Admission of Evidence - Probative Value/Prejudice, Harmless Error;

Instructions - Deliberate Ignorance;

Appellate Review - Follow Earlier Precedent Over Subsequent Deviation

United States v. Espinosa, 00-3066 (April 9, 2001)

(Michael Lewis Harris, FPD, Kansas City, Kansas)

Espinosa was convicted of possessing with intent to distribute more than 100 kilograms of marijuana and was sentenced to 60 months imprisonment.

HELD: (1) Espinosa raises a "guilt by association" challenge to the admission of evidence concerning the wrongdoing of his wife and sons. Under Rule 403, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. The court reviews this claim for abuse of discretion. The admitted evidence included that his wife has a pending drug charge, he and his wife made previous trips to transport drugs, and his sons had been involved in the drug trade. As to the first two categories, there was no error. However, evidence as to the sons was substantially less relevant. The court held admission of this evidence was an abuse of discretion. However, a trial court's decision on admission of evidence is harmless unless a substantial right is affected. The error was harmless.

(2) Espinosa objected to the judge's instruction that the jury could find the prosecution satisfied the "knowledge" element if Espinosa had been deliberately ignorant of the presence of drugs in the rental truck. In reviewing a challenge to a deliberate ignorance instruction based on insufficient evidence, the court views the evidence in the light most favorable to the government. Ultimately, the court reviews the decision to give such instruction de novo. A deliberate ignorance instruction is appropriate only when the prosecution presents evidence that the defendant purposely contrived to avoid learning all the facts in order to have a defense in the event of a subsequent prosecution. Use of a deliberate ignorance instruction is rarely appropriate. The evidence must indicate the defendant had subjective knowledge. The fact that an objectively reasonable person would have had knowledge is immaterial. The district court need not insist upon direct evidence of conscious avoidance of a fact before giving the instruction. The prosecution is entitled to rely on circumstantial evidence. In this case, the jury could have found either actual knowledge or deliberate ignorance.

(3) Espinosa relied on the circuit's opinion in de Francisco-Lopez in which the circuit held that the same facts cannot be used to prove both actual knowledge and deliberate indifference. However, reversal is not required because of prior, established precedent in the circuit. When faced with an intra-circuit conflict, a panel should follow earlier, settled precedent over a subsequent deviation therefrom. de Francisco-Lopez conflict with prior precedent.

Felon in Possession - Interstate Commerce;

Guilty Plea - Waive All Non-Jurisdictional Defects;

Fail to Object - Plain Error Review;

Crime of Violence (§4B1.2) - Possess Unregistered Firearm, Statutory Basis of Conviction, Categorical Approach

United States v. Dwyer, 00-5079 (April 10, 2001)

Dwyer plead guilty to felon in possession of a firearm. His base offense level was enhanced for two prior felony convictions of a crime of violence under §2K2.1(a)(2).

HELD: (1) The constitutionality of 18 U.S.C. § 922(g) under the Commerce Clause was upheld in Dorris (10th Cir. 2000).

(2) A defendant who knowingly and voluntarily pleads guilty waives all non-jurisdictional challenges to his conviction.

(3) Dwyer's Texas robbery conviction is a crime of violence. Dwyer did not object to consideration of his prior conviction for possession of an unregistered firearm as a crime of violence. Failure to object generally precludes review. An exception exists if the district court's reliance on the presentence report amounts to plain error. The claim as to an erroneous interpretation of a crime of violence is one of law that may constitute plain error.

(4) The question of whether possession of an unregistered firearm is a crime of violence is a question of first impression. For purposes of evaluating whether a prior offense constitutes a crime of violence under §4B1.2, the court first looks to the statutory basis of the conviction. If the statute is ambiguous or broad enough to encompass both violent and non-violent crimes, a court can look beyond the statute to certain records of the proceedings such as the charging documents, judgment, plea and findings by the court. Section 5861(d), 26 U.S.C. is a regulatory measure. Possession of an unregistered weapon is not akin to simple possession. Instead the statute is targeted at specific weapons deemed to be particularly dangerous. The Tenth Circuit joined other circuits in holding that possession of an unregistered firearm is a crime of violence under §4B1.2.

