United States v. Guidry

United States Court of Appeals
Fifth Circuit
F I L E D
CORRECTED
July 18, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 05-50977
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAUN JABBAR GUIDRY,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Defendant Dwaun Guidry was charged with depriving Denise
Limon of her civil rights by kidnapping (Count One) and with
violating her constitutional right to bodily integrity by
sexually assaulting her (Count Two), both in violation of 18
U.S.C. § 242; carrying a firearm “during and in relation to” the
sexual assault of Limon, in violation of 18 U.S.C. § 924(c)(1)(A)
(Count Three); and conspiring to deprive five other women of
their due process right to bodily integrity, in violation of 18
U.S.C. § 241 (Count Four). After trial, the jury found him
guilty on all counts. On appeal, Guidry makes five arguments:
1
(1) the district court improperly admitted the testimony of Julie
Ristaino accusing Guidry of extrinsic sexual assault offenses of
which he was not convicted; (2) the prosecutor made remarks in
his closing argument amounting to reversible error; (3) the
evidence was insufficient to prove that Guidry conspired to
deprive the five victims of their Fourteenth Amendment rights;
(4) the evidence was insufficient to prove that Guidry carried a
firearm “during and in relation to” the rape of Denise Limon,
because Guidry carried a gun in his gunbelt as a matter of
course; and (5) the kidnapping enhancement in 18 U.S.C. § 242
cannot be applied to Guidry because he did not transport or
attempt to transport Limon across state lines. For the
forthcoming reasons, we AFFIRM.
I. FACTUAL SUMMARY
Guidry was a police officer in the small town of Balcones
Heights, Texas and typically worked the night shift from 10:00
p.m. to 6:00 a.m., when often there were only two patrol officers
on duty. The two incidents giving rise to the charges for which
Guidry was convicted occurred while Guidry was on duty. First,
he sexually assaulted five women at the Balcones Heights Police
Station; and, second, he raped Denise Limon after a routine
traffic stop.
A. Sexual Assault at the Balcones Heights Police Station
The sexual assault at the Balcones Police Station gave rise
2
to Count Four, which alleged that Guidry conspired to deprive
five women of their due process right to bodily integrity.
Guidry and his partner Rolando Trevino arrested Denise Almodovar,
Sarah Adams, Candace Ramirez, Becki Taylor, and Lindsey Valsamaki
at 1:00 a.m. on November 24, 2002, when a local gas station
attendant reported that the women were visibly intoxicated when
they arrived in separate cars at the station. The women had each
consumed over 11 alcoholic drinks that night and acknowledged
they were drunk. Guidry and Trevino handcuffed the five women,
placed them in their patrol car, and drove them to the Balcones
Heights police station. The only other person at the police
station, besides the two officers and the five women, was the
dispatcher, who sat in a secure booth in a separate part of the
police station. The officers followed normal booking procedure
by taking the women’s personal belongings, fingerprinting and
photographing them, and placing them in holding cells. When the
officers were photographing the women, they allowed the women to
take “stupid mug shots.” They also allowed the women to be in
one cell together.
After a while, Guidry and Trevino led the five women out of
their cell and into the patrol workroom, which is one of few
rooms without video surveillance. Generally, adult arrestees are
not permitted in the patrol workroom. The officers informed the
women that they were not going to charge them and were going to
“pretend like it never happened.” Guidry ripped up the arrest
3
papers. Guidry said, “[Y]ou are all going to be free to go, but
it will take a while,” and asked what the women were “going to do
for” him and Trevino in return for letting them go without filing
criminal charges.
Guidry pulled Becki Taylor to him and kissed her on the
mouth. At trial, Taylor testified that this advance was
unwanted. The officers told the women to dance for them and
turned on the workroom radio. The women danced. Taylor and
Adams called their friend Will Thompson, who had also been
drinking with them, to pick the women up at the police station.
The officers then made sexual advances on the five women.
Trevino moved behind Candace Ramirez and reached his hand down
her jeans and underwear. Ramirez turned around to find that
Trevino had unzipped his pants. Trevino forced Ramirez’s hand to
touch his exposed penis. When she resisted, he forced her head
towards his penis. Ramirez resisted and extricated herself. She
moved closer to her friend Valmasaki, who was talking to Guidry.
Guidry turned to Ramirez and forced her to kiss him. Meanwhile,
Trevino moved on to Almodovar and Adams. Almodovar testified
that Trevino shocked her by putting his hands down her pants and
touching her genital area. Adams stated that Trevino reached
around from behind her and put his hand down her pants while he
tried to pull his penis out of his pants.
At some point, Guidry told Valsamaki to go with him to
retrieve the women’s personal belongings. Instead, Guidry led
4
her to a bathroom, where he opened the door, unzipped his pants,
pulled out his penis, and attempted to force her to grab it. She
resisted, and Guidry masturbated in front of her. Valsamaki
testified that she did not feel she could run away because “[h]e
had his gun and I was singled out. I was by myself. I didn’t
know what door led out. I couldn’t go anywhere.”
Thompson arrived to pick the women up, and the officers
returned their personal belongings. Three of the women walked
out of the building. Thompson later testified that the women
“were pretty shocked” and that “they had tears in their eyes and
they were running down their face.” Taylor and Adams, meanwhile,
did not want the officers to retain the photographs they took of
the women and asked the officers to give them the pictures. The
officers told them to “come back in here.” The two returned to
the patrol workroom. Guidry put Adams in a chair, undid her
pants, and put his tongue on her vagina. Trevino took a picture
of the event with a Polaroid camera. Trevino then did the same
thing to Taylor while Guidry took a photograph. Taylor
testified, “I didn’t want to be in there all. . . . I just wanted
to leave.” The women expressed their desire to leave, and the
officers led them out of the station saying, “Nobody is going to
know about this.” Taylor took the picture of Guidry and Adams.
