early start on
the long drive to Colorado, as she had told Bruce and Bri-
anna she would do. She testified that Bruce was still awake
at that hour and specifically instructed her to take Kayden
with her. She tried to explain away the government’s evi-
dence of a falsified pregnancy by insisting that she had in fact
been pregnant with twins but lost the female mid-pregnancy
and gave birth to a stillborn boy in January 2014 but hadn’t
told anyone about the stillbirth. She said the browsing
history on her computer couldn’t be attributed to her be-
cause her entire family used the computer. Finally, she
admitted leaving Kayden at the BP gas station, but she said
she left him in front of the station, not behind it, and claimed
that she plugged the electric blanket into an outlet to keep
him warm. When asked why she concealed his whereabouts
for nearly 30 hours, she said she was in a state of “panic”
No. 14-3442 11
and did not understand why Bruce had not explained to
everyone that Kayden was with her.
Three aspects of the government’s cross-examination of
Smith are important on appeal. First, to rebut her testimony
that she really had been pregnant, the government intro-
duced a statement she made during the 9 a.m. interrogation
on February 7 admitting that she had purchased the pros-
thetic belly and claiming that she did so because she wanted
to trick her body into producing breast milk to feed her
stepdaughter. Second, to impeach her testimony that she left
Kayden in front of the gas station, not behind it, the gov-
ernment introduced the map she drew after the FBI agents
told her that Kayden had been found. The map plainly
showed that she left the baby behind the gas station, where
he was indeed found. Third, although the parties had stipu-
lated to the existence of the Texas arrest warrant, the gov-
ernment asked Smith on cross-examination if she had sub-
mitted falsified military-deployment orders in May 2013 in
an effort to break a Texas lease—the crime for which the
warrant was issued. Smith objected, but the judge overruled
the objection. Smith then denied the conduct, saying she was
in Virginia at her wedding at that time.
The jury returned a verdict of guilty. Smith moved for
judgment of acquittal or a new trial. The judge denied the
motion and sentenced her to 300 months in prison.
II. Discussion
A. Coercion
On appeal Smith reprises her argument that her interro-
gation was coercive and therefore not voluntary. Coercive
interrogation tactics can include “physical abuse, psycholog-
12 No. 14-3442
ical intimidation, or deceptive interrogation tactics that have
overcome the defendant’s free will.” United States v. Stadfeld,
689 F.3d 705, 709 (7th Cir. 2012) (quotation marks omitted).
The inquiry considers the “totality of circumstances.” United
States v. Charles, 476 F.3d 492, 497 (7th Cir. 2007). While the
voluntariness of a confession is a question of law that we
review de novo, United States v. Jordan, 223 F.3d 676, 683 (7th
Cir. 2000), the district court’s predicate factual findings are
reviewed for clear error, United States v. Walker, 272 F.3d 407,
412 (7th Cir. 2001). “A finding of fact is clearly erroneous
when a review of the entire record leaves us with a definite
and firm conviction that a mistake has been made.” United
States v. Dillon, 150 F.3d 754, 757 (7th Cir. 1998).
As we’ve noted, Smith’s interrogation was videotaped.
She has not pointed to anything about the conditions or
interrogation tactics that was the least bit coercive. There
was no physical abuse, psychological abuse, or deception.
She has not identified anything about her personal circum-
stances that made her especially vulnerable. It’s true that the
interrogation was lengthy, but she received meals and had
regular breaks, so she cannot and does not argue that the
conditions of the interrogation were coercive.
Instead, Smith’s argument seems to be that the agents’
repeated requests for consents and waivers—to search her
car and phone, to take a polygraph, to search her Yahoo!
account, and to resume the interrogation on the morning of
February 7—made the interrogation inherently coercive. In
support of this theory, Smith cites United States v. Villegas,
388 F.3d 317 (7th Cir. 2004), but it’s hard to understand why.
In that case, DEA agents knocked on the defendant’s door,
identified themselves as law enforcement, and politely
No. 14-3442 13
requested permission to enter his home; no threats were
made and no weapons were drawn. Id. at 325. The defendant
consented to the agents’ entry, and we upheld the district
court’s determination that the consent was voluntary. Id. at
325–26. Villegas plainly does not help Smith’s coercion argu-
ment.
Smith places special emphasis on her pre-polygraph col-
loquy with Agent Riessen—specifically, her affirmative
response to the agent’s question whether anyone was forcing
her to take a polygraph test. (Recall that when she gave this
answer, Agent Riessen assured her that she didn’t have to
take the polygraph. She then signed the consent form and
the examination proceeded.) At the evidentiary hearing on
the suppression motion, Smith testified that before the
polygraph examination began, Agent McMillan approached
her in the hallway and told her that she had to take the
polygraph. Agent McMillan denied saying this or anything
like it. The magistrate judge credited the agent’s testimony
over Smith’s. The district judge accepted this credibility
determination, and Smith doesn’t challenge that ruling on
appeal. Without more, the pre-polygraph exchange with
Agent Riessen is not evidence of coercion.
