UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PATRICK DWAYNE MURPHY, Defendant - Appellant.
No. 22-7021
United States Court of Appeals for the Tenth Circuit
May 7, 2024
PUBLISH
David B. Autry, Attorney at Law, Oklahoma City, Oklahoma, for Defendant-Appellant.
Jarrod A. Leaman, Assistant United States Attorney (Linda A. Epperley, Assistant United States Attorney, Christopher J. Wilson, United States Attorney, with him on the brief), Office of the United States Attorney, Eastern District of Oklahoma, Muskogee, Oklahoma, for Plaintiff-Appellee.
Before HOLMES, Chief Judge, PHILLIPS, and McHUGH, Circuit Judges.
HOLMES, Chief Judge.
Defendant-Appellant Patrick Murphy appeals his convictions for murder, murder in perpetration of kidnapping, and kidnapping resulting in death. He raises three issues on appeal. First, he argues that there was insufficient evidence to sustain
We conclude that Mr. Murphy‘s first, sufficiency-of-the-evidence argument is persuasive: more specifically, we hold that even viewing the evidence in the light most favorable to the government, it does not show that Mr. Murphy held the victim for an appreciable period of time, which is a requirement under the federal kidnapping statute. However, we reject Mr. Murphy‘s other two arguments. Accordingly, exercising jurisdiction under
I
A
1
In August 1999, Mr. Murphy had dated his then-girlfriend, Patsy Jacobs, for roughly five years.1 Their relationship was marked by Mr. Murphy‘s desire to control
On August 26, 1999, Mr. Murphy and Patsy argued and he demanded to know whether Patsy had seen George that day. Mr. Murphy‘s anger escalated, and he threatened to kill George and George‘s sons “one by one.” R., Vol. III, at 97 (Trial Tr., dated Aug. 3-5, 2021).
2
Two days later, on August 28, 1999, Mr. Murphy went to help his cousin, Mark Taylor, move some furniture. The two spent the day together, drinking beer as they worked. Later that evening, the two met up with another cousin—Billy Jack Long—who joined them as they continued drinking. After some time, Mr. Murphy, Mr. Taylor, and Mr. Long got in Mr. Murphy‘s pickup truck and drove around before going to Mr. Murphy‘s trailer. Mr. Taylor eventually left the other two for the night.
After Mr. Taylor‘s departure, Mr. Murphy and Mr. Long drove to Katherine King‘s house.3 At the time, Katherine was dating George Jacobs Jr.—George‘s son. When Mr. Murphy and Mr. Long arrived at Katherine‘s home, Mr. Murphy came to the
The new trio soon decided to seek out a game of pool. Because Kevin was underage, Mr. Murphy settled on an establishment that he believed would allow Kevin to enter: a bar in Vernon, Oklahoma.
As the three drove toward the bar, George was leaving it. He too had spent the day drinking alcohol, with a friend and relative named Mark Sumka. That evening, George and Mr. Sumka had stopped by the bar in Vernon to eat dinner and continue drinking. By the time they left, George was too drunk to drive; Mr. Sumka drove George‘s car while George was “passed out.” Id. at 242.
As Mr. Sumka drove George‘s car away from the bar, with George inebriated and incapacitated alongside him, they passed by Mr. Murphy, Mr. Long, and Kevin as the trio drove toward Vernon. The two groups intersected on Vernon Road in a rural area of McIntosh County, Oklahoma. Seeing Mr. Murphy—who was also a relative of his—driving down the road, Mr. Sumka pulled over to greet him.
3
The two vehicles stopped on opposite sides of the road—George‘s car going away from the bar, Mr. Murphy‘s truck heading toward it. Mr. Murphy asked Mr. Sumka who
As Mr. Sumka started to walk towards George, Mr. Murphy told him to “stay out of it.” Id. Mr. Murphy then turned around and went towards the still-prone George, while Mr. Long left George and hit Mr. Sumka in the face, knocking him to the ground. Once Mr. Sumka got back to his feet, he “took off . . . to get some help” and ran down the road away from the assault. Id. at 243.
