United States v. Zuniga

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-3277
No. 93-3284
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD DAVIS, SR.,
Defendant-Appellant.
*****************************************************************
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIM LEWIS and JOEY GRAY,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
(April 5, 1994)
Before HIGGINBOTHAM and WIENER, Circuit Judges, and KAUFMAN,*
District Judge.
HIGGINBOTHAM, Circuit Judge:
A grand jury indicted Richard Davis, Sr., Jim Lewis, Joey
Gray, Mark Facey, and Tom Coulton for conspiracy to kidnap William
H. Speiss, Jr. in violation of 18 U.S.C. § 1201(c). The grand jury
also charged Davis, Lewis, and Gray for kidnapping in violation of
*
District Judge of the District of Maryland, sitting by
designation.
18 U.S.C. § 1201(a)(1) and (2). Davis pleaded guilty. A jury
found Lewis and Gray guilty on both counts but acquitted Facey and
Coulton. The district court sentenced Davis and Lewis to 78 months
and Gray to 70 months imprisonment. Davis, Lewis, and Gray
appealed. Much of this appeal revolves around defendants' claimed
defense that a kidnap victim must be alive and the victim here was
dead, or so they thought. We affirm.
I.
This exotic story has its genesis appropriately in a dispute
over business dealings in the Bird Cage, a wholesale exotic bird
supplier located in Louisiana. On July 13, 1992, Davis, the owner
of the Bird Cage, accused Speiss and other employees of stealing
merchandise. The accusations turned violent when Davis started to
hurl obscenities and brandish a gun. Soon, Lewis and Gray,
employees of the Bird Cage, joined the melee. Speiss started to
leave the Bird Cage, but Davis and Gray bound him, took his car
keys, interrogated him, and poked him with a sizeable wooden stick.
Finally, they placed him in a trailer.
After about an hour, Davis and Gray returned with the wooden
stick. Gray cursed Speiss and beat him with the stick. When
Speiss began to scream, Gray stuffed a gag in his mouth. After
Davis had poked Speiss a few times with the stick, Davis and Gray
dragged Speiss to his car and heaved him into the trunk. Davis
demanded a confession from Speiss about the theft of store
property. He answered Speiss' denial of wrongdoing by slamming the
trunk closed.
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After Davis opened the trunk, he stuffed another gag in
Speiss' mouth and threatened to kill him. Next, Davis and Gray
drove the car out of the Bird Cage parking lot with Speiss in the
trunk, battered and bleeding. As they were leaving, Lewis replaced
Gray in the car. With Davis driving, Lewis in the passenger seat,
and Speiss in the trunk, the three drove to Mississippi. At one
point, Davis told Lewis that he thought Speiss was dead.
After Davis, Lewis, and Speiss reached Mississippi, Gray, who
had been following in a car taken from Harry Matthews, another Bird
Cage employee, drove away and dumped Matthews' car in a pond in
Natchez, Mississippi. He called relatives to come pick him up.
Davis and Lewis checked into a Natchez hotel under Davis' assumed
name. Lewis made several phone calls. Speiss remained in the
trunk. Early the next morning, Coulton and Facey arrived at the
hotel and discussed what to do with Speiss.
In the early morning hours of July 14, 1992, Davis and Lewis
drove from the hotel with Speiss still in the trunk. Coulton and
Facey followed in another car. They drove for a couple of hours
before they found a rural field in which they planned to dump
Speiss' body. Seeing that Speiss was still alive, Davis and Lewis
pulled him out of the trunk as he pleaded for his life. Davis told
Speiss to lie down in the back seat of the car. The party drove
south toward New Orleans. Eventually, Davis and Lewis took Speiss
to an apartment in Mandeville, Louisiana.
At the apartment, Speiss called his wife and son. Davis,
Lewis, and Coulton began cleaning Speiss' wounds. Eventually,
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Coulton and Neil Ledett, another Bird Cage employee, allowed Speiss
to escape. They assisted Speiss into his car and arranged a
meeting with his wife. The next day, Speiss contacted the
authorities. Given the foul nature of the crime, the jury
convicted and the district court decided that the sentence should
not be paltry. Davis, Lewis, and Gray appealed.
II.
