United States of America, Plaintiff - Appellee, v. Brian Brown, also known as Brian Lee Brown, Defendant - Appellant.
No. 02-2782
United States Court of Appeals FOR THE EIGHTH CIRCUIT
June 9, 2003
Submitted: February 10, 2003
Before HANSEN,* Chief Judge, LOKEN and SMITH, Circuit Judges.
LOKEN, Chief Judge.
A jury convicted Brian Brown of kidnaping and aggravated sexual abuse of a child in violation of
I. Background
While visiting friends in Kansas, truck driver Brown offered to take the family‘s ten-year-old daughter, Jane Doe,2 on an overnight trip to Texas while he made a delivery. The child‘s mother signed a note giving Jane permission to go with Brown to Dallas and return the next day. Brown and Jane left Kansas and arrived in Dallas that night. While sleeping in the truck, Jane awakenеd to find Brown putting his hands into her pants. Jane asked Brown to take her home. The next day, Brown left Dallas heading north but instead went to a rural campground in Arkansas, where he sexually assaulted Jane the following day. On the third day, a grocery store owner bеcame suspicious and contacted police. Though Jane told the investigating officer she was Brown‘s daughter, as Brown had instructed, the officer contacted Kansas police and learned that Brown was driving a stolen truck and had kidnaped a girl. When officers arrested Brown, a distraught Jane reported that Brown had sexually assaulted her. A medical examination revealed bruises on her face and body, a vaginal tear, and semen in the crotch of her pants.
II. The Blood Sample Issue
On appeal, Brown renews his contention that the involuntary blood sample violated his rights under RFRA and the Free Exercise Clause. But he challenges only the district court‘s pretrial order granting the government‘s motion for production of a blood sample. He never moved to suppress any evidence that might result from the blood sample, and at trial he did not object to the state crime lab expert‘s testimony explaining the results of the DNA testing. Admission of that testimony, which we reviеw for plain error, was the only aspect of this issue that had an impact on Brown‘s conviction. The district court granted the motion for production after hearing testimony from Brown regarding his religious beliefs,3 from an Elder and an Overseer of a local Jehovah‘s Witness congregation contradicting Brown‘s testimony, and from an FBI agent explaining the importance of a blood sample in obtaining accurate DNA
II. The Constructive Amendment Issue
Count II charged Brown with aggravated sexual abuse of a child in violation of
Jury instructions constructively amend if they allow the jury to convict the defendant of a different offense than the one alleged in the indictment. United States v. Barrios-Perez, 317 F.3d 777, 779 (8th Cir. 2003). But we are aware of no case in which a verdict form by itself wаs held to constitute a constructive amendment. Here, the jury instructions accurately tracked the language of
III. The Material Variance Issues
A. Kidnaping “for Ransom or Reward or Otherwise.”
Brown was convicted of violating the federal kidnaping statute,
It is well established that an indictment may be phrased in the conjunctive, when the statute and jury instructions are phrased in the disjunctive, without creating a constructive amendment of the indictment or a material variance in the proof. See Barrios-Perez, 317 F.3d at 779-80 (no constructive amendment); United States v. Atchison, 524 F.2d 367, 368, 370-71 (7th Cir. 1975) (no material variance). Indeed, we have observed that it is “bad pleading” if an indictment alleges alternative statutory purposes in the disjunctive. Bram v. United States, 302 F.2d 58, 60 (8th Cir. 1962) (quotation omitted). Thus, the indictment and the jury instructions were properly phrased. Brown‘s sepаrate attack on the sufficiency of the evidence is without merit because it is well-settled that he violated
B. Traveling in Interstate Commerce.
Brown arguеs that a material variance occurred regarding the interstate commerce element of the kidnaping count because the indictment alleged that he kidnaped Jane from “Texas to Arkansas,” but the trial evidence showed that he took her from Texas to Oklahoma and then from Oklahoma to Arkansas. We doubt this is even a slight variance, because the allegation that Brown traveled from Texas to Arkansas reasonably encompassed a route passing through Oklahoma. But in any event, any variance was not material because the indictment “fully and fairly apprised [Brown] of the charges he . . . must meet at trial.” United States v. Begnaud, 783 F.2d 144, 148 (8th Cir. 1986).
IV. The “Parent” Exception to 18 U.S.C. § 1201(a)
The federal kidnaping statute includes an exception for actions “in the case of a minor by the parent thereof.”
We have construed the term “parent” in the statutory exception as potentiаlly including “anyone who stands in a position equivalent to that of a parent,” as well as a child‘s biological parents. Miller v. United States, 123 F.2d 715, 717 (8th Cir. 1941), rev‘d on other grounds, 317 U.S. 192 (1942); accord United States v. Floyd, 81 F.3d 1517, 1523 (10th Cir. 1996) (“a surrogate parent is exempt from prosecution under section 1201“), cert. denied, 519 U.S. 851 (1996). Though Jane‘s mother gave Brown limited consent to tаke the child on an overnight trip to Texas, Brown abducted Jane to Arkansas after she asked to be taken home, sexually abused her, and held her against her will for days beyond her mother‘s consent. By no stretch of the imagination was this the conduct of a surrogate parent. “[E]ven under the broadest and most latitudinarian definition or understanding of the term ‘parent,’ [Brown‘s] relationship to this minor at the time of the offense cannot be so characterized.” Miller, 123 F.2d at 718. There was no plain error.
V. Sentencing Issues
A. Two-Level Increase for Custody of the Victim.
The district court increased the base offense level for criminal sexual abuse by two levels because Jane was in Brown‘s “custody, care, or supervisory control.” U.S.S.G. § 2A3.1(b)(3)(A). Brown argues the increase was clearly erroneous. This enhancement applies “whenever the victim is еntrusted to the defendant, whether temporarily or permanently,” because such a custodial relationship “represents the potential for greater and prolonged psychological damage.” U.S.S.G. § 2A3.1, comment. (n.2 and backg‘d). Here, Jane‘s parents entrusted her to Brown, as a friend of the family, creating a relationship of temporary custody and care based upon trust. When he abused that trust by abducting and sexually abusing the child, his sexual abuse offense involved precisely the kind of potential for psychological damage contemplated by this enhancement. See United States v. Crane, 965 F.2d 586, 587 (8th Cir. 1992). There was no clear error.
B. Four-Level Increase for Abducting the Victim.
The district court further increased the base offense level for criminal sexual abuse by four levels because Jane Doe “was abducted.” U.S.S.G. § 2A3.1(b)(5). Brown argues this was clear error because he had permission to take Jane to Texas. But the abduction occurred when
Brown further argues that enhancing his base offense level four levels for the abduction under § 2A3.1(b)(5), and four additional levels for the use of force under U.S.S.G. § 2A3.1(b)(1), was impermissible double counting. We disagrеe. Double counting is permissible when the Sentencing Commission intended that two provisions both apply and they address “conceptually separate notions relating to sentencing.” United States v. Rohwedder, 243 F.3d 423, 427 (8th Cir. 2001). In United States v. Saknikent, 30 F.3d 1012, 1013 (8th Cir. 1994), a case in which the victim was abducted and then forcibly raрed, we upheld the imposition of both these enhancements. Likewise, in this case, Brown forcibly abducted Jane to Arkansas, thereby increasing the likelihood of sexual assault, and then punched her in the face and held her tightly when she tried to resist his sеxual abuse, increasing the severity of the assault. No impermissible double counting occurred when the district court imposed both enhancements to punish these distinct offense characteristics.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.