U.S. v. Gabaldon

• Decision Date: 16 November 2004
• Docket Number: No. 03-2233.,03-2233.
• Citation: 389 F.3d 1090
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank GABALDON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

389 F.3d 1090

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

No. 03-2233.

United States Court of Appeals, Tenth Circuit.

November 16, 2004.

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Ray Twohig, Ray Twohig, P.C., Albuquerque, NM, (Todd Hotchkiss, Frechette & Associates, P.C., Albuquerque, NM, with him on the briefs), for Defendant-Appellant.

James Miles Hanisee, Assistant United States Attorney (David C. Iglesias, United States Attorney, and Fred Chris Smith, Assistant United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before EBEL and TYMKOVICH, Circuit Judges, and HEATON, District Judge^*.

EBEL, Circuit Judge.

Defendant Frank Gabaldon appeals his conviction under the federal kidnapping statute, 18 U.S.C. 1201(a), arguing that the verdict was not supported by sufficient evidence that he held his victim against her will, that her confinement was not merely incidental to her eventual murder, or that holding her provided a benefit to Gabaldon. He also challenges the district court's Daubert ruling, which excluded the testimony proffered by a defense expert who held himself out as an accident reconstructionist and who sought to testify, among other things, that Gabaldon would have been physically incapable of striking his victim as alleged by the prosecution.

We find that the evidence was sufficient to support Gabaldon's conviction and that the district court did not abuse its discretion in excluding the defense's expert witness. We therefore exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I. Background

The evidence at trial presented the following narrative of the crime for which Gabaldon was convicted:

Frank Gabaldon, a large man at 6'3" and approximately 400 lbs., was riding around the town of Gallup, New Mexico while consuming alcohol in his car on February 24, 2001, accompanied by his wife Nicola and his friend R.C. Begay. Nicola was driving the Gabaldons' 1996 Buick LeSabre, Frank Gabaldon was in the front passenger seat, and Begay was in the back seat on the passenger's side of the vehicle. In the course of their drive they came across Deirdre Dale, a sixteen-year-old Navajo Indian girl, and asked her if she wanted to "party" with them. Dale agreed, got into the back seat of Gabaldon's car, and began to drink.

The group then drove to a liquor store and purchased more alcohol. After leaving the store, a dispute erupted in the back seat between Dale and Begay over Dale's refusal to perform a sexual act on Begay. According to Nicola's testimony at trial, after Begay complained out loud to Gabaldon that Dale had rebuffed him, Gabaldon told Begay to "hit that bitch." Begay began hitting Dale, and Gabaldon turned around in his front passenger's seat, reached into the back of the car, and joined Begay in striking Dale in the face and head. Dale shouted for her assailants to stop, to no avail, and ultimately she was knocked unconscious.

After the beating was over, Gabaldon directed his wife to pull the car over at a highway turn-off, where Gabaldon and Begay pulled the unconscious Dale out of the car, intending to leave her there at a location within a quarter mile of the road. Gabaldon and Begay decided not to leave Dale at that location, however, out of concern both that she would be discovered too quickly, and that Dale's fingers, which had scratched Gabaldon during the struggle in the car, might have samples of Gabaldon's DNA. They placed Dale, unconscious but still breathing, back into the car and drove through the town of Gallup and beyond toward a deserted spot on the Navajo Indian Reservation.

Along the way, Gabaldon gave Begay a shoe lace, and instructed Begay to strangle Dale. When Dale continued to make noises indicating she was still breathing in spite of Begay's attempts to strangle her, Gabaldon instructed Begay in the proper technique. After Dale finally fell silent, Gabaldon instructed Begay to remove Dale's clothes and throw them out of the car. Begay complied. Later, again at Gabaldon's behest, Begay used a cigarette lighter purchased in Gallup on their way to the reservation to burn Dale's fingertips in the hopes that this would destroy any DNA evidence that might lead back to Gabaldon. Upon arriving at their destination on the Navajo Reservation, Begay and Nicola Gabaldon threw Dale's body into a ravine, where she was found on March 3, 2001.

