U.S. v. Floyd

• Decision Date: 18 April 1996
• Docket Number: No. 95-6305,95-6305
• Citation: 81 F.3d 1517
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Franklin Delano FLOYD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1517

81 F.3d 1517

UNITED STATES of America, Plaintiff-Appellee, v. Franklin Delano FLOYD, Defendant-Appellant.

No. 95-6305.

United States Court of Appeals, Tenth Circuit.

April 18, 1996.

Appeal from the United States District Court for the Western District of Oklahoma; Wayne E. Alley. (D.C. No. CR-95-7-A).

Susan M. Otto, Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Mark A. Yancey, Assistant U.S. Attorney (Patrick M. Ryan, United States Attorney, Edward J. Kumiega, Assistant U.S. Attorney, with him, on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before BRORBY, McKAY, and ALARCON, ^* Circuit Judges.

ALARCON, Circuit Judge.

This case presents us with a novel issue: Is a stepparent, who earlier relinquished custody of the child to the state, following the death of its biological mother, exempt from Following a bench trial, Franklin Delano Floyd ("Floyd") was convicted of kidnapping, carrying a firearm during the commission of a kidnapping, carjacking, carrying a firearm during the commission of a carjacking, felony possession of a firearm, and interstate transportation of a stolen vehicle.

                prosecution for kidnapping under 18 U.S.C. § 1201 because he is the victim's "parent" under 18 U.S.C. § 1201?   We conclude that, while the ordinary meaning of the word "parent" includes a stepparent, or any person who voluntarily assumes a biological parent's responsibility to rear a child, a person who has terminated this status by freely relinquishing custody of the child to the state is no longer his or her "parent" under section 1201
                

Floyd seeks reversal on the following grounds:

One. He is exempt from prosecution for kidnapping pursuant to 18 U.S.C. § 1201 because he is the "parent" of the victim.

Two. The evidence is insufficient to support his conviction for kidnapping, interstate transportation of a stolen vehicle, and carrying a firearm during the commission of a kidnapping and carjacking.

Three. The count of carrying a firearm during the commission of a kidnapping is duplicative of the charge of carrying a firearm during the commission of a carjacking.

Four. He was denied his right to self-representation.

Five. He was denied his right to trial by jury because the court refused his request that the jury be sequestered.

We affirm because none of these contentions is meritorious.

We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. After setting forth the pertinent facts, we will address the merits of each of Floyd's contentions under separate headings.

I PERTINENT FACTS

In February, 1973, Floyd was arrested by the Atlanta Police Department for attempted kidnapping. At that time, he was on parole after serving time in a federal prison for bank robbery. Floyd failed to appear for trial. Federal authorities issued a warrant for his arrest as a parole violator.

Shortly after he became a fugitive, Floyd developed a relationship with Linda Williams. When they met, Linda Williams had a daughter named Sharon. In 1974, Floyd took Sharon with him after Linda Williams refused to marry him. During Sharon's childhood, Floyd and Sharon lived together as father and daughter in several states. Floyd used a variety of aliases to avoid arrest on the outstanding warrant.

In 1987, while Floyd and Sharon were residing in Phoenix, Arizona, Sharon began dating Gregory Higgs. As a result of her relationship with Gregory Higgs, Sharon became pregnant. Sharon did not inform Higgs that she was pregnant. Floyd and Sharon left Phoenix before the baby was born. On April 21, 1988, Sharon gave birth to a male child in Tampa, Florida. She named him Michael Gregory Marshall.

When Michael was 14 months old, Floyd and Sharon were married in New Orleans, Louisiana on June 15, 1989. They used the names Clarence Marcus Hughes and Tonya Dawn Tadlock on their marriage license documents. Floyd later told government investigators that it was a marriage of convenience designed to provide Michael with a father. Floyd also told the officers that the marriage was never consummated. Following their marriage, Floyd and Sharon moved to Tulsa, Oklahoma.

Sharon was killed in a hit-and-run automobile accident in April 1990. A few days later, Floyd voluntarily relinquished custody of Michael to the Oklahoma Department of Human Services. Michael was placed in a foster home in the early part of May 1990. In June 1990, Floyd was arrested as an alleged federal parole violator.

After Sharon's death, Floyd called Gregory Higgs and informed him of her demise. Higgs testified that Floyd told him that Sharon had given birth to Michael, and that Higgs was the child's biological father. Floyd asked Higgs if he wanted to raise On May 17, 1990, the State of Oklahoma filed a petition in the District Court for Oklahoma County to make Michael a ward of the court as a "deprived child." During these proceedings, Floyd claimed he was Michael's biological father. He requested that the court enter an order preserving his parental rights. Pursuant to Floyd's false representations that he was Michael's biological father, the state trial court ordered Floyd to pay child support and granted him the right to have Michael brought to the prison for supervised visits. The court also ordered that blood tests be administered to determine whether Floyd was Michael's biological father.