Gray claims that the district court erred by refusing to
charge the jury that the defendants could not have conspired to
kidnap and could not have actually kidnapped the victim because
they thought he had died after the beating. Lewis had proposed the
following instruction:
You are hereby instructed that in order to establish a
violation of the Federal Kidnapping Act it is necessary
that the person being transported be alive because the
transportation of a dead body does not violate the
Federal Kidnapping Act. Because the defendant believed
that the victim was dead there could not be a conspiracy
to kidnap the victim or an actual kidnapping. Therefore,
if you find that the defendant believed that the victim
was dead there could not be a violation of the Federal
Kidnapping Act. Thus, defendant could not be guilty of
a violation of the Act.
Davis had told Lewis that he thought Speiss was dead. The fact
that the defendants had left Speiss in the trunk overnight and had
searched for a place to dump his body also suggests that they
thought the trunk contained a corpse rather than a live person.
The court did not mention the dead victim issue to the jury. No
party objected to the jury charge.
When no party objects at trial to a jury instruction, we will
uphold the charge absent plain error. United States v. Franklin,
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586 F.2d 560, 569 (5th Cir. 1978), cert. denied, 440 U.S. 972(1979). Plain error occurs only when the instruction, considered
as a whole, was so clearly erroneous as to result in the likelihood
of a grave miscarriage of justice. United States v. Varkonyi, 645
F.2d 453, 460 (5th Cir. 1981). In this case, the jury charge
offered a correct statement of the law.
Lewis' proposed instruction was not accurate because a
defendant's mistaken belief that the victim is dead is not a
defense to the kidnapping offense. The federal kidnapping statute
provides:
Whoever unlawfully seizes, confines, inveigles,
decoys, kidnaps, abducts or carries away and holds for
ransom or reward otherwise any person, except in the case
of a minor by a parent thereof, when:
(1) the person is willfully transported in
interstate or foreign commerce;
. . . .
shall be punished by imprisonment for any term of years
or life.
18 U.S.C. § 1201(a). Under this provision, the government must
establish four elements: (1) the transportation in interstate
commerce (2) of an unconsenting person who is (3) held for ransom,
reward or otherwise, (4) such acts being done knowingly and
willfully. United States v. Jackson, 978 F.2d 903, 910 (5th Cir.
1992), cert. denied, 113 S.Ct. 2429 (1993).
It is true that under § 1201(a) the defendants must abduct a
live person who then moves in interstate commerce. Federal
kidnapping does not cover transportation of a corpse across state
lines. From this fact, however, it does not follow that a
defendant who thinks he has a dead person but who in fact has a
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live victim does not violate the federal kidnapping provision. If
the defendant has abducted an unconsenting live body that then
moves in interstate commerce, he has violated the federal
kidnapping law, even if he believed the person was dead.
To be sure, Jackson suggests that a federal kidnapper has to
knowingly and willfully abduct an unconsenting person, which could
only mean a live person, but the statute does not require that the
kidnapper know that his victim is alive. Instead, it requires only
that he overcome the will of a victim who then moves in interstate
commerce. Jackson did not confront the issue of whether a federal
kidnapper must believe his victim is alive, but the question is
answered by the express language of the federal kidnapping statute.
III.
Gray also alleges that the evidence is insufficient to sustain
his conviction. We review the evidence, whether direct or
circumstantial, and all reasonable inferences drawn from the
evidence in the light most favorable to the jury's verdict. United
States v. Pigrum, 922 F.2d 249, 253 (5th Cir.), cert. denied, 111
S.Ct. 2064 (1991). We determine whether a rational trier of fact
could have found that the evidence established the essential
elements of the offense beyond a reasonable doubt. United States
v. Carter, 953 F.2d 1449, 1454 (5th Cir.), cert. denied, 112 S.Ct.
2980 (1992).
Unfortunately for Gray, he waived his objection first made at
the close of the government's evidence when he did not renew it at
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the end of the trial. United States v. Daniel, 957 F.2d 162, 164
(5th Cir. 1992). Under these circumstances, we affirm the
conviction unless to do so would work a miscarriage of justice.
Id. Because the evidence was sufficient for the jury to find Gray
guilty of kidnapping conspiracy and kidnapping, sustaining this
conviction entails no miscarriage of justice.
