U.S. v. Santos-Riviera

• Decision Date: 29 July 1999
• Docket Number: SANTOS-RIVIER,D,No. 98-40351,98-40351
• Citation: 183 F.3d 367
• Parties: (5th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LLANELYefendant- Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 367

183 F.3d 367 (5th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LLANELY SANTOS-RIVIERA, Defendant- Appellant.

No. 98-40351

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

July 29, 1999

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

Before REAVLEY, JOLLY and EMILIO M. GARZA, Circuit Judges.

REAVLEY, Circuit Judge:

Llanely Santos-Riviera, an illegal alien, was charged under the Hostage Taking Act, 18 U.S.C. § 1203, and convicted by jury of one count of seizing, detaining, and threatening to injure a ten month old infant in order to compel the infant's parents to pay a cash ransom for her release. The kidnapping occurred within the United States and the victim is a United States citizen. This appeal raises two issues: (1) whether the government was required to allege in the indictment and prove at trial, as essential elements of the offense, that the appellant was a foreign national and that the hostage taking or kidnapping at issue had some other "international aspect;" and (2) whether the Hostage Taking Act, as applied to Santos-Riviera, violated her Equal Protection rights because the statute discriminates on the basis of alienage. We answer both questions in the negative and affirm.

I. BACKGROUND

The grand jury indictment charged that Santos-Riviera, within the Southern District of Texas, "did knowingly and intentionally seize, detain, threaten to injure and continue to detain Jocelyn Tehya Garrido in order to compel Ricardo Garrido and Maria Elliott Garrido to pay a cash ransom for the release of Jocelyn Tehya Garrido," in violation of 18 U.S.C. §§ 2 and 1203. The indictment did not allege that Santos-Riviera was an illegal alien or that the kidnapping involved the United States government or some other international aspect.

The evidence at trial showed that in 1997, Santos-Riviera illegally entered the United States from her home in Oaxaca, Mexico. In July of that year, she obtained employment in Brownsville, Texas caring for the two youngest children of Mr. and Mrs. Ricardo Garrido, Jr. While caring for the children, Santos-Riviera, either acting alone or aiding and abetting another person,¹ abducted the Garrido's ten month old daughter and wrote a ransom note demanding that the Garridos pay $7000 for their daughter's return. Santos-Riviera initially told the Garridos and law enforcement officers that she had been sexually assaulted by three men who then kidnapped the child. After additional investigation and questioning, during which officers pointed out several inconsistencies in appellant's version of the events, Santos-Riviera confessed that she had fabricated the story about the three men and purported that a man named Antonio had forced her to participate in the abduction. A search for a man fitting the descriptionof Antonio given by appellant was unsuccessful. Within a few hours of the abduction, the child was found alive in a wooded area behind the house where the Garridos were living. Santos-Riviera testified at trial that Antonio threatened her and forced her to give him the child, told her what to write in the ransom note, and told her to tell the Garridos that three men had raped her and taken the child. Appellant's trial testimony, however, was inconsistent in several respects with her prior statements to the investigating officers, including her prior written statement that Antonio had offered her $2000 to participate in the abduction and promised to change her identity and move her to another city. The jury returned a verdict of guilty, and the district court sentenced Santos-Riviera to 144 months of imprisonment and five years of supervised release.

II. ANALYSIS

A. Sufficiency of the Indictment

Santos-Riviera contends that the indictment was defective because it failed to allege that she was a non-national and that the kidnapping involved an additional "international aspect." Although styled as a sufficiency claim, appellant actually poses a statutory construction question requiring us to determine the essential elements of an offense under the Hostage Taking Act, i.e., whether the indictment must negate the exceptions set forth in § 1203(b)(2) to allege that the offender or victim is a non-national and whether the indictment must also allege an additional "international aspect."