Taylor gave Trevino her telephone number, and testified that she
was afraid if she refused the officers would take them back into
the patrol room.
5
Afterward, Guidry wrote up an incident report, noting the
women’s detention. No criminal charges were filed against the
five women. Guidry then went to see the police dispatcher, Lee
Faz, to ask him what he had seen on the video surveillance that
night. Faz said he did not see anything, and Guidry asked to
borrow the surveillance tape. This is a departure from normal
procedure, which requires that the surveillance tapes be stored
in the dispatch area.
The five women filed a civil lawsuit, which they settled.
Upon learning of the lawsuit, the City of Balcones Heights asked
the Texas Rangers to investigate the assault. The surveillance
tape, the fingerprint cards, and the mug shots were never found,
except for the photo Taylor retrieved before leaving the police
station, which depicted Guidry in police uniform with his head
between Adams’s legs. The Texas Rangers executed two federal
search warrants to search for the missing evidence at Guidry’s
home. Guidry admitted he had destroyed the pictures (after first
showing them to other officers), fingerprint cards, and arrest
documentation. According to Texas Ranger Skylor Hearn, Guidry
said, “Man, I don’t keep trophies. When I knock someone down, I
don’t keep panties or pictures. . . . I am married. I don’t need
no pictures floating around.” Although his incident report
stated the women were “too intoxicated,” and noted that they had
“slurred” speech, he told Hearn that no charges were filed
against the five women because they were “stone cold sober” when
6
they arrived at the police station. Guidry did not deny engaging
in sexual activity with the women and said it was consensual.
B. Sexual Assault of Denise Limon
The sexual assault of Denise Limon gave rise to Count One,
depriving Limon of her civil rights by kidnapping; Count Two,
violating her constitutional right to bodily integrity; and Count
Three, carrying a firearm “during and in relation to” the sexual
assault of Limon.
Approximately one month after the sexual assault at the
Balcones Heights police station, Guidry raped Denise Limon. On
December 19, 2002, between 1:00 a.m. and 3:00 a.m., Denise Limon
and her fiancé Ricardo Alvarez were arguing while driving home
from a friend’s party. Alvarez pulled the car over, and the two
got out of the car and continued arguing. They got back in the
car to continue their drive home and noticed a police vehicle was
following them. Alvarez was nervous because he had outstanding
traffic warrants, did not have his driver’s license, and had been
drinking. The officer signaled for Alvarez to pull over, and
Alvarez complied. When the officer approached the car, Alvarez
gave him a copy of his license. The officer looked at it and
gave it back to him without further investigation. The officer
told Alvarez that he received a report of a domestic dispute and
that Limon could not remain in the car. He took Limon and put
her in the back of his patrol car. The officer told Alvarez “to
go home and to wait by the phone” for Limon’s phone call.
7
The officer drove Limon to a dark, wooded area, parked the
car, unzipped his pants, pulled his penis out, and opened the
driver’s side back door. He pushed Limon down, removed her
pants, and raped her. The officer wore his gun belt throughout
the rape. Limon heard the gun hitting the side of the car while
the officer was raping her. The officer stood up, turned away
from her, “moaning and grabbing himself.” Limon quickly
collected her clothes and ran home. She told Alvarez and
Alvarez’s mother that the officer had raped her. Limon refused
to call the police that night, fearing the officer who raped her
would come to her house. The next day Limon reported the crime
to the police. The police took statements from Limon and
Alvarez, and took Limon to a hospital for a sexual assault
examination. Both Limon and Alvarez described her assailant as a
bald or shaved-headed black police officer with “pronounced
lips.” Limon described him as weighing 200-pounds and standing 5
feet 5 inches. Limon believed her assailant was a San Antonio
police officer, and that the police vehicle had a laptop computer
in it. Laptop computers are common in San Antonio Police
Department (“SAPD”) cars, but not in Balcones Heights police
vehicles. Balcones Heights police vehicles do have electrical
equipment other than laptop computers in them. Based on Limon’s
account, the investigating officers first showed Limon a
photographic line-up with SAPD officers. Limon stated that her
assailant was not in the photos. The investigating officers
8
expanded their search to surrounding police departments and local
security guards. When the investigating officers learned that
Guidry matched the physical description Limon had provided, and
then learned that he had been on patrol the night of the rape,
they included Guidry’s photo in a second photographic line-up.
Limon identified Guidry as the rapist, as part of a photographic
line-up and also in the courtroom.
Guidry’s police vehicle was impounded and searched by a
forensic team. They found a hair in the backseat that had
similar characteristics to a hair sample taken from Limon. They
also found DNA in the backseat that matched Limon’s DNA.
Guidry’s DNA was not found on Limon’s body or clothing. The DNA
expert testified that DNA would not necessarily be found on
Limon’s body or clothing.
At some point, Guidry telephoned his friend Terry Moten who
worked in the Sex Crimes Unit of SAPD and told him he had been
charged with rape. Guidry indicated to Moten that he had sex
with Limon, but claimed it was consensual. After Guidry’s
arrest, he phoned Moten to inquire if their previous conversation
in which he admitted having sex with Limon was on or off the
record.
II. PROCEDURAL HISTORY
Guidry pled not guilty to all counts. The jury trial began
on January 19, 2005. On January 21, Julie Ristaino contacted the
9
Assistant United States Attorney (“AUSA”) prosecuting the case
with information about Guidry. She had learned from a website
that Guidry was charged with raping Limon, and an attorney had
advised her to contact the United States District Court Clerk’s
Office in order to contact the AUSA handling the case. When
Ristaino and the AUSA met, she told him that Guidry had sexually
assaulted her while he was on duty.
The Government sought admission of Ristaino’s testimony to
show Guidry’s propensity to engage in such conduct. The
prosecutor called defense counsel on the day he met Ristaino,
faxed a written description of her testimony to defense counsel
the next day, and filed a notification and memorandum with the
court on the next business day, Monday, January 24, 2005.