Gray points to what he sees as a lack of proof that he ever
agreed to transport Speiss anywhere. Interstate transportation of
the victim is a jurisdictional question and not an element of the
crime. Jackson, 978 F.2d at 910. The government proved beyond a
reasonable doubt that Speiss was transported in interstate
commerce. As well, ample evidence shows that Gray agreed to hold,
detain, and transport Speiss against his will. See id. The
government did not have to prove that Gray agreed to move Speiss in
interstate commerce to prove federal kidnapping.
Next, Gray suggests that there was no testimony that the
parties entered into a conspiratorial agreement. The government
need not prove that the alleged conspirators entered into a formal
agreement; the agreement could have been silent or tacit. United
States v. Martin, 790 F.2d 1215, 1219-20 (5th Cir.), cert. denied,
479 U.S. 868 (1986). The government must prove the existence of an
agreement and the defendant's knowledge of the conspiracy and his
voluntary participation. It has met this burden.
Gray faults the district court for not instructing the jury on
the Pinkerton theory of liability, which imputes a conspirator's
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substantive offenses to his coconspirators. Pinkerton v. United
States, 328 U.S. 640, 645-48 (1946). Gray cannot demonstrate
prejudice from a failure to instruct on the Pinkerton doctrine
because the omission, if anything, deprived the jury of a
legitimate theory of conviction. See id.IV.
Lewis challenges the admission of Matthews' testimony about
the early stages of the conspiracy. Matthews stated that Davis had
ordered Lewis to accompany him to retrieve some money. After the
two had left in Matthews' car, Matthews recounted, Lewis, who had
a gun in his lap, called Davis. Matthews said that, soon
thereafter, Lewis ordered him from the car and drove away.
Although the district court excluded the testimony, Matthews also
stated that Lewis wanted him to act as if he had been beaten and
that Lewis had to return to the Bird Cage to help with Speiss. The
government argued that Matthews' testimony showed when the
conspiracy began and how the conspirators came to possess Matthews'
car without Matthews.
Prior to Matthews' testimony, the government explained the
intended purpose of Matthews' story, but Lewis objected on the
basis that the testimony was inadmissible character evidence. See
Fed. R. Evid. 404(b). The district court ruled:
Well, I would think that any conversation that the
defendant Lewis had that would place him within the
conspiracy prior to the time of his arrival at the scene
is admissible and is relevant. You have to be very
careful with the area in which you are dealing. If there
are objections, specific objections, that you want to
make, make them, and I'll rule on them. We'll see what
happens.
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We review such evidentiary rulings under the abuse of discretion
doctrine. Jon-T Chem., Inc. v. Freeport Chem. Co., 704 F.2d 1412,
1417 (5th Cir. 1983).
On appeal, Lewis again argues that Matthews' story was
inadmissible character evidence under Rule 404(b). This contention
fails to appreciate that the district court did not admit Matthews'
testimony pursuant to Rule 404(b), which would trigger the test in
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc),
cert. denied, 440 U.S. 920 (1979), for determining the
admissibility of extrinsic evidence, but instead admitted the
testimony as intrinsic evidence of the conspiracy. Far from being
Rule 404(b) evidence, Matthews' story and the inferences drawn from
it establish both when the charged conspiracy began and when Lewis
knowingly and willfully join it.
V.
The district court enhanced the sentences of Davis and Lewis
by two levels because they inflicted serious bodily injury upon
Speiss. U.S.S.G. § 2A4.1(b)(2)(B). Serious bodily injury involves
extreme physical pain or the impairment of a function of a bodily
member, organ or mental faculty; it might require medical
intervention such as surgery, hospitalization, or physical
rehabilitation. U.S.S.G. § 1B1.1, application note 1(j). The PSR
had recommended such an enhancement due to numerous lacerations and
other injuries Speiss sustained during his ordeal.
Davis argues that Speiss suffered bodily injuries, but he
maintains that they did not rise to the level of serious bodily
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harm. The seriousness of Speiss' injuries is a fact inquiry
reviewable only for clear error. United States v. Moore, 997 F.2d
30, 37 (5th Cir. 1993), cert. denied, 114 S.Ct. 647 (1993). The
district court found that Speiss' ailments met the definition.
Davis himself had recognized on the road to Mississippi that Speiss
seemed more dead than alive. The district court did not commit
clear error.