We analyze questions of statutory interpretation de novo. See United States v. Fitch, 137 F.3d 277, 281 (5th Cir. 1998). Likewise, whether an indictment sufficiently alleges the elements of an offense is a question of law, which we review de novo. See United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999). "The Sixth Amendment requires that an indictment (1) enumerate each prima facie element of the charged offense; (2) fairly inform the defendant of the charges filed against him; and (3) provide the defendant with a double jeopardy defense against future prosecutions." United States v. Gaytan, 74 F.3d 545, 551 (5th Cir. 1996).

We begin our analysis with the essential elements of an offense under the Hostage Taking Act. The statute provides in relevant part:

(a) Except as provided in subsection (b) of this section, whoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained, or attempts or conspires to do so, shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

(b)(1) It is not an offense under this section if the conduct required for the offense occurred outside the United States unless--

(A) the offender or the person seized or detained is a national of the United States;

(B) the offender is found in the United States; or

(C) the governmental organization sought to be compelled is the Government of the United States.

(2) It is not an offense under this section if the conduct required for the offense occurred inside the United States, each alleged offender and each person seized or detained are nationals of the United States, and each alleged offender is found in the United States, unless the governmental organization sought to be compelled is the Government of the United States.

18 U.S.C. § 1203 (emphasis added). At issue here is the construction and interplay of subsections (a) and (b).² Section 1203(a) delineates the prohibited conduct under the Act; it criminalizes the seizure or detention of a person in order to compel a third person or government organization to act or refrain from acting as a condition for release of the person detained. Section 1203(b) sets forth exceptions to the Act's coverage, depending on whether the offense occurred within or without the United States. If the kidnapping occurred within the United States, as was the case here, subsection (b)(2) provides that the statute does not apply if both the victim and the offender are nationals of the United States and the party to be compelled is not the United States government. See § 1203(b)(2). In other words, application of the Hostage Taking Act to a domestic kidnapping not involving the United States government turns on the citizenship status of the offender or victim.

Santos-Riviera contends that, in addition to the elements set forth in § 1203(a), the indictment should have further alleged that she was a non-national and that the kidnapping involved some "international aspect" or nexus beyond her status as an illegal alien. She essentially asserts that the government has the burden of negating the exceptions listed in § 1203(b). In support of her position, Santos-Riviera relies primarily upon language from our opinion in United States v. Carrion-Caliz, 944 F.2d 220 (5th Cir. 1991), wherein we stated that "the Hostage Taking Act applies only to acts of kidnapping or hostage taking which have some international aspect or involve the United States government." Id. at 224. By contrast, the Government argues that the exceptions listed in subsection (b) are not essential elements of the offense, but rather are affirmative defenses for which the defendant bears the burden of proof. We agree with the Government.

Santos-Riviera's reliance on Carrion-Caliz is misplaced. In that case, while addressing a sufficiency of the evidence challenge to a conviction under § 1203, we, for the first time, set forth the essential elements of the offense. See id. at 222-23. We quoted the text of § 1203(a) and held:

by the plain terms of the statute, a conviction under the Hostage Taking Act requires the Government to show that the defendant 1) seized or detained another person, 2) threatened to kill, injure, or continue to detain that person, 3) with the purpose of compelling a third person or governmental entity to act in some way, or to refrain from acting in some way.

Id. at 223; accord United States v. Lin, 101 F.3d 760, 766 (D.C. Cir. 1996);United States v. Lopez-Flores, 63 F.3d 1468, 1476 (9th Cir. 1995).

We then compared the Hostage Taking Act to the analogous federal kidnapping statute, 18 U.S.C. § 1201, in order to interpret the words "seizes" and "detains" contained in § 1203(a). See Carrion-Caliz, 944 F.2d at 223-25. Addressing the concern that the two statutes should not be construed to be redundant, we distinguished the statutes by noting that the federal kidnapping statute made no reference to aliens and had "only limited extraterritorial application," id. at 224, whereas the Hostage Taking Act "was adopted specifically 'to extend jurisdiction over extraterritorial crimes and satisfy the country's obligations as a party to various international conventions.'" Id. (quoting United States v. Yunis, 681 F. Supp. 896, 904 (D.D.C. 1988)). We further noted that the Hostage Taking Act "...