Cardozo v. United States ( 2021 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CF-774
SERGIO W. VELASQUEZ CARDOZO, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF1-15152-16)
(Hon. Lynn Leibovitz, Trial Judge)
(Argued September 17, 2020 Decided July 29, 2021)
Matthew B. Kaplan, with whom Joseph Virgilio was on the briefs, for
appellant.
Nicholas Coleman, Assistant United States Attorney, with whom Jessie K. Liu
and Timothy J. Shea, United States Attorneys at the time the briefs were filed, and
Elizabeth Trosman, Peter Taylor, Bianca M. Forde, and Kristina L. Ament, Assistant
United States Attorneys, were on the briefs, for appellee.
Before MCLEESE and DEAHL, Associate Judges, and STEADMAN, Senior
Judge.
Opinion for the court by Associate Judge MCLEESE.
Concurring opinion by Associate Judge DEAHL at page 22.
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MCLEESE, Associate Judge: Appellant Sergio Velasquez Cardozo appeals
from his convictions for kidnapping and several sexual-abuse offenses, arguing that
the evidence was insufficient to support his convictions and that certain of his
convictions should merge. We affirm in part, reverse in part, and remand for further
proceedings.
I.
Viewed in the light most favorable to the verdict, the evidence at trial was as
follows. At around 1:00 a.m. one night in September 2016, E.R. was walking home.
A police officer patrolling in the area saw E.R. walking hurriedly, and also saw Mr.
Cardozo walking behind E.R., closing the distance between them. The officer then
saw Mr. Cardozo “bear hug” E.R. Mr. Cardozo appeared to put one or both of his
hands on E.R.’s breasts, move his hands along E.R.’s body, and then rub his hands
on E.R.’s buttocks. When Mr. Cardozo grabbed E.R., she stopped for a “split
second.” After stumbling, she shrugged her shoulders and moved her elbows back,
apparently to get away, at which point Mr. Cardozo turned around and walked in the
opposite direction.
3
E.R. described having been grabbed from behind. She had been unaware that
she was about to be grabbed, and she had no prior opportunity to indicate that she
did not wish to be touched by Mr. Cardozo. As Mr. Cardozo was holding her, she
felt a hand reach across her chest and touch her breast, and she also felt a touch on
her buttocks. E.R. moved her elbows to get away, and said “no.” Mr. Cardozo said
“[s]omething to the effect of ‘you want this’ or ‘do you want this.’” E.R. was
momentarily stopped from walking home while Mr. Cardozo grabbed her and held
her back, but after she shrugged him off she was able to resume walking.
The officer approached E.R. and asked her if she knew Mr. Cardozo. When
E.R. said that she did not, the officer stopped Mr. Cardozo and noticed that Mr.
Cardozo’s pants zipper was undone.
Mr. Cardozo testified that he had not been wearing his glasses, that he bumped
into E.R. accidentally, that he did not grab E.R. for the purpose of sexual
gratification, and that he had been unaware that his zipper was down.
The jury found Mr. Cardozo guilty of kidnapping, sexual abuse in the third
degree (touching of clothed breast), sexual abuse in the fourth degree (touching of
clothed breast), and misdemeanor sexual abuse (touching of clothed buttock).
4
II.
We turn first to Mr. Cardozo’s challenges to the sufficiency of the evidence
to support his convictions. We review de novo whether the evidence was sufficient,
viewing the evidence in the light most favorable to
sustaining the judgment, and making no distinction
between direct and circumstantial evidence. Judicial
review is deferential, giving full play to the responsibility
of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. The evidence
need not compel a finding of guilt beyond a reasonable
doubt, and it need not negate every possible inference of
innocence. Rather, proof of guilt is sufficient if any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
Fitzgerald v. United States, 228 A.3d 429, 436-37 (D.C. 2020) (brackets, citations,
ellipses, and internal quotation marks omitted). We conclude that the evidence was
sufficient to support Mr. Cardozo’s convictions for kidnapping and third-degree
sexual abuse but was insufficient to support Mr. Cardozo’s conviction for fourth-
degree sexual abuse.
5
A. Kidnapping
Among other things, D.C. Code § 22-2001 (2012 Repl.), generally referred to
as the kidnapping statute, makes it a crime to “seiz[e]” another person and “hold[]
or detain[]” that person “for ransom or reward or otherwise.” D.C. Code § 22-2001(2012 Repl.). Mr. Cardozo argues that the evidence is insufficient to support his
conviction under § 22-2001. We conclude to the contrary.
Most of Mr. Cardozo’s arguments at bottom rest on the theory that the incident
was too transitory to amount to kidnapping. That theory is foreclosed by binding
authority. See, e.g., Ruffin v. United States, 219 A.3d 997, 1005 (D.C. 2019) (“This
argument is not a new one. It has been made to us before, and we have rejected
it. . . . [T]he argument is foreclosed by binding precedent.”) (internal quotation
marks omitted) (citing Richardson v. United States, 116 A.3d 434, 438-39 (D.C.
2015) (kidnapping statute “contains no exception for cases in which the conduct
underlying the kidnapping is momentary”)).
Mr. Cardozo relies on Chatwin v. United States, 326 U.S. 455 (1946), a case
interpreting the federal kidnapping statute. In that case, the Supreme Court reversed
a kidnapping conviction, holding that there had been no evidence that the alleged
6
victim had at any point been restrained against her will. Id. at 460. The Supreme
Court also stated that kidnapping “necessarily implies an unlawful physical or
mental restraint for an appreciable time.” Id. (emphasis added). Although the
discussion in Chatwin does provide support for Mr. Cardozo’s argument, that
discussion is not a holding that is binding on us. Moreover, this court’s subsequent
cases require us to conclude in this case that the momentary nature of the seizure,
holding, or detention is not a defense to a charge of kidnapping.
Mr. Cardozo also argues that he did not commit kidnapping because his
conduct was coextensive with and incidental to his sexual assault on E.R. That
argument is also contrary to binding authority. See, e.g., Spencer v. United States,
132 A.3d 1163, 1173 (D.C. 2016) (court’s decisions “expressly den[y] that the
incidental nature of a detention is relevant to the sufficiency of a kidnapping
conviction in the District”); Richardson, 116 A.3d at 439 (“The plain language of
the statute contains no exception for cases in which the conduct underlying the
kidnapping is . . . incidental to another offense.”).
Although Mr. Cardozo argues that cases such as Ruffin and Spencer are not
controlling authority, we disagree. It is true that some of our prior cases addressing
these issues arose in the context of deciding whether kidnapping and various other
7
offenses were the same offense for purposes of the Double Jeopardy Clause. E.g.,
Parker v. United States, 692 A.2d 913, 915-16 (D.C. 1997). That circumstance,
however, does not undermine the binding nature of our conclusions as to the
elements of kidnapping. See, e.g., Seminole Tribe v. Fla., 517 U.S. 44, 67 (1996)
(“As a general rule, the principle of stare decisis directs us to adhere not only to the
holdings of our prior cases, but also to their explications of the governing rules of
law.”) (internal quotation marks omitted). In any event, both Ruffin and Spencer
involved challenges to the sufficiency of the evidence. Ruffin, 219 A.3d at 1002,
1005-06; Spencer, 132 A.3d at 1172-73.
Mr. Cardozo also argues that cases such as Ruffin and Spencer are not binding
authority because they are contrary to prior controlling authority, such as Sinclair v.
United States, 388 A.2d 1201, 1204 (D.C. 1978) (indicating that separate conviction
for kidnapping will not lie if kidnapping is coextensive with and incidental to other
crime of conviction). This court, however, overruled Sinclair and similar cases in
Byrd v. United States, 598 A.2d 386 (D.C. 1991) (en banc). See, e.g., In re D.W.,
989 A.2d 196, 206 (D.C. 2010) (Sinclair and similar cases have “been superseded
by our more recent decision in Byrd”). Those cases thus are no longer good law.
See, e.g., M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (en banc court can overrule
prior decisions of court).
