United States v. Jackson

24 F.4th 1308

UNITED STATES of America, Plaintiff-Appellee,

v.Giordano JACKSON, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Giordano Jackson, Defendant-Appellant.

No. 19-10070

No. 19-10071

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2021 Pasadena, California

Filed February 3, 2022

Michele R. Moretti (argued), Law Office of Michele R. Moretti, Lake Butler, Florida, for Defendant-Appellant.

William G. Voit (argued), Assistant United States Attorney; Krissa M. Lanham, Appellate Division Chief; Glenn B. McCormick, Acting United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Plaintiff-Appellee.

Before: William A. Fletcher, Johnnie B. Rawlinson, and John B. Owens, Circuit Judges.

OPINION

OWENS, Circuit Judge:

Giordano Jackson, a member of the Navajo Nation, appeals from his conviction for kidnapping under 18 U.S.C. § 1201(a)(2). We have jurisdiction under 28 U.S.C. 1291, and we reverse.¹

I. BACKGROUND

A. The Violent Attack

In July 2017, Jackson violently attacked his then-girlfriend, Alvina Nez, on the Navajo Nation Indian Reservation. Alvina's minor son and minor nephew observed part of the attack, and her father, Alex Nez Sr., observed its aftermath.²

On the night of the attack, Alvina's son and nephew were in their grandparents' kitchen when a car pulled up outside. The boys then began hearing a noise: At first, they thought it was laughter, but as the boys went outside, it sounded like screaming or crying. From their grandparents' porch, they saw Jackson come around the car from the passenger's side to the driver's side, where Alvina was sitting with the door open. Then, Jackson started punching Alvina—in the face, the head, the chest, and the arms—and tried to yank her from the car.

The boys ran into the house and to the bedroom, where they woke their grandparents and told them that Jackson was beating Alvina. Mr. Nez quickly dressed and went outside. Once there, he saw Alvina lying by the door of the nearby hogan,³ covered in dirt and naked except for her underwear. Mr. Nez ordered Jackson off the property.

After the attack, Alvina had scratches and bruises on her arms, legs, and face, a black eye, blood dripping from her nose, and a bald spot on her head. Crying, she told her family that Jackson had dragged her around by her hair, yanked her arms, punched her, and tried to pull her into the hogan.

The entire attack lasted roughly six or seven minutes. The "laughing" went on for two or three minutes before the boys went outside. About two more minutes passed between when the boys went outside and when they ran back in to wake their grandparents. And Mr. Nez said it took another couple of minutes for him to dress and get outside. For the July attack, Jackson was charged with assault resulting in serious bodily injury, 18 U.S.C. § 113(a)(6), and kidnapping, id. § 1201(a)(2).

B. The Trial

The evidence of the attack was largely uncontroverted at trial. Both boys testified, as did Mr. Nez, and their stories were consistent.

In his motion for acquittal under Federal Rule of Criminal Procedure 29, counsel for Jackson conceded that the evidence was sufficient to support the assault charge. But he argued that the facts, as a matter of law, could not support a kidnapping conviction under 18 U.S.C. § 1201(a)(2). Citing United States v. Etsitty , 130 F.3d 420 (9th Cir. 1997) (per curiam), amended on denial of reh'g by 140 F.3d 1274 (9th Cir. 1998), he contended that there was insufficient evidence that Jackson seized Alvina and that, "whatever seizure occurred, it certainly didn't occur beyond whatever beating there was." The prosecutor responded that, under Etsitty , "all that is required here is a seizure," which he defined as "a restraint on someone's freedom of movement, preventing somebody from leaving if they want to." The district court agreed with the government and permitted the jury to decide the kidnapping charge.

After receiving a version of the Ninth Circuit Model Jury Instruction on kidnapping, which did not include any duration requirement,⁴ the jury returned a guilty verdict on all charges. Jackson timely appealed.

II. DISCUSSION

A. Standard of Review

When reviewing for sufficiency of the evidence, we ask "whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " United States v. Nevils , 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). "When the issue of sufficiency of the evidence is preserved by making a motion for acquittal, we review the district court's denial of the motion de novo." United States v. Shea , 493 F.3d 1110, 1114 (9th Cir. 2007).

