U.S. v. Bankston

• Decision Date: 28 September 1979
• Docket Number: No. 78-5417,78-5417
• Citation: 603 F.2d 528
• Parties: 4 Fed. R. Evid. Serv. 1515 UNITED STATES of America, Plaintiff-Appellee, v. Randy BANKSTON, a/k/a Val, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 528

603 F.2d 528

4 Fed. R. Evid. Serv. 1515

UNITED STATES of America, Plaintiff-Appellee, v. Randy BANKSTON, a/k/a Val, Defendant-Appellant.

No. 78-5417.

United States Court of Appeals, Fifth Circuit.

Sept. 28, 1979.

Rehearing Denied Oct. 31, 1979.

Albert S. Low, Jr., Houston, Tex. (Court-appointed), Charles Rice Young, Houston, Tex., for defendant-appellant.

J. A. Canales, U. S. Atty., John M. Potter, George A. Kelt, Jr., James S. Dougherty, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before WISDOM, CLARK and GEE, Circuit Judges.

GEE, Circuit Judge:

Appellant Randy Bankston was convicted of conspiracy to kidnap under 18 U.S.C. § 1201(c), conspiracy to transport a woman interstate for purposes of prostitution under 18 U.S.C. § 371, kidnapping under 18 U.S.C. §§ 1201(a) and 1202, and transporting a woman interstate for purposes of prostitution in violation of 18 U.S.C. §§ 2421 and 2422, commonly known as the Mann Act. Appellant challenges the validity of his convictions. He asserts that there was insufficient evidence to prove either a conspiracy to kidnap or a conspiracy to violate the Mann Act; that the government, by submitting both the substantive and the conspiracy counts of the indictment, violated appellant's fifth amendment right not to be placed in jeopardy twice for the same offense; that the trial court erred in admitting statements made by appellant's coconspirators; that certain evidence seized from his coconspirators was improperly admitted; that the Mann Act unconstitutionally violates the equal protection clause of the fourteenth amendment; and that the court reporter's failure to include, in the record on appeal, the defense counsel's objections to the court's charge requires reversal of his convictions. After a careful consideration of the points raised by the appellant, we reverse appellant's conviction for conspiracy to violate the Mann Act and affirm his convictions on the other three counts.

On January 13, 1978, appellant Bankston abducted at gunpoint Patricia Krauss and her daughter Rachel from their West Hollywood, California, apartment and took them to another apartment. At the second apartment, Bankston gave the two women who were there, Susan Michael and Delia Rico, $500 to watch the Krausses. He later took Patricia Krauss from the apartment and left Rachel with the two women. Bankston drove Patricia Krauss from California to Texas; on the way, he told her that he wanted her to prostitute herself, that she could get $25 to $40 for each act of sexual intercourse, and that he would release her when he had realized $2,200 from her efforts. After arriving in Houston, they went to the White House Motel, where Ms. Krauss rented a room and registered in her name. Later, at Bankston's Houston apartment, Bankston told Krauss about a restaurant in the area where she could pick up men, how she could work out of the motel room she had secured, and how he would get the money from her. The following day, January 16, 1978, as Bankston was driving her to the motel, Krauss escaped by jumping from the car. After her escape, Ms. Krauss reported the kidnapping to the Houston Police Department and related the approximate location of the appellant's apartment. She also described the two women with whom Bankston had left her daughter Rachel. Officers of the Houston Police Department with whom Ms. Krauss spoke obtained copies of three outstanding city traffic warrants that were pending on appellant Bankston. The officers and Ms. Krauss drove to Bankston's apartment complex; the officers knocked on the door and identified themselves but received no response. They acquired a key from a security guard, unlocked the door, and arrested appellant, who denied the commission of any offense. At that moment, two women who fit the description Ms. Krauss had given police entered Bankston's apartment and were arrested. Testimony revealed that Rachel Krauss had escaped from the two women earlier that day. Bankston's case was severed from Michael's and Rico's, and he was tried separately. He was convicted on all four counts, and this appeal followed.

Appellant challenges the sufficiency of the evidence to convict him of conspiracy to kidnap because it did not demonstrate an agreement between him and his alleged coconspirators to kidnap Patricia Krauss prior to the alleged commission of the substantive offense of kidnapping. He also contends that the evidence was insufficient to convict him of conspiracy to transport a woman interstate for purposes of prostitution. Specifically, he asserts that there is no evidence that Michael and Rico, his alleged coconspirators, knew that he intended to transport Krauss in interstate commerce for purposes of prostitution.

