United States v. Lankford

REVISED - December 30, 1999

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________

No. 98-10645
____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM DOUGLAS LANKFORD, III,

Defendant-Appellant.
_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________

November 16, 1999

Before KING, Chief Judge, and SMITH and STEWART, Circuit Judges.

KING, Chief Judge:

Following a jury trial, Defendant-Appellant William Douglas

Lankford, III (“Lankford”) was convicted of one count of

kidnapping in violation of 18 U.S.C. § 1201, one count of
interstate domestic violence in violation of the Violence Against

Women Act of 1994 (“VAWA”), Pub. L. 103-322, Title IV,

§ 40221(a), 108 Stat. 1926, and one count of using or carrying a

firearm during and in relation to commission of the above crimes

of violence in violation of 18 U.S.C. § 924(c). He appeals both

his conviction and sentence, asserting that (1) the kidnapping

count was insufficient and as a result, his conviction was

potentially based on legally inadequate grounds; (2) the

kidnapping and interstate domestic violence counts were
multiplicitous; (3) the interstate domestic violence count was

based on an unconstitutional statute; (4) comments and questions

by the judge and arguments by the prosecutor rendered his trial

unfair; (5) jury instructions were incomplete; (6) evidence was

insufficient to support conviction on any count; and (7) his

sentence was in violation of the Double Jeopardy Clause and

exceeded the statutory maximum. We affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

Lankford’s conviction and sentence stem from events
occurring August 8 and 9, 1995. Lankford’s wife, Joanie, had

moved out of the house they shared with their three children in

Wichita Falls, Texas, in April 1995, taking the children with

her. She had indicated a desire for a divorce in September 1994,

and by April, divorce hearings were being held. They were still

married at the time of Lankford’s trial.

On August 8, Lankford purchased a set of handcuffs,

proceeded to Wichita Falls’ Midwestern State University, where

his estranged wife was employed, and there waited for his wife to

leave for lunch. Upon seeing her, Lankford ran to her, and
claimed to have a gun. He attempted to force her into her car,

but she resisted and a struggle ensued. During this struggle,

Joanie saw a gun. Lankford told his wife that if she did not get

into the car, he would kill her, and then himself. She believed

him. Lankford eventually forced his wife into her car, took her

keys, and then drove to a nearby church parking lot where he had

parked his car. During this time, Lankford was yelling at

2
Joanie, angry about her attempts to avoid him. He told her that

he was going to make her talk to him. At the church lot,

Lankford forced her into his car, and once she was in the

passenger seat, handcuffed her left wrist to the gear shift.

Lankford’s gun was in his car. They proceeded to the interstate.

Lankford put a towel over Joanie’s handcuffs and warned her not

to flag down police officers or anyone else. He informed Joanie

that they were going to Oklahoma to talk and that “they were

going to make this work out one way or the other.” He also told
her that they were going to get a motel room and spend the night.

Joanie protested going to Oklahoma, citing her work and her need

to take care of her mother.

During the trip to Oklahoma, Lankford’s behavior frequently

shifted from displays of anger to being calm. They made several

stops while still in Texas, once at a rest stop, once at a

convenience store, and once to get gas. The handcuffs were

removed when they reached the rest stop. Lankford at all times

stayed close to his wife. He waited outside while she went into

a restroom, and stood near her when she did as Lankford
instructed and called her workplace to say she was sick and would

not be returning. He had someone else fill the gas tank for him.

Joanie believed he had a gun in his pocket at the rest stop and

saw the gun when they stopped at the convenience store. She did

not cry out or attempt to flee because she feared that Lankford

would shoot her.

Once in Lawton, Oklahoma, Lankford rented a motel room.

3
Joanie accompanied him to the office, but did not attempt to

escape because of her fear of what he would do. Rather than go

to the room right away, Joanie told him that they should pick up

some things she needed, as Lankford had promised they would. She

did not want to go to the room because she believed Lankford

would try to have sex with her, which she did not want. Finding

a cleaning cart at the door of the room, the pair went to Wal-

Mart to purchase some make-up and clothes for Joanie, and to a

drive-through restaurant to pick up some dinner. While at Wal-
Mart, Joanie attempted to delay going to the motel by insisting

she try on clothes other than the work-out clothes Lankford had

picked out.

When they returned to the motel room, Joanie requested that

Lankford not get drunk and not bring the gun into the room. He

agreed, but brought beer into the room along with the dinner they

had picked up and the packages from Wal-Mart. Joanie tried to

eat, but felt sick. She told Lankford she felt as though she had

to be ill. He told her to get in the bed, and began taking off

her clothes. She got in bed, still wearing her underclothes, and
pretended to go to sleep. Later, he also got in to bed, and

began to take off her underclothes. She had her arms across her

stomach, and said “Please don’t.” He nonetheless proceeded to

have sex with her. Sometime after that, he had sex with her

again. Joanie testified that she was still afraid of Lankford at

this time, and felt there was no way out. The next morning,

August 9, after answering a 5:00 a.m. wake-up call, Lankford

4
returned to bed and again had sex with Joanie.

The first time Lankford left Joanie alone was when they were

preparing to leave the motel. His emotional state on the trip

back to Wichita Falls was calm. He told Joanie not to tell the

police or anyone else about the trip, and dropped her off near

her car. Joanie then drove home, but afraid to stay there, went

to the home of her boss. From there she went to the hospital.

For two weeks afterward, Joanie stayed at a shelter.