Lewis also attacks his enhancement for the infliction of
serious bodily injury, though he does so on different grounds.
Lewis admits that Speiss suffered serious bodily injuries, but he
contends that he did not participate in inflicting these injuries
and that he could not have foreseen such a vicious attack. Lewis,
however, had plotted with Davis at the beginning of the conspiracy
and had travelled to Mississippi knowing that Speiss, certainly
injured and possibly dead, needed medical attention more than a
long ride in the trunk. Lewis is accountable for serious bodily
injuries because he reasonably could have foreseen them. See
U.S.S.G § 1B1.3(a)(1)(B).
VI.
A sentencing court must increase the base offense level by two
points if it finds that a dangerous weapon was used. U.S.S.G.
§ 2A4.1(b)(3). The phrase "a dangerous weapon was used" means that
a firearm was discharged or a firearm or "dangerous weapon" was
"otherwise used." U.S.S.G. § 2A4.1(b)(3), application note 2. A
"dangerous weapon" is an instrument capable of inflicting death or
serious bodily injury. U.S.S.G. § 1B1.1, application note 1(d).
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The phrase "otherwise used" means that the conduct did not amount
to the discharge of a firearm but was more than brandishing,
displaying, or possessing a firearm or other dangerous weapon.
U.S.S.G. § 1B1.1, application note 1(g). The district court
enhanced the sentences of Davis and Lewis because the wooden stick
and the gun constituted dangerous weapons in the hands of the
conspirators.
The district court did not clearly err in determining that the
wooden stick and gun were dangerous weapons. The wooden stick
served as a dangerous weapon because of its characteristics (a
rather large stick of manzanita wood, a hard wood used to make bird
cages) and the manner in which it was used by Gray (to beat Speiss
on his head, arms, and legs). Although Davis and Lewis did not
inflict major injuries with either the stick or the gun (Davis only
poked Speiss with the stick and Lewis spared the rod altogether),
they could have reasonably foreseen the way in which Gray used the
stick. As well, Davis and Lewis used the stick and the gun
respectively in ways that intimidated Speiss. These facts justify
the enhancement.
VII.
Davis and Lewis challenge the findings of their respective
roles in the crime made in the sentencing proceeding. Davis
maintains that he should not have received the four level
enhancement under U.S.S.G. § 3B1.1(a) for exhibiting leadership of
or control over all of the five participants. The enhancement in
§ 3B1.1(a) requires that the enterprise involve five or more people
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criminally responsible for the offense, but not necessarily
convicted for the crime. U.S.S.G. § 3B1.1, application note 1.
The district court found that Davis had led and controlled Gray,
Lewis, Facey, Coulton, and himself. We review the district court's
determination on this front under the clearly erroneous standard.
United States v. Mejia-Orosco, 867 F.2d 216, 221 (5th Cir.), cert.
denied, 492 U.S. 924 (1989).
Davis does not dispute that he led Gray, Lewis, and himself,
but he does claim that he did not lead Facey and Coulton. The
district court could have enhanced Davis' sentence based on his
leadership of Facey and Coulton despite their acquittals. As well,
Facey and Coulton played a meaningful role in the criminal
enterprise. The record confirms the PRS's (and the district
court's) assessment that Davis "direct[ed] the actions of [Coulton
and Facey]." Coulton was present when the hapless Speiss was
beaten and stuffed in the trunk. Once in the Mississippi hotel,
Davis told Lewis to summon help. Lewis called Coulton and Facey
who drove to the hotel and accompanied Davis and Lewis to the field
to dispose of the victim. The government proved the presence of
five criminally responsible participants.
Lewis challenges the court's determination that he did not
play a minor role in the offense. He contends that he should have
received a two level reduction in his sentence for his minor role.
See U.S.S.G. § 3B1.2. Again, the role of a defendant in the
offense is a sophisticated factual determination we leave to the
district court under the protection of the clearly erroneous
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standard. Mejia-Orosco, 867 F.2d at 221. The fact that Lewis rode
to Mississippi in the car that contained Speiss in its trunk,
participated in conversations with Davis concerning the disposal of
Speiss' body, and stood ready to dispose of the body suggests that
Lewis was not less culpable than most other participants. See
U.S.S.G. § 3B1.2, application notes 1 and 3.
AFFIRMED.
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