U.S. v. Garcia

• Citation: 854 F.2d 340
• Decision Date: 16 August 1988
• Docket Number: 86-5300,Nos. 86-5299,s. 86-5299
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marge GARCIA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Andro GARCIA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 340

854 F.2d 340

UNITED STATES of America, Plaintiff-Appellee, v. Marge GARCIA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Andro GARCIA, Defendant-Appellant.

Nos. 86-5299, 86-5300.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 4, 1988.

Decided Aug. 16, 1988.

Steve Cochran, Wyman, Bautzer, Kuchel & Silbert, Los Angeles, Cal., for defendant-appellant Marge Garcia.

Marcia J. Brewer, Los Angeles, Cal., for defendant-appellant Andro Garcia.

Nancy Wieben Stock, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before CANBY and WIGGINS, Circuit Judges, and LOVELL, ^* District Judge.

CANBY, Circuit Judge:

INTRODUCTION

On May 15, 1986, Andro Garcia and Marge Garcia were indicted for kidnapping and aiding and abetting kidnapping. 18 U.S.C. Secs. 1201(a); 2(a). The indictment charged that the kidnapping began on "a date unknown" and continued "to on or about May 20, 1981." The Garcias challenged the indictment as time-barred by the federal five year statute of limitations. 18 U.S.C. Sec. 3282. The district court rejected the challenge. Trial by jury was waived and the defendants were convicted of the offense.

On appeal, the Garcias renew their contention that their prosecution is barred by limitations. That question presents two subsidiary issues, one a novel question of law and the other a related question of fact. They are: (1) whether the federal offense of kidnapping is completed at the time of abduction and transport across a state or national line, or whether it is a continuing offense that lasts as long as the victim is held; and (2) if the offense is continuing, whether the evidence supports a finding that Marge Garcia held or aided in holding the victim at any time after May 15, 1981, so as to bring her offense within the five year period. Because the government's theory is that the victim, a young girl named Olga, was held partly by psychological coercion, it is necessary to present the facts in considerable detail.

FACTS

In the summer of 1975, two sisters, Olga (then age 9) and Nora ¹ (then age 10), were visiting a carnival in their home town of Tijuana, Mexico when they were approached by a stranger. The stranger, Marge Garcia, engaged the children in conversation and offered to pay for some carnival rides. After taking them on some rides and after having gained the girls' confidence, Marge offered to give the two sisters a ride home. The girls initially resisted but relented when Marge led them by the hands to a pickup truck occupied by Andro Garcia and the Garcias' two children. When the girls realized that they were not going home they protested. They were told to be quiet or they would be killed and were informed that the Garcias had a gun. They were then transported by the Garcias across the international boundary from Mexico to the United States.

Once across, the victims were taken to the Garcias' home in California. Marge told them: "You don't have parents anymore. We are your new parents. You are never going back." From then on, until their departure, they were subjected to a regimen of physical and sexual abuse. Andro cut their hair very short, forced them to put on make-up and to wear flimsy clothing. While inside the house they were forbidden to wear anything except their underclothes. Marge and Andro had to be addressed as "Mom" and "Dad." Failure to comply was met with a beating. Within a week after their abduction both girls were raped by Andro. Marge was a willful and active participant in these sexual assaults.

Nora attempted to escape shortly after her abduction by slipping out in the middle of the night. Tired and confused, Nora sat The girls adopted different survival strategies. Nora, the older sister, resisted actively and so was punished with greater frequency and more severe force. Olga became quiet and withdrawn.

                on a sidewalk curb and was approached by a woman who spoke to her in English.  Nora did not understand her.  Police officers were called, but they also did not speak Spanish.  While cruising the neighborhood, the officers were approached by Marge who claimed to be the girl's Mother.  The police turned Nora over to Marge Garcia.  Nora was then taken downstairs to a basement where she was tied to a chair and beaten by Andro.  Andro told her, "Don't do this again or we'll kill you."    Olga heard her sister's screams from the beating and was later informed of these events by Nora.  Following this escape attempt the two girls were often kept separated and were told not to talk to each other
                

Throughout their confinement the girls were forced to engage in various sexual activities, ranging from oral copulation with Andro to group sex involving both girls, Marge and Andro. Andro also took the girls to farm labor camps and sold their services as prostitutes. Andro would beat the girls if they refused or failed to perform as ordered.