Lankford was arrested on October 4, 1995, and indicted on
October 31. The indictment charged Lankford with one count of

interstate domestic violence, 18 U.S.C. § 2261(a)(1), one count

of kidnapping, 18 U.S.C. § 1201, and one count of using or

carrying a firearm during and in relation to crimes of violence.

18 U.S.C. § 924(c). Lankford filed a motion to dismiss either

Count 1 or Count 2 because they were multiplicitous. That motion

was denied. The Government was granted its motion for leave to

introduce evidence of “other acts” under FED. R. EVID. 404(b) and

413(a). Those “other acts” included 1) a January 1995 incident

during which Lankford, after arguing with his wife, prevented her
from stopping or exiting the car he was driving by putting her in

a head lock and threatening to break her neck. Maintaining the

head lock after reaching their home, Lankford dragged his wife

into the bedroom, and ordered her to remove her clothes. Joanie

struggled and resisted. At one point, Lankford placed her in a

potentially lethal karate hold, and at another point, while

pinning her down with his knees, threatened that the children

5
would awaken the next morning as orphans. The attack subsided,

Lankford begged for sex, and then engaged in sex with Joanie; 2)

a May 29, 1995 incident lasting approximately five hours during

which Lankford, dressed in black and armed with a gun, broke in

to his wife’s separate residence at around 1:00 a.m. and, finding

her sleeping with her boyfriend, struck and threatened to kill

both of them. With the boyfriend ordered to lay face down on the

floor, Lankford ordered Joanie to perform oral sex on him, he

performed sexual acts on her, and then ordered Joanie and her
boyfriend to engage in specific sexual acts with each other; 3) a

July 30, 1995 incident during which Lankford threatened to bind

his wife with strips of duct tape that were hanging on the wall

unless she submitted to having sex with him; and 4) a September

26, 1995 incident during which Lankford, after struggling with

Joanie’s boyfriend outside her residence, broke in to that

residence. Joanie, hearing the struggle outside, had armed

herself with a small caliber weapon, and when Lankford, again

dressed in black, entered, she fired one shot. That shot entered

the side of Lankford’s head. Lankford then beat Joanie
repeatedly. After Lankford was arrested for this incident,

police found a folding knife in Joanie’s house.

Lankford’s first trial ended in a mistrial. His second

trial, which began on June 4, 1996 and lasted eight days, ended

with the jury finding Lankford guilty on all counts. Lankford

filed a motion for judgment of acquittal or in the alternative

for a new trial. This motion was denied October 31, 1996.

6
Lankford was sentenced to a term of 135 months as to Counts 1 and

2 to run concurrently, to a term of 60 months as to Count 3 to

run consecutively, supervised release for a term of five years, a

special assessment of $150 ($50 per count), and ordered to pay

$562.50 in restitution to Joanie Lankford under 18 U.S.C.

§ 2265(c). He received credit for time served.

Lankford filed his notice of appeal November 6, 1996. This

appeal was dismissed June 12, 1997 because Lankford’s attorney

failed to file a brief within this court’s deadline, despite
receiving several extensions. Lankford then filed an Unopposed

Motion for Leave to File Brief Out of Time with this court, and

counsel filed an Unopposed Motion to Reinstate Case. Both

motions were denied on June 19, 1997. Lankford then filed a

motion under 28 U.S.C. § 2255 to vacate, set aside, or correct

his sentence, alleging ineffective assistance of counsel. A

magistrate judge recommended that Lankford be granted permission

to file an out-of-time appeal. The district court adopted that

recommendation on May 13, 1998. Lankford timely appealed.

II. CHALLENGES TO COUNTS OF THE INDICTMENT
Lankford argues, for the first time on appeal, that Count 2

of the indictment failed to give the district court jurisdiction

because it omitted an essential element of 18 U.S.C.

§ 1201(a)(1): that he held Joanie Lankford when he willfully

transported her across state lines. Also for the first time on

appeal, he challenges the constitutionality of § 2261(a)(1), the

statute he was charged with violating in Count 1 of the

7
indictment. We address these challenges in turn.1

A. Insufficiency of Count 2

“An indictment is sufficient if (1) it contains the elements

of the offense charged, (2) it ‘fairly informs’ the defendant of

the charge he must meet, and (3) there is no risk of future

prosecutions for the same offense.” United States v. Arlen, 947

F.2d 139, 144 (5th Cir. 1991) (quoting United States v. Gordon,

780 F.2d 1165, 1169 (5th Cir. 1986)). Lankford asserts that the

indictment was insufficient because it did not include all the
elements of the crime with which he was charged.

Whether an indictment is sufficient is a question of law we

review de novo. See United States v. Cabrera-Teran, 168 F.3d

141, 143 (5th Cir. 1999). Although challenges based on the

failure to charge an offense may be made at any time, see FED. R.

CRIM. P. 12(b)(2); United States v. Fitzgerald, 89 F.3d 218, 221

(5th Cir. 1996), if made for the first time on appeal, a court

should read the indictment with “maximum liberality” and find it

sufficient “unless it is so defective that by any reasonable

construction, it fails to charge the offense for which the
defendant is convicted.” Id. (footnote omitted). The maximum

liberality standard is appropriate where, as here, the appellant

does not assert that he had no notice of the crime he was accused

on committing. See id. at 221 & n.1. In assessing the

1
Lankford also argues that the district court
improperly found that Counts 1 and 2 were not multiplicitous. We
address this argument below in our consideration of his
additional contention that his sentence violated the Double
Jeopardy Clause, U.S. CONST. amend. V.

8
sufficiency of an indictment, we focus on practical, not

technical, considerations. See Smith v. United States, 360 U.S.

