U.S. v. Toledo, 90-4183

• Decision Date: 19 February 1993
• Docket Number: No. 90-4183,90-4183
• Citation: 985 F.2d 1462
• Parties: 38 Fed. R. Evid. Serv. 169 UNITED STATES of America, Plaintiff-Appellee, v. Joey TOLEDO a/k/a Joey Toreneda, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1462

985 F.2d 1462

38 Fed. R. Evid. Serv. 169

UNITED STATES of America, Plaintiff-Appellee, v. Joey TOLEDO a/k/a Joey Toreneda, Defendant-Appellant.

No. 90-4183.

United States Court of Appeals, Tenth Circuit.

Feb. 19, 1993.

Jill M. Wichlens, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, CO, for defendant-appellant.

William Ryan, Asst. U.S. Atty. (David J. Jordan, U.S. Atty., and Richard D. Parry, First Asst. U.S. Atty., on the brief), Dist. of Utah, Salt Lake City, UT, for plaintiff-appellee.

Before McKAY, Chief Judge, LAY ¹ and BALDOCK, Circuit Judges.

McKAY, Chief Judge.

The Appellant, Joey Manuel Toledo, was convicted of kidnapping under 18 U.S.C. § 1201 (1988). ² On this appeal, Mr. Toledo contends that the trial court erred in three respects. First, Mr. Toledo argues that the trial court failed to properly instruct the jury regarding the elements and nature of kidnapping under § 1201. Second, Mr. Toledo asserts that the court erred by allowing expert testimony which bolstered the victim's testimony. Finally, Mr. Toledo argues that the court erroneously failed to credit him with a two-level reduction for acceptance of responsibility under the federal sentencing guidelines. We affirm the trial court in all respects.

I. Federal Kidnapping Statute

A.

At trial, the consent of the victim, Stephanie, was a central issue. Stephanie testified that Mr. Toledo and another man approached her outside a grocery store. ³ Mr. Toledo threatened her, then offered her money in exchange for sex. When she refused, Mr. Toledo forced her into the car and told her that she was "going with him anyways [sic]." (R. vol. V at 5). He further warned her not to scream or he would kill her. Mr. Toledo then took Stephanie to his father's home where they stayed for several days, and where Mr. Toledo forced her to engage in various sex acts. At one point, Stephanie told Mr. Toledo she wanted to go home. According to Stephanie, Mr. Toledo said, "I'll take you home after I get done with you." Stephanie responded, "Don't hurt me," and Mr. Toledo said, "Just wait to see what I do to you." Mr. Toledo then went into the kitchen and returned with a butcher knife. (R. vol. V at 9-10). Stephanie testified that she wanted to go home but was afraid that Mr. Toledo would hurt her. (R. vol. V at 12, 55).

Other witnesses offered evidence that raised questions with regard to Stephanie's consent. Stephanie's sister, Diana, was present when Mr. Toledo confronted Stephanie at the grocery store. Diana testified that she observed from inside the store two men in a yellow car offer Stephanie something that looked like money. She testified that someone grabbed Stephanie, and then the two men left with Stephanie in the car.

Stephanie's mother testified that Diana told her Stephanie had "gotten into a car with a man.... And that they were driving away." (R. vol. V at 8). Stephanie's mother made no effort at that time to report Stephanie missing or kidnapped. She testified that Stephanie occasionally stayed over night with friends without telling her. Stephanie's mother did not report Stephanie missing until after noon of the following day. ⁴

Stephanie, her mother, and Mr. Toledo's sister, Esther, all testified regarding a phone call Stephanie made to her mother the day after Mr. Toledo brought her to his home. Stephanie testified that she called her mother to ask if she could go fishing with Mr. Toledo. Stephanie's mother told her that she could not go. When Stephanie's mother asked Stephanie where she was, Mr. Toledo told Stephanie to hang up. Stephanie told her mother, "Mom, I'm going fishing anyways [sic]." (R. vol. V at 43).

According to Stephanie's mother, Stephanie called and asked if she could go fishing with Mr. Toledo. Stephanie's mother testified that she told Stephanie she could not go and attempted to get the address of the Toledo home. Not knowing the address, Stephanie gave the phone to Mr. Toledo. Stephanie's mother testified that Mr. Toledo did not give her the address, whereupon she threatened to call the police. According to Stephanie's mother, Mr. Toledo said, "Okay do it," and hung up. (R. vol. VI at 4-5).

Esther gives a slightly different account of the phone call. According to Esther, Stephanie called her mother. Although Esther did not hear the entire conversation, she testified that Stephanie said into the phone, "F--- you. I'm not going home," and passed the phone to Mr. Toledo. (R. vol. VI at 81).