In the end, Smith hasn’t identified anything in the record
to support her claim of coercion. The district court’s volun-
tariness ruling was sound.
B. Evidentiary Errors
Smith also challenges several aspects of her cross-
examination. Evidentiary rulings are reviewed for an abuse
of discretion; we will reverse “only when no reasonable
person could take the view adopted by the trial court.”
14 No. 14-3442
United States v. Ozuna, 561 F.3d 728, 738 (7th Cir. 2009)
(internal quotation marks omitted).
Smith attacks the government’s use of two statements
from the otherwise suppressed interrogation on the morning
of February 7. She objects to the government’s introduction
of her admission that she purchased a prosthetic belly to
trick her body into producing breast milk. She also objects to
the admission of her hand-drawn map depicting the location
behind the gas station where she left Kayden. These two bits
of evidence, she argues, were improper impeachment be-
cause they were not in fact inconsistent with her testimony
on direct examination.
Rule 613 of the Federal Rules of Evidence permits a
cross-examiner to impeach a witness’s testimony with evi-
dence of her prior inconsistent statements. It’s well-
established that “two statements need not be diametrically
opposed to be inconsistent.” United States v. Vasquez, 635 F.3d
889, 898 (7th Cir. 2011) (quoting United States v. Jones,
808 F.2d 561, 568 (7th Cir. 1986)).
We see nothing improper about the government’s use of
Smith’s admission to the FBI agents that she purchased a
prosthetic belly. She testified on direct examination that she
was pregnant from July 2013 until she delivered a stillborn
baby in January 2014. The contemporaneous existence of a
real pregnancy necessarily implies a denial that she was
faking a pregnancy. The prosecutor asked her whether she
had “told the FBI that [she] had been faking a pregnancy and
wearing a fake prosthetic belly so that [she] could convince
[her] body to produce breast milk” to feed her stepdaughter.
That was directly responsive to, and inconsistent with,
No. 14-3442 15
Smith’s assertion that she had in fact been pregnant during
the relevant time. 2
By the same token, Smith’s testimony on direct examina-
tion that she left Kayden in front of the BP gas station was
flatly inconsistent with the map she drew for the agents on
the morning of February 7, after the baby was found. Smith
doesn’t press very hard on her claim that the two statements
were inconsistent. She mainly argues that it didn’t make
much difference whether she placed the baby in back of the
gas station or in front of it, so the probative value of this
evidence was too slight and the court should have disal-
lowed it.
The deficiencies in this argument are so manifold that
we’re not sure where to begin. First, Smith did not object to
the admission of the map, so the claim is forfeited. Second,
the map directly contradicted Smith’s assertion on the wit-
ness stand that she placed the baby in front of the station,
making this evidence highly probative of her credibility as a
witness. Third, her prior admission about Kayden’s location
was relevant to her state of mind; the degree of concealment
was circumstantial evidence of her purpose in abandoning
him. Finally, any error in admitting this evidence was cer-
tainly harmless given the abundant evidence of her guilt.
Smith’s final evidentiary challenge is an attack on the
government’s inquiry into the conduct underlying the Texas
arrest warrant. Before trial Smith had stipulated to the
2 Oddly, Smith concedes in her brief that “[t]hese two statements could
be inconsistent but they could also be consistent with each other.” This
concession is probably sufficient on its own to insulate the district court’s
ruling from reversal.
16 No. 14-3442
existence of the warrant, and in exchange the government
agreed not to introduce the warrant or the specifics of the
charge into evidence. On cross-examination, however, the
prosecutor asked Smith if she had used falsified military-
deployment orders to break a lease in Texas in May 2013—
the specific conduct underlying the warrant. Smith objected,
arguing that the stipulation took the entire subject off the
table. The judge discussed the matter with the lawyers at
sidebar and overruled the objection.
That was not an abuse of discretion. The government’s
stipulation did not foreswear the opportunity to cross-
examine Smith about the conduct underlying the warrant if
she took the stand. That conduct—using falsified military-
deployment orders to break a lease—was relevant to her
character for untruthfulness under Rule 608(b) of the Federal
Rules of Evidence. She denied the conduct anyway, saying
she was in Virginia in May 2013. And given the ample
evidence of Smith’s guilt, any possible error was harmless.