1, 9 (1959) (“Convictions are no longer reversed because of minor

and technical deficiencies which did not prejudice the

accused.”); United States v. Chaney, 964 F.2d 437, 446 (5th Cir.

1992).

In order to obtain a conviction under § 1201(a)(1), the

government must prove “(1) the transportation in interstate

commerce; (2) of an unconsenting person who is; (3) held for
ransom, reward, or otherwise, and (4) the acts were done

knowingly and willingly.” United States v. Osborne, 68 F.3d 94,

100 (5th Cir. 1995). Count 2 of the indictment alleged that

Lankford, in violation of 18 U.S.C. § 1201(a)(1),

did willfully transport in interstate commerce from
Wichita Falls, Texas to Lawton, Oklahoma, Joanie
Lankford, who had been seized, confined, kidnaped,
abducted, and carried away for ransom, reward, and
otherwise, to wit, the defendant’s sexual
gratification.

Lankford’s challenge rests on the absence of the words “and held”

between “carried away” and “for ransom,” an omission he asserts
resulted in the indictment being insufficient. We must decide

whether this omission results in an indictment that, by any

reasonable construction, fails to charge that Lankford was

detaining his wife when he crossed state lines.

We find that the indictment is sufficient. Lankford was

charged with transporting his wife from Wichita Falls, Texas to

Lawton, Oklahoma, a distance of over fifty miles. Given the

location of Wichita Falls relative to the Texas-Oklahoma border,

9
the two would have had to travel a distance before crossing into

Oklahoma. Cf. United States v. Lewis, 662 F.2d 1087, 1089 (4th

Cir. 1981)(finding that an indictment’s statement that appellant

transported the victim from Virginia to the District of Columbia

alleged a holding); Hall v. United States, 410 F.2d 653, 659 (4th

Cir. 1969) (finding that an indictment’s charge that appellant

transported the victim from Virginia to Pennsylvania alleged a

holding at the time state lines were crossed for the second

time). The indictment also charged Lankford with having “seized,
confined, kidnaped, abducted, and carried away” his wife “for

ransom, reward, and otherwise, to wit, the defendant’s sexual

gratification.” We think Lankford’s indictment adequately

alleges his detention, at the time he crossed the Texas-Oklahoma

border, of an unconsenting person for purposes of his receiving

some benefit. Because we find Count 2 sufficient, Lankford’s

arguments regarding the possibility that his conviction on Counts

1 and 3 were based on legally inadequate grounds must fail.

B. Constitutionality of 18 U.S.C. § 2261(a)(1)

Lankford also challenges the constitutionality of the
statute he is charged with violating in Count 1 of his

indictment. In the main, he asserts that in enacting

§ 2261(a)(1),2 Congress exceeded its power under the Commerce

2
Section 2261(a)(1) provides that
A person who travels across a State line or enters or
leaves Indian country with the intent to injure,
harass, or intimidate that person’s spouse or intimate
partner, and who, in the course of or as a result of
such travel, intentionally commits a crime of violence
and thereby causes bodily injury to such spouse or

10
Clause. U.S. CONST. art. I, § 8.3 We review for plain error

because this challenge is made for the first time on appeal. See

FED. R. CRIM. P. 52(b); United States v. Olano, 507 U.S. 725

(1993); United States v. Knowles, 29 F.3d 947, 950-51 (5th Cir.

1994). In order to reverse, we must find that the district court

committed an error; that error was “plain” – i.e., “clear” or

“obvious”; that the plain error affected Lankford’s substantial

rights; and that it “seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings.” Id. (quoting
Olano, 507 U.S. at 736).

In United States v. Lopez, 514 U.S. 549 (1995), the Court

set forth three broad categories of activity Congress may

regulate consistent with its Commerce Clause power: (1) the use

of the channels of interstate commerce; (2) the instrumentalities

of interstate commerce, or persons or things in interstate

commerce; and (3) those activities substantially affecting

interstate commerce. 514 U.S. at 558-59. Intrastate activities

falling within the third category could be regulated if those

activities were economic in nature, id. at 559-61, or if Congress
included a jurisdictional element that allowed for case-by-case

intimate partner, shall be punished as provided in
subsection (b).
18 U.S.C. § 2261(a)(1).
3
Lankford cites to section 5 of the Fourteenth
Amendment as well, but makes no specific argument regarding how
§ 2261(a)(1) is outside the scope of Congress’ section 5 power.
Given this, and our disposition of the issue, we do not address
whether Congress’ enactment of § 2261(a)(1) is consistent with
that power.

11
assessment of whether the regulated activities substantially

affected interstate commerce. Id. at 561. Lankford asserts that

§ 2261(a)(1) punishes conduct that is purely intrastate, private,

and noncommercial, and that has no substantial effects on

interstate commerce. He also characterizes the provision as an

attempt to regulate purely local activities in a manner contrary

to the principles of federalism. In making these arguments, it

is clear that Lankford defines the regulated conduct as domestic

violence and places that conduct in the third of Lopez’s
categories.

We find that Congress was well within its Commerce Clause

power in enacting § 2261(a)(1). The provision properly falls

within the first of Lopez’s categories as it regulates the use of

channels of interstate commerce – i.e., the use of “the

interstate transportation routes through which persons and goods

move,” United States v. Bailey, 115 F.3d 1222, 1226 (5th Cir.