Criminal Justice Act - Attorney Compensation For Work Done After New Counsel Was Appointed

United States v. Romero-Gallardo, 00-4160 (April 9, 2001)

This matter is before the court on application for attorney compensation under the Criminal Justice Act. The voucher was submitted by initial counsel, who withdrew and was replaced by the Federal Public Defender. A portion of the time included on the voucher related to work done after that date, for purposes of preparing the case for transition to new counsel for appeal. The question is whether the court may approve compensation for work done by former CJA counsel following formal termination of representation. Based on the structure and purpose of the Act, as well as relevant guidelines and case law, the circuit held the Act does not authorize the court to approve such compensation. When counsel performs services in anticipation of a formal appointment, the Act permits the court to make the appointment retroactive. Allowing compensation in this circumstance would create a multiple representation situation only allowed under the Act in an extremely difficult case. It is essential that counsel prepare the case file for transfer to substitute counsel as thoroughly and efficiently as possible. The court's holding, that the Act does not authorize compensation for work done after withdrawal, is not intended in any way to detract from that responsibility. The holding should merely encourage prompt completion of these tasks prior to formal withdrawal from the case.

Habeas Corpus (28 U.S.C. 2254) - Death Penalty;

Competency to Stand Trial - Substantive or Procedural Claim, Bona Fide Doubt, Retrospective Hearing

McGregeor v. Gibson, 99-7038 (April 11, 2001)

(Vicki Ruth Adams Werneke, FPD, Oklahoma City, Oklahoma)

McGregeor was convicted of first degree murder and sentenced to death. A panel affirmed. Rehearing en banc was granted to review the standard for assessing procedural competency claims in the aftermath of the Supreme Court decision in Cooper v. Oklahoma.

McGregeor was originally convicted and sentenced to death. Then, pursuant to the Supreme Court's decision in Ake v. Oklahoma, the conviction and sentence were reversed by the OCCA. McGregeor was tried again for murder and raised the defense of not guilty by reason of insanity. He was again convicted. Before the second trial, a competency proceeding was held and a jury found McGregeor competent to stand trial. At that proceeding, the jury was instructed that McGregeor had to prove incompetency by clear and convincing evidence. Subsequently, the Supreme Court held that the clear and convincing evidence standard is incompatible with the dictates of due process. McGregeor then brought state post conviction proceedings to challenge the unconstitutional burden of proof. His Cooper challenge was denied as procedurally barred, and McGregeor sought habeas relief in federal court. The district court held that his procedural competency claim was barred, but assessed the merits, and found that McGregeor did not meet his burden of raising a bona fide doubt as to his competency during his criminal trial. On appeal, a panel of the Tenth Circuit affirmed, with Judge Murphy filing a dissent. Therefore the court granted en banc review to answer the question of when may a defendant, found competent to stand trial under an unconstitutional clear and convincing burden of proof and then convicted, succeed in habeas on a procedural competency claim.

HELD: (1) The AEDPA applies. Because the state court did not hear the merits and the district court made its own determination, the circuit would review the district court's conclusions of law de novo and its fact findings for clear error.

(2) The criminal trial of an incompetent defendant violates due process. The test for determining competency is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him. Competency claims raise issues of both substantive and procedural due process. This case involves McGregeor's procedural competency claim, rooted in the Fourteenth Amendment right to due process of law. When a criminal defendant's competency is determined under an unconstitutional burden of proof, the prior competency determination merits no presumption of correctness.

(3) To prevail on a procedural due process competency claim, a petitioner must raise a bona fide doubt regarding his competency to stand trial at the time of conviction. The scope of that standard is not clear. On the one hand, the circuit has stated that one can prevail on a procedural due process claim if he establishes a bona fide doubt as to competency at trial. In other cases, the circuit has required petitioners to show that the trial judge ignored facts raising a bona fide doubt regarding competency to stand trial.

(4) In cases where the claim is that the district court should have held a competency hearing but did not, the question is whether a reasonable judge situated as was the trial judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial. In this case the trial court attempted, but failed, to protect the accused's due process rights, by assessing his competency to stand trial under an unconstitutional burden of proof. The circuit had to be careful not to collapse the distinction between procedural and substantive due process by raising the level of proof required for procedural competency claims to that of substantive competency claims.

