U.S. v. Beers, 98-2250

• Decision Date: 07 September 1999
• Docket Number: No. 98-2250,98-2250
• Citation: 189 F.3d 1297
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. TIMOTHY M. BEERS, DEFENDANT - APPELLANT
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1297

189 F.3d 1297 (10th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. TIMOTHY M. BEERS, DEFENDANT - APPELLANT.

No. 98-2250

U.S. Court of Appeals, Tenth Circuit

September 07, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. D. Ct. No. CR-96-443-SC

[Copyrighted Material Omitted] Ralph C. Binford, Deming, New Mexico, appearing for Defendant-Appellant.

Norman C. Bay, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico, appearing for Plaintiff-Appellee.

Before Seymour, Chief Judge, Tacha, and Kelly, Circuit Judges.

Tacha, Circuit Judge.

On May 1, 1997, a jury convicted Timothy Beers of kidnapping in violation of 18 U.S.C. § 1201(a)(1) and Coercion and Enticement to Engage in Prostitution in violation of 18 U.S.C. § 2422(a). The district court entered judgment in accordance with the verdicts on September 21, 1998. Defendant appeals the convictions, alleging a plethora of errors involving evidentiary rulings, jury instructions, sufficiency of the evidence, failure to hear from defendant regarding his desire to dismiss counsel, and denial of defendant's motion for a new trial based on the government's alleged failure to provide certain impeachment evidence. We affirm.

I. Background

Theresa Elliot, mother of an eight-year-old boy referred to as "John Doe" in the indictment, became a prostitute in the summer of 1995 in Spokane, Washington. She identified defendant as a pimp she had seen in Albuquerque and Phoenix who had several women working for him. Although Elliot did not work for Beers at the time, she and her son traveled with him to Salt Lake City in June 1996. On the second night in Utah, Elliot testified that she went to work, letting Norgaard, one of Beers' prostitutes, baby-sit Doe. According to Elliot, Beers would not thereafter return her child, telling her that she now worked for him.

Elliot remained in Salt Lake City for five or six more days. She told Beers that she did not want to prostitute for him and wanted her son back. Beers told her that he was taking Doe to Phoenix with him. According to Elliot and Twila Lujan, another of Beers' prostitutes, neither Elliot nor Doe wanted Doe to go with Beers. Sheila Smith, a former prostitute called by the defense, however, testified that Elliot helped Doe pack a bag for the trip. Lujan testified that Beers told her he was keeping Doe to make Elliot work for him because "she made a lot of good money." Supp. App., Vol. III, at 280-81.

Elliot did not know where Beers took Doe. He instructed her to send him $500 per night via another of his prostitutes. Beers did not let her speak to Doe without him present nor was she allowed to visit Doe alone. Elliot testified that she stopped sending money after three days, hoping that Beers would release Doe if she did not cooperate. Her plan failed. She stated Beers told her, "Bitch, you must be crazy. I've got your son. What are you going to do?" Id. at 109. Beers instructed her to meet him in Illinois for his family reunion.

After the reunion, Beers sent Elliot to Albuquerque to earn traveling money for him and his other prostitutes. Lujan also returned to New Mexico. Once in Albuquerque, Elliot called the police, who contacted the Federal Bureau of Investigation ("FBI"), and reported Beers' activities. The FBI monitored several phone calls between Elliot and Beers before arresting Beers in Illinois.

II. Discussion

A. Evidentiary Rulings

"We review evidentiary challenges for an abuse of discretion." United States v. Lugo, 170 F.3d 996, 1005 (10th Cir. 1999). At trial, defendant submitted a motion in limine to exclude the government's evidence that Beers had abused Doe. The district court granted the motion, but stated that if defendant submitted evidence of a happy, content child, it would open the door to the government's evidence of abuse. Defendant chose not to introduce his evidence. These circumstances do not indicate any abuse of discretion on the part of the district court. Moreover, to the extent that defendant argues this ruling amounted to a violation of Beers' right to a fair trial, we hold that no constitutional violation occurred.

Defendant also claims that throughout his trial, the district court "persistently admitted improper and prejudicial uncharged misconduct evidence against Mr. Beers and his witnesses while just as persistently shielding prosecution witnesses from appropriate impeachment and refusing properly to limit their testimony." Appellant's Br. at 27. Beers argues that this constituted an abuse of discretion. We disagree. After reviewing each of the five alleged errors regarding the admission or exclusion of evidence, we find that the district court did not abuse its discretion as to any ruling. Thus, there can also exist no cumulative error.