                Michael.   He invited Higgs to think it over.   A day or two later, Floyd telephoned Higgs.   Higgs informed Floyd that he wanted to raise Michael.   Floyd promised to contact Higgs within a month to deliver Michael to him.   Floyd did not communicate with Higgs again
                

In December 1992, the state trial court ruled, without conducting an evidentiary hearing, that the blood tests demonstrated that Floyd was not Michael's biological father. The court further ordered that all contact between Floyd and Michael be terminated. Floyd appealed from this decision, asserting that he was entitled to an evidentiary hearing and the right to cross-examine the state's expert witnesses. In an opinion published on July 6, 1993, the Oklahoma Supreme Court agreed and remanded the matter for an evidentiary hearing on the blood test results. See Matter of M.A.H., 855 P.2d 1066 (Okla.1993). On July 12, 1994 the state trial court scheduled an evidentiary hearing for September 23, 1994.

On the morning of September 12, 1994, Floyd drove to the Indian Meridian Elementary School in Choctaw, Oklahoma, where Michael's foster parents had enrolled him. Floyd ordered the school principal, James Davis, to help him kidnap Michael. Davis testified that Floyd said, "I'm ready to die, and if you don't help me, you won't live." Floyd informed Davis that he had a gun and displayed a portion of the pistol concealed in his pants pocket. Floyd instructed Davis to remove Michael from his class and to take him to Davis's 1994 Ford pickup truck. ¹ Floyd then directed Davis to drive to a secluded, wooded location. There, Floyd told Davis to get out of his truck. Michael remained inside the truck. Floyd handcuffed Davis's hands together behind a tree and taped his mouth shut with three layers of duct tape. Davis testified that, while he was being handcuffed, Floyd completely removed the pistol from his pocket and that he had fifteen to twenty seconds to observe it at close range. After asking Davis for instructions on how to start the truck, which Davis demonstrated through non-verbal communication, Floyd left the scene. Because Davis was handcuffed facing away from the truck and Floyd had removed Davis's hearing aid, Davis did not actually see or hear Floyd drive off in the truck. Davis was rescued four and one-half hours later.

On September 23, 1994, the state trial court held an evidentiary hearing as mandated by the Oklahoma Supreme Court. Floyd's counsel attended the hearing. After hearing evidence, the state trial court found that Floyd was not Michael's biological father.

On November 10, 1994, Floyd was arrested and taken into custody by FBI agents in Louisville, Kentucky. Michael was not with him. Michael has not been located to this date. After his arrest, Floyd offered to reveal Michael's whereabouts in exchange for a written agreement that he not be prosecuted.

On January 18, 1995, a grand jury indicted Floyd for the kidnapping of Michael in violation of 18 U.S.C. § 1201, the carrying of a firearm during the kidnapping in violation of 18 U.S.C. § 924(c)(1), the carjacking of Davis's truck in violation of 18 U.S.C. § 2119, a second violation of § 924(c)(1) for carrying a firearm during the carjacking, the felony possession of a firearm in violation of 18 U.S.C. § 922(g)(1), the interstate transportation of a stolen vehicle in violation of 18 Prior to trial, the district court granted Floyd's motion to dismiss the hostage charge. Floyd also filed a pretrial request styled as a "Motion to Proceed in Propria Persona" in which he sought to represent himself at trial. Prior to trial, however, Floyd informed that court that he did not want to "take over his own representation." Instead he requested that he be allowed to offer "argument" on the parental kidnapping exemption and agreed that his counsel, Susan M. Otto, would represent him on all other aspects of the case. The district court granted Floyd's request and, in a subsequent hearing, set the "ground rules" for Floyd's participation in cross-examining witnesses. Floyd also made a pretrial motion to sequester the jury. The court denied this motion. Floyd then signed a waiver of his right to a jury trial.

U.S.C. § 2312, and the taking of a hostage in violation of 18 U.S.C. § 1203.

At the conclusion of the bench trial, the district court convicted Floyd on each of the remaining six counts and sentenced him to serve 627 months in prison.

II DISCUSSION

A. Surrogate Parenthood

Floyd first challenges his conviction for kidnapping in violation of 18 U.S.C. § 1201. At the time of the kidnapping, section...