Gov't of the Virgin Islands v. Berry, WARREN P. BERRY, Appellant in No. 78-2046

Decision Date07 August 1979
Docket NumberWARREN P. BERRY, Appellant in No. 78-2046,BRIGNONI, GUILLERMO, Appellant in No. 78-2168
Citation16 V.I. 614
PartiesGOVERNMENT OF THE VIRGIN ISLANDS v. BERRY, WARREN P.
CourtU.S. Court of Appeals — Third Circuit

Appeal from judgments of conviction for (1) kidnapping for ransom, extortion or robbery, and (2) robbery. The Court of Appeals, Hunter, Circuit Judge, affirmed robbery conviction and reversed kidnapping conviction.

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ROGER BENNETT ADLER, ESQ. (NEWMAN & ADLER), New York, N.Y., for appellant in No. 78-2046

DEREK M. HODGE, ESQ. (HODGE & SHEEN), Christiansted, St. Croix, V.I., for appellant in No. 78-2168

JOHN LOFTUS, ESQ., Washington, D.C., for appellee

Before ROSENN, MARIS and HUNTER, Circuit Judges

OPINION OF THE COURT

HUNTER, Circuit Judge

1. In these consolidated cases, Warren Berry and Guillermo Brignoni appeal from judgments of conviction for (1) kidnapping for ransom, extortion, or robbery, V.I.Code Ann. tit. 14, § 1052 (1978), and (2) robbery in the third degree, id. § 1864. We affirm the robbery conviction and reverse the kidnapping convictions.

I

2. The facts of this case are unique. The evidence, viewed in the light most favorable to the government, is as follows. On March 8, 1978, Luis Raul Morales, who had just quit his job, was walking home after having picked up his last paycheck. Defendant-appellant Berry, whom Morales had known since childhood, drove by and offered Morales a ride. Hearing that Morales was no longer employed, Berry offered to give him $375 credit for a pound of marijuana. Morales was to sell the marijuana and repay Berry the next day. After Morales accepted the offer, Berry drove him to Berry's house, where the marijuana was kept, gave the marijuana to him, and then dropped him off near town. Morales rolled the marijuana into joints and sold about $400 worth. However, he promptly spent the entire amount on personal items and old debts.

3. The next day, Berry and his co-defendant-appellant, Brignoni, began to look for Morales to get him to repay his debt, and eventually found him at the Black & White bar.1 Berry asked Morales for the money which he believed Morales owed him, and Morales told him that he did not have it. According to Morales:

[Berry] told me to come with him and see if I could get the money.

I said "Well, okay."

Then, I asked him to take me over to my brother's place and I would ask him for the money and pay him, you know, and then I would pay back my brother after that.

He said "Okay."

4. On the way to Morales' brother's house, Morales saw a man known to him as "Freston"2 coming out of a McDonald's restaurant. The driver (the testimony is unclear as to whether it was Berry or Brignoni) stopped the car next to the McDonald's and Morales got out. By this time, Freston had crossed the road on foot and was in his car. Morales, unaccompanied by either defendant, crossed the road and spoke to Freston. Morales testified that "i asked him if he had any money that he could lend me because i needed it, i owed it to [defendants]." Freston loaned Morales $35 which Morales gave to Berry when he returned to the car.

5. The trio then drove to a bar owned by Morales' brother. They parked the car next to the bar and Morales emerged from the car alone. He saw a friend, Christian, standing outside the bar, called to him and asked him for a loan. Christian had no money and Morales told him: "Okay, i will go into the bar and ask my brother for the money." Next, according to Morales:

I went into the bar and I explained to my brother I owe these men some money, if he could loan me some money and then when I get it back I will pay him back.

He said all that he had that he could have given me then was a hundred dollars.

So, I took the hundred dollars and went back outside to give it to Warren Berry and told him I would pay him the rest of the money the next day, you know, or later that night, and he said "Okay."

6. Morales then got into the car and Brignoni told him that they would drop him off at the Black & White bar. However, as they drove toward the bar, they turned off in a different direction. Morales testified that he then told the defendants:

[I]f [you] are going someplace else, drop me there and I get a ride into town.

They said that they were just going to see a friend in that area and they would give me a ride back when they come back out, so I stayed in the car with them.

