United States v. Giordano Jackson ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10070
Plaintiff-Appellee,
D.C. No.
v. 3:17-cr-08242-DJH-1
GIORDANO JACKSON,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-10071
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-08212-DJH-1
GIORDANO JACKSON,
Defendant-Appellant. OPINION
Appeals from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted December 8, 2021
Pasadena, California
Filed February 3, 2022
2 UNITED STATES V. JACKSON
Before: William A. Fletcher, Johnnie B. Rawlinson, and
John B. Owens, Circuit Judges.
Opinion by Judge Owens
SUMMARY *
Criminal Law
The panel reversed a conviction for kidnapping under
18 U.S.C. § 1201(a)(2), and remanded for resentencing.
The panel held that, in kidnapping prosecutions under
§ 1201(a)(2), courts should consider the factors set forth in
Government of the Virgin Islands v. Berry, 604 F.2d 221 (3d
Cir. 1979), to evaluate whether the charged conduct
constitutes kidnapping. This is a factual inquiry, taken up
during a motion for acquittal under Federal Rule of Criminal
Procedure 29 and, if appropriate based on the circumstances
of the case, incorporated into jury instructions.
Applying those factors, the panel concluded that the
government failed to prove beyond a reasonable doubt that a
kidnapping occurred. The first factor, the duration of the
holding, weighs against kidnapping, as a seven-minute
holding would be quite brief on the spectrum of possible
kidnappings. The second and third factors—the presence of
a separate offense and the degree to which the holding was
inherent in the other offense—strongly indicate that there
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. JACKSON 3
was no kidnapping. The primary conduct here was an
assault causing serious bodily injury, which inherently
requires the defendant to keep the victim in close enough
proximity to inflict the injuries. The fourth factor, whether
the holding created significant danger independent of the
separate offense, also weighs against classifying the conduct
as kidnapping. To the extent that there was any confinement
separate from the assault in this case, it was not an
independent source of danger. In light of these factors, the
panel concluded that no reasonable fact finder could have
found the necessary elements of kidnapping beyond a
reasonable doubt.
In a concurrently filed memorandum disposition, the
panel affirmed the defendant’s conviction of first-degree
murder and multiple counts of assault.
COUNSEL
Michele R. Moretti (argued), Law Office of Michele R.
Moretti, Lake Butler, Florida, for Defendant-Appellant.
William G. Voit (argued), Assistant United States Attorney;
Krissa M. Lanham, Appellate Division Chief; Glenn B.
McCormick, Acting United States Attorney; United States
Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee.
4 UNITED STATES V. JACKSON
OPINION
OWENS, Circuit Judge:
Giordano Jackson, a member of the Navajo Nation,
appeals from his conviction for kidnapping under 18 U.S.C.
§ 1201(a)(2). We have jurisdiction under 28 U.S.C. 1291,
and we reverse. 1
I. BACKGROUND
A. The Violent Attack
In July 2017, Jackson violently attacked his then-
girlfriend, Alvina Nez, on the Navajo Nation Indian
Reservation. Alvina’s minor son and minor nephew
observed part of the attack, and her father, Alex Nez Sr.,
observed its aftermath. 2
On the night of the attack, Alvina’s son and nephew were
in their grandparents’ kitchen when a car pulled up outside.
The boys then began hearing a noise: At first, they thought
it was laughter, but as the boys went outside, it sounded like
screaming or crying. From their grandparents’ porch, they
saw Jackson come around the car from the passenger’s side
to the driver’s side, where Alvina was sitting with the door
open. Then, Jackson started punching Alvina—in the face,
1
Jackson was also convicted of first-degree murder for a subsequent
September 2017 attack on the same victim, as well as multiple counts of
assault against the responding police officers. He received a mandatory
life sentence for the murder conviction. See 18 U.S.C. § 1111. He
appealed that conviction, and we affirm in a concurrently filed
memorandum disposition.
2
Because there are multiple people in this case with the surname
Nez, we refer to Alvina by her first name and to her father as Mr. Nez.
UNITED STATES V. JACKSON 5
the head, the chest, and the arms—and tried to yank her from
the car.
The boys ran into the house and to the bedroom, where
they woke their grandparents and told them that Jackson was
beating Alvina. Mr. Nez quickly dressed and went outside.
Once there, he saw Alvina lying by the door of the nearby
hogan, 3 covered in dirt and naked except for her underwear.
