U.S. v. De La Rosa

• Decision Date: 29 August 1990
• Docket Number: No. 89-2689,89-2689
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mary Elizabeth De La ROSA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 985

911 F.2d 985

UNITED STATES of America, Plaintiff-Appellee, v. Mary Elizabeth De La ROSA, Defendant-Appellant.

No. 89-2689.

United States Court of Appeals, Fifth Circuit.

Aug. 29, 1990.

Thomas S. Berg, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for defendant-appellant.

Joseph Douglas Wilson, Washington, D.C., Paula C. Offenhauser, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, DAVIS, and BARKSDALE, Circuit Judges.

WISDOM, Circuit Judge:

A jury convicted Mary Elizabeth De La Rosa of kidnapping a two year old boy in the Republic of Mexico and transporting him in foreign commerce from Mexico to Texas, in violation of the Federal Kidnapping Act, 18 U.S.C. Sec. 1201. She now appeals her conviction and sentence. We affirm.

STATEMENT OF FACTS

The facts are bizarre. In 1985 De La Rosa lived in Houston, Texas with Domingo Galarza; they were not married. Perhaps to save their deteriorating relationship, De La Rosa desperately wanted a child. She was unable to bear children, however; she had undergone a double tubal ligation in 1983. In the summer of 1985, De La Rosa falsely told Galarza that she was pregnant with his child. She entered the hospital in the fall of that year for gall bladder surgery, but she told Galarza that she was going to give birth. In a series of lies, she told Galarza that she had indeed given birth, to twins, but they had to be taken to Galveston for medical attention.

To document her story, De La Rosa fraudulently obtained false birth certificates for twin boys in February 1986. She In October 1987 De La Rosa drove to Diaz Ordaz, Mexico to the home of Concepcion Negrete. She told Negrete that she was going to Rio Verde, Mexico to fetch children who were being raised for her there. De La Rosa left her car at Negrete's house and proceeded to Rio Verde.

obtained certified copies of these documents several months later.

On October 26, 1987, a man known as "Rubel" or "Nacho" abducted Juan Antonio Castillo Gonzalez near the market in Rio Verde. Gonzalez, a two year old boy, was playing with his siblings as his mother worked in the nearby market. Nacho brought the boy to the home of Vincenta Guerrero Payta in Rio Verde, where De La Rosa was waiting. He gave the child to De La Rosa. Nacho appeared nervous and expressed concern about the police. De La Rosa allayed his fears by telling him that she and the child would be leaving later that same day. Later that day, during an argument with Payta, the defendant waved a pistol and warned that anyone reporting to the authorities information about the boy would have to deal with her.

De La Rosa, Nacho, and two other persons travelled with the boy to Diaz Ordaz to the home of Negrete, where the defendant had left her car. ¹ After promising Nacho an indefinite sum of money and a job in the United States, she crossed the border to the United States with the boy and went to Houston, Texas. There, she introduced her friend, Galarza, to his "son", whom she called Domingo, named after her friend. ²

The Federal Bureau of Investigation (FBI) interviewed De La Rosa in December 1987. She told them that she gave birth to twins two years earlier and that the children had been kept in Mexico; she said that she was able to bring only one home. When the FBI arrested De La Rosa in February 1989, she changed her story. She admitted then that the child was not her own, but she denied that she had kidnapped him. Nevertheless, she remarked to the arresting agents that "the mother [of Gonzalez] in Rio Verde should not have left her child unattended in the marketplace".

A jury convicted De La Rosa of violating 18 U.S.C. Sec. 1201(a)(1). The trial judge sentenced her to 180 months imprisonment, three years supervised release, and a $50 special assessment.

DISCUSSION

De La Rosa raises six separate challenges to her kidnapping conviction and sentence. We consider each in turn.

A. Sufficiency of the Indictment

De La Rosa was charged with violating 18 U.S.C. Sec. 1201. That statute provides:

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when--

(1) the person is willfully transported in interstate or foreign commerce

* * * * * *

shall be punished for any term of years or for life. [Emphasis added].

In the indictment, the government charged that De La Rosa

did unlawfully seize ... and carry away and hold for ransom, reward, and otherwise, Juan Antonio Castillo Gonzalez, a minor, who was transported in foreign commerce by defendant.... (violation: Title 18, United States Code, Sec. 1201(a)(1)).