8
Finally, Mr. Cardozo argues that there was insufficient evidence to permit the
jury to find that he intended to seize, hold, or detain E.R. We conclude otherwise.
The jury could reasonably infer that, when he intentionally “bear hugged” E.R. as
she was walking, Mr. Cardozo intended to seize, hold, and detain E.R., at least
briefly. See generally, e.g., Corbin v. United States, 120 A.3d 588, 591 n.3 (D.C.
2015) (“[T]he jury was entitled to infer that appellant intended the natural and
probable consequence of his acts knowingly done . . . .”) (brackets and internal
quotation marks omitted).
B. Sexual Abuse
We also conclude that the evidence was sufficient to support Mr. Cardozo’s
conviction for third-degree sexual abuse but insufficient to support Mr. Cardozo’s
conviction for fourth-degree sexual abuse.
1. Sexual contact
Third-degree sexual abuse and fourth-degree sexual abuse both require proof
that Mr. Cardozo engaged in or caused “sexual contact” with E.R. D.C. Code
§§ 22-3004 and -3005 (2012 Repl.). Sexual contact is defined as “the touching with
9
any clothed or unclothed body part or any object, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person.” D.C. Code § 22-3001(9) (2012 Repl.). The United States
thus was required to prove that Mr. Cardozo acted “with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person” when
he touched E.R.’s breast.
The evidence in this case was that Mr. Cardozo grabbed or touched E.R.’s
private areas, including placing his hand on E.R.’s breast and touching her buttocks;
that Mr. Cardozo’s pants zipper was undone when he was stopped just after he
assaulted E.R.; and that as he touched E.R., Mr. Cardozo said “something to the
effect of ‘you want this’ or ‘do you want this.’” That evidence amply supported an
inference that Mr. Cardozo’s assault on E.R. was intended to gratify or arouse Mr.
Cardozo’s sexual desires. See, e.g., Harkins v. United States, 810 A.2d 895, 901
(D.C. 2002) (jury could infer intent to gratify or arouse where defendant rubbed leg
against complainant, rubbed complainant’s thigh, touched complainant’s buttock,
and said “Give me a call sometime, baby.”); see generally Nkop v. United States,
945 A.2d 617, 620 (D.C. 2008) (intent to gratify or arouse “may be shown by virtue
of touching or attempting to touch a complainant’s private area”).
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2. Force
Turning specifically to Mr. Cardozo’s conviction for third-degree sexual
abuse, we hold that the evidence was sufficient to establish the “force” element of
that offense. The third-degree sexual-abuse statute prohibits, among other things,
engaging in “sexual contact” with another person by “using force against that other
person.” D.C. Code § 22-3004(1). In pertinent part, force is defined as “the use of
such physical strength or violence as is sufficient to overcome, restrain, or injure a
person.” D.C. Code § 22-3001(5).
As previously noted, the evidence in this case was that Mr. Cardozo “bear
hugged” E.R., causing her to stumble and momentarily stop walking forward; that
Mr. Cardozo then touched E.R.’s breast and buttocks; and that E.R. moved her arms
to get away from Mr. Cardozo. Although Mr. Cardozo’s conduct was brief, a
reasonable juror could find that Mr. Cardozo used physical strength sufficient to
overcome resistance and to restrain. See, e.g., Underdonk v. Vannoy, Civ. Act. No.
16-15, 2016 WL 7971320, at *17 (E.D. La. Sept. 12, 2016) (defendant was guilty of
aggravated kidnapping, where defendant overcame victim’s resistance by, among
other things, holding “victim in a ‘bear hug,’ preventing her from raising her arms
or getting free while he attempted to unbutton her pants”); Campos v. State,
11
No. 07-19-00207-CR, 2019 WL 6483305, at *1 (Tex. App. Dec. 2, 2019) (defendant
convicted of unlawful restraint based on “bear hug”).
3. Incapability
Fourth-degree sexual abuse can be committed in various ways. D.C. Code
§ 22-3005. In the present case, the United States prosecuted Mr. Cardozo on the
theory that Mr. Cardozo knew or had reason to know that E.R. was “incapable” of
“appraising the nature” of Mr. Cardozo’s conduct, “declining participation” in the
sexual contact, or “communicating unwillingness to engage in” the sexual contact.
D.C. Code § 22-3005(2). Mr. Cardozo argues that the evidence was insufficient to
support a conclusion that E.R. was incapable in any of these respects. We agree.
Whether Mr. Cardozo’s conduct constituted fourth-degree sexual abuse turns
in part on the meaning of the word “incapable.” Because “incapable” is not defined
in the sexual-abuse statute, we turn to ordinary language. Dictionaries define the
term in various ways. See, e.g., Incapable, Merriam-Webster.com, www.merriam-
webster.com/dictionary/incapable https://perma.cc/YGD5-WZT2 (last visited July
12, 2021) (definitions of “incapable” include “lacking capacity, ability, or
qualification for the purpose or end in view” and “lacking legal qualification or
12
power (as by reason of mental incompetence)”); Incapable, Oxford English
Dictionary Online, www.oed.com/view/Entry/93304 (last visited July 12, 2021)
(definitions of “incapable” include “[n]ot having the capacity, power, or fitness for
a specified function, action, etc.; unable” and “[d]estitute of, or deficient in, ordinary
capacity or natural ability; incompetent; without natural qualification”).
Some of those definitions seem to focus on permanent disability. It appears
to be undisputed in this case, however, that temporary circumstances not involving
long-term disability, such as being asleep or under the influence of drugs or alcohol,
can constitute “incapab[ility]” for purposes of the sexual-abuse statute. A number
of courts have reached that conclusion when interpreting their sexual-abuse statutes.
See, e.g., United States v. LaVictor, 848 F.3d 428, 456-57 (6th Cir. 2017) (person
who is asleep or intoxicated by drugs or alcohol can be “physically incapable of
declining participation in, or communicating unwillingness to engage in” sexual
act); cf. Thomas v. United States, 59 A.3d 1252, 1255 (D.C. 2013) (fourth-degree
sexual-abuse conviction based on sexual touching of sleeping person); Travis v.
State, 98 A.3d 281, 293 (Md. Ct. Spec. App. 2014) (“The common law of rape has
long recognized that engaging in sexual intercourse with a woman who is asleep is
a form of rape.”). We need not decide that issue in this case, however, because we
conclude that there was insufficient evidence of incapability even assuming that
13
incapability can arise from temporary circumstances not involving long-term
disability.
At the moment the sexual assault began, E.R. was clearly capable of
appraising the nature of Mr. Cardozo’s conduct, declining participation in the sexual
contact, and communicating unwillingness to engage in that contact. In fact, E.R.
immediately did all of those things. In that respect, this case is quite different from
those involving sleeping or heavily intoxicated victims who are incapable at the
moment a sexual assault begins. The United States argues, however, that the critical
time is not the moment the assault begins but rather some unspecified moment before
the assault begins. For several reasons, we are not persuaded by that argument.
First, nothing in the wording of § 22-3005(2) suggests a focus on incapability
at some point earlier than the moment of the sexual contact at issue. To the contrary,
the statute’s wording seems to point towards the victim’s capability at the time of
the conduct at issue, which would often be the first point at which a victim would be
in a position to appraise that conduct, decline to participate in it, or express
unwillingness to engage in it.
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Second, interpreting the statute to focus on some point earlier than the moment
of the sexual contact would create significant interpretive difficulties. For example,
it is not clear how far in advance of the sexual contact the victim’s capability should
be assessed. If Mr. Cardozo had said “I am going to sexually touch you” just before
he grabbed E.R., would he be not guilty of fourth-degree sexual abuse? Or would
his guilt depend on whether E.R. had sufficient time to physically react, by in some
way declining or expressing unwillingness?
Third, fourth-degree sexual abuse is a five-year felony. D.C. Code § 22-3005.