Beatings were administered for any failure to obey commands. Minor transgressions were punished with blows to the chest and stomach. Initially, these incidents occurred at least once a week. Some offenses were punished by extended periods of kneeling while facing a wall. Other punishments included being tied to a chair and beaten by Andro. Both girls were hung up, sometimes upside down, and beaten with a paddle. They were frequently warned by Andro not to escape nor to reveal anything to anybody about their true background. Andro told them that if they ran away he would cut them up into pieces, put them in a box and bury them in the mountains.

At one point Nora was punished very severely for running away. Olga and Nora were taken by the Garcias to a remote garbage dump in the desert. Andro then tied Nora to a tree and blindfolded her. Nora's sister Olga, Marge and the two children were in the car, parked nearby. Andro repeatedly approached Nora and asked "Are you going to run away again?" Nora responded "No" and Andro then struck her with a billy club on the stomach and legs. He then told her, "You're not going to do that anymore and if you do, you're going to be punished." The group then drove away and left Nora tied to the tree by herself. Before leaving, Andro told her that he was leaving her there for the coyotes to eat. Later the group returned. After administering a couple more blows, Andro removed Nora's handcuffs and Nora was allowed to join the others. After this incident the girls were told never to speak Spanish to each other. They were subsequently punished for doing so by being forced to kneel for extended periods of time.

Some time later, Nora told some friends about the abduction. When Andro found out about this he tied Nora to a small table and whipped her with a stretch of electrical cord. Olga witnessed her sister being punched and whipped and heard most of the screams from such beatings. Altogether, Nora attempted to escape at least ten times.

The family moved frequently from place to place within California. While in Fresno, three to four years after the abduction, Nora became friendly with a woman named Emily. Nora related the details of her situation to Emily. Emily helped Nora get away from the Garcias and unsuccessfully attempted to find Nora's parents in Tijuana. Nora's abduction thus ended in 1979.

At different times, both girls were impregnated by Andro. Nora's baby was put up for adoption after her escape. Olga's pregnancy occurred in 1980-81. At that point Marge became jealous of Olga and told Olga that she should leave. Olga finally left the Garcia residence on May 20, 1981. Prior to leaving, Olga was warned by Andro and Marge not to speak to the authorities. She was told that it had been a long time since the abduction, the police would therefore not help, and if Olga did The district court determined that the confinement of Olga lasted until May 20, 1981, when she was "physically emancipated." It was on that date that Olga permanently departed from the Garcia residence. The indictment was handed down on May 15, 1986, only a few days less than five years later.

speak to the police the Garcias would kill her. The story of Olga's kidnapping finally came to light a few years later when Andro Garcia became a suspect in an unrelated abduction.

DISCUSSION

Kidnapping as a continuing offense

The Garcias argue that the kidnapping of Olga was complete at the time she was first abducted and transported into California, and that limitations had accordingly run long before the indictment in this case was handed down. The Garcias rely on the absence of any federal authority to the contrary, and the doctrine that "criminal limitations are to be liberally interpreted in favor of repose." Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). We reject the Garcias' argument, however, because it is inconsistent with the common law view of kidnapping, and with the purposes of the federal kidnapping statute. These sources indicate that the crime continues as long as the victim is held.

At common law, the offense of kidnapping originally was the forcible abduction of a person from one country to another. While the carrying away was clearly an important element of the crime, much of the harm was that transportation of the victim had a long-term harmful effect. ² Subsequently, the involuntary detention of the victim became the focus of the crime. "[I]t is the pain of confinement that creates a distinct harm worthy of independent punishment for kidnapping. Once the injury being inflicted by an accompanying crime is excluded, the length and condition of the confinement become the principal determinant in measuring the harm which forms the basis for the kidnapping charge." Diamond, Kidnapping: A Modern Definition, supra n. 2. When the focus is shifted to the involuntary detention of the victim, the crime of kidnapping necessarily...