Mr. Sumka did not go far, however; he soon returned to the scene because he “couldn‘t leave George.” Id. When he arrived back at the vehicles, Kevin hit him in the face before Mr. Murphy intervened, instructing Kevin to leave Mr. Sumka alone. Mr. Murphy then threw a knife across the road. At that point, Mr. Sumka could see George lying in a ditch at the side of the road. Mr. Sumka went to check on him and heard George “gurgling.” Id. at 245.
Before Mr. Sumka could attempt to help George, Mr. Murphy demanded that he leave with the trio; Mr. Sumka complied, getting into Mr. Murphy‘s truck, and Mr.
A short while later, the group went to Mr. Taylor‘s home. In front of Mr. Sumka, Mr. Long, and Kevin, Mr. Murphy told Mr. Taylor that he “killed George Jacobs,” and “cut [George‘s] throat, [] stomped his head, cut his private areas off, and shoved them in [George‘s] mouth.” Id. at 191. While Mr. Murphy was bragging about killing George, and cutting off “[h]is dick and his balls,” Mr. Taylor noticed that Mr. Sumka looked “a little beat up” and was “ghostly pale” and “frightened.” Id. at 191–93.
Mr. Murphy soon drove the group to Katherine‘s house, where he sent Kevin inside to bring out George Jr.—Katherine‘s partner and George‘s son. Mr. Murphy explained that they would do the “same thing” to George Jr. that they had done to his father. Id. at 250. Kevin went inside and woke up George Jr., but Katherine intervened before he could convince George Jr. to go outside. Once again, Katherine warned Mr. Murphy to leave her property before she called the police; he drove away with Mr. Sumka and Mr. Long, leaving Kevin behind. Mr. Murphy then dropped off Mr. Long at Mr. Long‘s girlfriend‘s home.
Now with only Mr. Sumka as his passenger, Mr. Murphy continued to his mother‘s house, where Patsy was staying. There, he got Patsy out of bed and told her that “he killed George Jacobs, and that he sliced his throat, cut him in the stomach, and cut his nuts and dick off.” Id. at 98. Mr. Murphy ended his boast by telling Patsy that George “won‘t fuck anyone anymore, not even you.” Id. He then asked her if she would wash some bloody clothes for him. When she refused, he took a lighter and went outside.
4
Mr. Murphy‘s actions quickly came to the attention of law enforcement officials. Early in the morning on August 29, 1999—a few hours after the attack—Agent John Jones of the Oklahoma State Bureau of Investigation (“OSBI“) responded to a reported murder scene on Vernon Road. Upon his arrival, he found George‘s body lying alongside the roadway, near a ditch. George‘s pants and underwear had been pulled down around his knees. His car was parked on the road and his wallet, which allowed Agent Jones to identify him, was “directly in front of the vehicle.” Id. at 134.
The severity of George‘s wounds was immediately apparent. He had deep cuts across his neck and his torso, and “[h]is penis and testicles had been removed.” Id. at 136. Also, George‘s upper buttocks and lower back showed marks consistent with having been dragged across the gravel road.
After inspecting the crime scene, Agent Jones interviewed several witnesses and identified Mr. Murphy as a suspect. That same day, law enforcement officers brought Mr. Murphy to the local police station, where Agent Jones and another OSBI agent interviewed him about George‘s death. Though Mr. Murphy initially denied having seen George in three to four months, he eventually admitted to pulling in front of and blocking George‘s car, but claimed that Mr. Long and Kevin dragged George out onto the road. As the interview progressed, he told the agents that he kicked George in the testicles,
On August 30, 1999, Dr. Ronald Distefano—a medical examiner employed by the state of Oklahoma—performed an autopsy on George‘s body. He found that George had suffered several serious injuries: a cut to his larynx and jugular vein, which could have been fatal in and of itself; broken bones in his face; a thirteen-inch slice across the bottom of his chest; and the “complete[]” severing of his genitals by “a very sharp instrument.” Id. at 324, 326. Dr. Distefano determined that the death was a homicide, caused by the loss of blood resulting from the combined injuries inflicted on George.
B
1
Mr. Murphy was charged with George‘s murder and, in 2000, a jury in McIntosh County convicted him of first-degree murder. The trial court imposed a death sentence.