Mr. Nez ordered Jackson off the property.
After the attack, Alvina had scratches and bruises on her
arms, legs, and face, a black eye, blood dripping from her
nose, and a bald spot on her head. Crying, she told her
family that Jackson had dragged her around by her hair,
yanked her arms, punched her, and tried to pull her into the
hogan.
The entire attack lasted roughly six or seven minutes.
The “laughing” went on for two or three minutes before the
boys went outside. About two more minutes passed between
when the boys went outside and when they ran back in to
wake their grandparents. And Mr. Nez said it took another
couple of minutes for him to dress and get outside. For the
July attack, Jackson was charged with assault resulting in
serious bodily injury, 18 U.S.C. § 113(a)(6), and
kidnapping, id. § 1201(a)(2).
3
A witness in the case defined a hogan as a small, one-room house.
External sources add that it is “a Navajo Indian dwelling usually made
of logs and mud with a door traditionally facing east.” Hogan, Merriam
Webster Online, https://www.merriam-webster.com/dictionary/hogan
(last visited Jan. 7, 2022).
6 UNITED STATES V. JACKSON
B. The Trial
The evidence of the attack was largely uncontroverted at
trial. Both boys testified, as did Mr. Nez, and their stories
were consistent.
In his motion for acquittal under Federal Rule of
Criminal Procedure 29, counsel for Jackson conceded that
the evidence was sufficient to support the assault charge.
But he argued that the facts, as a matter of law, could not
support a kidnapping conviction under 18 U.S.C.
§ 1201(a)(2). Citing United States v. Etsitty, 130 F.3d 420(9th Cir. 1997) (per curiam), amended on denial of reh’g by
140 F.3d 1274 (9th Cir. 1998), he contended that there was
insufficient evidence that Jackson seized Alvina and that,
“whatever seizure occurred, it certainly didn’t occur beyond
whatever beating there was.” The prosecutor responded that,
under Etsitty, “all that is required here is a seizure,” which
he defined as “a restraint on someone’s freedom of
movement, preventing somebody from leaving if they want
to.” The district court agreed with the government and
permitted the jury to decide the kidnapping charge.
After receiving a version of the Ninth Circuit Model Jury
Instruction on kidnapping, which did not include any
duration requirement, 4 the jury returned a guilty verdict on
all charges. Jackson timely appealed.
4
The judge instructed the jury as follows:
The defendant is charged in Count 5 of the
indictment with kidnapping within the Navajo Nation
Indian Reservation in violation of Sections 1153 and
1201 of Title 18 of the United States Code. In order
for the defendant to be found guilty of that charge, the
UNITED STATES V. JACKSON 7
II. DISCUSSION
A. Standard of Review
When reviewing for sufficiency of the evidence, we ask
“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 the crime beyond a
reasonable doubt.’” United States v. Nevils, 598 F.3d 1158,
1163–64 (9th Cir. 2010) (en banc) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). “When the issue of
sufficiency of the evidence is preserved by making a motion
for acquittal, we review the district court’s denial of the
motion de novo.” United States v. Shea, 493 F.3d 1110,
1114 (9th Cir. 2007).
B. As A Matter of Law, The Government Failed to
Establish That Jackson “Kidnapped” Alvina Nez
This case requires us to define the limits of kidnapping
under 18 U.S.C. § 1201(a)(2). 5 As the Eleventh Circuit has
government must prove each of the following
elements beyond a reasonable doubt:
First, the defendant kidnapped, seized, or
confined Alvina Nez at a place within the confines of
the Navajo Nation Indian Reservation, which I instruct
you is in Indian Country;
Second, the defendant held Alvina Nez for any
benefit; and
Third, the defendant is an Indian.
5
18 U.S.C. § 1201(a) reads, in relevant part:
8 UNITED STATES V. JACKSON
explained, “state courts and an occasional federal court have
struggled to interpret and enforce kidnapping laws,
balancing a healthy respect for prosecutorial zeal against a
recognition that the broadness of the statutory language
requires an abundance of judicial discretion to limit its
application to appropriate circumstances.” United States v.
Howard, 918 F.2d 1529, 1535 (11th Cir. 1990) (internal
quotation marks omitted).