1997) (quoting United States v. Parker, 911 F. Supp. 830, 842

(E.D. Pa. 1995)), cert. denied, 118 S. Ct. 866 (1998) – to

further or facilitate domestic violence. See S. REP. NO. 103-138,
at 43 (1993) (“[T]itle II creates a Federal remedy for interstate

crimes of abuse including crimes committed against spouses or

intimate partners during interstate travel and crimes committed

by spouses or intimate partners who cross State lines to continue

the abuse.”); id. at 62 (“This section creates a new chapter in

the Criminal Code to punish spouse abusers who cross State lines

to continue abuse.”). It has long been held that Congress may

12
forbid or punish the use of channels of interstate commerce “to

promote immorality, dishonesty, or the spread of any evil or harm

to the people of other states from the state of origin,” Brooks

v. United States, 267 U.S. 432, 436 (1925). See Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 256 (1964)(“‘[T]he

authority of Congress to keep the channels of interstate commerce

free from immoral and injurious uses has been frequently

sustained, and is no longer open to question.’”)(quoting

Caminetti v. United States, 242 U.S. 470, 491 (1917)); North
American Co. v. SEC, 327 U.S. 686, 705 (1946)(“Congress may

impose relevant conditions and requirements on those who use the

channels of interstate commerce in order that those channels will

not become the means of promoting or spreading evil, whether of a

physical, moral or economic nature.”). As a result, that

violence against a spouse is a private or noncommercial activity

is of no moment.

Other courts confronted with challenges to various

provisions within VAWA’s § 40221(a) have similarly found that

those provisions fall within Lopez’s first category and are valid
exercises of Congress’ Commerce Clause power. See United States

v. Page, 167 F.3d 325, 334 (6th Cir. 1999)(“Because the

triggering factor of § 2261(a)(2) is the movement of the victim

across state lines, this statute falls into the first category

and is a valid exercise of Congress’s power to regulate the use

of the channels of interstate commerce.”)(internal quotation

marks omitted); United States v. Gluzman, 154 F.3d 49, 50 (2d

13
Cir. 1998)(adopting holding of court below that § 2261(a)(1) is a

valid exercise of Congress’ Commerce Clause power), cert. denied,

119 S. Ct. 1257 (1999); United States v. Von Foelkel, 136 F.3d

339, 341 (2d Cir. 1998)(upholding § 2262(a)(1) as it falls within

Lopez’s first category); United States v. Wright, 128 F.3d 1274,

1276 (8th Cir. 1997)(upholding § 2262(a)(1) as it “falls within

Congress’s authority to ‘keep the channels of interstate commerce

free from immoral and injurious uses.’”)(quoting Caminetti, 242

U.S. at 491), cert. denied, 118 S. Ct. 1376 (1998); United States
v. Gluzman, 953 F. Supp. 84, 89 (S.D.N.Y. 1997)(upholding

§ 2261(a)(1) as it falls within Lopez’s first category), aff’d,

154 F.3d 49 (2d Cir. 1998); cf. United States v. Bailey, 112 F.3d

758, 766 (4th Cir.)(relying on Caminetti, 242 U.S. at 491, and

Cleveland v. United States, 329 U.S. 14, 19 (1946), to find

§ 2261(a) constitutional), cert. denied, 118 S. Ct. 240 (1997).

The Fourth Circuit’s opinion in Brzonkala v. Virginia Polytechnic

Inst., 169 F.3d 820 (4th Cir. 1999), cert. granted sub nom.,

United States v. Morrison, 1999 WL 459152 (U.S. Sept. 28, 1999),

cited by Lankford in support of his challenge, is not to the
contrary. The Brzonkala court faced a challenge to 42 U.S.C.

§ 13981(b), and specifically noted that § 2261 was not in issue

in that case. Id. at 827. Because we view § 2261(a)(1) as a

regulation of the use of channels of interstate commerce, we need

not address whether domestic violence “substantially affects”

14
interstate commerce, as required under Lopez’s third prong.4 See

United States v. Robertson, 514 U.S. 669, 671 (1995)(per curiam).

Because § 2261(a)(1) is within Congress’ Commerce Clause power,

there is no error in convicting Lankford of violating that

statute.

III. CHALLENGES TO JUDICIAL AND PROSECUTORIAL CONDUCT

A. Judge’s Comments and Questions

Lankford asserts that the court’s questioning of the

witnesses and other comments before the jury prejudiced him and
denied him the right to a fair trial. He alleges that the

judge’s conduct during the trial evidenced his view that the

defendant was guilty of the crimes charged, and that this conduct

influenced the jury’s verdict. In support of this contention, he

points out that the judge interrupted the defendant’s cross-

examination and recross of the prosecution’s primary witness,

Joanie Lankford, twenty-four times, but interrupted the

Government’s direct and redirect of the same witness only five

times. Similarly, the defense’s direct examination of Lankford

was interrupted thirty-three times, and the prosecution’s cross
and recross of the defendant was interrupted only fifteen times.

Lankford also insists that the court assisted the Government in

4
In dicta, the Brzonkala court suggested it viewed §
2261 as a provision that included a jurisdictional element “to
ensure, through case by case inquiry that each specific
application of the regulation involves activity that in fact
affects interstate commerce.” Lopez, 514 U.S. at 561; see
Brzonkala, 169 F.3d at 836 (contrasting § 13981(b), which the
court viewed as including no jurisdictional element, with § 2261
and § 2262).

15
its opening statement in jury voir dire, and that prejudice

resulting from the judge’s behavior was such that it could not be

cured by jury instructions.