Evidence regarding Stephanie's consent to travel to California was also somewhat conflicting. Stephanie testified that after several days of staying with Mr. Toledo's father and other members of the Toledo family, Mr. Toledo took her to a railroad yard where they boarded a freight train for California. On direct examination, Stephanie stated that she did not want to go to Los Angeles with Mr. Toledo but that he threatened to throw her off the train if she did not. On cross-examination, the following exchange occurred:

COUNSEL: When you wound up at the railroad yard, did you talk about where you were going to go from there?

STEPHANIE: Uh, yeah. He said: First, we're going to stop off in L.A., and we'll take you to New York.

COUNSEL: You never got that far?

STEPHANIE: Uh-uh. I never did like New York

....

COUNSEL: Los Angeles was okay, though?

STEPHANIE: Yeah.

COUNSEL: Was that okay with you[,] going to Los Angeles?

STEPHANIE: Yeah.

COUNSEL: That sounded all right?

STEPHANIE: Uh-huh.

(R. vol. V at 52-53).

On redirect examination, the government attempted to rehabilitate Stephanie's testimony. The following exchange occurred between Stephanie and the Assistant United States Attorney:

COUNSEL: You said something about it being okay with you to go to Los Angeles with Joey? I didn't understand that.

STEPHANIE: Yeah. It was okay with me to go to Los Angeles as long as he didn't hurt me, and I told him: If you promise not to hurt me, then I'll go with you. And he says, he promised, and he didn't hurt me on the way.

....

COUNSEL: Okay. Now I'm confused Stephanie, and the ladies and gentlemen of the jury need to hear what really happened. Did you agree to go, or did he force you to go?

STEPHANIE: I agreed to go.

STEPHANIE: I refused to go, and then I said: If you don't hurt me, then I'll go with you. And he said: I won't hurt you. So I said: It's okay. That was after I refused. But I said: I'm going to refuse, but if you try to hurt me, I'll refuse.

(R. vol. V at 57-58).

B.

The federal kidnap statute, codified at 18 U.S.C. § 1201 (1988), provides:

(a) Whosoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when--

(1) the person is wilfully transported in interstate or foreign commerce;

....

shall be punished by imprisonment for any term of years or for life.

18 U.S.C. § 1201 (1988).

In its instructions to the jury, the trial court delineated the elements of the offense as follows:

The United States must prove each of the following elements beyond a reasonable doubt in order to prove the crime of kidnapping:

1. That the defendant seized, confined, decoyed, inveigled, kidnapped, abducted, or carried away [the victim].

2. That the defendant held [the victim] for the reasons charged in the indictment;

3. That the defendant transported [the victim] in interstate commerce; and

4. That the defendant acted unlawfully, knowingly and willingly.

(R. vol. I, Jury Instruction No. 29).

The trial court further instructed the jury that

[t]he defendant has raised the defense of consent. If you find that [the victim] went willingly and voluntarily with the defendant and stayed with him willingly and voluntarily, then you must find the defendant not guilty.

However, it is not a defense to a charge of kidnapping if either of the following occurs: (1) a person initially goes willingly with another but later is confined or held against her will; or (2) a person is initially seized and held against her will but later agrees to accompany her abductor.

(R. vol. I, Jury Instruction No. 35).

Mr. Toledo contends that these instructions improperly instructed the jury regarding an essential element of the offense of kidnapping prohibited by § 1201. Mr. Toledo argues that in order to be convicted under § 1201, the jury must find that the victim was transported in interstate commerce against her will. The question presented is whether Mr. Toledo was entitled to an instruction that the jury find Stephanie not only was abducted against her will but that she was also transported in interstate commerce against her will.

"The sufficiency of the district court's instructions to the jury involve questions of law, which require de novo review." United States v. Barrera-Gonzales, 952 F.2d 1269, 1271 (10th Cir.1992). In examining jury instructions, we review the record as a whole to determine whether the instructions properly state the controlling law and sufficiently inform the jury of the issues relevant to the case. Id. A defendant is entitled to instructions on any theory of defense finding support in the evidence and the law. United States v. Swallow, 511 F.2d 514, 523 (10th Cir.), cert. denied, 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66 (1975). However, because defense counsel in this case failed to object to the instructions to the jury, our review is for plain error. United States v. Zimmerman, 943 F.2d 1204, 1213 (10th Cir.1991). We will not reverse the lower court for faulty instructions unless the error is "both obvious and substantial" and "undermine[s] the fundamental fairness of the trial and contribute[s] to a miscarriage of justice." United States v. Mitcheltree, 940 F.2d 1329, 1334 (10th Cir.1991).

C.

Section 1201 essentially federalizes the common-law crime of kidnapping in certain enumerated situations. Although the crime of...