U.S. v. Macklin
| Decision Date | 25 January 1982 |
| Docket Number | No. 56,D,56 |
| Parties | UNITED STATES of America, Appellee, v. Dennis Calvin MACKLIN, Defendant-Appellant. ocket 81-1040. |
| Court | U.S. Court of Appeals — Second Circuit |
Steven Lloyd Barrett, New York City (The Legal Aid Society, Federal Defender
Services Unit, New York City, of counsel), for defendant-appellant Dennis Calvin Macklin.
Patricia Anne Williams, Asst. U. S. Atty., S. D. N. Y., New York City (John S. Martin, Jr., U. S. Atty., Walter P. Loughlin, Asst. U. S. Atty., New York City, of counsel), for appellee U. S.
Before NEWMAN and KEARSE, Circuit Judges, and DALY, District Judge. *
This is an appeal from a judgment of the United States District Court for the Southern District of New York (Carter, J.), entered upon a jury verdict convicting defendant-appellant of two counts of kidnapping in violation of 18 U.S.C. § 1201(a). 1 Appellant asserts two grounds for appeal: (1) the evidence adduced at trial was insufficient to prove the elements of the federal crime of kidnapping; and (2) the trial court's instructions to the jury on the elements of kidnapping were erroneous.
From the evidence at trial unfolded a tale of a two-week Los Angeles to New York odyssey which appellant Macklin, an adult, took with a 13-year-old boy named Bruce Rowe, their New York encounter with an 11-year-old girl named Selestine Valdez, and a brief, though round-about journey from New York to Philadelphia which Macklin subsequently took with Selestine.
On July 10, 1980, Bruce Rowe ran away, for the ninth time in a year, from his suburban Los Angeles home. On this occasion, Bruce was accompanied by his ten-year-old friend, Derwon. The two boys walked to downtown Los Angeles, where they wandered around until very late that night when they were approached by an unidentified man who solicited their help in burglarizing a house. It was then that appellant Macklin happened by and chased the would-be burglar away. In response to his inquiries, Bruce and Derwon told Macklin that they had run away from home, but refused to identify their parents.
Bruce testified that Macklin and the boys "became friends" after about 10 minutes of conversation, and Macklin told them he would take care of them. To avoid having to return home if police found them, the boys adopted pseudonyms, with Derwon becoming "Lee" and Bruce becoming "Brian". There was conflicting evidence as to whether it was Macklin's or the boys' idea to change their identities.
Macklin and the boys stayed three days in California, spending their nights sleeping in train stations and their days playing in parks and begging for money, which they used for food. At some point, Macklin asked them if they wanted to go with him to New York City. Bruce and Derwon both asked Macklin if he would buy bicycles and other toys for them. Derwon testified that Macklin told him he'd have a bike waiting for him in New York, "if I don't say nothing on the train ... (about) ... I wanted to get off". Bruce's version of the Macklin-Derwon bicycle conversation was that Macklin said "if he (Derwon) will still be with us when we got to New York, he (Macklin) would get it for him, too".
After three days, Macklin, Bruce and Derwon went to the Los Angeles train station to hop a train to New York, with Macklin instructing the boys on how to sneak into the baggage car of the train. When the train finally arrived, however, Derwon refused to go and ran away leaving Bruce and Macklin on their own. Macklin and Bruce ultimately left California by bus, and then proceeded to journey across the country alternating between buses and trains. During the course of the trip and thereafter, Bruce identified himself to other people as appellant's son, "Brian Macklin", apparently at Macklin's suggestion. The two arrived in New York City on July 16, 1980 and spent their first night in the city in Central Park. The next two nights were spent in the homes of friends of Macklin.
Sometime during their first few days in New York, Macklin bought some new clothes for Bruce and took him to two different homes for runaways. However, after talking to some people at the homes, Bruce decided he didn't want to stay, and so continued with Macklin. During this same period, Macklin placed a telephone call to Bruce's mother. Bruce stood nearby as Macklin dialed the number, but then walked away and did not hear Macklin converse with his mother. When he hung up the phone, Macklin told Bruce that his mother had said she did not want Bruce to come home. Bruce testified that he was upset that his mother had said that she did not want him to come home, but not surprised, since she had told him the same thing once before during a previous sojourn away from home. Apparently in an effort to disprove that Macklin had in fact spoken to Bruce's mother, the government produced Wayland Rowe, Bruce's father, who testified that he learned nothing about his son's whereabouts until he was later contacted by New York authorities.