Fortunately, we do not approach the federal kidnapping
statute with a blank slate. More than 75 years ago, the
Supreme Court warned that “the broadness of the statutory
language [defining kidnapping] does not permit us to tear the
words out of their context, using the magic of lexigraphy to
apply them to unattractive or immoral situations lacking . . .
the very essence of the crime of kidnaping.” Chatwin v.
United States, 326 U.S. 455, 464 (1946). As the Court
observed in reversing a conviction:
(a) Whoever unlawfully seizes, confines, inveigles,
decoys, kidnaps, abducts, or carries away and holds for
ransom or reward or otherwise any person, except in
the case of a minor by the parent thereof, when—
....
(2) any such act against the person is done within
the special maritime and territorial jurisdiction of
the United States;
....
shall be punished by imprisonment for any term of
years or for life and, if the death of any person results,
shall be punished by death or life imprisonment.
UNITED STATES V. JACKSON 9
Were we to sanction a careless concept of the
crime of kidnaping or were we to disregard
the background and setting of the Act the
boundaries of potential liability would be lost
in infinity. A loose construction of the
statutory language conceivably could lead to
the punishment of anyone who induced
another to leave his surroundings and do
some innocent or illegal act of benefit to the
former . . . . The absurdity of such a result
. . . is sufficient by itself to foreclose that
construction.
Id. at 464–65.
We recognized the wisdom of this warning in Etsitty.
See 130 F.3d at 427. There, the defendant lassoed the victim
around the neck, dragged her on the ground for twenty feet,
repeatedly attempted to tie her up and gag her, knocked her
unconscious, and then tried to take her away on his horse.
Id. at 423. Under these facts, we concluded that the
government proved a violation of § 1201(a)(2), as “a
reasonable trier of fact” could find that the defendant seized
the victim “for a substantial period of time.” Id. at 427. But
we repeated Chatwin’s warning about the danger of
broadening kidnapping “into a secondary charge wherever
there is a detention accompanying another crime.” Id.
In a powerful concurrence, Judge Kleinfeld outlined the
problems with reading the statute too broadly: “Kidnapping,
punishable by life imprisonment, is not committed whenever
someone is held against their will, as when one person grabs
another to do harm, and the victim says ‘Let me go.’” Id.
at 428 (Kleinfeld, J., concurring). Otherwise, prosecutors
would have “unfettered discretion to charge the same
10 UNITED STATES V. JACKSON
conduct, such as impeding certain individuals, see 18 U.S.C.
§ 111(a)(1), as a mere misdemeanor or a life imprisonment
felony.” Id. To avoid these consequences, he explained,
“[m]eaning has to be given to the phrase ‘and holds’ beyond
the conduct already denoted by ‘seizes’ and ‘confines,’”
such that “‘an appreciable period’ of holding is necessary to
establish the offense.” Id. at 428–29 (first quoting 18 U.S.C.
§ 1201(a); and then quoting Chatwin, 326 U.S. at 460).
This case brings the warnings of Chatwin and Etsitty to
the fore. The facts here, viewed in the light most favorable
to the government, do not bear the hallmarks of a “true
kidnaping[].” Chatwin, 326 U.S. at 464. To conclude
otherwise would convert the kidnapping statute into a
steroidal version of the assault laws—exactly what the
Supreme Court and our own court in Etsitty warned against.
And not just assault laws: The government at oral argument
agreed that, under its theory, a garden-variety, three-minute
robbery could be a kidnapping—although it conceded,
somewhat contradictorily, that the inquiry requires a “highly
fact-specific determination.”
Accepting, then, that kidnapping requires more than a
transitory holding, and more than a simple mugging or
assault—accepting, in other words, that the facts must reflect
the “essence of the crime of kidnaping,” Chatwin, 326 U.S.
at 464—the remaining question is how to distinguish facts
that constitute kidnapping from those that do not. And again,
we do not start with a blank slate. In Government of the
Virgin Islands v. Berry, 604 F.2d 221, 224 (3d Cir. 1979),
the Third Circuit analyzed when an action qualifies as a
kidnapping under a very similar statute. After surveying
Chatwin and a host of state court decisions, id. at 226–27, it
distilled four factors to guide courts and juries in defining
kidnapping, absent legislative history to the contrary:
UNITED STATES V. JACKSON 11
(1) the duration of the detention or
asportation; (2) whether the detention or
asportation occurred during the commission
of a separate offense; (3) whether the
detention or asportation which occurred is
inherent in the separate offense; and
(4) whether the asportation or detention
created a significant danger to the victim
independent of that posed by the separate
offense.