De La Rosa contends that the omission of the word "willfully" to modify "transported" renders the indictment legally insufficient, because willful transportation in interstate or foreign commerce is an essential element of the offense. We reject this challenge.

Generally, "[t]o be sufficient, an indictment needs only to allege each essential element of the offense charged so as to enable the accused to prepare his defense and ... to invoke the double jeopardy clause in any subsequent proceeding". ³ In this case, the existence of two factors causes us to read the indictment more liberally. First, the defendant was aware of the omission during trial and neglected to raise the issue. Second, counsel for the defendant conceded at oral argument that De La Rosa sustained no prejudice in preparing her defense as a result of the omission of the word "willfully". ⁴ We hold an indictment to be sufficient "unless it is so defective that it does not, by a reasonable construction, charge an offense for which the defendant is convicted". ⁵

Under this liberal reading, the indictment passes muster. We follow United States v. Wilson ⁶ and the cases cited therein that have rejected challenges to indictments that omit the mens rea requirement. These cases base that result on the theory that the indictments "fairly import" the mental state. Wilson also notes that reference to the statute allegedly violated reinforces other references in the indictment. ⁷ The indictment in this case contained a citation to 18 U.S.C. Sec. 1201(a)(1). Finally, the jury instructions left no doubt that willful transportation in foreign commerce is an essential element of the offense. Because "the law does not compel a ritual of words", ⁸ we reject this challenge to the indictment. The omission was not a material fault.

B. Application of 18 U.S.C. Sec. 1201(a)(1) to an abduction in Mexico

De La Rosa was charged with and convicted of kidnapping the two year old Gonzalez in Mexico and transporting him in foreign commerce to the United States. De La Rosa contends that 18 U.S.C. Sec. 1201(a)(1) applies only to a kidnapping that 1) occurs within the jurisdiction of the United States and 2) subsequently involves interstate or foreign transportation. She relies on United States v. McRary, ⁹ in which the court stated that the foreign commerce jurisdictional basis in 18 U.S.C. Sec. 1201 applies only when the kidnapping takes place in the United States and the victim is transported to a foreign state.

18 U.S.C. Sec. 1201(a)(1) makes kidnapping a federal offense when "the person is willfully transported in interstate or foreign commerce ...". We hold that this language is sufficiently broad to cover the abduction of a person in Mexico and his subsequent transportation to the United States. As an initial matter, we note that McRary is not controlling. That case involved the seizure of a person on a vessel on the high seas, outside of the territorial jurisdiction of the United States, and subsequent transportation of the person to Cuba. The kidnapping thus had no connection with the United States, unlike the instant case.

By transporting Juan Antonio Castillo Gonzalez from Mexico to the United States, the defendant transported him in "foreign commerce" as used in section 1201(a)(1). The plain meaning of the words "foreign commerce" does not support the narrow construction that De La Rosa urges, i.e., that the words denote only transportation from the United States, not to the United States. The original federal kidnapping statute defined the term "foreign commerce" to "include transportation from ... a foreign country to any State, Territory, or the District of Columbia". ¹⁰ The definition later was changed to read "commerce with a foreign country". ¹¹ The Reviser's Note explains that the purpose of the change was to substitute the broad word "commerce" for the narrower word "transportation". ¹² "Foreign commerce" means to or from the United States. 18 U.S.C. Sec. 1201(a)(1) covers the defendant's conduct.

C. Sufficiency of the Evidence

To establish a violation of 18 U.S.C. Sec. 1201(a)(1), the government must prove beyond a reasonable doubt that the defendant 1) knowingly and willfully kidnapped the victim; 2) held him for ransom, reward, or other benefit; and 3) transported him in interstate or foreign commerce. ¹³

De La Rosa contends there is no evidence that she personally abducted Gonzalez or that another committed the act for her. When faced with a challenge to the sufficiency of the evidence on a criminal conviction, this Court views the evidence and all inferences that reasonably may be drawn from it in the light most favorable to the government. ¹⁴ We are bound to accept all credibility choices in favor of the jury's verdict, and we will reverse a conviction only if no reasonable jury could conclude that guilt was proven beyond a reasonable doubt. ¹⁵ In this case, the evidence adduced at trial suffices to support the conviction.

De La Rosa lied to Galarza when she told him that she was pregnant with his child. After that initial falsehood, she made preparations to obtain a child born to...