978 F.2d 903 (5th Cir. 1992), 91-7084, United States v. Jackson

Docket Nº:91-7084.
Citation:978 F.2d 903
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Juan JACKSON and Genaro Camacho, Defendants-Appellants.
Case Date:November 23, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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978 F.2d 903 (5th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Juan JACKSON and Genaro Camacho, Defendants-Appellants.

No. 91-7084.

United States Court of Appeals, Fifth Circuit

November 23, 1992

Rehearing Denied Jan. 20, 1993.

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Timothy W. Crooks, Asst. Federal Public Defender, Fort Worth, Tex., for Jackson.

James Murphy, Dallas, Tex. (Court-appointed), for Camacho.

Delonia A. Watson, Paul D. Macaluso, Mark L. Nichols, Asst. U.S. Attys., Marvin Collins, U.S. Atty., Dallas, Tex., for U.S.

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

Before POLITZ, Chief Judge, JOHNSON, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal, Juan Jackson and Genaro Ruiz Camacho contest their convictions for the kidnapping of Evellyn Banks and her three-year-old son Andre. The kidnapping arose out of a drug transaction and it ended in the cold-blooded murder of Evellyn and Andre Banks.

Camacho asserts that the district court reversibly erred when it denied him a forty-five day continuance. It further erred, he says, when it allowed the government to introduce evidence of an earlier kidnapping. He contends additionally that the government failed to timely disclose Brady material. Jackson argues that the evidence was insufficient to establish kidnapping under federal law because he could not reasonably foresee that the victims would be transported in interstate commerce.

Both defendants argue that they were improperly denied access to the presentence reports of their co-defendants. Both defendants also urge that the court incorrectly sentenced them under the guideline for murder and ordered them to pay restitution in an amount that is unrelated to the losses of their victims.

Finding no merit in the bulk of the defendants' arguments, we affirm their convictions and their sentences. However, we reverse and remand the restitution orders for both Jackson and Camacho because the district court did not support its orders with factual findings.

I

On May 20, 1988, Genaro Ruiz Camacho enlisted the aid of Juan Jackson and several others to collect a debt that Sam Junior Wright owed him as a result of a drug-related transaction. The men went to Wright's home in Pleasant Grove, Texas, which he shared with Evellyn Banks, their three and a half year old son Andre Banks, and Evellyn's two school aged children. The two older children were at school. Camacho insisted that Wright owed him between $10,000 and $20,000, and demanded that Wright pay him. Wright had $1,500, which he gave to Camacho. Camacho was not satisfied. He and his fellow defendants,

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who were all armed, proceeded to terrorize their captives.

David Wilburn, a young, retarded man who worked for Wright, interrupted the kidnappers when he knocked on the door. Camacho told Wilburn to come in, searched him and made him lie flat on the floor. Wilburn was not armed and offered no resistance. Camacho, without warning or provocation, shot and killed Wilburn. 1

Turning his attention back to Wright, Camacho asked him when he could get the money. When Wright replied in a couple of days, Camacho demanded to know how he would get the money. Wright told Camacho he would sell his house and his car. Camacho replied that he would kill Evellyn and Andre if Wright failed to pay him. Camacho then ordered the other defendants to handcuff Evellyn and Andre and put them in the car. At this point, Wright managed to escape the house and yelled to a neighbor to call the police. The kidnappers chased Wright around the block. Camacho ordered Jackson to shoot him. Jackson did not comply.

The kidnappers took Evellyn and Andre to an apartment in Dallas that several of the defendants shared. While two of the other defendants watched Evellyn and Andre, Jackson and another defendant counted and split the money. A few hours later, Jackson left with his share of the money and never returned. The kidnappers kept them there for two days. On May 22, Camacho and the other defendants decided to take Evellyn and Andre to Oklahoma to kill them because they had witnessed the murder of Wilburn and could provide evidence to the police if released. That evening, they took Evellyn and Andre to Ardmore, Oklahoma, and the next morning, they took them to a location near Arbuckle National Forest. There the kidnappers killed their victims and buried them in a pre-dug grave. The autopsies of the bodies revealed that the kidnappers shot Evellyn in the head twice and that they shot Andre in the head four times.

At trial, the government introduced evidence of a prior kidnapping incident involving Jackson and Camacho. In that incident, the men had driven to Wichita, Kansas, to collect a debt owed to Camacho. Not finding the debtor, they kidnapped his sister-in-law and brought her to Dallas until the debt was paid a few days later. After obtaining the money, they released the woman and gave her a plane ticket back to Kansas.

II

On October 6, 1988, the United States charged Jackson and Camacho in a seven-count indictment with: (1) knowingly and willfully conspiring to kidnap Evellyn and Andre Banks in interstate commerce; (2) knowingly and unlawfully kidnapping and transporting Evellyn and Andre Banks in interstate commerce; and (3) willfully and unlawfully carrying and using a firearm during the commission of a felony. On February 27, 1991, the United States returned a virtually identical indictment that only deleted counts that pertained solely to a few co-defendants who had plead guilty, and who had agreed to testify against the defendants. In the meantime, the State of Texas tried and convicted Camacho on a charge of capital murder.

On March 6, 1991, the district court entered an order setting this case for trial on May 6. Camacho filed his first motion for continuance on April 12. The district court granted the requested continuance and set the case for trial on its June docket. On June 12, Camacho again moved for a continuance. Camacho requested a forty-five day continuance, but the district court granted a continuance for only seven days.

From June 24 to July 9, 1991, the United States tried Jackson and Camacho before a jury in the United States District Court for the Northern District of Texas, Dallas Division, with the Honorable A. Joe Fish presiding. On July 9, the jury returned a verdict finding Camacho guilty on all

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counts, and finding Jackson guilty on all but one count. The district court gave both defendants life sentences under the sentencing guidelines for murder. The court also ordered Camacho to pay the estate of Evellyn Banks $1,000,000 in restitution, and Jackson to pay $250,000 in restitution. Both defendants moved for new trials, and when the district court denied those motions, they filed timely notices of appeal. These appeals followed.

III

A

We begin with Jackson and Camacho's contention that the district court improperly denied them access to the presentence reports of their co-defendants.

Prior to trial, Jackson filed a motion requesting all exculpatory evidence, including a copy of any federal or state probation or presentence report of any prospective government witness. The district court denied the motion pursuant to Rule 32(c)(1) of the Federal Rules of Criminal Procedure and United States v. Trevino, 556 F.2d 1265 (5th Cir.1977). Both Camacho and Jackson now contend that the Jencks Act, 18 U.S.C. § 3500, required the government to produce the presentence reports of their co-defendants and that the district court erred in denying them access to the material.

The Jencks Act provides that upon a defendant's motion to a district court, the court shall "order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified." 18 U.S.C. § 3500(b). The Act defines written statements subject to the Act as a statement made by the witness that the witness has "signed or otherwise adopted or approved." 18 U.S.C. § 3500(e)(1).

A presentence report, on the other hand, is not a statement made by the witness. Instead, it is a statement that a probation officer makes to aid the court in sentencing a defendant. Once the probation officer makes the report, he gives a copy to the prosecution, the defendant, and the court. Pursuant to Rule 10.9(b) of the Local Rules of the Northern District of Texas, the defendant must either object to the statement in writing or adopt it. Assuming that their co-defendants in the instant case adopted their presentence reports, Jackson and Camacho argue that their co-defendants' presentence reports are adopted statements under the Jencks Act.

In Trevino, we held that the presentence reports at issue were not "in the possession of the United States," and, thus, not subject to the Jencks Act. At that time...

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