Gabaldon was charged with first degree murder, kidnapping resulting in death, and witness tampering on June 25, 2002. A superceding indictment entered on February 12, 2003 added three charges of witness tampering. Seven days before Gabaldon's trial was scheduled to begin, the defense gave notice that it planned to introduce expert testimony from Dr. Alan Watts. Dr. Watts's report was submitted the next day, on June 3, 2003, and the government requested a Daubert hearing on June 6th. That hearing was held after selection of the petit jury on June 9, 2003. The government challenged all nine conclusions contained in Dr. Watts's report as beyond his expertise and as unsupported by scientific methodology. The district court agreed, and excluded Dr. Watts's testimony in its entirety.

After a five-day trial, the jury convicted Gabaldon of second-degree murder and kidnapping resulting in death, and acquitted him of the witness-tampering charges. Gabaldon now appeals his conviction on the kidnapping count.

II. Sufficiency of Evidence

We review de novo claims that the evidence presented at trial was insufficient to support a conviction. United States v. Walker, 137 F.3d 1217, 1220 (10th Cir.1998). Evidence is sufficient to support a conviction if the evidence and the reasonable inferences drawn therefrom, viewed in the light most favorable to the government, would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. Id. Our review is very deferential; we will not overturn a jury's verdict unless no reasonable juror could have concluded, on the basis of the evidence presented, that the defendant was guilty of the crime charged. Id.

The provision of the federal kidnapping statute under which Gabaldon was convicted reads as follows:

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... when —

...

(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;

...

shall be punished by imprisonment ... and, if the death of any person results, shall be punished by death or life imprisonment.

18 U.S.C. § 1201(a).

Our cases have interpreted this statute to require, inter alia, that the victim be (1) held against his or her will (2) for some benefit to the captor. See Walker, 137 F.3d at 1220 (setting forth the requirements for conviction under § 1201(a)(1), which criminalizes willful interstate transportation of a kidnapped person); United States v. Toledo, 985 F.2d 1462, 1467 (10th Cir.1993) ("[T]he involuntariness of the seizure and detention is the very essence of the crime of kidnapping.") (quoting Chatwin v. United States, 326 U.S. 455, 464, 66 S.Ct. 233, 90 L.Ed. 198 (1946)) (emphasis in Toledo omitted); United States v. Sarracino, 131 F.3d 943, 947 (10th Cir.1997) (finding the statutory requirement that the kidnapping be done "for ransom or reward or otherwise" satisfied where "the kidnappers had some reason for the kidnapping, which, to them, would be of some benefit").¹

A. Whether Dale was held against her will

Gabaldon first challenges his conviction by arguing that the evidence did not show Dale was held against her will, citing her voluntary entry into Gabaldon's car. According to Gabaldon, Dale's confinement in his vehicle once she had been beaten unconscious was not "against her will," since at that point she was no longer capable of formulating or expressing a will.

In an ordinary kidnapping case where the victim is able and willing to testify as to his or her consent at trial, testimony that "he or she was transported involuntarily is ... normally sufficient to support a jury finding that the victim was in fact transported involuntarily." United States v. Hernandez-Orozco, 151 F.3d 866, 869 (8th Cir.1998). Where, by contrast, the victim's testimony is not available at trial but the evidence introduced indicates that the accused feloniously interfered with the victim's ability to form or express a desire to leave, the jury could rationally conclude that the victim was being held involuntarily.

The evidence presented below indicated that Dale was beaten into unconsciousness while sitting in the back of Gabaldon's car. It would have been entirely reasonable on this basis alone for the jury to have concluded that Dale would have withdrawn any previous consent to stay.² Here, in any case, the prosecution produced additional evidence that Dale resisted her assailants and shouted for them to stop beating her before she was rendered unconscious. We conclude that the evidence at trial was sufficient to support the jury's conclusion that Dale was confined in Gabaldon's car against her will.

B. Whether Gabaldon held Dale for a "benefit"

Gabaldon next claims that the evidence was insufficient for the jury to have concluded beyond a reasonable doubt that he held Dale for any benefit. Our cases interpreting the statutory requirement that the victim be held "for ransom or reward or otherwise," however, have repeatedly observed that the statute demands only that the holding of the kidnap victim fulfill some "purpose desired by the captor." De Herrera v. United States, 339 F.2d 587, 588 (10th Cir.1964); Sarracino, 131 F.3d at 947. See also Walker, 137 F.3d at 1220 (finding the accused's holding of his victim in order to have the opportunity to convince her to remain in a relationship with him to be a sufficient "benefit"); Diane M. Allen, Annotation, Requirement, Under Federal Kidnapping...