C. Sufficiency of the Evidence
Smith’s final argument is that the evidence was insuffi-
cient to prove that she lacked Bruce’s permission to take
Kayden or that she took the baby for personal benefit. A
challenge to the sufficiency of the evidence requires the
challenger to shoulder “a heavy, indeed, nearly insurmount-
able, burden.” United States v. Warren, 593 F.3d 540, 546 (7th
Cir. 2010). We “consider the evidence in the light most
favorable to the prosecution, making all reasonable infer-
ences in its favor, and [must] affirm the conviction so long as
any rational trier of fact could have found the defendant to
have committed the essential elements of the crime.” United
No. 14-3442 17
States v. Paneras, 222 F.3d 406, 410 (7th Cir. 2000) (quotation
marks omitted).
Borrowing from the text of the federal kidnapping stat-
ute, the jury instructions—to which both parties consented—
listed the following four elements of the offense:
1. The defendant knowingly seized, confined,
kidnaped, abducted or carried away [Kay-
den];
2. The defendant held [Kayden] for a reason
or purpose that would secure some benefit
to herself[;]
3. The defendant willfully transported [Kay-
den] in interstate commerce from Wiscon-
sin to Iowa; and
4. [Kayden] had not yet attained the age of
18 years.
The third and fourth elements are uncontested; the focus
here is on elements 1 and 2. Smith argues that the evidence
was insufficient to contradict her testimony that Bruce had
instructed her to take his infant son to Colorado. She also
argues that the government failed to prove that she took
Kayden to secure a personal benefit to herself. Both conten-
tions are belied by the record.
To the first issue, the government’s abundant evidence of
Smith’s evasive actions—leaving the baby at the gas station
in subzero temperatures and consistently lying to police
about her role in his disappearance—convincingly refuted
her claim about having Bruce’s permission to take the baby.
And if more were needed, the government adduced evi-
18 No. 14-3442
dence that Bruce was in extreme distress when he learned
his son was missing and overjoyed when the baby was
found. Viewed in the light most favorable to the government
(or really any light at all), the government’s evidence was
easily sufficient—indeed overwhelming—on the first ele-
ment of the kidnapping charge.
Smith’s challenge to the evidence of a “personal benefit”
requires only slightly more analysis. When first enacted, the
federal kidnapping statute required that the victim be held
“for ransom or reward,” which generally implied “some
pecuniary consideration or payment of something of value.”
Gooch v. United States, 297 U.S. 124, 126 (1936). Congress
amended the statute to read “for ransom or reward or
otherwise.” The Supreme Court has interpreted the amend-
ed statute as prohibiting the “transportation in interstate or
foreign commerce of persons who were being unlawfully
restrained in order that the captor might secure some benefit
to himself.” Id. at 128.
The government adduced substantial evidence that Smith
took Kayden because she wanted a baby. Many courts have
held that a personal relationship alone is a “benefit” suffi-
cient to satisfy the broad “or otherwise” language of the
kidnapping statute. See United States v. Montgomery, 635 F.3d
1074, 1086 (8th Cir. 2011) (explaining that the personal-
benefit element is satisfied when the perpetrator “held [the
infant] for purposes of claiming the infant as her own”); cf.
United States v. Walker, 137 F.3d 1217, 1219 (10th Cir. 1998)
(“The facts presented at trial indicate Walker’s actions were
motivated by self-interest, i.e., his interest in convincing [a
female friend] to remain in a relationship with him.”). The
lengths to which Smith went in concocting and perpetuating
No. 14-3442 19
the pregnancy myth gave the jury a firm factual foundation
to find that Smith kidnapped Kayden for the personal
benefit of keeping him and passing him off as her own child.
The prosecutor also noted in his closing argument that
Smith’s abandonment of Kayden behind the gas station
inured to her benefit by increasing her likelihood of escaping
criminal liability for the kidnapping. Smith takes issue with
this theory of “personal benefit”; she argues that “this act
falls outside the statute” because when she left the baby at
the gas station, she “relinquished control of the child.” That
sounds almost like a challenge to the legal adequacy of the
government’s alternative “personal benefit” theory. If so, the
argument is woefully undeveloped and therefore waived.
United States v. Collins, 796 F.3d 829, 836 (7th Cir. 2015)
(“[T]his [c]ourt has long warned that perfunctory and unde-
veloped arguments are deemed waived.”) (internal quota-
tion marks omitted).
Regardless, it’s clear enough from the record that the
government was not offering the jury two different theories
of criminal liability, one legally proper and one legally
improper. Throughout the trial and in closing argument, the
government’s theory of the case was that Smith wanted a
baby and kidnapped Kayden to obtain that personal benefit.
The prosecutor’s stray observation during closing argument
that Smith obtained a (temporary) benefit from concealing
the child was brief and inconsequential and is not grounds
for reversal.
AFFIRMED.