U.S. v. Bancalari

• Decision Date: 08 April 1997
• Docket Number: No. 95-50369,95-50369
• Citation: 110 F.3d 1425
• Parties: 97 Cal. Daily Op. Serv. 2590, 97 Daily Journal D.A.R. 4566 UNITED STATES of America, Plaintiff-Appellee, v. Frank BANCALARI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1425

110 F.3d 1425

97 Cal. Daily Op. Serv. 2590, 97 Daily Journal

D.A.R. 4566

UNITED STATES of America, Plaintiff-Appellee, v. Frank BANCALARI, Defendant-Appellant.

No. 95-50369.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Oct. 7, 1996.

Decided April 8, 1997.

Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, California, for the appellant.

Warrington S. Parker III and Benjamin Jones, Jr., Assistant United States Attorneys, Los Angeles, California, for the appellee.

Appeal from the United States District Court for the Central District of California, William Matthew Byrne, Jr., District Judge, Presiding. D.C. No. CR-94-00984-WMB.

Before: HUG, Chief Judge, PREGERSON and REINHARDT, Circuit Judges.

HUG, Chief Judge:

Frank Bancalari was convicted by a jury of kidnapping and transporting a person across a foreign border in violation of 18 U.S.C. § 1201(a)(1), and for aiding and abetting the use of a firearm in the commission of the kidnapping in violation of 18 U.S.C. § 924(c). The essential issue in the kidnapping conviction is whether the kidnapping was still in progress when the border was crossed. The essential issue in the firearms conviction is whether the jury instruction was erroneous, and if so, whether it was harmless. We have jurisdiction under 28 U.S.C. § 1291. We affirm the kidnapping conviction, but reverse the firearms conviction.

BACKGROUND

Bancalari was convicted for the October 6, 1994 kidnapping of Maria Elena Muniz, the mother of his daughter. The prosecution produced the following evidence at trial. Prior to the kidnapping, Bancalari and Muniz had had a six year relationship that ended sometime in 1993. After their relationship ended, the two still saw each other occasionally and Bancalari was allowed to see their daughter. A week prior to the kidnapping, several events occurred that demonstrated the volatile nature of their relationship.

In the morning of September 29, 1994, Bancalari went to Muniz's Torrance, California, apartment and ordered her to get into his truck. When she refused, he punched her in the face--giving her a black eye--and forced her into the vehicle. Bancalari did not allow Muniz to go to work, and instead, forced her to go with him to his place of work. When she tried to flee, he began to hit her again. He eventually allowed her to return home later that afternoon. That evening, Bancalari made a telephone call to Muniz in which he threatened to kill her.

On October 4, 1994, Muniz obtained a temporary restraining order against Bancalari. When Muniz and her boyfriend, Christopher Pittman, attempted to serve the restraining order on Bancalari, Bancalari hit Pittman in the face, screamed at Muniz and again threatened to kill her.

On the morning of October 6, 1994, Pittman was driving Muniz to work when Bancalari and an unidentified passenger began following them in Bancalari's truck. Bancalari then veered in front of Pittman's car, forcing Pittman to stop in the middle of the street. Bancalari's passenger jumped out of the truck, pulled out a gun and pointed it at Pittman, causing Pittman to flee. At that point, Bancalari exited his truck, dragged Muniz from Pittman's car and forced her into his truck. Bancalari's passenger took Bancalari's daughter from the car and placed her in the truck before leaving the scene. Once in the truck, Bancalari took Muniz's permanent resident card and social security card away from her, then drove directly to Mexico, reaching the border three hours later. When the truck was stopped at the border inspection station, Muniz did not say anything or make an attempt to escape.

After crossing the Mexican border, Bancalari pulled out a gun--a different gun than the one used by Bancalari's accomplice--pointed it at the back of Muniz's head, and squeezed the trigger. The gun was not loaded, but Bancalari showed Muniz that he had bullets for it, and threatened to use the bullets on her if she did not keep quiet.

Bancalari and Muniz were in Mexico for the next five days, staying with Bancalari's brother and friends. Muniz did not make any attempt to escape during that time. Bancalari eventually allowed Muniz to return to the United States, but only after she promised to dismiss any charges against him, quit her job, and stop dating Pittman.