When, as here, no objections were raised at trial, we review

challenges to judicial conduct for plain error. See, e.g.,

United States v. Saenz, 134 F.3d 697, 701 (5th Cir. 1998). We

must determine whether constitutional error was committed – i.e.,

whether “the district judge’s actions, viewed as a whole, . . .

amount[ed] to an intervention that could have led the jury to a
predisposition of guilt by improperly confusing the functions of

judge and prosecutor.” United States v. Bermea, 30 F.3d 1539,

1569 (5th Cir. 1994). In making this determination, we consider

the totality of the circumstances, see United States v. Lance,

853 F.2d 1177, 1182 (5th Cir. 1988), which “must show that the

trial judge’s intervention was ‘quantitatively and qualitatively

substantial’.” Saenz, 134 F.2d at 702 (quoting Bermea, 30 F.2d

at 1569).

Although Lankford sees Saenz as similar to his own case, we

do not find that the exchanges he identifies approach the nature,
or the level of misconduct found in that case. Cf. United States

v. Cantu, 167 F.3d 198, 203 (5th Cir.) (stressing the unique

circumstances involved in Saenz), cert. denied, 120 S. Ct. 58

(1999). The vast majority of the exchanges occurred because the

court legitimately sought clarifications and attempted to move

the proceedings along. The mere fact that there were more

interruptions on one side or the other does not suggest, without

16
more, that the judge has predetermined the guilt of the defendant

or is assisting the prosecution. See Bermea, 30 F.3d at 1570

(“[A]lthough the frequency of a court’s interruptions of defense

counsel is significant, the nature of those interruptions is more

pertinent to our inquiry.”); United States v. Williams, 809 F.2d

1072, 1086-87 (5th Cir. 1987). The judge’s elicitation of

“damaging information” in the course of questioning witnesses is

also, by itself, insufficient to demonstrate that the judge was

engaged in misconduct. As we have previously noted,
“a federal judge . . . may comment on the evidence, may
question witnesses and elicit facts not yet adduced or
clarify those previously presented, and may maintain
the pace of the trial by interrupting or cutting off
counsel as a matter of discretion. Only when the
judge’s conduct strays from neutrality is the defendant
thereby denied a constitutionally fair trial.”

Moore v. United States, 598 F.2d 439, 442 (5th Cir. 1979)

(citations omitted). A review of the entire record, including

statements made in voir dire, does not demonstrate that the judge

“stray[ed] from neutrality” during Lankford’s trial. Moreover,

the judge explicitly instructed the jury to disregard anything he

may have said during the trial in their determinations of witness
credibility, of the weight to be given testimony, and in their

findings of fact.5 Such curative instructions can operate

5
The judge’s instructions regarding his comments were
as follows:
During the course of a trial I occasionally make
comments to the lawyers, or ask questions of a witness,
or admonish a witness or a lawyer. If you have seen
anything which you interpret as my opinion as to the
facts of the case or the credibility of a witness, you
are to disregard it. You are the jury and I am not.
Except for my instructions to you on the law, you

17
against a finding of constitutional error. See Bermea, 30 F.3d

at 1571-72.

B. Prosecutor’s Closing Argument

Lankford points to several statements made by the prosecutor

in his closing argument as operating to deprive him of a fair

trial. He argues that the lower court erred in overruling a

defense counsel’s objection to the following statements:

The psychologist thinks Joanie’s manipulating him
because I guarantee you he goes in there July 31st –
July 28 – I’m getting the date wrong, I’m sorry. The
duct tape, she spent the night last night, Doctor, she
said she loved me. She came home. Well, that’s not
what happened.6

According to Lankford, in making these statements, the prosecutor

guaranteed the existence of a fact and described a meeting

should disregard anything I may have said during the
trial in arriving at your own findings as to the facts
of the case, the credibility of the witnesses, and the
weight to be given their testimony.
6
Lankford adds two lines to this statement, noting that
the prosecutor said “The doctor doesn’t know Joanie. Saw her on
a limited occasion, but he knows this man, doesn’t he?” These
two sentences, however, came after defense counsel’s objection,
and were themselves not the subject of an objection. As a
result, we do not consider the two sentences part of the
challenged statement. Lankford’s argument with regard to these
two sentences alleges that they were outside the record, and that
in fact, the psychologist saw Joanie “separately from [Lankford]
and saw her together with [Lankford] on other occasions.” A
review of the psychologist’s testimony, however, reveals that the
sessions that included Joanie either individually or together
with her husband numbered at most, three over a one month period,
that he did not conduct a psychological evaluation of Joanie,
that he saw Joanie much less often than he saw Lankford, whom he
testified he saw regularly between February 1995 and August 1995,
and that his characterizations of the Lankford marriage were
based entirely on information supplied by Lankford. As a result,
we do not see the prosecutor’s statements as “outside the
record.”

18
between the psychologist and Lankford that was not reflected in

the record. As a result of the court’s error, he argues, the

Government was able to destroy the psychologist’s testimony,

which itself was detrimental to the testimony of Joanie Lankford.

Lankford also objects to the prosecutor’s twice referring to

him as “this psycho,” to his statements that Lankford was seeing

a psychologist, one of which suggested reasons he was seeing a

psychologist, and to his description of Lankford as “too

obsessed” to leave his wife alone. These statements, Lankford
contends, reflected the prosecutor’s improper assumption of the

role of an “expert” able to diagnose his mental state. There

were no objections to these statements at the time of trial.

In general, we apply a two-step analysis to charges of

prosecutorial misconduct. We first decide whether the

prosecutor’s comments were improper. See United States v.

Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999); United

States v. Munoz, 150 F.3d 401, 414 (5th Cir. 1998), cert. denied,

119 S. Ct. 887 (1999). If the comments are found to be improper,

we next assess whether they prejudiced Lankford’s substantive
rights. See Gallardo-Trapero, 185 F.3d at 320; Munoz, 150 F.3d

at 415. Here, we consider “(1) the magnitude of the statement’s

prejudice, (2) the effect of any cautionary instructions given,

and (3) the strength of the evidence of the defendant’s guilt.”

United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995)

(quoting United States v. Simpson, 901 F.2d 1223, 1227 (5th Cir.

1990)).

19
 Even if we were to find that each of the statements to which

Lankford objects was improper, he would not be entitled to

reversal or other correction because the prosecutor’s statements

did not affect Lankford’s substantial rights.7 First, a review

of the remarks in context of the trial, see Munoz, 150 F.3d at

415, suggests that the comments’ prejudicial effects, if there

were any, were insubstantial. Second, the cautionary

instructions given to the jury were sufficient to negate any

prejudicial effects the statements may have had. Finally,
substantial evidence of defendant’s guilt exists in the record.

This is simply not a case in which improprieties were such as to

cast “serious doubt upon the correctness of the jury’s verdict,”

see United States v. Hernandez-Guevara, 162 F.3d 863, 874 (5th

Cir. 1998), cert. denied, 119 S. Ct. 1375 (1999), and thus we see

no reason to reverse.8

IV. CHALLENGES RELATED TO THE JURY VERDICT

Lankford raises several points of error related to the

7
We review Lankford’s challenge to the prosecutor’s
description of an interchange between the psychologist and
Lankford for harmless error, and other challenges to the
prosecutor’s closing argument for plain error. See FED. R. CRIM.
P. 52(b). Under each standard, we must find error that affected
Lankford’s substantial rights before that error can be noticed.
Id.
8
Lankford also challenges the district court’s
sustaining an objection to defense counsel statements in closing
argument. The Government objected to the following defense
counsel comments: “When you read the charge, it’s going to talk
about accident or mistake. If she convinces him that she is
consenting, the mistaken fact of consent is an absolute defense .
. . .” Because those statements described neither the charge nor
extant law correctly, the district court did not err in
sustaining the Government’s objection.

20
jury’s verdict. First, he argues that the court did not explain

the meaning of “willfully” when it instructed the jury as to the

elements of interstate domestic violence and of kidnapping.

Second, he insists that there was insufficient evidence to

support his conviction of interstate domestic violence (Count 1),

kidnapping (Count 2), and of use, or carrying of a firearm during

and in relation to a crime of violence (Count 3).

A. Jury Instructions

Because Lankford did not challenge his jury instructions at
trial, we review for plain error. See FED. R. CRIM. P. 52(b);

United States v. Davis, 19 F.3d 166, 169 (5th Cir. 1994). “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.” Id. We find no such error here.

The judge instructed the jury as to the definitions of

“knowingly” and “intentionally.” The latter was stated to mean

that “the act was committed voluntarily and purposely.”

“Intentionally,” not “willfully,” is included in the interstate

domestic violence statute. See § 2261(a)(1). “Willfully” is
included in the kidnapping statute. See § 1201(a)(1) (providing

that the person be “willfully transported”). The court

instructed the jury that in order to find Lankford guilty of

kidnapping, it had to find that the government proved “that the

defendant intentionally transported Joanie Lankford in interstate

commerce while so kidnaped or confined.” Considering the jury

instruction, as a whole, we do not find that a grave miscarriage

21
of justice is likely to have occurred because of the absence of

the proffered definition of “willfully.” Thus, we find no plain

error.

B. Insufficiency of the Evidence

Lankford challenges his conviction of interstate domestic

violence principally because there was insufficient evidence to

show that (1) he crossed a state line with intent to injure,

harass, or intimidate his spouse, and (2) his wife’s protestation

was sufficient to dispel his mistaken belief that she was
consenting to sexual acts. His challenge to his kidnapping

conviction rests on arguments regarding his wife’s consent to go

to Lawton with him and on an absence of evidence that his intent

in going to Lawton was for his sexual gratification. Finally, he

challenges his conviction of using or carrying a firearm, 18

U.S.C. § 924(c), with arguments that evidence did not support a

finding that a “real gun” was used, and that it did not support a

finding of a nexus between use or carriage of a firearm and the

underlying crimes of violence. As to the latter contention,

Lankford points to the absence of evidence that showed he used or
carried a gun after stopping at a rest stop in Texas.

Lankford raised sufficiency of evidence arguments in his

Rule 29 motion, and thus preserved these issues for appeal. In

reviewing challenges to the sufficiency of the evidence, we view

the evidence in the light most favorable to the jury verdict and

will affirm “if a rational trier of fact could have found that

the government proved all essential elements of the crime beyond

22
a reasonable doubt.” United States v. Castro, 15 F.3d 417, 419

(5th Cir. 1994). “The evidence need not exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt, and the jury is free to choose

among reasonable constructions of the evidence.” United States

v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997) (citing United

States v. Salazar, 66 F.3d 723, 728 (5th Cir. 1995)).

As the lower court noted when considering Lankford’s

sufficiency of evidence arguments, the jury in this case was
confronted with two diametrically opposed versions of what

happened on August 8 and 9. In light of the verdict, it is clear

that the jury chose to give more credibility to Joanie Lankford’s

testimony than to her husband’s. This is exactly the type of

decision juries are called upon to make, see United States v.