On January 25, the district court held a preliminary hearing
outside of the jury’s presence to hear from Ristaino and to
determine whether to admit her testimony under either Federal
Rule of Evidence 404(b) or Rule 413. The district court
determined that the Government had established good cause for
excusing the 15-day notice period provided by Rule 413(b). It
said:
The Court having held a preliminary hearing outside of the
presence of the jury and having heard the witness’s
testimony finds that . . . a jury could reasonably find by a
preponderance of the evidence that the other act did,
indeed, occur. And that Rule 413 evidence, it is
Congressional intent to allow such testimony [sic].
The district court attempted to mitigate the lack of prior
10
notice by requiring the Government to procure Ristaino’s
employment records and provide them to Guidry’s defense counsel,
to subpoena Ristaino’s former supervisor and her ex-boyfriend for
defense counsel to interview them, and to secure the timecards
and attendance logs to determine if Guidry was on duty the night
on which Ristaino alleged the assault took place. The
prosecution complied that afternoon. The court also stated that
it would permit defense counsel to recall Ristaino if there was
insufficient time for investigation.
Later that day, the Government put Ristaino on the stand.
She testified that during her 6:00 p.m. to 2:00 a.m. shift as a
veterinary technician in Balcones Heights, Guidry had fondled her
at her place of employment. After that incident, he often waited
until the end of her shift at 2:00 a.m. to pull her vehicle over
in traffic stops and would proceed to make sexually suggestive
comments while fondling Ristaino over her clothing.
Ristaino said that, on approximately October 12, 2005, she
was driving home from her shift when Guidry pulled her over in an
isolated area. In uniform and badge, and carrying a gun, he
entered Ristaino’s car through the front passenger door and
forced Ristaino to perform oral sex on him. Ristaino stated that
the contact was nonconsensual, but she did not resist because she
was intimidated and physically overpowered.
Immediately after her testimony, the district court gave the
11
jury an instruction limiting the consideration of Ristaino’s
testimony to the question of Guidry’s state of mind or his
intent. Meanwhile, Ristaino’s employer was unsuccessful in
locating a more detailed version of Ristaino’s employment
records. Defense counsel requested a recess to investigate
further whether Ristaino’s and Guidry’s shifts coincided. The
district court denied defense counsel’s motion for a recess.
Defense counsel called Ristaino’s employer to the stand, who
confirmed that Ristaino generally worked from 6:00 p.m. until
2:00 a.m. The district court again gave a limiting instruction
regarding Ristaino’s testimony, restricting the use of the
evidence to the question of intent.
The jury found Guidry guilty of all four counts. A
presentence report set Guidry’s offense level at 43, which
carries a recommended sentence of life imprisonment for Counts
One and Two. The district court departed from the United States
Sentencing Guidelines (“Guidelines”) and sentenced Guidry to
concurrent terms of 405 months imprisonment on Counts One and
Two. The district court followed the Guidelines’ recommendation
on the other counts, and sentenced Guidry to a consecutive term
of 60 months imprisonment on Count Three, and a concurrent term
of 120 months imprisonment on Count Four.
III. DISCUSSION
A. Ristaino’s testimony
12
Guidry argues that the district court’s admission of
Ristaino’s testimony leads to reversible error for three reasons.
First, he contends it violated Federal Rule of Evidence 413,
which he sees as limiting propensity evidence to extrinsic sexual
misconduct that is the subject of a prior conviction. Second,
Guidry contends that the district court’s refusal to exclude
Ristaino’s surprise testimony alleging extrinsic sexual
misconduct and its refusal to grant additional time to the
defense to counter the testimony violated Federal Rule of
Evidence 403 and deprived him of his right to present a defense.
Third, he argues that the scope of the Government’s closing
remarks exceeded the limitations placed by the court on the
jury’s consideration of the testimony and deprived him of a fair
trial.1 Guidry claims this court should vacate his convictions
and remand.
In a criminal case, we review the district court’s
evidentiary rulings under an abuse of discretion standard.
United States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th Cir.
2002) (“We review a district court’s decision to admit or exclude
evidence for abuse of discretion.”). We review de novo a court’s
interpretation of law. United States v. Bell, 367 F.3d 452, 465
(5th Cir. 2004).
1
This latter argument is addressed in Part III.B, infra.
13
1. Application of Rule 413
We have not previously examined the issues presented with
regard to the application of Rule 413. Congress passed Rules
413, 414, and 415 as part of the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, § 320935, 108 Stat.
1796, 2135-37 (1994).2 Rule 413 relaxes the longstanding bar to
propensity evidence restricted by Rule 404(b) and allows the
admission of such evidence in trials that involve charges of
sexual misconduct. See United States v. Sioux, 362 F.3d 1241,
1244 (9th Cir. 2004); Johnson v. Elk Lake Sch. Dist., 283 F.3d
138, 151 (3d Cir. 2002); United States v. Enjady, 134 F.3d 1427,
1431 (10th Cir. 1998).
In order for evidence of “another offense of sexual assault”
to be admitted under Rule 413, the district court has to
determine that the act satisfied the definition provided by Rule
413(d). Federal Rule of Evidence 413 in pertinent part states:
Evidence of Similar Crimes in Sexual Assault Cases
(a) In a criminal case in which the defendant is accused of
an offense of sexual assault, evidence of the defendant’s
commission of another offense or offenses of sexual assault
is admissible, and may be considered for its bearing on any
matter to which it is relevant.
. . .
(d) For purposes of this rule . . . “offense of sexual
2
Rules 413, 414, and 415 provide exceptions to the general
prohibition on character evidence in cases involving sexual
assault and child molestation. Rules 413 and 414 apply to
criminal proceedings, and Rule 415 applies to civil trials.