Id. at 227.
Other circuits have acknowledged the wisdom of the
Berry factors or outright adopted them to interpret the
federal kidnapping statute. See, e.g., Howard, 918 F.2d
at 1535–37 (adopting and applying Berry factors to overturn
federal kidnapping conviction); United States v. Gabaldon,
389 F.3d 1090, 1097 (10th Cir. 2004) (finding “much in the
Berry test to commend its use in a § 1201(a)(2) situation”);
see also United States v. Corralez, 61 M.J. 737, 748–49
(A.F. Ct. Crim. App. 2005) (applying similar factors to the
military offense because converting simple assaults into
kidnapping “reflects precisely the ‘careless concept of the
crime’ of kidnapping that has long been condemned as a
misuse of the offense” (quoting Chatwin, 326 U.S. at 464)). 6
6
The Model Penal Code is similar, as it requires confinement “for a
substantial period.” Model Penal Code § 212.1 (Am. L. Inst. 1985). Its
Commentary is also in accord:
The central problem in the law of kidnapping is to
restrict the drastic sanctions authorized for this offense
12 UNITED STATES V. JACKSON
We, too, find much in the Berry factors to commend their
use. The first factor, the duration of the holding, allows us
to give meaning “to the phrase ‘and holds’ beyond the
conduct already denoted by ‘seizes’ and ‘confines.’” Etsitty,
130 F.3d at 428 (Kleinfeld, J., concurring). The second and
third factors prevent kidnapping from broadening “into a
secondary charge wherever there is a detention
to instances of misbehavior warranting such
punishment. . . .
....
. . . [F]or example, the robber who forces his
victim to move from one room to another in order to
find a cashbox or open a safe technically may commit
kidnapping as well as robbery. This reasoning raises
the possibility of cumulative penalties or of higher
sanctions for kidnapping, even though the “removal”
of the victim to another place was part and parcel of
the robbery and not an independent wrong. . . .
. . . Experience reveals numerous instances of
abusive prosecution under expansive kidnapping
statutes for conduct that a rational and mature penal
law would have treated as another crime.
Model Penal Code & Comments. § 212.1 cmt. 2 (Am. L. Inst. 1980)
(footnotes omitted).
Additionally, as the Berry opinion explains, several state courts have
limited their kidnapping statutes in a similar manner. See, e.g., Weber v.
State, 547 A.2d 948, 957–60 (Del. 1988); People v. Daniels, 459 P.2d
225, 231–38 (Cal. 1969) (in bank); People v. Levy, 204 N.E.2d 842, 843–
45 (N.Y. 1965). States and local governments are not unanimous in this
respect. See, e.g., State v. Jacobs, 380 P.2d 998, 1002 (Ariz. 1963) (in
banc); Ruffin v. United States, 219 A.3d 997, 1005–06 (D.C. 2019). For
a recent (and exhaustive) criticism of a broad reading of kidnapping, see
Cardozo v. United States, 255 A.3d 979, 988–1000 (D.C. 2021) (Deahl,
J., concurring).
UNITED STATES V. JACKSON 13
accompanying another crime.” Id. at 427 (majority opinion).
And the combination of all four factors provides a workable
framework to ensure that the “boundaries of potential
liability” do not become “lost in infinity.” Chatwin,
326 U.S. at 464.
The government’s cases do not persuade us otherwise.
The government argued, based on a laundry list of out-of-
circuit authority, that kidnappings only require brief
holdings, and that those holdings may be incidental to other
crimes. 7 But those cases all dealt with a different issue—the
Double Jeopardy Clause—and those courts all properly
found that kidnapping does not “merge” with assault, air
piracy, robbery, or Mann Act violations. Here, we do not
ask whether kidnapping and assault “merge” as a matter of
double jeopardy; Etsitty already answered that question in
the negative. 130 F.3d at 427. Rather, we ask whether the
facts of this case (which happen to look like assault) satisfy
the elements of 18 U.S.C. § 1201(a)(2) as a matter of
statutory interpretation. The government’s double jeopardy
cases have no bearing on this question. 8
The government did cite United States v. DeLaMotte,
434 F.2d 289 (2d Cir. 1970), which is not a double jeopardy
case and approaches the issue here. The defendant in
7
See United States v. Jones, 808 F.2d 561, 565–66 (7th Cir. 1986);
United States v. Dixon, 592 F.2d 329, 339–40 (6th Cir. 1979); United
States v. Baker, 419 F.2d 83, 89 (2d Cir. 1969).