Bancalari was convicted of kidnapping Muniz, in violation of 18 U.S.C. § 1201(a)(1), and of aiding and abetting the use of the firearm in the kidnapping, in violation of 18 U.S.C. § 924(c). Bancalari appeals both convictions.

DISCUSSION

I. Sufficiency of Evidence Underlying the Kidnapping Conviction

Bancalari was convicted of kidnapping in violation of 18 U.S.C. § 1201(a)(1). This provision reads:

(a) Whoever 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(a)(1). In convicting Bancalari, the Government was required to prove: (1) that Bancalari unlawfully restrained Muniz by kidnapping, seizing, or carrying her away; in order to obtain some ransom, reward, or other benefit; and (2) that Bancalari wilfully transported Muniz across a border in interstate or foreign commerce while so kidnapped. See id; United States v. Toledo, 985 F.2d 1462, 1467 (10th Cir.), cert. denied, 510 U.S. 878, 114 S.Ct. 218, 126 L.Ed.2d 174 (1993).

Bancalari argues that there was insufficient evidence for a rational jury to find that his kidnapping of Muniz was still in progress at the time that she and Bancalari crossed the border into Mexico. Because Bancalari moved under Fed.R.Crim.P. 29 for a judgment of acquittal at the close of evidence, he has preserved his right to test the sufficiency of the evidence against him here on appeal. United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir.1994). Our review of his claim, however, is "highly deferential" to the jury's findings. United States v. Rubio-Villareal, 967 F.2d 294, 296 (9th Cir.1992) (en banc). There is sufficient evidence to support his conviction if, 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Jones, 84 F.3d 1206, 1210 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 405, 136 L.Ed.2d 319 (1996).

In viewing the evidence in the light most favorable to the prosecution, we presume that all issues of witness credibility were resolved below in favor of the Government, and as such, are generally immune from appellate review. United States v. Garza, 980 F.2d 546, 552 (9th Cir.1992); United States v. Gordon, 844 F.2d 1397, 1405 (9th Cir.1988). Similarly, when we are "faced with a record of historical facts that supports conflicting inferences [we] must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution." Jackson, 443 U.S. at 326, 99 S.Ct. at 2793.

The record manifests ample evidence upon which a rational jury could have found that Bancalari's unlawful kidnapping of Muniz continued at the time that Bancalari and Muniz had crossed the border into Mexico. The record shows that Bancalari dragged Muniz from Pittman's car, pushed her into his truck, and drove her past the Mexican border. Just after crossing into Mexico, Bancalari took out a gun, pointed it at Muniz's head, dry fired it, and showed Muniz the bullets with which he could in truth discharge his weapon. Testimony shows that he also threatened to have two men rape her, held her in Mexico without her consent, and failed to release her until she made a number of concessions.

The defense theory was that, although Muniz was apprehended against her will, she crossed over into Mexico not because she was being kidnapped, but because she did not want to be separated from her child. The defense's argument in this regard is based on a prior inconsistent statement that Muniz provided an investigator regarding her daughter while she was not under oath. She told Bancalari's investigator that she "never thought that [Bancalari] had intentions of physically harming me, but I would never leave without my daughter."

The essential issue is whether the kidnapping had terminated by the time they crossed the border. United States v. Toledo, 985 at 1467. The district court correctly instructed that

If Maria Elena Muniz was initially seized, kidnapped or carried away at some place in the United States but then voluntarily consented to accompany the defendant by the time they reached a foreign border, the defendant cannot be found guilty.

There was considerable evidence from which the jury could have found that the kidnapping continued at the time the Mexican border was crossed. There is no evidence that Muniz consented to being transported across the border, and strong evidence the involuntary kidnapping continued for some time after they crossed the border.

II. Aiding and Abetting the Section 924(c) Violation

A. Jury Instructions

Bancalari next challenges the jury instructions on the ground that they did not properly set forth the requisite mens rea for aiding and abetting the § 924(c) violation. Whether the jury instructions correctly sets forth the elements of a crime is reviewed de novo. United States v. Matta-Ballesteros, 71 F.3d 754, 771 (9th Cir.1995).

Section 924(c) provides in part "[w]hoever, during and in relation to any crime of violence ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years." 18 U.S.C. § 924(c). Bancalari was convicted as an aider and...