14
assault” means a crime under Federal law or the law of a
State (as defined in section 513 of title 18, United States
Code) that involved–
(1) any conduct proscribed by chapter 109A of title 18,
United States Code;
(2) contact, without consent, between any part of the
defendant’s body or an object and the genitals or anus any
part of another person;
(3) contact, without consent, between the genitals or anus
of the defendant and any part of another person’s body;
(4) deriving sexual pleasure or gratification from the
infliction of death, bodily injury, or physical pain on
another person; or
(5) an attempt or conspiracy to engage in conduct described
in paragraphs (1)-(4).
FED. R. EVID. 413 (emphases added). Guidry contends that the
terms “offense” and “crime” in the statute necessarily require
conviction for admissibility.
Where a “statute’s language is plain, ‘the sole function of
the courts is to enforce it according to its terms.’” United
States v. Ron Pair Enters., Inc. 489 U.S. 235, 241 (1989)
(quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).
“The plainness or ambiguity of statutory language is determined
by reference to the language itself, the specific context in
which that language is used, and the broader context of the
statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337,
341 (1997) (citing Estate of Cowart v. Nicklos Drilling Co., 505
U.S. 469, 477 (1992)).
The plain language of Rule 413 does not support Guidry’s
argument. Black’s Law Dictionary defines the term “crime” to
mean “[a] social harm that the law makes punishable.” BLACK’S
15
LAW DICTIONARY, 377 (7th ed. 1999). It defines “offense” as “[a]
violation of the law,” and alternatively, “a crime.” Id. at
1108. Thus, crime and offense are interchangeable terms, to
describe a harm that may be punishable by law. A conviction is
not required.
Guidry argues that the phrase “commission of an offense”
limits the admissible evidence to that which is proven by
conviction. But “commission” is defined as the “act of doing or
perpetrating.” BLACK’S LAW DICTIONARY 286 (8th ed. 2004). The
Rule provides no basis for limiting admissibility of evidence of
the act of doing or perpetrating other sexual offenses only to
those acts proven by conviction. Accordingly, the evidence of
the act of doing or perpetrating an offense is admissible under
the Rule.
Guidry contends that, at best, the language in Rule 413 is
ambiguous. He thus argues that the rule of lenity applies and
requires any ambiguity in a criminal provision to be resolved in
the defendant’s favor. However, his argument fails when
considering the context of Rule 413. See Shell Oil, 519 U.S. at
341. The conclusion that the terms “offense” and “crime” in Rule
413 do not necessitate conviction is supported by the plain
language and interpretation of Rule 404(b) to include uncharged
16
conduct.3 See Sioux, 362 F.3d at 1246 (“This understanding of
Rule 413's plain language finds further support in the prevailing
interpretation of the exceptions to Rule 404(b).”). The
interpretation of Rule 404(b) and the similarity between it and
Rule 413 militates against the application of the rule of lenity,
because the interpretation of Rule 413 advocated by the
Government is consistent with language and the history of the
statute. See Crandon v. United States, 494 U.S. 152, 160 (1990).
Even if we were unable to discern congressional intent from
the plain language, the legislative history suggests Congress
intended to allow admission of other uncharged sexual offenses.4
3
Rule 404(b) provides in pertinent part,
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident . . . .”
FED. R. EVID. Rule 404(b).
4
The sponsoring members of Rule 413 legislation, Senator
Dole and Representative Molinari, made statements that explicitly
assert that the new rule applies to uncharged conduct.
In contrast to rule 404(b)’s general prohibition against
evidence of character or propensity, the new rules for sex
offense cases authorize admission and consideration of
evidence of an uncharged offense for its bearing “on any
matter to which it is relevant.” . . .
The practical effect of the new rules is to put evidence of
uncharged offenses in sexual assault and child molestation
cases on the same footing as other types of relevant
17
Because sexual assault allegations are often reduced to a
swearing match, Congress aimed to assist the fact finder’s
assessment of credibility through allowing evidence of the
defendant’s extrinsic sexual misconduct as character or
propensity evidence. See Enjady, 134 F.3d at 1431. Congress
intended to expand the admissibility of character or propensity
evidence relating to sexual assault by creating a broad exception
to the prohibition in Rule 404(b). See Sioux, 362 F.3d at 1244;
Elk Lake Sch. Dist., 283 F.3d at 151; Enjady, 134 F.3d at 1431.
Rule 404(b) permits evidence of prior bad acts, including
uncharged conduct, to be admitted in a criminal trial, as long as
it is not used to show character or propensity. Rule 413 expands
on Rule 404(b) in that it allows the admission of other sexual
misconduct in order to show propensity. Consistent with its
expanding on Rule 404(b), Rule 413 also allows the admission of
relevant uncharged conduct. See Elk Lake Sch. Dist., 283 F.3d at
151 (“Congress intended to allow admission not only of prior
convictions for sexual offenses, but also of uncharged
conduct.”); United States v. Withorn, 204 F.3d 790, 794 (8th Cir.
evidence that are not subject to a special exclusionary
rule.
140 Cong. Rec. H8991 (daily ed. Aug. 21, 1994) (statement of Rep.
Molinari); 140 Cong. Rec. S12990 (daily ed. Sept. 20, 1994)
(statement of Sen. Dole).
18
2000) (finding that the district court did not abuse it
discretion in allowing evidence of uncharged conduct); United
States v. Mann, 193 F.3d 1172, 1173 (10th Cir. 1999) (“[C]ourts
are to ‘liberally’ admit evidence of prior uncharged sex offense
. . .” (quoting United States v. Meacham, 115 F.3d 1488, 1492
(10th Cir. 1997) (alteration in original)); United States v.
Norris, 428 F.3d 907, 913-14 (9th Cir. 2005) (finding evidence
that defendant had also molested victim’s sister was properly
admitted under Rule 414). We join our sister circuits in holding
that, subject to other admissibility considerations, Rule 413
allows the admission of other sexual assaults including those
that are the subject of uncharged conduct.