(5) To prevail on a procedural competency claim after a trial in which the petitioner was found competent under an unconstitutional burden of proof, the petitioner must establish that a reasonable judge should have had a bona fide doubt as to his competency at the time of trial. The circuit reviews the evidence in the record objectively from the standpoint of a reasonable judge presiding over petitioner's case at the time of trial. A petitioner establishes a bona fide doubt, if he shows that a reasonable judge should have doubted whether petitioner had present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether the petitioner had a rational as well as factual understanding of the proceedings against him. The due process requirement is continuing: a defendant must be competent throughout the entire trial. To prevail on a procedural competency claim, the petitioner need not establish facts sufficient to show he was actually incompetent or show he was incompetent by a preponderance of the evidence. The mere fact that the trial court granted a competency hearing will not suffice to demonstrate a bona fide doubt. The circuit in reviewing this claim, treats the trial as if no competency hearing were held but does consider the evidence presented at the competency hearing. Evidence of irrational behavior, demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant. Other relevant factors include evidence of mental illness and representations of defense counsel. The court would examine the totality of the circumstances.

(6) The circuit concluded that McGregeor's procedural due process rights were violated. A reasonable judge should have had a bona fide doubt concerning McGregeor's continued competency to stand trial in light of inconsistent evidence concerning whether he was properly medicated throughout trial. This evidence included counsel's repeated contentions that his client was unable to assist, McGregeor's odd behavior at trial, and his substantial history of mental illness.

(7) The circuit next considered whether a retrospective competency hearing can be held. Such retrospective hearings are generally disfavored, but are permissible whenever a court can conduct a meaningful hearing to evaluate retrospectively the competency of the defendant. Factors to be considered in assessing whether a meaningful retrospective determination can be made include passage of time, availability of contemporaneous medical evidence, statements by the defendant in the trial record, and availability of individuals and trial witnesses who were in a position to interact with the defendant before and during trial, including the judge, counsel for the government and defense, and jail officials. The circuit was greatly influenced in this case by the lack of contemporaneous medical evidence in the record regarding competency at the time of trial. There has been a significant passage of time. Therefore, the circuit concluded that a meaningful retrospective competency determination could not be made. As such, McGregeor's due process rights cannot adequately be protected by remanding to the state court for such a determination. The circuit made this determination in the first instance. Therefore, the circuit granted McGregeor's request for habeas relief, reversed the judgment of the district court and remanded with directions to vacate McGregoer's sentence and judgment and conviction.

Forfeiture - Return of Property (Rule 41(e), Administrative, Equitable Tolling, Statute of Limitations, Property Right

United States v. Clymore, 00-2160 (April 13, 2001)

Clymore appeals from dismissal with prejudice of his claims pursuant to Rule 41(e), F.R.Cr.P. for return of property administratively forfeited in federal proceedings. Originally, the district court granted summary judgment in favor of the government. The circuit had reversed, holding that constitutionally ineffective notice voided certain DEA and United States Customs administrative forfeitures. Because the five year statute of limitations had run, the circuit remanded for further proceedings. On remand, the district court concluded that the statute of limitations should be equitably tolled, from the date of the administrative forfeitures until the date the circuit found the forfeitures to be constitutional defective.

HELD: (1) The question of whether equitable tolling is permissible under 19 U.S.C. § 1621 is one of law reviewed de novo. It is appropriate to apply equitable tolling, where consistent with congressional intent and called for by the facts of the case. Equitable tolling is not inconsistent with congressional intent, when a statute provides for tolling in some circumstances, and the tolling at issue was nowhere eschewed by Congress. Reversal of summary judgment returned the parties to their litigation status, and therefore permitted consideration of the defense of equitable tolling. Application of equitable doctrines rests in the sound discretion of the district court.

(2) There is a five year statute of limitations for forfeitures.

(3) Clymore also argues that the government is not entitled to equitable tolling because of its failure to give him notice. He alleges that the government knew its notices of forfeiture were returned undelivered, that he was in federal custody, that he had written letters inquiring about the property, indicating he was unaware of the forfeitures. This court has applied equitable tolling in civil actions where conduct rises to the level of active deception, and the other party has been lulled into inaction or actively misled. Another situation is where extraordinary circumstances make it impossible to file a claim within the statutory period. The district court made no findings regarding whether the government knew Clymore had not been served, or whether it was reasonable for the government to fail to timely commence judicial forfeiture proceedings, after it became aware that Clymore challenged the administrative forfeitures. On remand, the district court should conduct an equitable estoppel analysis.

