F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 3 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4030
JOHN FURFAY WALKER,
Defendant-Appellant.
Appeal from United States District Court
for the District of Utah
(D.C. No. 96-CR-00163-J)
Randy S. Ludlow, of Salt Lake City, Utah, for the appellant.
Bruce C. Lubeck, Assistant United States Attorney (Scott M. Matheson, Jr.,
United States Attorney, with him on the brief), Salt Lake City, Utah, for the
appellee.
Before BRORBY, McKAY, and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.
Defendant John F. Walker appeals his conviction of one count of
kidnaping, in violation of 18 U.S.C. § 1201. We exercise jurisdiction pursuant to
28 U.S.C. § 1291 and affirm.
I.
On or about July 19, 1996, Walker commenced a relationship with a woman
named Jolene Dilley. Dilley was with Walker in his room at the Regal Inn in Salt
Lake City on the morning of July 25, 1996, and after sleeping for a short time,
Dilley told Walker she was leaving to see her children. Walker told her she could
not leave and repeatedly pulled her back when she attempted to go to the
bathroom to change clothes. Walker pulled Dilley onto the bed, straddled her
with her arms pinned under his knees, and began choking her with his hand,
saying “You’re the worst kind of girl there is.” Record II at 86. Dilley struggled
and was able to push Walker off of her. After Dilley refused to tell Walker she
loved him, he grabbed a beer bottle, smashed it on the end of a table, and told her
he was going to kill himself. Walker then threatened to kill Dilley if she did not
tell him she loved him. He used a name tag from work to scratch a “J” on his
wrist and said, “See, this proves I love you.” Id. at 91. Ultimately, Walker told
Dilley: “What you have to do in order for me not to kill you is go with me in
your car for 12 hours out and 12 hours back, a total of 24 hours, to give me time
to talk you into staying with me. In that time if you don’t change your mind, then
I’ll let you go.” Id. at 92-93. Fearing for her life, Dilley agreed to go with
Walker. Before they left, Dilley consumed two or three beers and two
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prescription Xanax tablets. She testified at trial that she drank the beers and took
the Xanax because she “didn’t want to feel the pain if he tried to kill [her].” Id.
at 97.
Walker told Gilley to put on her clothes, but not her shoes and socks. He
demanded her car keys and her credit cards. Walker loaded the car with some of
his clothing and personal items, placed Dilley in the passenger seat, and drove
toward Idaho. Dilley fell asleep approximately ten minutes after they left the
motel and when she awoke, she saw a sign that said, “Welcome to Idaho.” Id. at
104. Walker pulled off the interstate and drove to a desolate spot on a country
road so that Dilley could go to the bathroom. Later, he stopped to get gas at a
Chevron station and told Dilley if she behaved, he would take her home, but if
she tried to get out of the car, he would kill her. After fueling the car, Walker
continued driving northward. Walker again told Dilley, “You’re the worst kind of
girl there could be.” Id. at 118. She asked what he meant and said, “You’re not
going to take me back, are you?” He said: “No, and not only that, but I’m going
to tear your fucking heart out like you did to mine.” Id. Dilley then attempted to
grab the steering wheel and car keys. Walker punched her in the side of her face.
She kicked the gear shift and the car stopped. Dilley unfastened her seat belt,
opened her door, and started running and waving at cars on the highway. Several
cars stopped and Walker drove away. Dilley was taken to the local hospital for
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treatment and Walker was later arrested.
II.
Statutory vagueness
The statute under which Walker was charged, 18 U.S.C. § 1201, provides in
pertinent part: “Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away and holds for ransom or reward or otherwise any person
. . . when (1) the person is willfully transported in interstate . . . commerce . . .
shall be punished by imprisonment for any term of years or for life.” Walker
contends the portion of the statute that refers to holding the victim “for ransom or
reward or otherwise” is unconstitutionally vague. According to Walker, there is
no way he could have known his conduct violated the “or otherwise” purpose of
the statute, particularly since he did not seek a ransom or reward for Dilley.
Although Walker makes reference in his appellate brief to his filing of a motion
to dismiss, this motion was asserted at the close of the government’s evidence and
counsel argued only that the evidence presented by the government was
insufficient to establish the elements of the crime charged. Walker did not assert
that the statute was unconstitutionally vague. Because Walker did not present this
issue to the trial court, we review for plain error. See Fed. R. Crim. P. 52(b).
“[T]he void-for-vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people can understand
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what conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). In
determining whether a statute is unconstitutionally vague, our inquiry focuses on
whether the statute at issue provides a defendant with notice or “fair warning”
that the conduct contemplated is forbidden by law. See United States v. Protex
Indus., Inc., 874 F.2d 740, 743 (10th Cir. 1989). Where, as here, a vagueness
challenge does not implicate First Amendment values, the challenge “cannot be
aimed at the statute on its face but must be limited to the application of the statute
to the particular conduct charged.” United States v. Reed, 114 F.3d 1067, 1070
(10th Cir. 1997). Accordingly, the challenge must be “based only on the facts as
they emerge at trial.” Id.
Prior to 1934, the Federal Kidnaping Act was applicable only if the captive
was held for ransom or reward. See United States v. Healy, 376 U.S. 75, 81
(1964). Congress amended the wording of the Act in 1934 to encompass persons
held “for ransom or reward or otherwise.” Id. In Gooch v. United States, 297
U.S. 124, 128 (1936), the Supreme Court interpreted the “or otherwise”
amendment to encompass any benefit which a captor might attempt to receive for
himself. Subsequently, in Healy, the Court held the Act is not limited to
kidnapings for an ultimately illegal purpose. 376 U.S. at 82 (“we find no
compelling correlation between the propriety of the ultimate purpose sought to be
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furthered by a kidnaping and the undesirability of the act of kidnaping itself”).