2. Rule 403 balancing test
Guidry next contends that the district court erred in
allowing Ristaino’s testimony under Rule 403. Rule 403 states in
relevant part that “evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice . . . .” FED. R. EVID. 403. Even if the district
court preliminarily found Ristaino’s evidence admissible under
Rule 104(b),5 it could have still excluded it under Rule 403.
5
The text of Rule 413 is silent as to the appropriate
standard for admitting evidence of past acts of sexual assault.
The district court followed the Tenth Circuit in allowing
Ristaino’s testimony. The Tenth Circuit held that to be
admissible, “the district court must make a preliminary finding
that a jury could reasonably find by a preponderance of the
19
See Elk Lake Sch. Dist., 283 F.3d at 155. A district court must
apply the Rule 403 balancing test when considering the admission
of evidence under Rule 413, and in the instant case, it did.
Guidry argues that the value of Ristaino’s testimony is
substantially outweighed by the prejudice to him because the
extrinsic evidence of Ristaino’s sexual assault was not the
subject of a conviction. He also claims the district court
abused its discretion when it denied defense counsel’s motion for
recess. With respect to Guidry’s first concern, as discussed
supra, Rule 413 does not require evidence of other sexual
assaults to be the subject of conviction. As to Guidry’s second
concern, the district court indicated it applied Rule 403
balancing when it mitigated the prejudicial effects of allowing
Ristaino’s testimony without the notice otherwise required by
Rule 413(b).
Despite the relevance of Ristaino’s testimony,6 Guidry
evidence that the [extrinsic sexual misconduct] occurred.”
Enjady, 134 F.3d at 1433. The Third Circuit similarly has used
this standard for screening uncharged conduct. Elk Lake Sch.
Dist., 283 F.3d at 152-53. Citing to Huddleston v. United
States, 485 U.S. 681 (1988), the Third Circuit concluded that
Huddleston’s standard for screening uncharged conduct applies to
Rule 413, because of the similarity between Rules 404(b) and 413.
Elk Lake Sch. Dist., 283 F.3d at 152-55.
6
The district court’s decision to admit Ristaino’s
testimony was sound when considering the similarity between her
testimony and the charged conduct. See United States v. Carter,
410 F.3d 1017, 1022 (8th Cir. 2005) (upholding the admission
evidence of other sexual assaults where there were similarities
20
emphasizes that he received no pretrial notice, and, therefore,
her testimony’s relevance is substantially outweighed by the
prejudice to him. While Rule 413(b) generally requires fifteen
days notice, the district court has discretion where there is
good cause. Rule 413(b) reads:
In a case in which the Government intends to offer evidence
under this rule, the attorney for the Government shall
disclose the evidence to the defendant, including statements
of witnesses or a summary of the substance of any testimony
that is expected to be offered, at least fifteen days before
the scheduled date of trial or at such later time as the
court may allow for good cause.
FED. R. EVID. 413(b). The Government had good cause for not
providing pretrial notice. It did not learn of Ristaino’s
testimony until after the trial had already started. The
Government alerted defense counsel to Ristaino’s testimony on the
same day it learned of it and faxed the content of the testimony
the next day. In fact, defense counsel had at least three days
between the incidents); Elk Lake Sch. Dist., 283 F.3d at 156
(noting the probative value of past acts that are “sufficiently
similar to the type of sexual assault allegedly committed by the
defendant”); Mann, 193 F.3d at 1174 (“Uncharged prior sexual acts
are probative if they are similar to the charged crimes.”). The
similarities between Guidry’s conduct toward Ristaino and the
charged offenses heightens the probative value of her testimony
because in all three instances Guidry used his official position
and its accoutrements, including his police car, his badge, and
his gun, to apprehend women during his night shift, isolate them,
and then force them to perform sexual acts with him. In
addition, Ristaino’s testimony indicates that she was sexually
assaulted within two months of Guidry’s sexual assault of the
five women at the police station. The close temporality of the
instances further heightens the probative value of Ristaino’s
testimony.
21
to prepare before the hearing on the matter. In response to
defense counsel’s concerns that Rule 403 balancing in favor of
admission was compromised by the late notice given to defense
counsel, the district court said:
But the relevance I do find . . . is although there are some
factual dissimilarities between the events, there is enough
similarity in other respects that I am going to allow this
in. Now, let me try to cure what other defects may arise
here. We are going to proceed today. We are not going to
take a recess yet. This witness will go on. [Defense
counsel] will have the opportunity to cross-examine this
witness. In the interim, the government is going to do the
following. [The Government is] to procure Ms. Ristaino’s
employment records today. . . . [The Government is] also to
make available [the individuals in whom Ristaino confided].
[Defense counsel] . . . will be able to recall [Ristaino]
after you have had a chance to do the investigation that I
am allowing you. . . . The government is ordered to secure
all of the timecards or attendance logs . . . that would
show when this defendant was working during the entire month
of October 2002.
In deciding not to allow a recess, the district court said:
The Court has attempted to make every effort to provide an
opportunity for discovery, albeit late notice to the
defense. The Court further finds that if additional time
was given to the defense, specifically to analyze payroll
work records of Ms. Ristaino, that such opportunity would
not lead to any meaningful or fruitful evidence.
Thus, the district court mitigated the prejudicial effect of
admitting Ristaino’s testimony with no pretrial notice by giving
defense counsel the opportunity to interview Ristaino, her
employer, her ex-boyfriend, and to review documentary evidence
relating to Ristaino’s work schedule as compared to Guidry’s
dispatch log. The district court did not abuse its discretion in
22
allowing Ristaino’s testimony without allowing for a recess.
B. Remarks made in prosecution’s closing statement
Guidry argues that the prosecutor’s closing statement
amounts to prosecutorial misconduct and reversible error,
requiring this Court to vacate his convictions and remand.
Because Guidry failed to make a timely objection at trial, we
apply plain error review. United States v. Gallardo-Trapero, 185
F.3d 307, 322 (5th Cir. 1999).