(4) The next question is: what proceedings on remand are appropriate when a Rule 41(e) or equitable civil motion involves property, confiscated during an arrest for drug smuggling, for which the defendant is later convicted, the administrative forfeiture is later voided, and a statute of limitations for forfeiture proceedings has run. Clymore argues that such situation automatically requires that instrumentalities of the crime and derivative contraband be turned over to whomever claims to be entitled to lawful possession. The circuit disagreed. No property right shall exist in illegal drugs, proceeds from selling illegal drugs, or property used to enable the illegal smuggling of drugs. Such property is not subject to a state statutory or common law right of replevin. At the time the government takes possession of property used to commit drug offenses, it holds an unperfected right to title to it, and ownership will retroactively vest in the government from the time the illegal act was committed upon a judicial quieting of title to the property in favor of the government. Only a person whose constitutional rights against an illegal search and seizure have been offended or an innocent owner have higher rights to the property. Just because the statute of limitations has run on the government bringing an action to quite title, this does not mean the district court cannot rule in favor of the government on Clymore's attempt to equitably recover the property seized.

(5) In a forfeiture action, if the government establishes probable cause to seize the property, and the claimant bears the burden of proving that the requested forfeiture does not fall within the four corners of the statute. A claimant in a Rule 41 proceeding must prove only a right to lawful possession of the property, and no presumption exists in favor of the government. The circuit has not held that property associated with a void administrative forfeiture automatically has to be returned.

(6) Deciding the merits of a forfeiture proceeding is not the same as determining whether a claimant under Rule 41 has met his burden. Courts have little discretion in forfeiture actions, while a court hearing a motion for return of property has the discretion afforded courts in all equitable proceedings. In a Rule 41 hearing, if the administrative forfeiture is declared void and without res judicata effect, the court's inquiry must then focus on whether the claimant has met his burden to establish that he is both lawfully and equitably entitled to return of the property.

(7) It appears that there is no question that the airplane, air to ground radio, and money confiscated at the time of Clymore's arrest were used to purchase and transport illegal controlled substances, and therefore were properly in the possession of the government as § 881(a) property. Therefore even though the government failed to properly perfect its right to title through its administrative forfeiture proceedings, this property could be disgorged from the custody of the government only by judicial or administrative order concluding that the property should be returned to an innocent owner or one aggrieved by an illegal seizure. After Clymore I, the administrative forfeitures were void, but the district court had before it a party with a statutorily permissible legal possession of but unperfected right to title to what appears to be contraband, and a claimant alleging a right to lawful possession and equitable right to return of the property. The court may still quiet title to the property in favor of the government.

Habeas Corpus (28 U.S.C. § 2254) - COA, AEDPA, Standard of Review;

Ineffective Assistance of Counsel - Fail to Object, Scope of Questions, Investigations, Deficient Performance, Prejudice

Prosecutorial Misconduct - Exculpatory Evidence;

Cumulative Error

Gonzales v. McKune, 00-3003 (April 18, 2001)

Gonzales challenges his convictions for attempted rape and felony murder under 28 U.S.C. § 2254.

HELD: (1) The AEDPA applies. Gonzales must obtain a COA, Certificate of Appealability. He is not entitled to a COA unless he can make a substantial showing of the denial of a constitution right. He must demonstrate that reasonable juris would find the district court's assessment of the constitutional claims debatable or wrong. The court construed the notice of appeal as a request for COA and granted the COA.

(2) The AEDPA sets forth the appropriate standard of review. Claims of ineffective assistance of counsel are mixed questions of law and fact. Likewise whether exculpatory evidence suppressed by a prosecutor is material is a mixed question of fact and law. If a state court did not hear the merits, the circuit will review the federal district court's legal conclusions de novo and any findings of facts for clear error.

(3) To prevail on a claim of ineffective assistance of counsel, a petitioner must show deficient performance and prejudice. To show prejudice, the petitioner must establish that, but for counsel's errors, there was a reasonable probability that the outcome of his trial would have been different.

(4) Gonzales argues that defense counsel failed to object to a letter written by his cell mate. Both the Kansas court and the federal district court concluded that Gonzales could not show prejudice. The circuit held that the failure to object was error, because it was hearsay and could readily been excluded.

(5) Gonzales also complained about counsel's failure to pursue further examination of a KBI trace examiner. Both the Kansas court and federal district court concluded that the scope of questioning was strategic, and the circuit agreed.

(6) Gonzales is correct that an attorney has a duty to conduct a reasonable investigation. The circuit agreed that counsel is presumed to have acted reasonably in choosing not to examine all these witnesses.