7. Instead of visiting a friend, the defendants stopped the car at a beach near the Salt River. According to Morales, Brignoni and Berry "came out of the car, so I walked out of the car, too, and we walked towards the beach." Once at the beach, Berry told Morales to take all his clothes off and go for a swim. As Morales removed his clothes, Berry told Brignoni to "[g]o and get the gun." Brignoni removed a shotgun from the car trunk and gave it to Berry. The record does not reveal whether the gun was pointed at Morales. Morales walked into the water and went swimming. Berry then called for Morales to return, and he did so. Berry told him that he wanted the money by 10:00 A.M. the next day and that if Morales did not bring it to him, Morales would be killed.

8. As Berry and Brignoni walked back to the car, Berry told Morales not to come with them, and that he would find his clothes in the middle of the road when he walked home. As Morales began his walk, he met a man who loaned him a raincoat to cover himself. Subsequently, he flagged down an automobile and was driven home. Sometime later, Morales contacted the police; as he drove with two detectives to the Salt River beach, they discovered his clothes lying "in the middle of the street." His wallet, which contained $50, was missing.

9. A two count indictment was issued against both Berry and Brignoni. Count I alleged that the defendants seized, confined, carried away, and detained Morales "to extract money from him," in violation of the aggravated kidnapping statute, V.I. Code Ann. tit. 14, § 1052 (1978). Count II accused the defendants of unlawfully taking from Morales $50, his wallet, and articles of his clothing while displaying a dangerous weapon, in violation of the first de-gree robbery statute, id. § 1862 (2). After a jury trial, both defendants were convicted of kidnapping, and of the lesser included offense of robbery in the third degree, id. § 1864.3 They were each sentenced to consecutive terms of life imprisonment on the kidnapping count4 and ten years on the robbery count.

10. On appeal, both defendants contend that there was insufficient evidence to support the verdict as to either kidnapping or robbery; that certain evidence used to corroborate Morales' assertion that Berry had given him drugs to sell, and was attempting to collect a drug debt, was seized unconstitutionally; and that even if the evidence was seized legally, it was inadmissible under rule 404 (b) of the Federal Rules of Evidence. In addition, Brignoni argues that the district court erred in denying his motion for a severance. We have reviewed these claims and find all of them meritless, with the exception of the one regarding the sufficiency of the evidence to support the kidnapping convictions.

11. Virgin Islands Code tit. 14, § 1052 (1978) provides:

§ 1052. Kidnapping for ransom, extortion or robbery

Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains, such individual for ransom, reward or to commit extortion or to exact from any person or entity any money or valuable thing, or any person who kidnaps or carries away any individual to commit robbery, or any person who aids or abets any such act, is guilty of kidnapping for ransom and shall be imprisoned for life.

12. On its face, section 1052 appears to apply not only to traditional kidnappings, but also to any situation in which a person, against his will, is transported, no matterwhat the distance, or restrained, no matter for how long, during the commission of a robbery, an extortion, or an attempt to exact money. Thus, our first task is to determine whether defendants at any time either transported or restrained Morales against his will.

[1] 13. Until the defendants told Morales that they were going to visit a friend, but instead drove towards Salt River, the evidence could not reasonably be interpreted to suggest that they had committed a kidnapping. The principal witness for the prosecution was the "victim," Morales. Nowhere in his testimony, however, is there the slightest inference that either Brignoni or Berry had engaged in any of the acts which section 1052 prohibits. Instead, Morales' testimony is directly to the contrary. First, he does not allege that the defendants used or threatened to use any force to compel him to go with them. Second, he states that at both places where he asked the driver to stop so that he could borrow money—the McDonald's and his brother's bar—he left the car unaccompanied by either defendant. Third, when the defendants began to drive toward Salt River, Morales told them: "If [you] are going someplace else, drop me there and I get a ride into town." This request is not one that is likely to be made by a person who believes that he is being "kidnapped." Finally, Morales testified that he spoke to three people after he and the defendants left the Black & White bar: "Freston", Christian, and Morales' brother. Yet, despite the fact that the defendants were sitting inside the car when Morales spoke to each of these men, and despite the fact that Morales was out of defendants' earshot, at least while speaking to "Freston" and his brother, Morales did not tell any of them that he was being kidnapped. We find it inconceivable that a kidnap victim, blessed with the opportunity to be alone with uninvolved third parties, including his ownbrother, would not immediately inform them of the fact of his "ki...

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