Even if Guidry had made a timely objection, his burden of
establishing that an allegedly improper remark by the prosecutor
is substantial. United States v. Mares, 402 F.3d 511, 515 (5th
Cir. 2005) (citing United States v. Virgen-Moreno, 265 F.3d 276,
290 (5th Cir. 2001)). “The determinative question in such an
inquiry is ‘whether the prosecutor’s remarks cast serious doubt
on the correctness of the jury’s verdict.’” Id. (quoting Virgen-
Moreno, 265 F.3d at 290). “Inappropriate prosecutorial comments,
standing alone, would not justify a reviewing court to reverse a
criminal conviction obtained in an otherwise fair proceeding.”
United States v. Young, 470 U.S. 1, 11 (1985). In reviewing the
possibility of reversible error, we consider “(1) the magnitude
of the prejudicial effect of the prosecutor’s remarks, (2) the
efficacy of any cautionary instruction by the judge, and (3) the
strength of the evidence supporting the conviction.” United
States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994).
23
It is undisputed that the district court at least twice
instructed the jury to consider Ristaino’s testimony only for
state of mind or intent, even though Rule 413 does allow such
testimony to be used for propensity purposes. Guidry argues that
some of the prosecutor’s references to Ristaino and her testimony
went beyond state of mind or intent by characterizing her as
another victim. Guidry recounts that at the end of the second
prosecutor’s closing statement, he urged the jury to “remember
the victims in this case, Denise Limon, Becki Taylor, Denise
Almodovar, Candace Ramirez, Lindsey Valsamaki, Sarah Adams, and I
hope you remember Julie Ristaino.” Similarly, earlier, the
prosecutor said,
It was our badge, and he defiled it and he violated it, just
like he violated his victims. He used that badge to find
victims. He found known targets, like poor Julie Ristaino.
Guidry fails to demonstrate plain error because these
remarks alone do not justify reversing the jury verdict. See
Young, 470 U.S. at 11. The prosecutor may have named Ristaino as
a victim, but this does not amount to an appeal to the jury to
punish Guidry for the sexual assault of Ristaino. Rather, he was
generally describing Ristaino as one of the victims of Guidry’s
sexual assaults. In light of the “wide latitude” given to
counsel in presenting closing argument, the degree to which these
remarks could be characterized as improper in view of the
limiting instructions the district court gave the jury and the
24
substantial evidence supporting conviction on all counts, the
prosecutor’s statements do not amount to reversible error. See
United States v. Holmes, 406 F.3d 337, 356 (5th Cir. 2005);
United States v. Hernandez-Guevara, 162 F.3d 863, 874 (5th Cir.
1998).
Because Guidry’s arguments do not cast doubt on the
correctness of the jury’s verdict, we find that the prosecutor’s
closing remarks, even if arguably improper, were not so
prejudicial as to constitute plain error.
C. Sufficiency of the evidence under 18 U.S.C. § 241
Guidry maintains that the Government failed to meets its
burden as to the elements in 18 U.S.C. § 241 because of
insufficiency of evidence.7 Guidry contends that his and
Trevino’s misconduct did not rise to the level of a
constitutional deprivation. Guidry argues that there was no
showing that the officers used force or intimidation, nor that
their actions shock the conscience. Thus, he claims that Count
Four should be vacated, the charge dismissed, and his case
remanded for resentencing.
We review an insufficiency of the evidence claim by
7
We recognize that Guidry disputes that substantive due
process includes the right to be free from sexual assault. He
acknowledges that this claim is foreclosed by Doe v. Taylor
Independent School District, 15 F.3d 443, 450-52 (5th Cir. 1994)
(en banc), but preserves the issue for further review.
25
inquiring “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.” Jackson v. Virginia, 443 U.S. 307, 319
(1979); United States v. Jones, 693 F.2d 343, 345-46 (5th Cir.
1982). “This standard of review applies to any criminal
conviction, including conspiracies.” United States v. Davila,
704 F.2d 749, 751 (5th Cir. 1983). “[U]nder Jackson, the
assessment of the credibility of witnesses is generally beyond
the scope of review.” Schlup v. Delo, 513 U.S. 298, 330 (1995).
We review questions of constitutional law de novo. United States
v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000).
The district court used the Fourteenth Amendment to frame
its instruction to the jury regarding Count Four, whether Guidry
deprived the five victims “of the right to be free from the
deprivation of liberty without due process of law, including the
right to bodily integrity.”8 Government officers violate
8
As the Government points out, this civil rights violation
may have been more appropriately analyzed using the Fourth
Amendment, because the five women were in the custody of the
Balcones Heights police officers when the violation occurred.
The Fourth Amendment standard balances the nature and quality of
the intrusion against the importance of the Government interest
justifying the intrusion. Brothers v. Klevenhagen, 28 F.3d 452,
455 (5th Cir. 1994). Because the Fourteenth Amendment requires a
heightened inquiry (the “shock the conscience” standard) than the
Fourth Amendment, the satisfaction of the Fourteenth Amendment
standard should satisfy the Fourth Amendment standard.
26
another’s substantive due process rights when their actions “can
properly be characterized as arbitrary, or conscience shocking,
in a constitutional sense.” Collins v. City of Harker Heights,
503 U.S. 115, 128 (1992).
Guidry’s conviction for Count Four, under 18 U.S.C. § 241,
stands if, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the following elements beyond a reasonable doubt: that Guidry and
Trevino 1) conspired to injure, oppress, threaten, or intimidate
one or more of the victims, 2) with the intent to interfere with
the victim’s due process rights, 3) under color of state law. 18
U.S.C. § 241. See also United States v. Vaden, 912 F.2d 780, 781
(5th Cir. 1990) (“To convict . . . , the government had to prove
that while acting under color of state law [the defendant]
conspired with others to deprive [the victim] of a right
guaranteed him by the Constitution or law of the United States.”)
