United States v. Morgan
2014 U.S. App. LEXIS 6495
| 10th Cir. | 2014Background
- In Sept. 2009 Morgan, Ford, Sanford (with co-conspirators Tabor and Patterson) kidnapped Mario Armendariz, his wife Perla Flores, and their two children, posing as police, restraining Armendariz, taking $30,000, and redistributing proceeds among conspirators.
- A 42‑minute intercepted post‑crime phone call captured discussion of proceeds and redistribution; the government admitted the recording and a transcript at trial.
- All three defendants were tried jointly, convicted on multiple counts (kidnapping, conspiracy to kidnap, and § 924(c) firearm offense); sentences: Morgan & Ford 600 months, Sanford 384 months.
- Key pretrial and trial disputes included: constitutionality and application of the 2006 amendment to the federal kidnapping statute (18 U.S.C. § 1201(a)(1)); jury instructions about what constitutes an "instrumentality of interstate commerce" and whether kidnapping is a "crime of violence" under § 924(c); admissibility of the intercepted call under Fed. R. Evid. 801(d)(2)(E) and Confrontation Clause; Rule 404(b) concerns and mistrial requests; witness identification testimony; and severance.
- The Tenth Circuit affirmed: it rejected as‑applied Commerce Clause challenges, upheld the contested jury instructions as legal questions for the court, sustained admission of the phone call as in furtherance of the conspiracy and non‑testimonial, denied mistrial and severance claims, and found no cumulative error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality / Commerce Clause of amended §1201(a)(1) (as‑applied) | Government: statute valid — Congress may regulate instrumentalities of interstate commerce | Sanford & Ford: statute exceeds Commerce Clause because kidnapping was intrastate; applying it here unconstitutional | As‑applied challenge rejected; use of cell phone/Internet/GPS as instrumentalities brings conduct within Lopez category two, so federal prosecution constitutional |
| Whether cell phones, GPS, Internet are "instrumentalities of interstate commerce" for §1201 | Govt: these are instrumentalities; court can decide as matter of law | Ford: jury must decide this factual element (Sixth Amendment) | Court may decide as a legal question; instruction defining those devices as instrumentalities was not plain error |
| Whether kidnapping is a "crime of violence" under §924(c) | Govt: kidnapping (and conspiracy to kidnap) are crimes of violence as matter of law | Ford: jury should decide whether underlying offense qualifies as crime of violence | Determination is a question of law; kidnapping and conspiracy to kidnap are crimes of violence — court properly instructed jury |
| Admissibility of intercepted post‑crime phone call (Fed. R. Evid. 801(d)(2)(E)) | Govt: statements were in course of and in furtherance of conspiracy (discussion and redistribution of proceeds) | Defendants: call was after the fact, mere narrative, not in furtherance, or co‑conspirators had withdrawn | District court’s factual finding that call was during/ in furtherance of conspiracy not clearly erroneous; admission not an abuse of discretion |
| Confrontation Clause / Bruton re: phone call | Defendants: admission violated Sixth Amendment (non‑testifying declarants) | Govt: statements were non‑testimonial; Bruton applies only to testimonial confessions | Statements were non‑testimonial (private co‑conspirator conversation, not to law enforcement); Bruton inapplicable; no Sixth Amendment error |
| Rule 404(b) / mistrial from prior bad‑acts references in call | Morgan: phone call contained prior‑bad‑act references that warranted mistrial | Govt: court cured by striking, redacting, giving limiting instruction; no prejudice | District court redacted and instructed jury; no abuse of discretion in denying mistrial (or plain error not established) |
| Unsolicited witness identification (Ms. Flores) / mistrial | Sanford & Morgan: government’s redirect invited identification beyond scope of cross; prejudicial, warranting mistrial | Govt: momentary, jurors instructed to disregard; evidence against defendants substantial | Denial of mistrial not an abuse of discretion; single brief, stricken, and curative instruction adequate |
| Severance motion (Sanford) | Sanford: tried with codefendants with stronger evidence, spillover prejudice | Govt: joint trial appropriate; jury instructed to consider individual culpability | Denial of severance not an abuse of discretion; heavy burden to show real prejudice not met |
| Cumulative error (Morgan) | Morgan: aggregate trial errors deprived him of fair trial | Govt: no reversible errors; individually harmless | No true errors found; cumulative‑error claim denied |
Key Cases Cited
- United States v. Lopez, 514 U.S. 549 (1995) (three categories of commerce power, including regulation of instrumentalities)
- Shreveport Rate Cases v. United States, 234 U.S. 342 (1914) (federal regulation of intrastate use of instrumentalities serving interstate commerce)
- United States v. Rodriguez‑Moreno, 526 U.S. 275 (1999) (kidnapping recognized as a crime of violence under §924(c))
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (whether an offense is a crime of violence is a legal/elements inquiry)
- Bruton v. United States, 391 U.S. 123 (1968) (admission of non‑testifying co‑defendant confession implicating another defendant)
- Grunewald v. United States, 353 U.S. 391 (1957) (conspiracy continues until central purpose attained)
- United States v. Davis, 766 F.2d 1452 (10th Cir.) (distribution of proceeds occurs during conspiracy)
- United States v. Dynalectric Co., 859 F.2d 1559 (11th Cir.) (conspiracy persists until proceeds are distributed)