8
United States v. Lowe, 145 F.3d 45 (1st Cir. 1998), uncited by the
government, reads like the aforementioned double jeopardy cases, see
supra note 7, but it is not explicit about the double jeopardy nature of its
analysis. To the extent that Lowe is inconsistent with or disagrees with
Berry and Howard, see 145 F.3d at 52, we reject Lowe as comparatively
unpersuasive.
14 UNITED STATES V. JACKSON
DeLaMotte argued that, although his conduct “literally f[ell]
within the requirements of the kidnapping statute,” the court
should limit that statute based on Chatwin. Id. at 292.
However, the element at issue there was not the duration of
the holding, but the motive or benefit derived from the
kidnapping. See id. And the Second Circuit noted that the
defendant’s conduct was “no momentary detention in the
course of a holdup . . . but an extended, planned detention.”
Id. at 293. Thus, DeLaMotte is neither precisely on point nor
necessarily incompatible with Berry and Howard.
Accordingly, we hold that, in kidnapping prosecutions
under 18 U.S.C. § 1201(a)(2), courts should consider the
Berry factors to evaluate whether the charged conduct
constitutes kidnapping. This is a factual inquiry, taken up
during a Rule 29 motion and, if appropriate based on the
circumstances of the case, incorporated into jury
instructions. 9
Applying these factors, we conclude that the government
failed to prove beyond a reasonable doubt that a kidnapping
occurred. The first factor, the duration of the holding,
weighs against kidnapping, as a seven-minute holding would
be quite brief on the spectrum of possible kidnappings.
Indeed, the conduct here was a far cry from the “substantial
period of time” for which the defendant in Etsitty confined
the victim. 130 F.3d at 427; see also Corralez, 61 M.J.
9We do not fault the district court for failing to address the Berry
factors during Jackson’s motion for acquittal or incorporate them into the
Model Instructions, see supra note 4, as the parties failed to cite Berry at
trial. Still, Jackson sufficiently preserved his core argument—that
kidnapping requires more than a brief holding incidental to assault—in
his motion for acquittal, and reviewing the sufficiency of the evidence
de novo, see Shea, 493 F.3d at 1114, we conclude that the Berry factors
should govern our analysis.
UNITED STATES V. JACKSON 15
at 749 (finding that a five-minute confinement weighed
against kidnapping).
The second and third factors—the presence of a separate
offense and the degree to which the holding was inherent in
the other offense—strongly indicate that there was no
kidnapping. The primary conduct here was an assault
causing serious bodily injury, which inherently requires the
defendant to keep the victim in close enough proximity to
inflict the injuries. See Berry, 604 F.2d at 228 (“Necessarily
implicit in [assault] is some limited confinement or
asportation.”). The conduct here did not go beyond that. No
additional holding occurred; the assault involved no
asportation, no external restraints, no planned detention, and
no restrictions on movement beyond the beating itself. Any
pulling or dragging was inseparable from the overall assault.
See also Corralez, 61 M.J. at 749 (finding confinement
inherent in assaults where the defendant hit and choked
victim, pulled her hair, held her seatbelt to prevent her from
leaving, and pushed her from room to room).
The fourth factor, whether the holding created significant
danger independent of the separate offense, also weighs
against classifying the conduct as kidnapping. The danger
to Alvina came from the assault: the hitting, punching,
yanking, and dragging that left her bruised and bleeding. To
contrast the conduct here with more extreme examples, this
case did not involve a lengthy detention jeopardizing a
victim’s health or external restraints causing additional
injuries. Thus, to the extent that there was any confinement
separate from the assault (a dubious premise, as discussed
previously), it was not an independent source of significant
danger.
In light of these factors, no reasonable factfinder could
have found the necessary elements of kidnapping beyond a
16 UNITED STATES V. JACKSON
reasonable doubt. At best, the facts demonstrate that
Jackson assaulted Alvina, a crime for which the jury
properly convicted him. But they are insufficient, as a matter
of law, to support Jackson’s conviction for kidnapping.
Accordingly, we reverse that conviction and remand for
resentencing.
REVERSED AND REMANDED FOR
RESENTENCING.