For an accused to be convicted of an unlawful conspiracy, there must be proof beyond a reasonable doubt that a conspiracy existed, that he had knowledge of it, and that with this knowledge he voluntarily became a part of it. United States v. Harbin, 601 F.2d 773, 781 (5th Cir. 1979); United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), Cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979). The essential elements of such a criminal conspiracy as this are an agreement between two or more persons to commit a crime and an overt act in furtherance of the agreement. United States v. Teal, 582 F.2d 343 (5th Cir. 1978); United States v. Gutierrez, 559 F.2d 1278, 1280 (5th Cir. 1977). The agreement must have been made prior to or during the consummation of the substantive crime. United States v. Varelli, 407 F.2d 735, 743 (7th Cir. 1969). See Pereira v. United States, 347 U.S. 1, 12, 74 S.Ct. 358, 98 L.Ed. 435 (1954). The agreement need not be proved by direct evidence; it can "be inferred from the facts and circumstances of the case." Iannelli v. United States, 420 U.S. 770, 777 n.10, 95 S.Ct. 1284, 1289-1290 n.10, 43 L.Ed.2d 616 (1975); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

Viewing the evidence in the light most favorable to the government, Glasser v. United States, supra, and accepting all reasonable inferences that support the jury verdict, United States v. Harbin, supra at 781, we find substantial evidence that sustains the jury's conclusion that Bankston entered into a conspiracy with Susan Michael and Delia Rico to kidnap Patricia Krauss. Telephone records indicated that telephone calls were made from a number registered under the name of Susan R. Michael to a Houston telephone number registered under the name of Randy Bankston on the mornings of January 12 and 13, 1978. On the afternoon of January 13, 1978, after abducting Patricia and Rachel Krauss, Bankston went immediately to Michael's apartment. Patricia Krauss testified that upon entering Michael's apartment, Bankston gave Michael and Rico $500 and asked the women to "watch these two for me and don't let them out of your sight." Bankston subsequently took Patricia Krauss and left Rachel with Michael and Rico. Officer Fred Fastino of the Los Angeles Police Department testified that when he went to Ms. Michael's apartment that night she identified herself as Patricia Krauss and identified Rachel as her daughter. ¹ Michael and Rico held Rachel Krauss captive until she escaped on January 16, 1978. Telephone records indicated that a call was made from Bankston's Houston telephone to Michael's Los Angeles telephone at 1:28 p. m. on January 16, 1978, shortly after Patricia Krauss had escaped from Bankston's car. That night, as Houston police arrested Bankston, Ms. Michael and Ms. Rico appeared at Bankston's apartment. Officer Johnny Freeman of the Houston Police Department testified that Ms. Rico identified herself as "Sue Black" and stated that she had just arrived from San Antonio by bus, ² despite the fact that he observed luggage stickers reading "LA" and airline tickets showing that Ms. Rico and Ms. Michael had just arrived from Los Angeles by air. ³ On the basis of this evidence a jury could reasonably infer that Bankston had entered into an agreement with Michael and Rico.

To sustain a conviction on a conspiracy charge, the government must prove that the conspirators had at least the knowledge required for the substantive offense itself. United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959). Appellant contends that there is no evidence to show that Michael and Rico knew that Bankston intended to transport Krauss across state lines and that he could not therefore have conspired with them to kidnap Patricia Krauss. The language of the statute, however, does not require that an offender know that he is crossing state lines. ⁴ So long as he "willfully transports" his victim and, in doing so, travels in interstate commerce, he need not do so knowingly. Moreover, we have previously held that the "requirement that the offender cross state lines merely furnishes a basis for the exercise of federal jurisdiction and does not constitute an element of the offense (of kidnapping)." United States v. Napier, 518 F.2d 316, 319 (9th Cir. 1975). See Feola, supra; United States v. Franklin, 586 F.2d 560 (5th Cir. 1978), Cert. denied, 440 U.S. 972, 99 S.Ct. 1536, 59 L.Ed.2d 789 (1979); United States v. Beil, 577 F.2d 1313 (5th Cir. 1978), Cert. denied, 440 U.S. 946, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979). Therefore, proof that Michael and Rico knew of the interstate nature of the plan was not required to convict Bankston of conspiracy to kidnap.

Appellant urges upon us the notion that he cannot be convicted of conspiracy to kidnap because the agreement, if any, between him, Michael and Rico was subsequent to the consummation of the substantive crime of kidnapping. Appellant, however, mistakenly equates abduction with a violation...