Since Gooch and Healy, at least five circuits, including our own, have
rejected vagueness challenges to the “or otherwise” portion of § 1201. See
United States v. Marcano-Garcia, 622 F.2d 12, 15-16 (1st Cir. 1980); United
States v. Vickers, 578 F.2d 1057, 1058 (5th Cir. 1978); United States v. Cassidy,
571 F.2d 534, 536 (10th Cir. 1978); United States v. Cavallaro, 553 F.2d 300,
303-04 (2d Cir. 1977); Daulton v. United States, 474 F.2d 1248, 1248-49 (6th Cir.
1973). No circuit has found the “or otherwise” language unconstitutionally
vague.
After reviewing the facts that emerged at trial in this case, we conclude
Walker had fair notice that the conduct of which he was charged was unlawful.
The statute sufficiently apprised him that forcing another person, particularly one
he had only known for a few days, to accompany him from Utah to Idaho, under
threat of violence, was unlawful. The fact that he did not seek a ransom or
reward is irrelevant and unnecessary. The facts presented at trial indicate
Walker’s actions were motivated by self interest, i.e., his interest in convincing
Dilley to remain in a relationship with him. Such conduct is clearly proscribed by
§ 1201(a). 1
1
In his appellate brief, Walker suggests he was unable to prepare a defense to
rebut the charge against him. To the extent he is purporting to challenge the sufficiency
of the indictment, we reject his argument. The indictment specifically stated that “[o]n or
(continued...)
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Sufficiency of evidence
Walker contends the evidence presented at trial was insufficient to support
his kidnaping conviction. Sufficiency of evidence is a question of law subject to
de novo review. United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997).
Evidence is sufficient to support a conviction if the evidence and the reasonable
inferences drawn therefrom, viewed in the light most favorable to the
government, would allow a reasonable jury to find defendant guilty beyond a
reasonable doubt. Id. We have repeatedly noted the limited and deferential
nature of appellate review of sufficiency of evidence claims and have indicated
we will not overturn a jury’s finding unless no reasonable juror could have
reached the disputed verdict. See, e.g., United States v. Chavez-Palacios, 30 F.3d
1290, 1293 (10th Cir. 1994); United States v. Hoenscheidt, 7 F.3d 1528, 1530
(10th Cir. 1993).
There are no Tenth Circuit cases specifically outlining the essential
(...continued)
1
about the 25th day of July, 1996, . . . defendant . . . did knowingly and unlawfully seize,
kidnap, abduct, and carry away, and did wilfully transport in interstate commerce from
Utah to Idaho, Jolene Dilley against her will for a purpose to benefit defendant; all in
violation of 18 U.S.C. § 1201(a).” Appellant’s Brief, Addendum A. We conclude this
language sufficiently apprised Walker of the charge against him and allowed him to
prepare a defense to the charge. See United States v. Dashney, 117 F.3d 1197, 1205
(10th Cir. 1997) (indictment is sufficient if it sets forth the elements of the offense
charged, puts the defendant on fair notice of the charges against which he must defend,
and enables the defendant to assert a double jeopardy defense). We also note that at no
time prior to trial did Walker request a bill of particulars, or otherwise contend he did not
understand the charge against him.
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elements of the crime of kidnaping under § 1201. Although there are slight
variations among the other circuits as to the essential elements of the crime, it is
generally agreed the elements include (1) transportation in interstate commerce
(2) of an unconsenting person who is (3) held for ransom, reward, or otherwise,
(4) with such acts being done knowingly and willfully. United States v. Lewis,
115 F.3d 1531, 1535 (11th Cir. 1997), cert. denied, 118 S. Ct. 733 (1998); see
also United States v. Sriyuth, 98 F.3d 739, 751 n.20 (3d Cir. 1996) (describing
three elements to be proven--victim knowingly and willfully seized (i.e., forcibly
held or carried away against will), victim held for some benefit or reason, and
victim transported in interstate commerce while so seized), cert. denied, 117 S.
Ct. 1016 (1997); United States v. Osborn, 68 F.3d 94, 100 (5th Cir. 1995) (listing
four elements of proof--transportation in interstate commerce, unconsenting
victim, demand of ransom, reward, or otherwise, and acts done knowingly and
willingly); United States v. Childress, 26 F.3d 498, 501-03 (4th Cir. 1994)
(focusing discussion on elements of nonconsent of victim and willfulness of
defendant’s acts to obtain ransom or other benefit); United States v. Davis, 19
F.3d 166, 169 (5th Cir. 1994) (enumerating four elements and citing United States
v. Jackson, 978 F.2d 903, 910 (5th Cir. 1992)).
Viewing the evidence in this case in the light most favorable to the
government, we conclude there is more than enough evidence to satisfy the
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essential elements of the crime of kidnaping. As recounted above, Dilley testified
at trial that Walker attempted to choke her and verbally threatened to kill her in
his room in Salt Lake City. He then demanded that she accompany him for
twenty-four hours to try to convince her to stay with him and told her he would
not kill her if she did so. Dilley accompanied Walker in the car as he drove from
Salt Lake City to Idaho because she feared for her life. This evidence, taken
together, indicates: (1) Walker transported Dilley from Utah to Idaho; (2) Dilley
did not willingly consent to accompany Walker but did so because she feared for
her life; (3) Walker transported Dilley to receive a benefit for himself, i.e., to
convince her to remain in a relationship with him; and (4) Walker performed the
acts knowingly and willfully. Although Walker attacks Dilley’s credibility, the
jury clearly chose to believe her story, and we conclude there was sufficient
evidence to allow the jury to do so.
The judgment of the district court is AFFIRMED.
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