Restrepo, 994 F.2d 173, 182 (5th Cir. 1993) (“The jury is the

final arbiter of the weight of the evidence, and of the

credibility of witnesses.”), and, unless testimony is incredible

as a matter of law, we will not disturb the jury’s findings. See

United States v. Freeman, 77 F.3d 812, 816 (5th Cir. 1996).
Joanie Lankford’s testimony neither “asserts facts that

[she] physically could not have observed,” nor asserts “events

that could not have occurred under the laws of nature.” Id. As

a result, we must accept that the jury found that Joanie Lankford

consented to neither being taken to Lawton, nor to sexual

activity while there. We also find that the record contains

sufficient evidence to support the jury’s findings that the

23
government met its burden in proving that Lankford crossed state

lines with the intent to harass, injure or intimidate his wife,

that during the course of, or as a result of, such travel, he

intentionally committed a crime of violence and thereby caused

Joanie Lankford bodily injury. There was also sufficient

evidence to support a conviction of kidnapping. Because the

Government did not have to show that Lankford’s intent in

crossing state lines was to obtain sexual gratification in order

to prove kidnapping under § 1201, an absence of evidence to that
effect is irrelevant. See United States v. Osborne, 68 F.3d 94,

100 (5th Cir. 1995) (describing elements of § 1201(a)(1)).

With regard to his conviction under § 924(c), Lankford

asserts that there is insufficient evidence because the

Government did not admit an actual gun into evidence and because

his wife testified that she did not know (versus did not believe)

that what he was carrying was in fact a “real” gun. Although to

date we have not detailed the nature of the evidence the

government is entitled to rely on in attempting to prove a

firearm was used or carried for purposes of § 924(c), a number of
our sister circuits have considered the issues Lankford raises.

See United States v. Hunt, 187 F.3d 1269, 1270-71 (11th Cir.

1999); United States v. Beverly, 99 F.3d 570 (3d Cir. 1996);

United States v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995); United

States v. Moore, 25 F.3d 563, 568-69 (7th Cir. 1994); United

States v. Jones, 16 F.3d 487, 490-91 (2d Cir. 1994); United

States v. Hamilton, 992 F.2d 1126, 1129 (10th Cir. 1993); United

24
States v. Jones, 907 F.2d 456, 460 (4th Cir. 1990); Parker v.

United States, 801 F.2d 1382, 1384-85 (D.C. Cir. 1986). We agree

with the principle emerging from these opinions: The Government

is not required to produce the actual weapon allegedly used,

possessed, or carried and may rely on testimony, including the

testimony of lay witnesses, in its attempt to prove that a

defendant used, possessed or carried a “firearm” as that term is

defined for purposes of § 924(c). See 18 U.S.C. § 921(a)(3). A

review of the record with this principle in mind leads to the
conclusion that a sufficient basis for a jury finding that

Lankford used or carried a firearm exists.

Lankford’s argument regarding the use or carriage of a gun

at the time state lines were crossed has been previously rejected

by this court, see United States v. Ivy, 929 F.2d 147, 151-52

(5th Cir. 1991), and the Supreme Court’s subsequent decisions in

Smith v. United States, 508 U.S. 223 (1993), and Bailey v. United

States, 516 U.S. 137 (1995), do not provide us with reasons to

consider that argument meritorious at this juncture. There is

sufficient evidence to support a jury’s finding that Lankford
used a gun “during” the kidnapping and “in relation” to that

kidnapping. A showing that Lankford also used a gun during and

in relation to his sexually abusing his wife is not required to

sustain his conviction.

V. CHALLENGES TO THE SENTENCE

A. Multiplicitous Counts and Double Jeopardy

Lankford challenges the district court’s denial of his

25
motion seeking to force the government to eliminate either Count

1 or Count 2 of the indictment, an act argued to be required

because the two counts are multiplicitous. Counts 1 and 2,

Lankford argues, charge a single kidnapping offense.9 Because

the jury instructions did not restrict the jury to finding guilt

on Count 1 only on the basis of finding guilt of sexual abuse,

the jury may have convicted him of kidnapping under Count 2, and

interstate domestic violence by kidnapping in Count 1. Moreover,

he contends that his conviction and sentence violates the Double
Jeopardy Clause, U.S. CONST. amend. V, because kidnapping is a

lesser included offense of interstate domestic violence. See

Rutledge v. United States, 517 U.S. 292, 301 (1996) (“As long as

[18 U.S.C.] § 3013 stands, a second conviction will amount to a

second punishment.”); Brown v. Ohio, 432 U.S. 161, 168 (1977)

(concluding that “a greater offense is . . . by definition the

‘same’ for purposes of double jeopardy as any lesser offense

included in it.”). Although Lankford did not raise his Double

Jeopardy arguments below, we may consider them. See FED. R. CRIM.

P. 52(b); United States v. Stovall, 825 F.2d 817, 821 (5th Cir.
1987) (“A complaint about multiplicity of sentences . . . can be

9
Count 2 of the indictment charges Lankford with
kidnapping in violation of 18 U.S.C. § 1201; Count 1 of the
indictment alleges that on or about August 8, 1995, Lankford
did travel across a state line from Wichita Falls,
Texas in the Northern District of Texas, to Lawton,
Oklahoma, in the Western District of Oklahoma, with the
intent to injure, harass, and intimidate his spouse,
Joanie Lankford, and in the course of and as a result
of such travel, the defendant did intentionally commit
crimes of violence, to wit, kidnapping and sexual abuse
and thereby caused bodily injury to Joanie Lankford.