It is not clear why the line between it and misdemeanor sexual abuse should depend
on whether the victim had a pre-assault opportunity to decline or express
unwillingness. To illustrate concretely, imagine that E.R. had seen Mr. Cardozo at
the last second, and had been able to say “Don’t” just before Mr. Cardozo assaulted
her. On the United States’s view, Mr. Cardozo apparently would not have been
guilty of fourth-degree sexual abuse in that scenario. That seems rather
counterintuitive, because assaulting someone over their express objection does not
seem to be substantially less serious than assaulting someone by surprise.
Fourth, the United States cites no legal support for its view that fourth-degree
sexual abuse requires a pre-assault opportunity to decline or express unwillingness.
15
We have looked to statutory and case law from other jurisdictions, and we find no
clear support for the United States’s position. Some similar state statutes seem to
focus on the victim’s lack of awareness at the moment the sexual assault is being
committed. See, e.g., Alaska Stat. Ann. § 11.41.425(a)(1) (2021) (third-degree
sexual assault includes circumstance in which offender engages in sexual contact
with person who offender knows is “mentally incapable,” “incapacitated,” or
“unaware that a sexual act is being committed”) (emphasis added). The federal
sexual-abuse statute uses language similar to that of the District of Columbia’s
fourth-degree sexual abuse statute. See 18 U.S.C. § 2242(2) (sexual abuse includes
circumstance in which defendant “knowingly . . . engages in a sexual act with
another person if that other person is--(A) incapable of appraising the nature of the
conduct; or (B) physically incapable of declining participation in, or communicating
unwillingness to engage in, that sexual act”). We have found no case interpreting
the federal provision to require a pre-assault opportunity to decline or express
unwillingness. To the contrary, as far as we have been able to determine, the cases
applying this provision have involved victims who were asleep or intoxicated at the
moment the assault began, who were deemed incapable because of their young age,
or who had long-term disabilities. See, e.g., United States v. A.S., 939 F.3d 1063,
1081 (10th Cir. 2019) (holding that evidence was sufficient to support conviction for
sexual abuse where victim was asleep and intoxicated when assault began).
16
Relevant authority from other jurisdictions presents an unclear and mixed
picture. The pertinent offenses in other jurisdictions are often defined and structured
differently from the sexual-abuse provisions in this jurisdiction, and they take
varying approaches. We have already noted that some state statutes seem contrary
to the approach advocated by the United States. There also is additional support for
taking a narrower approach to the concept of incapability or related concepts. See,
e.g., Okla. Stat. Ann. tit. 21 § 1111 (2021) (“rape” includes circumstances where
“victim is incapable through mental illness or any other unsoundness of mind,
whether temporary or permanent, of giving legal consent”). There also is some
support, however, for the conclusion that lack of awareness due to surprise can
properly be viewed as a form of incapability for purposes of sexual offenses. See,
e.g., State v. Dickerson, 609 S.W.3d 839, 845 (Mo. Ct. App. 2020) (“Missouri cases
as far back as the early twentieth century acknowledge the breadth of what evidence
may support a jury’s finding that a victim is incapable of consent.”) (citing State v.
Atkins, 292 S.W. 422, 426 (Mo. 1926), for proposition that incapability to consent
can exist where victim “is awake but surprised by the defendant’s sexual assault with
no opportunity to consent”); Mont. Code Ann. § 45-5-501(1)(b)(iii) (2021) (defining
“incapable of consent” to include circumstance in which victim is “overcome by . . .
surprise”).
17
Finally, we have reviewed the legislative history of the District of Columbia’s
sexual-abuse provisions, and we find that legislative history to be inconclusive. On
one hand, the specific references in the legislative history seem to reflect a focus on
victims who are incapacitated by unconsciousness or disability. D.C. Council,
Report on Bill 10-87 at 15 (Sept. 29, 1994) (explaining that, under existing law,
element of force could not be established in cases where “the sexual act is committed
upon an unconscious person, or upon a person unable to resist or withhold consent”);
id. at 4 (stating that, under new law, “[i]ncapacitated or disabled victims would also
be protected”). On the other hand, “[i]t is not the law that a statute can have no
effects which are not mentioned in its legislative history.” Roberts v. United States,
216 A.3d 870, 879 (D.C. 2019) (internal quotation marks omitted). Moreover, the
committee report repeatedly emphasizes the intent to broaden the scope of the
sexual-abuse laws. See, e.g., Report at 1 (“Current laws and procedures in the
District of Columbia which govern sexually abusive conduct are too narrow,
inflexible[,] and restrictive -- leaving a significant number of D.C. residents
unprotected from various forms of sexual abuse.”); id. (new statute will “make the
laws governing sexually abusive conduct more inclusive, flexible[,] and reflective
of the broad range of abusive conduct which does in fact occur”); id. at 3 (under
existing law, “serious sexual offenses -- which are not covered by the existing rape
18
statute -- are being prosecuted or perceived by juries as generic crimes of a less
serious nature”).
Taking these considerations together, we conclude that the better reading of
the fourth-degree sexual abuse provision at issue in this case is that the United States
must prove that, at the moment the sexual contact began, the victim was incapable
of appraising the nature of the conduct, declining participation in that contact, or
communicating unwillingness to engage in that contact. D.C. Code § 22-3005(2).
As we have already explained, E.R. in this case was not incapable in any of those
respects at the moment the sexual contact at issue began. To the contrary, she
immediately understood that she was being sexually assaulted, declined participation
in the contact, and communicated unwillingness to engage in the contact. We
therefore hold that the evidence was insufficient to support Mr. Cardozo’s conviction
for fourth-degree sexual abuse.
III.
Mr. Cardozo claims that several of his convictions should merge because they
are the same offense for purposes of the Double Jeopardy Clause. The United States
concedes that Mr. Cardozo’s conviction for misdemeanor sexual abuse merges with
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his conviction for third-degree sexual abuse. We accept that concession. Also, we
need not address merger issues relating to fourth-degree sexual abuse, because we
have already reversed Mr. Cardozo’s conviction of that offense on other grounds.
Mr. Cardozo argues that his conviction for third-degree sexual abuse merges
with his kidnapping conviction. We conclude otherwise.
“The Double Jeopardy Clause protects against multiple punishments for the
same offense.” In re M.S., 171 A.3d 155, 158 (D.C. 2017) (internal quotation marks
omitted). In determining whether a single act can permissibly be punished under
two different statutory provisions, this court has generally adopted the elements test
established by the Supreme Court in Blockburger v. United States, 284 U.S. 299,
304 (1932). In re M.S., 171 A.3d at 158. That test “applies unless the legislature
has clearly indicated a contrary intent with respect to the particular offense at issue.”
Id. Under the Blockburger test, the question “is whether each provision requires
proof of a fact which the other does not.” Id. (internal quotation marks omitted).
To sustain a conviction for third-degree sexual abuse, the United States must
prove, among other things, that the defendant “engage[d] in or cause[d] sexual
contact with or by another person.” D.C. Code § 22-3004. Kidnapping does not
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require sexual contact. D.C. Code § 22-2001; In re D.W., 989 A.2d 196, 207 (D.C.
2010). Conversely, kidnapping requires proof that the defendant either intended to
or did “hold[] or detain[]” the victim, but third-degree sexual abuse has no such
element. Compare D.C. Code § 22-2001 with D.C. Code § 22-3004. See, e.g.,
Bryant v. United States, 859 A.2d 1093, 1108 (D.C. 2004) (holding that kidnapping
does not merge with first-degree sexual abuse; “detention is not an element of sexual
abuse”).
To the extent that Mr. Cardozo argues that merger is required because the
conduct underlying his kidnapping conviction was coextensive with the conduct
underlying his conviction for third-degree sexual abuse, we have already explained
that controlling authority is to the contrary. See supra, at 6.
For the foregoing reasons, we affirm Mr. Cardozo’s convictions for
kidnapping and third-degree sexual abuse and reverse Mr. Cardozo’s convictions for
fourth-degree sexual abuse and misdemeanor sexual abuse. The case is remanded
for the trial court to issue judgment accordingly. Because Mr. Cardozo’s sentence
for misdemeanor sexual abuse runs consecutively to his other sentences, the trial
court is free to resentence on the remaining counts if it wishes to do so. E.g., Thorne
v. United States, 471 A.2d 247, 249 (D.C. 1983).