B. As A Matter of Law, The Government Failed to Establish That Jackson "Kidnapped" Alvina Nez

This case requires us to define the limits of kidnapping under 18 U.S.C. § 1201(a)(2).⁵ As the Eleventh Circuit has explained, "state courts and an occasional federal court have struggled to interpret and enforce kidnapping laws, balancing a healthy respect for prosecutorial zeal against a recognition that the broadness of the statutory language requires an abundance of judicial discretion to limit its application to appropriate circumstances." United States v. Howard , 918 F.2d 1529, 1535 (11th Cir. 1990) (internal quotation marks omitted).

Fortunately, we do not approach the federal kidnapping statute with a blank slate. More than 75 years ago, the Supreme Court warned that "the broadness of the statutory language [defining kidnapping] does not permit us to tear the words out of their context, using the magic of lexigraphy to apply them to unattractive or immoral situations lacking ... the very essence of the crime of kidnaping." Chatwin v. United States , 326 U.S. 455, 464, 66 S.Ct. 233, 90 L.Ed. 198 (1946). As the Court observed in reversing a conviction:

Were we to sanction a careless concept of the crime of kidnaping or were we to disregard the background and setting of the Act the boundaries of potential liability would be lost in infinity. A loose construction of the statutory language conceivably could lead to the punishment of anyone who induced another to leave his surroundings and do some innocent or illegal act of benefit to the former .... The absurdity of such a result ... is sufficient by itself to foreclose that construction.

Id. at 464–65, 66 S.Ct. 233.

We recognized the wisdom of this warning in Etsitty. See 130 F.3d at 427. There, the defendant lassoed the victim around the neck, dragged her on the ground for twenty feet, repeatedly attempted to tie her up and gag her, knocked her unconscious, and then tried to take her away on his horse. Id. at 423. Under these facts, we concluded that the government proved a violation of § 1201(a)(2), as "a reasonable trier of fact" could find that the defendant seized the victim "for a substantial period of time." Id. at 427. But we repeated Chatwin 's warning about the danger of broadening kidnapping "into a secondary charge wherever there is a detention accompanying another crime." Id.

In a powerful concurrence, Judge Kleinfeld outlined the problems with reading the statute too broadly: "Kidnapping, punishable by life imprisonment, is not committed whenever someone is held against their will, as when one person grabs another to do harm, and the victim says ‘Let me go.’ " Id. at 428 (Kleinfeld, J., concurring). Otherwise, prosecutors would have "unfettered discretion to charge the same conduct, such as impeding certain individuals, see 18 U.S.C. § 111(a)(1), as a mere misdemeanor or a life imprisonment felony." Id. To avoid these consequences, he explained, "[m]eaning has to be given to the phrase ‘and holds’ beyond the conduct already denoted by ‘seizes’ and ‘confines,’ " such that " ‘an appreciable period’ of holding is necessary to establish the offense." Id. at 428–29 (first quoting 18 U.S.C. § 1201(a) ; and then quoting Chatwin , 326 U.S. at 460, 66 S.Ct. 233 ).

This case brings the warnings of Chatwin and Etsitty to the fore. The facts here, viewed in the light most favorable to the government, do not bear the hallmarks of a "true kidnaping[ ]." Chatwin , 326 U.S. at 464, 66 S.Ct. 233. To conclude otherwise would convert the kidnapping statute into a steroidal version of the assault laws—exactly what the Supreme Court and our own court in Etsitty warned against. And not just assault laws: The government at oral argument agreed that, under its theory, a garden-variety, three-minute robbery could be a kidnapping—although it conceded, somewhat contradictorily, that the inquiry requires a "highly fact-specific determination."

Accepting, then, that kidnapping requires more than a transitory holding, and more than a simple mugging or assault—accepting, in other words, that the facts must reflect the "essence of the crime of kidnaping," Chatwin , 326 U.S. at 464, 66 S.Ct. 233 —the remaining question is how to distinguish facts that constitute kidnapping from those that do not. And again, we do not start with a blank slate. In Government of the Virgin Islands v. Berry , 604 F.2d 221, 224 (3d Cir. 1979), the Third Circuit analyzed when an action qualifies as a kidnapping under a very similar statute. After surveying Chatwin and a host of state court decisions, id. at 226–27, it distilled four factors to guide courts and juries in defining kidnapping, absent legislative history to the contrary:

(1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.

Id. at 227.

Other circuits have acknowledged the wisdom of the Berry...