The facts in this case support the finding that a rational
trier of fact could have found, beyond a reasonable doubt, that
Guidry and Trevino conspired to intimidate the five intoxicated
women when they took the women into custody, then led the women
to a room in the police station beyond the reach of video
surveillance, where the officers expressed their willingness to
forego criminal charges while asking, “what will you do for us?”
The fact that Guidry and Trevino were on duty, in police uniform,
27
wearing their badges and carrying their weapons when they took
the women into custody and booked them would be enough for a jury
to find that the officers used their positions of power to, at
the very least, intimidate, and at the most, force the five women
to engage in non-consensual sexual conduct. In addition, the
officers handcuffed and booked the women, took their personal
belongings, fingerprinted and photographed them. Even
considering that at first, when the officers were booking the
women, there was a sense of joviality when the women posed for
“silly mug shots,” a jury could find that the atmosphere changed
when the women were led to an isolated room where the officers
essentially bartered for the women’s freedom and made sexual
advances toward them. This conclusion stands even considering
Guidry’s argument that he and Trevino did not make sexual
advances towards the women until after they were free to go. A
jury could find that the women were intimidated by Guidry’s and
Trevino’s official power such that they did not feel free to
leave, especially because Guidry and Trevino still had control
over the women’s belongings when they purport the women were free
to leave and explicitly said to them that “it would take a while”
before they were free to leave. A jury could reasonably conclude
that Guidry’s behavior “shocks the conscience.”
We find the evidence sufficient to prove that Guidry
conspired to deprive the five victims of their Fourteenth
28
Amendment rights.
D. Sufficiency of the evidence under 18 U.S.C. § 924(c)
Guidry contends that the Government failed to meet its
burden in showing that he carried a firearm in relation to the
deprivation of due process and aggravated sexual abuse of Denise
Limon. He maintains that the only evidence of a gun was hearsay,
when a detective who interviewed Limon testified that Limon told
her she heard the gun banging on the side of the car during the
rape. Guidry argues that the hearsay statement suffices to show
that Guidry carried a firearm during the offense, but fails to
show that it was carried “in relation to” the offense. As the
argument goes, as a police officer, Guidry must carry his gun,
and it was merely present when he raped Limon. In fact, Guidry
further argues that Limon said she did not resist Guidry because
she was physically overpowered rather than explicitly threatened
by Guidry when he raped her. The logical inference, as the
argument continues, is that Guidry’s gun was not used to
facilitate the crime. Guidry claims the conviction and
consecutive five-year sentence for Count Three must be vacated.
Section 924(c)(1)(A) of Title 18 of the United States Code
states in relevant part:
[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the
person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to the
29
punishment provided for such crime of violence or drug
trafficking crime–
(i) be sentenced to a term of imprisonment of not less than
5 years; . . . .
18 U.S.C. § 924(c)(1)(A)(i). To prove a violation of §
924(c)(1), the Government must prove two elements beyond a
reasonable doubt: First, it must demonstrate that the defendant
carried a gun. Second, it must prove that the carrying was
during and in relation to a crime of violence or drug trafficking
crime. United States v. Polk, 118 F.3d 286, 293 (5th Cir. 1997).
It is undisputed that Guidry carried the gun on his gunbelt
during the rape of Denise Limon. The parties contest only the
second prong. To be carried “in relation to” an offense under
this section, a gun must have “some ‘purpose or effect’ with
respect to the crime of violence.” Id. (quoting Smith v. United
States, 508 U.S. 223, 237-38 (1993)). Yet, the Supreme Court in
Smith recognized that the phrase “in relation to” is expansive.
Id. (citing Smith, 508 U.S. at 237-38). The firearm must
“‘facilitate or have the potential of facilitating’” a crime of
violence for § 924(c)(1) liability to attach. Id. (quoting
Smith, 508 U.S. at 238).
Guidry’s argument fails in light of the analogous case
United States v. Contreras, 950 F.2d 232 (5th Cir. 1991). There,
this Court upheld a police officer’s § 924(c) conviction where
the on-duty police officer drove a female arrestee to a dark,
30
isolated location, and sexually assaulted her. Id. at 242. This
Court said:
The government does not have to show, however, that a
defendant actually used or brandished the firearm to prove
“use” within the meaning of section 924(c). . . . [I]f the
evidence shows that the “firearm facilitated or had a role
in the crime, such as emboldening an actor who had the
opportunity or ability to display or discharge the weapon to
protect himself or intimidate others,” the defendant “used”
the weapon regardless of whether such display or discharge
occurred.
Id. at 241 (quoting United States v. Coburn, 876 F.2d 372, 375
(5th Cir. 1989)). Even though the defendant police officer
routinely carried a firearm as part of his job, and he took off
his gunbelt and put it on the roof of the car during the assault,
this Court found that a jury could have reasonably concluded that
he was emboldened by his possession of the gun to assault his
victim, that he displayed the gun in order to intimidate the
victim, and that he had the opportunity and ability to discharge
the gun throughout the sexual assault. Id. at 242. Thus, the
firearm played a sufficient role in facilitating the defendant’s
crime to support his § 924(c) conviction. Id.
As in Contreras, Guidry did not take his gun out of his belt
and actually threaten his victim, but he did keep his belt on
such that Limon heard his gun banging against the side of the car
while he was raping her. Guidry’s gun remained holstered during
the rape, but was always within his reach. A jury could
reasonably conclude that Guidry was emboldened by his possession
31
of the gun to rape Limon, and that the gun was a threat to and
intimidated Limon.
We find the evidence sufficient to prove that Guidry carried
a firearm “during and in relation to” the rape of Denise Limon,
in violation of 18 U.S.C. § 924(c).