21
So Ordered.
22
DEAHL, Associate Judge, concurring: In the District of Columbia, to grab
somebody is to kidnap them. An unwanted touching that breaks another’s stride—
be it to stop them from walking into oncoming traffic, to alert them to a dropped
wallet, or to steady oneself (or another) amidst a stumble—is punishable by thirty
years in prison. As the government puts it, kidnapping includes all contacts
“obstructing or forcing the movement of another without their consent.” I agree that
our precedents compel those remarkable conclusions, despite being at odds with the
English language. But our precedents embrace an indefensible reading of the
kidnapping statute. This is an absurdity of our own invention, not the legislature’s,
and we ought to do away with it. I write separately to urge my colleagues to
reconsider this issue en banc.
Through our untenable interpretation of the kidnapping statute, this court has
given the government license to tack a thirty-year offense onto virtually all assaultive
(and some non-assaultive) acts, many of which the legislature has deemed
misdemeanors punishable by no more than 180-days’ confinement. We can expect
even the most stalwart of innocent persons to plead guilty to those lesser offenses
whenever the government dangles this thirty-year sword over their heads. The
government insists it will keep its newly-forged sword sheathed and wield it only
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when justice demands. This case—in which it acknowledges the “technical nature”
of this split-second kidnapping—demonstrates otherwise.
I.
A.
Cardozo’s argument about how best to interpret our kidnapping statute “is not
a new one” and “is foreclosed by binding precedent.” Ante at 5 (quoting Ruffin v.
United States, 219 A.3d 997, 1005 (D.C. 2019) (citing Richardson v. United States,
116 A.3d 434, 438-39 (D.C. 2015))). For that reason alone, I agree we must affirm
his kidnapping conviction.
B.
The District’s kidnapping statute, as the majority recounts, makes it a crime
to “seiz[e]” another person and “hold[] or detain[]” them “for ransom or reward or
otherwise.” D.C. Code § 22-2001 (2021 Supp.). The critical question is what the
statute means by hold or detain. Those words, depending on their context, can have
very different meanings. Consider two statements: (1) the United States should not
detain children at the Mexican border, and (2) a chatty colleague detained me at
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work. The second usage is compatible with the fleeting notion of holding or
detaining, but not the first. A reasonable person would not speak or understand the
first statement as an assertion that children should not be obstructed or delayed at
the border, even for a passport or security check. Conversely, a reasonable person
would not understand the second statement as an assertion that the chatty colleague
held me in captivity. When we talk about detention in the first sense—like when we
talk about “enemy combatants . . . detained” in Guantanamo Bay, Cuba, 1 or the
“detention of those of Japanese ancestry” during World War II 2—we do not mean
momentary obstructions to free movement. What we mean is holding somebody
captive.
Cardozo’s conduct here admittedly fits within some ordinary meanings of the
words hold and detain. But the opposite is also true: perfectly ordinary usages of
those same words do not describe Cardozo’s conduct. See, e.g., Hold, BLACK’S LAW
DICTIONARY 848 (10th ed. 2014) (“To keep in custody”); Detention, id. at 543 (“The
act or an instance of holding a person in custody”); Detention, Webster’s Third New
International Dictionary 616 (2020) (“a holding in custody”); see also Custody, id.1
Boumediene v. Bush, 553 U.S. 723, 732 (2008).
2
Korematsu v. United States, 323 U.S. 214, 221 (1944).
25
at 559 (“imprisonment or durance of persons”). 3 There can be no serious debate that
when Congress enacted this statute proscribing kidnapping and making it punishable
by a lifetime in prison, 4 it intended to proscribe protracted custody, not brief seizures.
It is simply not a hard question. While I think any familiarity with the English
language’s concept of kidnapping compels that result, I will belabor the point with
seven reasons why our precedent is wrong.
1. The Text and Structure of the Statute
The District’s kidnapping statute prohibits “seizing, confining, inveigling,
enticing, decoying, kidnapping, abducting, concealing, or carrying away [of] any
individual by any means whatsoever, and holding or detaining, or with the intent to
hold or detain, such individual for ransom or reward or otherwise.” D.C. Code § 22-
2001. To break that down, the offense consists of: (1) a predicate act, as set forth in
the initial list of nine verbs; (2) a culminating act, “holding or detaining,” which can
3
Dictionary definitions contemporaneous with the statute’s operative
amendment, see infra Part I.B.5, are in accord. See, e.g., Hold, BLACK’S LAW
DICTIONARY 896 (3d ed. 1933) (“to keep in custody or under an obligation”);
OXFORD ENGLISH DICTIONARY, 468 (Supp. 1933) (“To detain in custody, keep under
arrest”).
4
The modern iteration of the kidnapping statute was initially passed as a
lifetime offense, S. REP. No. 72-846, at 2 (1932), though it has since been reduced
to a thirty-year offense. Infra Part I.B.4.
26
be inchoate (an “intent to hold or detain” will do); and (3) a purpose, “for ransom or
reward or otherwise.”
The statute’s text and structure indicate that the culminating act of holding or
detaining means something more than the predicate acts of “seizing,” “confining,”
“carrying away,” and the like. Otherwise there is no reason for it to be layered on
as a second and standalone requirement. Under our current interpretation, if a person
is seized, confined, or carried away, they have perforce also been held or detained,
rendering that second and separate element of the offense superfluous in the mine
run of cases. It is “one of the most basic interpretive canons” that a statute “should
be construed so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant.” See Corley v. United States, 556
U.S. 303, 314 (2009) (citations omitted). Most of the predicate act verbs—excepting
the rarely-invoked “inveigling, enticing, [and] decoying”—subsume a “holding or
detaining” under our precedent’s current interpretation of those terms. If holding or
detaining meant nothing but a mere seizure, the statute’s first two requirements could
have been captured in fewer than half its words: Congress might have said
kidnapping proscribes “seizing another, or inveigling, enticing, or decoying them
with an intent to do so . . .”
27
The statute’s purpose requirement also indicates that the detention must be of
a duration permitting the kidnapper to extract a ransom. 5 The “holding or detaining”
requirement, when originally enacted, was accompanied by the requirement that it
be done for “ransom or reward” in order to qualify as a kidnapping (the “or
otherwise” was not added until several decades later, as discussed infra in Part I.B.5).
A ransom or “reward implies something given in return for good or evil done,”
Gooch v. United States, 297 U.S. 124, 126 (1936) (interpreting federal kidnapping
statute proscribing identical conduct, see infra Part I.B.2) (emphasis added), so that
the holding or detaining must at least be of a type that could extract a ransom, even
if that is not the particular purpose of the given kidnapping. See Ransom, Webster’s,
supra, at 1882 (“a payment that releases from captivity”). The split-second
kidnapping Cardozo was convicted of does not fit that mold. A ransom takes some
5
As does its title: “Kidnapping.” “[T]he title of a statute or section can aid in
resolving an ambiguity in the legislation’s text.” INS v. Nat’l Ctr. For Immigrants’
Rights, Inc., 502 U.S. 183, 189 (1991) (citations omitted). We should presume—
absent some clear indication to the contrary—that Congress outlined the elements of
a kidnapping in a way that comports with common understanding. “While it is
possible for a statutory definition to deviate from the normal meaning of a word,
there is a strong presumption against it because ‘counterintuitive definitions are a
bane.’” Sivaraman v. Guizzetti & Assocs., 228 A.3d 1066, 1075 (D.C. 2020)
(quoting A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts,
232 (2012)).
28
time to demand and procure and Cardozo could not conceivably have extorted one
during this split-second seizure.
2. The Supreme Court’s Guidance
The Supreme Court has made clear that our current precedent is misguided.