On Sunday, July 20th, 1980, Macklin took his friend's two daughters and three other children as well as Bruce to a swimming pool in Van Cortland Park. It was there that Macklin and Bruce met up with Selestine Valdez, who had been brought to the pool by her grandfather. Early in the day Macklin and Selestine's grandfather struck up a conversation and Macklin introduced Selestine to Bruce, whom he described as his son, "Brian".
Bruce and Selestine took an immediate liking to each other and went off to play together in the pool. Later that afternoon, Selestine told both Bruce and Macklin that she was beaten by her mother and stepfather and was very unhappy at home. Macklin responded by telling Selestine that it was against the law for adults to beat children and suggested that Selestine travel to Oregon with him and Bruce. Selestine turned down the invitation.
The following day Bruce and Macklin returned to Van Cortland Park, and Bruce went from there to Selestine's house, leaving Macklin in the park. That afternoon, Bruce and Selestine went next door to the home of Selestine's friend Lucia, whose family was holding a barbecue. At the party, Bruce gave Selestine a chain necklace, which Macklin had obtained for Bruce to give to her and asked her to come with him and Macklin to New Jersey, where Macklin had told him he was going to look for work. Shortly thereafter, either at Selestine's request or on his own initiative, Bruce went back to the park to find Macklin and invite him to the barbeque. Macklin returned to the party with Bruce, but stayed only long enough to meet Selestine's mother and stepfather who had appeared upon the scene. Bruce remained a while longer with Selestine, and then rejoined Macklin in the park. There, the two of them composed a "thank you" note to Selestine, and Macklin drew a cartoon of "Woody Woodpecker" on the bottom of the note. Bruce delivered the note to Selestine that same evening and then again returned to Macklin in the park.
Later that night, Selestine was sent on an errand by her mother, but, once out of the house, she went instead to Macklin and Bruce in the park. According to Bruce's testimony, Selestine had a black eye from being struck by her stepfather. Selestine announced to Bruce and Macklin that she had come to tell them that she would not go away with them. Bruce pleaded with her to come. Macklin, however, merely made some remarks to Bruce, reminding him that it was Bruce who wanted Selestine to join them and he (Macklin) had predicted that Selestine would not come. Selestine suddenly changed her mind and said she would join them because, she testified, Bruce kept asking her to do so. Selestine then asked if she could bring her baby brother, but Macklin ruled that out because her brother was "a different color" than Macklin and "wouldn't pass". 2
Macklin, Bruce and Selestine spent the next two days and a night in Central Park. Bruce and Macklin then got into an argument, and Macklin struck Bruce when Bruce began, as he stated in court, "acting smart" after Macklin told him to pick up the shirt that Macklin had washed out for him. Macklin began walking away with Selestine, and Bruce followed until Macklin told him again to retrieve his shirt, which he finally went back to do. When Bruce returned to where he had left Macklin and Selestine, they had disappeared.
Bruce then went to a telephone booth and called the police. He gave the police a phony name and address, and continued to keep his real identity secret from the authorities until after he was placed in a foster home in New York. He subsequently ran away from this foster home, and, after being found, was placed in a second foster home. At the time of appellant's trial, Bruce was still in the New York home.
Meantime, Macklin and Selestine went to Pennsylvania Station and sneaked onto a train, which they believed was headed for Chicago, but which, in fact, was bound for Washington, D.C. In Washington, they were caught trying to sneak on board another train, and ended up sleeping in the station. Over the next couple of days, Macklin and Selestine travelled to Alexandria, Virginia, Baltimore, Maryland, and Philadelphia, Pennsylvania, where they were stopped by an Amtrak police officer and later arrested by the FBI.
There was also evidence regarding the home lives of both Bruce and Selestine. The testimony, although somewhat conflicting, indicated that, while their lives might not have been as difficult as either Bruce or Selestine might have perceived them to be, they were, to one degree or another and for a variety of reasons, not the happiest of situations. Bruce's father and Selestine's mother both testified that they never consented to their children's travelling with Macklin.
The government has proceeded in this case, from the indictment through to this appeal, on the theory that a minor (defined by the...
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