(7) Suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material to guilt or punishment, irrespective of good faith or bad faith of the prosecution. This is under Brady. This claim turns on the state's failure to disclose information of lack of sperm in the semen sample. This does not conclusively exclude Gonzales as a potential donor. But the Kansas court was wrong in finding that the evidence was not clearly exculpatory. Evidence withheld by the government need not conclusively exonerate in order to qualify as Brady material. The evidence need only be favorable to the defense. Therefore, Gonzales has established that his lawyer's failure to object to the confession letter fell below an objective standard of reasonable performance, and the state's failure to inform him that it could not detect sperm in the semen sample deprived him of favorable evidence which he could have presented at trial. The question is whether with these mistakes the outcome of the trial would have changed. Gonzales' trial counsel seriously erred in failing to prevent the admission of the confession letter. The confession is a dramatic and impressive type of evidence. To a jury which may otherwise be uncertain about guilt, a confession can erase any traces of doubt. However, the Strickland prejudice was decided by the Kansas court under correct Supreme Court law, so the circuit could review only to determine if it involved a clearly erroneous application of law to the facts. Were the circuit to address this claim de novo it would be inclined to conclude prejudice, but it could not say that the state court's decision was clearly erroneous.

(8) Because the Kansas court did not address the question of materiality as to the exculpatory evidence, review is de novo. Yet the circuit could not say that the result of Gonzales' trial would have been different.

(9) Faced with established errors at trial, a court must consider the cumulative impact of errors. Although the Kansas court did its own cumulative error analysis, it did not consider the prejudicial impact of the Brady error. Therefore, its cumulative error analysis was contrary to or involved an unreasonable application of clearly established federal law. The circuit could find no cases considering Brady and Strickland errors together to determine whether the errors collectively undermine confidence in the outcome of the trial. Neither the state nor the district court considered the cumulative impact of both errors, and review is de novo. The court held that, even under cumulative error analysis, there is not a reasonable probability the outcome of the trial would have changed.

Civil Rights Action - Segregation, Fail State Claim, Dismissal, § 1915;

Motion to Alter or Amend

Curley v. Perry, 00-2152 (April 18, 2001)

Curley is a state prisoner. Due to unspecified threats he has been in administrative segregation. By his pro se civil rights action he seeks to prohibit all inmate to inmate mail except for correspondence between immediate family members or involving legal issues.

HELD: (1) The circuit reviews de novo the district court's decision to dismiss a complaint under 28 U.S.C. § 1915(e)(2) for failure to state a claim. The circuit construed the complaint as asserting a violation of the Eighth Amendment. A prison officials' act must be objectively, sufficiently serious and result in the denial of minimal civilized measure of life's necessities. The prison official must have a sufficient culpable state of mind, in this case deliberate indeference to inmate health or safety. The complaint met neither requirement.

(2) The court reviews de novo the claim that the district court violated due process by dismissing the complaint without providing notice or an opportunity to amend. Sua sponte dismissal of a meritless claim, under Rule 12(b)(6) or a statutory provision, does not violate due process or unduly burden a plaintiff's right of access to the courts. A litigant whose complaint has been dismissed with prejudice can file a motion to alter or amend the judgment under Rule 69, or for relief from judgment under Rule 60 and can bring an appeal. The district court should allow a plaintiff an opportunity to cure technical errors, or otherwise amend the complaint, when doing so would yield a meritorious claim. However, in this case, given the fact that the prison responded to Curley's safety concerns by placing him in protective segregation, any amendment would be futile.

(3) The standard for dismissal for failure to state a claim is similar under both § 1915 and Rule 12. Therefore, indigent litigants are not treated less favorably than paying litigants. Unless a legislative classification either burdens a fundamental right or targets a suspect category, it need only bear a rational relation to some legitimate end to comport with equal protection.

Double Jeopardy - Multiple Punishments, Multiple Firearms, Concurrent Sentences;

Hobbs Act - Commerce Clause;

Arrest;

Confession

United States v. Morris, 00-3076 (April 18, 2001)

Morris was found guilty on two Hobbs Act counts and five counts of § 924(c), and was sentenced to 490 months. Morris claims his convictions violate the double jeopardy clause because the five § 924(c) counts are multiplicious, that is based on the same behavior, and because the § 924(c) counts constitute the same offenses as the Hobbs Act counts.