In Chatwin v. United States, 326 U.S. 455, 456-57 (1946), the Court examined the
federal kidnapping statute, which is identical in relevant part to the District’s own. 6
Compare 18 U.S.C. § 408a (1934) (now-18 U.S.C. § 1201 (2018)), with D.C. Code
§ 22-2001; see also United States v. Wolford, 444 F.2d 876, 879 (D.C. Cir. 1971)
(“For all practical purposes, the conduct prohibited by [the District’s kidnapping
statute] is identical to that proscribed by the Federal Kidnaping Act . . . with the
exception of the requirement of the federal statute that the victim be transported in
interstate or foreign commerce.”) (footnote omitted).
6
Our kidnapping statute is in “conformity with the corresponding federal act
defining kidnapping,” Sinclair v. United States, 388 A.2d 1201, 1206 (D.C. 1978),
aside from the latter’s interstate asportation requirement, 18 U.S.C. § 1201(a)(1).
Given the parallel, “decisions of United States courts . . . provide . . . authoritative”
guidance on the issue. Sinclair, 388 A.2d at 1206; see also Corley v. United States,
416 A.2d 713, 714 (D.C. 1980) (“[W]e look to the interpretation of the federal statute
for guidance in determining the construction of our own statute since it was based
on the federal provision.”).
29
Chatwin emphasized that there was no “indication that Congress desired or
contemplated that the punishment of death or long imprisonment, as authorized by
the Act, might be applied to those guilty of immoralities lacking the characteristics
of true kidnapings.” 326 U.S. at 464. It also cautioned against a “loose construction
of the statutory language,” noting that “the broadness of the statutory language does
not permit [courts] to tear the words out of their context.” Id. Were a court “to
sanction a careless concept of the crime of kidnaping,” as our court has, “the
boundaries of potential liability would be lost in infinity.” Id. With these principles
in mind, the Court concluded that the federal kidnapping statute “necessarily implies
an unlawful physical or mental restraint for an appreciable period.” Id. at 460(emphasis added).
Even assuming Chatwin’s pronouncements are non-binding dicta, “certainly
dicta of the United States Supreme Court should be very persuasive.” Gabbs Expl.
Co. v. Udall, 315 F.2d 37, 39 (D.C. Cir. 1963) (quoting Fouts v. Maryland Cas. Co.,
30 F.2d 357, 359 (4th Cir. 1929)). In fact, we have previously endorsed this dicta.
Robinson v. United States, 388 A.2d 1210, 1212 n.5 (D.C. 1978); 7 see also United
7
In Robinson, we noted that a victim “dragged . . . approximately 63 paces”
had not been restrained for an appreciable period, 388 A.2d at 1212-13 & n.5; see
also Appreciable, Oxford English Dictionary Online,
30
States v. Sinclair, 388 A.2d 1201, 1204-05 (D.C. 1978) (issued the same day as
Robinson, and rejecting “unduly expansive” reading that contemplated “short and
momentary removals”). 8 Yet six years ago, we brushed by Chatwin’s warnings
without so much as a mention. Richardson, 116 A.3d at 439. Despite the appellants’
www.oed.com/view/Entry/9784 (last visited July 10, 2021) (“of a significant extent
or degree”).
8
In Byrd v. United States, 598 A.2d 386, 390-91 (D.C. 1991) (en banc)—a
case that was not about and did not mention the word kidnapping—we rejected the
merger analysis endorsed by Robinson and Sinclair. See Richardson, 116 A.3d at
439 (noting Byrd overruled Robinson’s approach to determining “whether offenses
should merge”). In doing so, we did not comment on those opinions’ construction
of the kidnapping statute or their endorsement of Chatwin’s pronouncement that
kidnapping requires a restraint for an appreciable period. Sinclair says expressly
that the evidence was sufficient to support a kidnapping conviction only because it
could not “be deemed a detention approximately coextensive or a necessary incident
to” another crime. 388 A.2d at 1207-08. That is an express holding on the
evidence’s sufficiency under the statute, so I disagree with the majority’s assessment
that Byrd’s merger analysis abrogated that statutory construction in any way. Ante
at 7. Because we have never revisited the issue en banc, Sinclair arguably remains
good law. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (“[N]o division of this
court will overrule a prior decision of this court . . . , such result can only be
accomplished by this court en banc.”) (footnote omitted). But Richardson rejected
this very argument, so I think it is precedent on precedent and consider Richardson
binding on the point. See generally Parker v. K & L Gates, LLP, 76 A.3d 859, 880
(D.C. 2013) (McLeese, J., concurring) (it is “an open question how the court should
proceed when faced with a perceived conflict between the holding of an earlier
decision and the holding of a later decision that has expressly addressed the earlier
decision”). This is just one respect in which I think Richardson was wrong, and this
conflict in our precedents is yet another reason to rehear this case en banc. See D.C.
App. R. 35(a)(1) (en banc rehearing favored when “necessary to secure or maintain
uniformity of the court’s decisions”).
31
heavy reliance on Chatwin in that case, 9 we concluded the “plain language of the
statute” includes “momentary” kidnappings and ignored Chatwin altogether. Id. at
439-40.
3. Avoiding Absurdity in Statutory Construction
Our precedents run afoul of our duty to avoid absurd statutory interpretations.
When one possible interpretation “would lead to absurd consequences which the
legislature could not have intended,” we ordinarily reject it. James Parreco & Son
v. D.C. Rental Hous. Comm’n, 567 A.2d 43, 46 (D.C. 1989) (citing United States v.
Brown, 333 U.S. 18, 27 (1948)); accord Holt v. United States, 565 A.2d 970, 972
(D.C. 1989) (en banc). We shun “interpretations that lead to unreasonable results.”
Grayson v. AT&T Corp., 15 A.3d 219, 238 (D.C. 2011) (en banc) (internal quotes
omitted). That is true even when doing so rejects the most natural reading of a
statute. Moten v. United States, 81 A.3d 1274, 1277 (D.C. 2013) (“[I]f a ‘literal
interpretation of the statute would lead to an absurd result, the court will follow the
legislative intent despite literal wording.’”) (quoting Haney v. United States, 473
9
See generally Brief of Appellant Walker, Richardson, 116 A.3d 434, No. 12-
CF-1409, 2013 WL 10934488, at *16-35 & n.28; Reply of Appellant Walker,
Richardson, 116 A.3d 434, No. 12-CF-1409, 2014 WL 10288770, at *2-13.
32
A.2d 393, 394 (D.C. 1984)); James Parreco & Son, 567 A.2d at 46 (when confronted
with absurdity we “do not wallow in literalism” but “follow[] that [statute’s]
purpose”). Though in this instance, rejecting the absurdity embraced by our current
precedents would in fact conform to the most natural reading of the statute. Infra
Part I.B.1-2.
As the government accurately puts it, our precedents instruct that all contacts
obstructing or forcing the movement of another without their consent are
kidnappings. The good Samaritan who grabs an inattentive person to stop them from
walking into oncoming traffic, turns out to be a kidnapper. Impatient commuters on
the Metrorail who jostle others in the mad dash for the door, kidnappers all. If you
stumble and intentionally grab another to steady yourself—or see another stumbling
and steady them—you have kidnapped them. Holding somebody back from a fight,
surprising an old friend with an unforeseen hug, grasping another to alert them to a
dropped wallet—kidnapping, kidnapping, kidnapping. Kidnappings abound in our
daily lives in the District. As if marauders in a dystopian hellscape, our past
kidnappings are too many to count, and our future transgressions are inevitable.
If someone refers to a kidnapping in STAR WARS EPISODE V – THE EMPIRE
STRIKES BACK, Darth Vader having Han Solo frozen in carbonite for about a year
33
comes to mind. But our precedents instruct that Han did some kidnapping of his
own earlier in the film: just before he kisses Princess Leia, he grabs her hand despite
her protestations to “stop that.” Or take CHINATOWN, a film in which only the astute
follower of our precedents will notice that just before uttering the iconic, “Forget it
Jake, its Chinatown,” Walsh kidnaps Jake by forcibly leading his friend away from
the scene (so that he cannot go after the film’s villain, who is spiriting away his
daughter/granddaughter after causing her mother/sister to be killed). Same with
“Frankly my dear, I don’t give a damn.” GONE WITH THE WIND. Scarlett O’Hara
kidnaps Rhett Butler—grabbing his arm so as to turn him around—before he delivers
that line. And when Michael Corleone seizes his brother by the back of the head and
plants the kiss of death on him—“I know it was you Fredo. You broke my heart.”—
it turns out he kidnapped him (he would later have worse done to Fredo). THE
GODFATHER: PART II. Somehow nobody has described those acts, in four of the most
iconic and widely-discussed scenes in cinematic history, as kidnappings. That is an
absurdity only our precedents embrace.