E. Kidnapping enhancement under 18 U.S.C. § 242
Guidry argues the Government failed to prove under the
instant facts that Guidry qualified for the sentence enhancement
for kidnapping in 18 U.S.C. § 242. He contends that in the
absence of a definition of “kidnap” in § 242, this Court must
rely on the “common law” definition of “kidnap,” which he
contends requires proof that a victim was carried out of state or
out of the country to constitute kidnapping. Guidry states that
there is no evidence that Congress intended differently from this
common law meaning of “kidnapping.” Thus, he claims his sentence
on Count One must be reduced to the ten-year maximum applicable
to the lesser-included offense that does not involve kidnapping.
Section 242 of Title 18 of the United States Code states:
Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any person in any
State, Territory, Commonwealth, Possession, or District to
the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the
United States . . . ; and . . . if such acts include
kidnapping or an attempt to kidnap . . . shall be fined
under this title, or imprisoned for any term of years or for
life, or both, or may be sentenced to death.
18 U.S.C. § 242.
32
Although the statute does not define “kidnapping” or
“kidnap,” and there are no cases that define these terms in this
statute’s context, Guidry’s reliance on the common law definition
of “kidnap” is misplaced. We do not use the common law
definition of any term where it would be inconsistent with the
statute’s purpose, notably where the term’s definition has
evolved. See, e.g., Moskal v. United States, 498 U.S. 103, 116-
17 (1990) (rejecting the common law definition for the term
“falsely made,” used in 18 U.S.C. § 2314, because “Congress’
general purpose in enacting a law may prevail over this rule of
statutory construction, [i.e., the common-law meaning rule]”);
Taylor v. United States, 495 U.S. 575, 592-96 (1990) (refusing to
find that the term “burglary” in a sentencing enhancement statute
was limited to the common law meaning of the terms, which would
have required entry into a dwelling place in the nighttime);
Perrin v. United States, 444 U.S. 37, 45 (1979) (defining the
term “bribery” in 18 U.S.C. § 1952 based on the contemporary
understanding of the term because the common law definition had
evolved and now the term included the bribery of individuals
acting in private capacity). “Taylor instructs that where, as
here, the enhancement provision does not specifically define the
enumerated offense, we must define it according to its ‘generic,
contemporary meaning’ and should rely on a uniform definition. .
. .” United States v. Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th
33
Cir. 2004) (internal citation omitted). Following Taylor’s lead,
we look at other sources of authority for the definition of
“kidnapping”:
Under the common law definition of kidnapping, asportation
was an essential element . . . . Under modern statutes, by
comparison, asportation is most often treated as an
alternative element, in that either asportation or
confinement will suffice as the actus reus of the crime . .
. .
3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 18.1, at 4 (2d ed.
2003). Indeed, the Taylor Court’s assessment with regard to the
term “burglary” in a sentencing enhancing statute holds true for
the term “kidnapping” in the instant statute: “[C]onstruing
‘[kidnapping]’ to mean common-law [kidnapping] would come close
to nullifying that term’s effect in the statute, because few of
the crimes now generally recognized as [kidnapping] would fall
within the common-law definition.” Taylor, 495 U.S. at 594.
Guidry’s argument fails.
Guidry also claims that the terms “kidnapping” and “kidnap”
should adopt the definition of the terms in the federal
kidnapping statute, 18 U.S.C. § 1201, which would require
interstate abduction. In that case, Guidry argues his conduct
did not meet the elements of kidnapping for purposes of this
statute. He contests the district court’s reliance on United
States v. Combs, 33 F.3d 667 (6th Cir. 1994), in which the
defendant had been charged with both the federal kidnapping
34
statute as well as the deprivation of civil rights under § 242
through kidnapping.
In Combs, a previous version of § 242 existed that did not
include an explicit kidnapping enhancement. The Government
charged the defendant under this statute with depriving the
victim’s civil rights by the means of kidnapping. The lower
court had defined “kidnapping” for purposes of § 242 as “an act
in which an individual forcibly holds, detains, or carries away
an alleged victim against his will.” Id. at 668. Combs held
that an acquittal of a federal kidnapping charge did not require
acquittal of a § 242 charge that also alleged kidnapping. Id. at
670. Guidry argues that Combs is inapposite given that the
current version of § 242 explicitly refers to kidnapping and
therefore must adopt the definition of kidnapping in the federal
sentencing statute, which requires interstate abduction. If
Guidry is correct, then, for the purposes of § 242, the term
“kidnapping” would have to meet the elements of the term as it is
defined in the federal sentencing statute. “To prove a charge
under 18 U.S.C. § 1201, the government must prove four elements:
(1) the transportation in interstate commerce (2) of an
unconsenting person who is (3) held for ransom or reward or
otherwise, (4) [with] such acts being done knowingly and
willfully.” United States v. Barton, 257 F.3d 433, 439 (5th Cir.
2001).
35
However, Guidry’s argument that the federal kidnapping
statute should define the elements for “kidnapping” under 18
U.S.C. § 242 is misplaced. If Guidry were charged with violating
the federal kidnapping statute when he took Limon to an isolated
spot in order to sexually assault her, for the purpose of federal
jurisdiction he indeed would have had to transport Limon out of
the state. But here, Guidry was charged with violating Limon’s
civil rights by kidnapping her. Federal jurisdiction exists
without interstate abduction because his action constituted a
violation of Limon’s constitutional rights. In the absence of §
242 requiring “kidnapping” to comport with the elements of the
federal kidnapping statute, the generic, contemporary meaning of
kidnapping statute suffices.
We hold that Guidry did not need to transport or attempt to
transport Limon across state lines in order to qualify for the
sentencing enhancement for kidnapping under 18 U.S.C. § 242. We
conclude that because Guidry drove Limon to a secluded area, he
intentionally abducted and confined Limon without her consent,
and thus his conduct comes under 18 U.S.C. § 242. Under this
analysis, a jury could have reasonably concluded that Guidry
deprived Limon of her civil rights by kidnapping her, supporting
the sentencing enhancement.
IV. CONCLUSION
We AFFIRM Guidry’s conviction on all four counts.
36
37