HELD: (1) The court reviews the double jeopardy claims de novo. A person may be prosecuted for more than one crime based on the same conduct if each crime requires proof of a fact that the other does not, or if Congress has clearly expressed its intent to impose cumulative punishment (Blockburger). Multiplicious counts are improper because they allow multiple punishments for a single criminal offense. Consecutive sentences may be imposed for multiple 924(c) counts if the offenses underlying each count did not constitute a single offense for double jeopardy purposes. Concurrent sentences for multiple § 924(c) violations cannot be imposed where consecutive sentences are prohibited by double jeopardy. A single predicate offense cannot sustain multiple § 924(c) violations simply because a defendant employed multiple firearms. The commission of two Hobbs Act violations can support convictions on only two § 924(c) violations. Even though the defendant received concurrent sentences, potential adverse collateral consequences arising from separate convictions my not be ignored.

(2) As to the claim that the Hobbs Act and § 924(c) are the same offenses, the circuit has previously held otherwise.

(3) As to the claim that the Hobbs Act is unconstitutional under the Commerce Clause, the circuit has held otherwise. The Hobbs Act is not limited to racketeering robberies. The Hobbs Act contains a jurisdictional element. The circuit has previously upheld the requirement of only a de minimus effect on interstate commerce. The Hobbs Act regulates economic activity, and the jurisdictional element shows Congress' intent to exercise its full authority under the Commerce Clause.

(4) The court reviews de novo the trial court's determination of the reasonableness of an arrest. A full custodial arrest without a warrant requires probable cause. There was probable cause for Morris' arrest.

(5) The court reviews the voluntariness of a confession de novo. Factors to consider in assessing whether a statement is voluntary include age, intelligence and education of the defendant, length of detention, length in nature of questioning, whether defendant was advised of her constitutional rights, and whether the defendant was subjected to physical punishment. Giving deference to the trial court's findings of fact, the court held that the district court's legal conclusion that the confession was voluntary were proper.

Instructions - Allen Charge;

Witnesses - Experts;

Admission of Evidence - Similar Act or Intrinsic

United States v. Arney, 00-6187 (April 24, 2001)

Arney was convicted of bank fraud.

HELD: (1) The purpose of an Allen charge is to encourage unanimity. This circuit has repeatedly urged caution in the use of Allen instructions. The use of a supplemental Allen charge, during the course of jury deliberations, has been sanctioned. There is no per se rule against giving this instruction after a jury has commenced deliberations. The preferred practice is to issue the Allen charge prior to jury deliberations along with other jury instructions. The court also considers whether the Allen charge was given before the jury reached an impasse. The circuit has recognized the inherent danger in giving the instruction to an apparently deadlocked jury. The circuit has previously upheld Allen instructions, even where the jury has indicated it could not reach a verdict, and the district court did not inquire whether the jury could overcome the impasse. A jury returning with the verdict soon after receiving an Allen charge suggests the possibility of coercion. Considering the overall context, the court found the Allen instruction was not coercive in a way that undermined the integrity of the jury's deliberation.

(2) The court reviews the admission or exclusion of expert testimony for abuse of discretion. The court reviews admission of other evidence for other act evidence under Rule 404(b) for abuse of discretion.

(3) Rule 404 does not apply to evidence that is intrinsic to the crime charged.

Kidnapping - General Intent Crime, Specific Intent

United States v. Jackson, 99-1475 (April 30, 2001)

(David C. Japha, Denver, Colorado)

Jackson appeals his convictions on 7 counts of kidnapping. The question is whether 18 U.S.C. § 1201(a)(5) is a general or a specific intent crime. The court reviews de novo the district court's statutory interpretation. The court begins by examining the plain language of the statute. Determining the mens rea require for commission of a federal crime requires construction of the statute and inference of the intent of Congress. A specific intent crime is one in which an act was committed voluntarily and purposely, with the specific intent to do something the law forbids. In contrast, a general intent crime is one in which an act was done voluntarily and intentionally and not because of mistake or accident. Section 1201 does not indicate the mens rea required. Criminal statutes are usually read to require only that a defendant know the facts that makes conduct illegal, which is the same as general intent. There is no language in § 1201 to require that a defendant know that the conduct in which he engaged was illegal, which would require proof of specific intent. Based on plain language analysis, the district court was correct in concluding the kidnapping statute requires only general intent. A "willful intent to confine the victim" in § 1201(a)(1) means that the perpetrator intended to do the things he did; it does not mean he acted to confine his victim knowing such confinement was against the law. The fact that § 1201 contains the word "willfully" suggests that Congress was aware of its option to create specific intent crimes and elected not to make § (a)(5) a specific intent crime. Although § 1201(a)(1) may require specific intent because of inclusion of the word "willfully," (a)(5) clearly does not require specific intent because it does not contain such language.