The government acknowledged the absurdity at trial, explaining to jurors “that
in D.C. the kidnapping statute is much broader than what we typically think of as
that classic kind of kidnapping.” It further concedes the point on appeal, describing
the “technical nature of the kidnapping here.” At trial, no witness described what
34
happened as a kidnapping; not E.R. or the arresting officer who witnessed the entire
incident.
The jury displayed persistent disbelief in the charge. After being instructed
(effectively) that a mere seizure is a kidnapping—that E.R. need not “have been held
for any particular length of time,” parroting Richardson, 116 A.3d at 439—the jury
sought further clarification. In apparent disbelief of this court’s conflation of the
statutory terms, the lay jurors sent a note asking “is there a definition of ‘seizure’ or
‘seized’ . . . relative to ‘held’ (in regard to amount of time), or do they mean the same
thing?” The trial court responded, over defense counsel’s objection, that a seizure
includes any “forceful action in which . . . [a] person is suddenly . . . grabbed,” and
that hold means “to have or maintain in one’s grasp.” The next day—still
experiencing some cognitive dissonance over the counterintuitive charge—jurors
thought the rub might lie in the phrase “forceful action,” so they asked the court to
define that. An exasperated court suggested it might respond with, “Use your
common sense” and stop “trying to avoid deciding this case by asking for definitions
of common-sense words.” 10 I am more sympathetic to this jury’s plight. We defied
10
Instead, it responded with a circular (but perfectly accurate) explanation that
“the forceful action required would be the amount of force necessary to accomplish
the seizure and holding.”
35
the definition of common-sense words when announcing that momentary seizures
are kidnappings, and the jury quite understandably resisted that absurdity until
forced into submission.
4. Statutory Penalties
The severe penalties attached to the District’s kidnapping law provide more
compelling evidence that the legislature did not intend it to apply to momentary
seizures. Kidnapping is one of the most serious offenses in the D.C. Code. It is
currently punishable “by imprisonment for not more than 30 years,” § 22-2001,
though up until fairly recently, it carried a potential of lifetime imprisonment. See
Sentencing Reform Amendment Act of 2000, D.C. Act 13-406 § 4(g), 47 D.C. REG.
7249 (Aug. 2, 2000). Kidnapping is a “Class A felony,” and is one of the few
enumerated offenses that a felony murder conviction can be predicated upon without
proving that the defendant killed the victim “purposely.” D.C. Code § 22-2101(2012 Repl.).
Yet our interpretation of the kidnapping statute transforms virtually every
battery, robbery, or groping, into a thirty-year offense, despite the legislature
determining those offenses do not merit anything close to that sentence. While the
American Law Institute opined that “the worst” abuses of kidnapping statutes punish
36
“behavior that amounts in substance to robbery or rape,” MODEL PENAL CODE §
212.1, cmts. at 13-15 (AM. LAW INST. 1960), we have swept even lesser offenses
into our statute’s reach. Cf. United States v. Etsitty, 130 F.3d 420, 428 (9th Cir.
1997) (Kleinfeld, J., concurring) (Kidnapping, under the federal statute, “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.’ . . . Were the statute read more
liberally, Congress would have empowered prosecutors at their unfettered discretion
to charge the same conduct . . . as a mere misdemeanor or a life imprisonment felony.
Such unfettered prosecutorial discretion . . . would compel risk-averse people to
plead guilty to any misdemeanor and even lesser felonies of which they were
innocent.”).
Consider simple assault, an offense punishable by no more than 180 days in
jail. D.C. Code § 22-404 (2012 Repl.). While there are varieties of assault that need
not involve a touching, the typical assault is a battery, i.e., “an intentional and
unlawful, harmful or offensive, touching or use of force upon the physical person of
another.” See Holder v. District of Columbia, 700 A.2d 738, 743 n.6 (D.C. 1997)
(citation omitted). To intentionally apply force to another against their will virtually
always obstructs or forces their movement to some degree. Even acknowledging
that an application of force need not necessarily do so—saving any discussion of
37
Newtonian physics for another day—I doubt the legislature meant to increase the
punishment for that offense sixty-fold whenever the assailed is moved by the
application of force. In fact, unlike assault, kidnapping does not require that the
touching be harmful or offensive, only that it be unconsented to. See D.C. Code §
22-404. The aforementioned good Samaritan is thus not an assailant, but a
kidnapper.
The same is true of the crime of jostling, which “contemplates a rough
physical touching of one individual by another.” In re A.B., 395 A.2d 59, 62 (D.C.
1978). Jostling is punishable by a maximum of ninety days in jail, but only if it is
done in a “public place,” and “whereby a breach of the peace may be occasioned.”
D.C. Code § 22-1321(g) (2021 Supp.) Yet an industrious prosecutor might skirt
those two minimal restrictions by charging a kidnapping, thereby lightening her
evidentiary burden and increasing the potential sentence 120-fold in the process.
Through our construction of the kidnapping statute, we have ushered
countless lesser offenses under the kidnapping umbrella and replaced their
comparatively meek and legislatively-authorized sentences with a thirty-year
authorization. See Virgin Islands v. Berry, 604 F.2d 221, 226 (3d Cir. 1979) (“The
principal danger of overzealous enforcement of kidnapping statutes is that persons
38
who have committed such substantive crimes as robbery or assault which inherently
involve the temporary detention or seizure of the victim will suffer the far greater
penalties prescribed by the kidnapping statutes.”); People v. Levy, 204 N.E.2d 842,
844 (N.Y. 1965) (acknowledging that a broad definition of kidnapping “could
literally overrun several other crimes, notably robbery and rape, and in some
circumstances assault, since detention and sometimes confinement, against the will
of the victim, frequently accompany these crimes”); State v. Stouffer, 721 A.2d 207,
215 (Md. 1998) (“We recognize the problem articulated by the Third Circuit, New
York, and California courts, among others, that a literal reading of the kidnapping
law could have the effect of transforming a host of lesser-punished sex and street
crimes into 30-year eligible kidnappings, and we do not believe that the Legislature
ever intended for [Maryland’s kidnapping law] to be read in that broad a fashion.”);
United States v. Corralez, 61 M.J. 737, 748 (A.F. Ct. Crim. App. 2005) (defendant’s
“brief holdings” of his girlfriend during two domestic disputes did not constitute
kidnapping, noting that “turning these simple assaults, each punishable by a
maximum of six months of confinement, into far more serious offenses . . . reflects
precisely the ‘careless concept of the crime’ of kidnapping that has long been
condemned as a misuse of the offense and sought to be avoided”) (quoting Chatwin,
326 U.S. at 464).
39
5. Legislative History
The legislative history confirms what the text itself indicates. Our kidnapping
statute dates back to 1933, when Congress amended a prior statute proscribing the
crime of “abduction.” It did so (alongside enacting a federal kidnapping statute) in
the immediate wake of the 1932 kidnapping and murder of twenty-month-old
Charles Augustus Lindbergh, Jr., aka, the “Lindbergh baby.” See generally Horace
L. Bomar, The Lindbergh Law, 1 LAW & CONTEMP. PROBS. 435 (1934); Robert C.
Finley, The Lindbergh Law, 28 GEO. L.J. 908 (1940).
These amendments to the District’s law made three notable changes. First,
while the prior abduction statute did not apply to kidnappings of persons over the
age of 16 unless the victim was “carried out of the District,” see S. REP. No. 72-846,
at 1 (1932), the amendments “close[d] this loophole” to bring purely intra-District
kidnappings within its scope. Id. at 2. To that end, the new statutory language
replaced “carries off or decoys out of the District” with the predicate and culminating
act requirements described infra Part I.B.1. Second, they added the restriction that
kidnappings be done for “ransom or reward,” id., denoting something more serious
than “simple abductions without any ransom demands,” Bomar, supra, at 442 n.44.