26
raised for the first time on appeal.”). We review questions of

multiplicity de novo. See United States v. Soape, 169 F.3d 257,

265 (5th Cir.), cert. denied, 119 S. Ct. 2353 (1999); United

States v. Flores-Peraza, 58 F.3d 164 (5th Cir. 1995). Because

the double jeopardy arguments are being considered for the first

time on appeal, we review for plain error.

In general, two counts are multiplicitous when a single

offense is charged under more than one count of an indictment.

See Soape, 169 F.3d at 266 (citing United States v. Nguyen, 28
F.3d 477, 482 (5th Cir. 1994)). “The chief danger raised by a

multiplicitous indictment is the possibility that the defendant

will receive more than one sentence for a single offense.”

United States v. Cluck, 143 F.3d 174, 179 (5th Cir. 1998)

(quoting United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir.

1995)), cert. denied, 119 S. Ct. 808 (1999). The primary test

for whether a single offense has been charged in an indictment

and for whether a defendant has been punished twice for the same

offense is that offered in Blockburger v. United States, 284 U.S.

299 (1932): “[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only one

is whether each provision requires proof of an additional fact

which the other does not.” 284 U.S. at 304; see, e.g., Rutledge,

517 U.S. at 297 (identifying the Blockburger test as the

principal test for determinations of whether the Double Jeopardy

Clause has been violated); Soape, 169 F.3d at 266 (applying the

27
Blockburger test to question of whether indictment was

multiplicitous). In applying this test, we examine not the

particular circumstances involved in the case before us, but the

statutory elements. See Soape, 169 F.3d at 266 (“The focus in

determining the issue of multiplicity is on the statutory

elements of the offenses, not on their application to the facts

of the specific case before the court.”); United States v.

Singleton, 16 F.3d 1419, 1422 (5th Cir. 1994) (“Determining

whether statutory offenses are separate for double jeopardy
purposes involves parsing the statutes apart from the facts of

any particular case.”).

An application of the Blockburger test reveals that Counts 1

and 2 of Lankford’s indictment are not multiplicitous. The

kidnapping statute requires that the state show that the victim

was abducted and was held for purposes beneficial to the

kidnapper at the time state lines were crossed. The interstate

domestic violence statute requires that the victim be a spouse or

intimate partner of the defendant, that the defendant crossed

state lines with the intent to injure, harass, or intimidate the
victim, that a crime of violence was engaged in intentionally

either in the course of or as the result of such travel, and that

as a result of that crime of violence, bodily injury to the

victim occurred. It can therefore be said that a kidnapping

conviction requires proof of a fact not required by the

interstate domestic violence statute (e.g., that the victim be

held for purposes beneficial to the defendant at the time state

28
lines were crossed), and that a conviction for interstate

domestic violence requires proof of a fact not required by the

kidnapping statute (e.g., that the victim be a spouse or intimate

partner, that bodily injury to the victim resulted). See United

States v. Sickinger, 179 F.3d 1091, 1093 (8th Cir.

1999)(identifying facts that are unique to both § 1201(a) and

§ 2261(a)); United States v. Bailey, 112 F.3d 758, 766-67 (4th

Cir. 1997) (same); United States v. Frank, 8 F.Supp.2d 253, 282

n.26 (S.D.N.Y. 1998) (same). Moreover, we cannot say that the
district court committed plain error when it determined

Lankford’s sentence. That kidnapping is a lesser included

offense of interstate domestic violence is by no means clear or

obvious under current law. See United States v. Olano, 507 U.S.

725, 734 (1993) (defining “plain” error to be error that is

“clear” or “obvious”); Sickinger, 179 F.3d at 1093 (considering

whether kidnapping was a lesser included offense within

interstate domestic violence and finding no plain error).

B. Sentence for Interstate Domestic Violence

Lankford was given a sentence of 135 months imprisonment for
his conviction of interstate domestic violence. He contends, for

the first time on appeal, that his sentence for violating

§ 2261(a)(1) exceeds the statutory maximum, because evidence

supports an offense of aggravated sexual abuse as defined in 18

U.S.C. § 2241, an offense he was not charged with committing, but

does not support an offense of sexual abuse as defined in 18

U.S.C. § 2242(1). As a result, he argues, he cannot be sentenced

29
under § 2261(b)(4), which dictates that a person violating

§ 2261(a) “shall be fined under this title, imprisoned . . . as

provided for the applicable conduct under chapter 109A if the

offense would constitute an offense under chapter 109A . . . .”

Instead, he must be sentenced under § 2261(b)(5), which specifies

a term of not more than five years. Because Lankford’s argument

requires that we interpret § 2261(b)(4), we review the district

court’s action de novo, see United States v. Hebert, 131 F.3d

514, 525 (5th Cir. 1997), cert. denied, 118 S. Ct. 1571 (1998),
and in this case must determine whether the court committed plain

error. See United States v. Martinez-Cortez, 988 F.2d 1408, 1410

(5th Cir. 1993).

Section 2261(b) provides for penalties that vary according

to the degree of the injury sustained by the victim. See United

States v. Page, 167 F.3d 325, 334 (6th Cir. 1999). The language

of § 2261(b)(4) instructs that if “the offense would constitute

an offense under chapter 109A,” then the penalties “as provided

for the applicable conduct under chapter 109A” are applicable,

“without regard to whether the offense was committed in the
special maritime and territorial jurisdiction of the United

States or in a Federal prison.” We find that the district court

did not commit an obvious error in interpreting § 2261(b)(4) to

be applicable to the circumstances of this case.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM Lankford’s conviction

and sentence.

30