B. Jury Instruction

Defendant claims two reversible errors involving jury instructions. We review a district court's decision whether or not to give a particular instruction for an abuse of discretion. See United States v. Dozal, 173 F.3d 787, 796 (10th Cir. 1999); Allen v. Minnstar, Inc., 97 F.3d 1365, 1368 (10th Cir. 1996). However, "we conduct a de novo review to determine whether, as a whole, the instructions correctly stated the governing law and provided the jury with an ample understanding of the issues and applicable standards." Allen, 97 F.3d at 1368. "A defendant is not entitled to an instruction which lacks a reasonable legal and factual basis." United States v. Bryant, 892 F.2d 1466, 1468 (10th Cir. 1989).

Beers claims that the district court committed reversible error by refusing to instruct the jury regarding the parental exception to the kidnapping statute. According to Beers, he acted as a surrogate parent and should have received a parental exception instruction because the jury heard some evidence that he provided food, shelter, and clothing to Doe and allowed him to play with other children. We disagree.

Defendant relies upon United States v. Floyd, 81 F.3d 1517 (10th Cir. 1996), for the proposition that a surrogate parent is exempt from prosecution under 18 U.S.C. § 1201. We stated in Floyd that the term "parent" in § 1201 is broad enough to encompass a surrogate parent who had "demonstrated that he was performing the `incidences' of parenthood at the time of the kidnapping." Floyd, 81 F.3d at 1522. In this case, the record contains no evidence that at the time of the kidnapping Beers acted as Doe's surrogate father. If defendant actually fulfilled some parental responsibilities for the child, he did so only after taking the child. Thus, even assuming that this defense might properly be submitted to the jury,¹ we agree with the district court that facts presented at Beers' trial did not support this instruction.

Defendant also claims the district court erred when it instructed the jury to consider John Doe's capacity to consent to going with defendant. After carefully reviewing the record and jury instructions regarding consent, we find no abuse of discretion in the district court's capacity to consent instruction and no legal error in the overall formulation of the instructions. Taken as a whole, the instructions correctly stated the governing law and provided the jury with an ample understanding of the issues and applicable standards pertaining to kidnapping in violation of 18 U.S.C. § 1201.

C. Sufficiency of the Evidence to Support Kidnapping Charge

Beers faces a high hurdle in trying to prove that the evidence is insufficient to support his kidnapping conviction. "[I]n reviewing the sufficiency of the evidence to support a jury verdict, this court must review the record de novo and ask only whether, taking the evidence -both direct and circumstantial, together with reasonable inferences to be drawn therefrom - in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir. 1996) (internal quotation marks and citations omitted); see also United States v. Copus, 110 F.3d 1529, 1534 (10th Cir. 1997). "We do not use this evaluation as a chance to second-guess the jury's credibility determinations, nor do we reassess the jury's Conclusions about the weight of the evidence presented." United States v. Yoakum, 116 F.3d 1346, 1349 (10th Cir. 1997) (internal quotation marks and citation omitted).

Beers argues that the government failed to prove beyond a reasonable doubt an essential element of the kidnapping offense -absence of the victim's consent. Consent of the victim to travel in interstate commerce with the defendant is a defense to the federal kidnapping statute. See United States v. Toledo, 985 F.2d 1462, 1467 (10th Cir. 1993). Beers apparently bases his argument on two facts: (1) the government did not call Doe, the eight-year-old victim, to testify as to whether or not he consented to travel with defendant, and (2) the testimony of the other witnesses conflicted as to Doe's consent. We find the first fact irrelevant. As for the testimony, Theresa Elliot testified that she did not consent to defendant taking her child and her child did not want to go with defendant. Twila Lujan stated that she saw Doe crying because he did not want to go with Beers to Phoenix. Further testimony revealed that defendant did not allow Elliot to be alone with Doe while in Illinois. Sheila Smith, another prostitute who had worked for defendant, contradicted Elliott's and Lujan's version of events, contending that Doe actually wanted to leave Salt Lake City with defendant. The prosecution seriously challenged Smith's credibility, however, by introducing impeachment evidence and witness testimony that she had worked for and been romantically involved with Beers and had admitted this to the FBI. She denied these facts at trial. Thus, the question of Doe's consent was essentially one of witness...