See also S. REP. No. 72-846, at 1 (describing kidnapping as “the abduction and
40
holding for ransom”) (emphasis added). Finally, they increased the maximum
penalty from seven years (for the abduction of non-minors) to “imprisonment for
life.” S. Rep. No. 72-846, at 2. The amendments were meant to target the most
heinous of abductions as epitomized by Lindbergh’s case, 11 and to punish them as
severely as possible.
And Congress was not writing on a clean slate. “Kidnapping originated as the
common law crime of ‘forcible abduction’ or ‘stealing away’ of a person from one
country to another.” Spencer v. United States, 132 A.3d 1163, 1172 (D.C. 2016); 4
William Blackstone, Commentaries on the Laws of England, at 219 (21st London
ed. 1852)). “Statutes which invade the common law are to be read with a
presumption favoring the retention of long-established and familiar principles,
except when a statutory purpose to the contrary is evident.” Pasquantino v. United
States, 544 U.S. 349, 359 (2005) (quoting United States v. Texas, 507 U.S. 529, 534
(1993)) (cleaned up). To be sure, Congress jettisoned one familiar feature of the
11
Lindbergh was taken from the second-story nursery of his family home and
his parents received at least thirteen ransom notes—typically demanding amounts
ranging from $50,000 to $100,000 for his return—in the following months. A little
more than two months after his kidnapping, Lindbergh was found dead—his head
crushed and a hole in his skull—about four-and-a-half miles from his family home.
See FBI, Famous Cases: Lindbergh Kidnapping, https://www.fbi.gov/history/
famous-cases/lindbergh-kidnapping (last visited July 5, 2021).
41
common law crime of kidnapping, namely, crossing international (or even state)
boundaries. But nothing in the text or history of our kidnapping statute suggests an
intent to do away with the protracted custody and captivity that invariably
accompanied such international abductions.
The notion that Congress intended to expand the definition of kidnapping to
cover momentary seizures in its 1933 enactment is plainly at odds with the
legislative record. As Representative Thatcher put it in the House, in describing the
offense (he thought) Congress had proscribed: “No crime is more monstrous than is
this one . . . [and] no penalty is too severe for those who perpetrate these unspeakable
offenses against society and the home.” 75 CONG. REC. 13325 (1932) (statement of
Rep. Thatcher). While the Senate ultimately rejected the death penalty and
authorized life imprisonment as the maximum penalty, it did so only after heated
debate:
Sen. Copeland: I would send a man up for life, or for two lives,
but I could never give my consent to imposing
the death penalty.
Sen. Glass: I would hang him so quickly he would not know
what struck him.
Sen. Copeland: I see you are bloodthirsty.
Sen. Glass: You are for the deliberate abduction of little
children. I am bloodthirsty because I want to
42
kill a villain like that[?] . . . You say I am blood
thirsty because I want to electrocute them[?]
...
Sen. Kean: [I]f he is electrocuted, that is the end of him, and
I am in favor of ending him then and there.
Kidnapping Act: Hearing on S. 4694 Before the S. Comm. on the District of
Columbia, 72nd Cong. 13-15 (1932). Does that sound like they are talking about
split-second bear hugs? Of course not. It took us more than eighty years after these
congressional debates and amendments to divine otherwise.
6. Constitutional Avoidance and Vagueness
As we have interpreted the offense of kidnapping, it is prone to attack as
unconstitutionally vague. While we have previously said it is not, Khaalis v. United
States, 408 A.2d 313, 362 (D.C. 1979), that was back when we rejected the
expansive reading of the statute as proscribing momentary seizures. See Robinson,
388 A.2d at 1212-13; Sinclair, 388 A.2d at 1205. The vagueness calculus changes
dramatically if kidnapping encompasses the universe of split-second grabs that
might just as readily be prosecuted as simple assaults or, more likely, go
unprosecuted altogether. Just as a judicial “clarifying gloss” might save a statute
from a vagueness challenge by “making it narrower or more definite,” Bouie v. City
43
of Columbia, 378 U.S. 347, 353 (1964), erasing that gloss can resurrect a vagueness
challenge from the dead.
“The prohibition of vagueness in criminal statutes . . . guards against arbitrary
or discriminatory law enforcement by insisting that a statute provide standards to
govern the actions of police officers, prosecutors, juries, and judges.” Sessions v.
Dimaya, 138 S. Ct. 1204, 1212 (2018) (plurality opinion). It “require[es] that
Congress, rather than the executive . . . , define what conduct is sanctionable and
what is not.” Id. “Where the legislature fails to provide such minimal guidelines, a
criminal statute may permit ‘a standardless sweep that allows policemen,
prosecutors, and juries to pursue their personal predilections.’” Kolender v. Lawson,
461 U.S. 352, 358 (1983) (citation omitted).
The legislature has provided no standards by which to measure which fleeting
grabs are 180-day offenses and which are thirty-year offenses. Instead—if our
current interpretation of the statute stands—it has left prosecutors and judges to do
its work. It would seem Congress has impermissibly “set a net large enough to catch
all possible offenders, and [left] it to the courts [and prosecutors] to step inside and
say who could be rightfully detained, and who should be set at large . . .
substitut[ing] the judicial [and executive] for the legislative department of
44
government.” Id. at 358 n.7 (quoting United States v. Reese, 92 U.S. 214, 221
(1875)); Dimaya, 138 S. Ct. at 1212 (plurality opinion) (same).
The government’s attempts to assuage this concern only exacerbate it. It
stresses that the kidnapping statute contains no mandatory minimum and so at
sentencing a judge can distinguish between those kidnappings that really ought to be
punished as such, and those that are mere technical kidnappings, like the one we
confront here. It brushes aside concerns about its virtually-unbounded charging
discretion of a thirty-year offense, pointing out that many statutes are broadly
worded and allow a similar degree of charging discretion. That is wrong. There is
no criminal statute close to as broad as the way we have interpreted this one, at least
not one with nearly as drastic penalties attached to it.
In any event, the government’s assurances are exactly what the vagueness
doctrine is designed to guard against: it precludes “hand[ing] off the legislature’s
responsibility for defining criminal behavior to unelected prosecutors and judges,”
and leaving “people with no sure way to know what consequences will attach to their
conduct.” United States v. Davis, 139 S. Ct. 2319, 2323 (2019). If you intentionally
grab another’s arm against their will, is that a 180-day assault or a 30-year
kidnapping? The legislature has offered no input on that under our interpretation; it
45
is for the executive and judicial branches to sort out. In fact, less than two years
after securing a five-year sentence for Cardozo’s kidnapping here, the government
agreed to reduce his sentence to time-served due to this kidnapping’s “technical
nature.” Our interpretation of the statute has left to prosecutorial grace what is
squarely in the legislature’s province. It is difficult to see how it could survive a
vagueness challenge, 12 and at the very least it needlessly tees up that serious
constitutional question.
With that backdrop, constitutional avoidance also compels the rejection of our
current interpretation of the kidnapping statute. See FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 516 (2009). “[W]here a statute is susceptible of two
constructions, by one of which grave and doubtful constitutional questions arise and
by the other of which such questions are avoided,” it is the court’s “duty” to “adopt
the latter.” United States ex rel. Attorney General v. Delaware & Hudson Co., 213
12
Cardozo has not raised a vagueness challenge, though its facial viability
factors into my statutory construction via the constitutional avoidance doctrine.
Should we grant rehearing en banc, we have some discretion to address issues raised
for the first time in en banc briefing, so that a vagueness challenge may yet be
properly raised in this case. Wilson-Bey v. United States, 903 A.2d 818, 844 n.45
(D.C. 2006) (en banc) (“Because the government did make the argument in its brief
to the en banc court, and because both appellants had ample opportunity to respond,
we are prepared, in the exercise of our discretion, to entertain the government’s
argument on its merits.”).
46
U.S. 366, 408 (1909); accord Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1236
(D.C. 2016).
7. Other Jurisdictions and a Variety of Better Approaches
The year after Richardson, we acknowledged “a trend away from the
District’s current [and new] conception” of kidnapping. Spencer, 132 A.3d at 1172.
But that understates the point. Never has a split-second kidnapping conviction been
affirmed before today. 13 Many jurisdictions endorse a permutation of the Model
Penal Code’s test. Id. Under that test, a detention must be, among other things, “for
a substantial period” to qualify as a kidnapping. 14 MODEL PENAL CODE § 212.1
(Kidnapping); see, e.g., State v. Wolleat, 111 P.3d 1131, 1134 (Or. 2005) (en banc)
(reading ambiguous statute to require confinement of “substantial period of time”).
13
Thwarted kidnappings or quick escapes do not counter this point, as our
statute accounts for those by asking whether there was an “intent to hold or detain”
the person in captivity. See D.C. Code § 22-2001. In cases like those, the relevant
measure is how long the intended holding or detaining was, and never has a split
second been thought long enough.
14
The Model Penal Code obviates this requirement only where the victim is
moved “a substantial distance” or if the person is removed from their residence or
place of business. MODEL PENAL CODE § 212.1 (Kidnapping). While I read the
plain language of our statute to mean that there is no kidnapping absent a detention
for a substantial period akin to captivity, moving somebody a substantial distance
tends to include detaining them for a substantial period.
47
As I have argued extensively above, a detention of a substantial duration—akin to
what I have referred to as captivity and protracted custody—is a requirement that is
not only consistent with our statute, but compelled by it.
At a bare minimum, we should require that a holding or detention be for a
substantial duration before it qualifies as a kidnapping. That standard is
administrable enough (though not ideal), as juries are routinely called upon to
determine whether something is “substantial.” When the government charges an
attempted offense, for example, the jury must determine whether the defendant took
a “substantial step” toward committing the offense. Hailstock v. United States, 85
A.3d 1277, 1283 (D.C. 2014). Likewise, determining whether defendants acted
recklessly requires juries to determine whether they acted with conscious disregard
of a “substantial and unjustified risk,” “grave risk,” or “extreme risk” of a particular
harm. Tarpeh v. United States, 62 A.3d 1266, 1270 (D.C. 2013) (“substantial,”
“grave”); Criminal Jury Instructions for the District of Columbia, No. 4.201(B) (5th
ed. rev. 2013) (“extreme”).
That interpretive gloss is likely insufficient by itself. To make the standard
more administrable, we should further draw a reasonable bright line that detentions
of less than a certain period either do not, or are presumed to not, satisfy the holding
48
or detaining element of kidnapping. 15 While picking a particular amount of time has
a legislative feel to it, the Supreme Court has done likewise when confronted with
analogously difficult line-drawing problems 16 and, in any event, our current
approach does exactly that: we have simply picked an instant. That is not only as
arbitrary a line as any other, but far worse than many because it is plainly at odds
with Congress’s intent. Imagine a statute, passed in the wake of 2010’s
“Snowmageddon,” providing that no person shall drive on the roadways after a
“blizzard or snowstorm” until those roadways have been reasonably cleared. If the
statute does not define “blizzard or snowstorm,” how are judges to interpret those
terms if pressed to define them? They might do so loosely, such as “substantial
snowfall in a short timeframe,” or—if administrability and notice concerns are
15
New York, for example, treats detentions “for a period of more than 12
hours” as fitting within its harshest 20-year first-degree kidnapping offense. N.Y.
Penal Law § 135.25(2). Absent that, shorter detentions may qualify as first-degree
kidnappings only if the offender intends to extort a ransom or reward from “a third
person”—a caveat necessary to preclude every robbery from being a kidnapping—
or if “[t]he person abducted dies during the abduction.” Id. at § 135.25(1), (3). That
is in far better alignment with our own statute than our current precedents.
16
See, e.g., Maryland v. Shatzer, 559 U.S. 98, 110 (2010) (“We think it
appropriate to specify” a particular time after which the invocation of the right to
counsel under Miranda dissipates; “It seems to us that period is 14 days.”); County.
of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991) (stating government has 48 hours
to bring a person arrested without a warrant before a court to establish probable
cause). It is no answer that Shatzer and McLaughlin were policing constitutional
rather than statutory requirements, for we too would be policing the constitutional
line that criminal statutes not be impermissibly vague.
49
weighty, as they are here—they might draw a clear and reasonable line, like snowfall
of five-or-more inches over any twelve-hour period. It would be indefensible to
demand a bright line, avoid drawing one for fear of imprecision (or “legislating from
the bench”), and then declare that a blizzard or snowstorm entails any bit of snow.
That would be contrary to the plain meaning of those words and the surrounding
statutory text (roads will need to be cleared, after all); it also engages in the very line
drawing it purported to reject while drawing the line in an unreasonable place. That
is the model we have followed when interpreting our kidnapping statute. As surely
as a snowflake is not a blizzard, momentary seizures are not kidnappings.
Even more jurisdictions adhere to a “non-incidental to another offense”
requirement, and as I argue infra in note 8, there is a viable argument we remain
among them. See Berry, 604 F.2d at 225-26 (“modern approach,” as reflected in
“the emerging body of law, and the all-but-unanimous view of the commentators,”
is to construe kidnapping statutes to not sweep in “lesser or different offenses, of
which temporary seizure or detention played an incidental part.”); see also State v.
Salamon, 949 A.2d 1092, 1119 (Conn. 2008) (collecting cases). I admittedly do not
see a basis for this requirement in our statute’s text, and it strikes me as non-
administrable. Though that is only a tentative view, reached without the benefit of
briefing on the matter.
50
Jurisdictions interpreting federal analogs to our kidnapping statute tend to
adopt a multi-factor test incorporating the factors discussed above. In those
jurisdictions, whether a seizure rises to the level of a kidnapping depends on a host
of considerations: “(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.” Berry, 604 F.2d at226–27; see also United States v. Howard, 918 F.2d 1529, 1534 (11th Cir. 1990)
(same).
The particular proposal aside, the bottom line is: We could not do any worse.
A “substantial period of time” test—even sans my preferred bright line or
presumption—would be far superior to our current approach. As would the non-
incidental and multi-factor tests adopted by other jurisdictions. It is inconceivable,
based on all of the factors above, that Congress intended to proscribe momentary
seizures through this kidnapping statute. Any administrability concerns are
negligible—not to mention easily addressed—when the perfectly administrable
approach we currently have regularly yields incorrect results, as it does here. The
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persistence of hard questions is not a good reason to get the easy ones wrong. 17
Under our current precedents, as vividly demonstrated by this case, we are getting
the easy ones wrong.
* * *
Our kidnapping precedents are of enormous impact and merit our en banc
review. D.C. App. R. 35(a)(2) (en banc review generally reserved for “question[s]
of exceptional importance”). It should go without saying that an incorrect statutory
interpretation that would routinely transform misdemeanors into thirty-year
offenses, contrary to the legislature’s plain intent, is of exceptional importance. Its
most pernicious impact is rarely confronted by the judges on this court, however,
because it comes at the pre-trial plea bargaining phase. We have given the
government carte blanche to append a kidnapping charge to virtually any assaultive
act, and some non-assaultive ones. This is not the routine prosecutorial charging
17
That is particularly true when we are getting them wrong in favor of
imprisoning people that Congress did not intend to punish under this statute. It is “a
presupposition of our law to resolve doubts in the enforcement of a penal code
against the imposition of a harsher punishment.” Bell v. United States, 349 U.S. 81,
83 (1955); see also United States v. Bass, 404 U.S. 336, 348 (1971) (lenity
“embodies ‘the instinctive distastes against men languishing in prison unless the
lawmaker has clearly said they should’”) (quoting H. Friendly, Mr. Justice
Frankfurter and the Reading of Statutes, in BENCHMARKS 196, 209 (1967)).
52
discretion the government describes. I can think of no more important issue in need
of revisiting.