Two decades later, in 2020, the Supreme Court announced its decision in McGirt v. Oklahoma, 591 U.S. 894, 140 S. Ct. 2452 (2020), where it held that Congress had never disestablished the Muscogee (Creek) reservation in Eastern Oklahoma. See id. at 937, 140 S. Ct. at 2474. Mr. Murphy was one of many criminal defendants originally prosecuted by the state of Oklahoma whose convictions were rendered infirm by the rationale articulated in McGirt.4 As a consequence of that decision, the murder scene
In September 2020—twenty years after Mr. Murphy‘s state conviction—a federal grand jury in the Eastern District of Oklahoma indicted him for murdering George and kidnapping George and Mr. Sumka. A month later, the grand jury returned a four-count superseding indictment against Mr. Murphy, charging him: in Count One with murdering George in violation of
Following a three-day trial in August 2021, a jury convicted Mr. Murphy in Count One of the lesser-included charge of murder in the second degree and of the crimes charged in Counts Two and Three, but acquitted him of Count Four—that is, of kidnapping Mr. Sumka. Following the recommendation of the Probation Department in a Pre-Sentence Report (“PSR“), the district court imposed life sentences on each of the counts upon which Mr. Murphy was convicted—i.e., Counts One, Two, and Three—and ordered those sentences to be served concurrently.
II
Mr. Murphy timely filed this appeal and raises three separate challenges to his convictions. First, he argues that the evidence at trial was insufficient to sustain either of his kidnapping-related convictions—murdering George while kidnapping
Second, Mr. Murphy contends that the applicable statute of limitations barred his federal prosecution on each count of conviction. Third, Mr. Murphy asserts that a twenty-year period between George‘s murder and his indictment violated his Fifth Amendment due process rights.
We begin our analysis with Mr. Murphy‘s challenge to his two kidnapping-related convictions for Counts Two and Three, and we conclude that this challenge is well-taken; his convictions on these counts cannot stand. We then consider his arguments regarding the applicable statute of limitations and the government‘s allegedly unlawful delay in criminally charging him; we conclude that these arguments are without merit and that the district court‘s rulings should not be disturbed.
A
Before considering the merits of Mr. Murphy‘s kidnapping-related argument, we must first address the government‘s contention that he waived the specific sufficiency-of-the-evidence challenge that he advances on appeal by not raising it before the district court. That position fails because Mr. Murphy advanced before the district court a broad
1
2
At the close of the government‘s case, Mr. Murphy made an oral Rule 29 motion and, in relevant part, argued that “what happened to Mr. Jacobs did not amount to or constitute kidnapping. He‘s pulled out of the car, beaten and killed. I don‘t think that that meets the elements of kidnapping.” R., Vol. III, at 336 (emphasis added). Focusing on Counts Two and Three, he contended:
I don‘t think any rational juror could determine beyond a reasonable doubt that there was a kidnapping here by Mr. Murphy of George Jacobs. Because the testimony from Mr. Sumka was, is that, Mr. Jacobs was pulled out of the car and beaten and restrained
and detained by Mr. King and Mr. Long, not by Mr. Murphy. So to the extent that it could even be said there was a kidnapping of George Jacobs, it was not committed by Patrick Murphy according to their own witness. . . . As to Count Three, we move for a judgment of acquittal under Rule 29, because the evidence, as we argued before, does not indicate that Patrick Murphy, either by aiding and abetting or direct action kidnapped, if any kidnapping occurred, of George Jacobs. . . . Third element, the kidnapping of George Jacobs resulted in the death of George Jacobs. There was no kidnapping, number one. And second and more particularly, there was no kidnapping by Mr. Murphy.
Id. at 336–38 (emphasis added).
The government maintains that Mr. Murphy advances two arguments on appeal that he did not specifically raise before the district court, therefore waiving them. First, it asserts that Mr. Murphy has waived his claim that the kidnapping of George was indistinguishable from the murder. Second, and relatedly, it reasons that Mr. Murphy has waived the position that we should adopt a test set forth by the Third Circuit in Government of the Virgin Islands v. Berry, 604 F.2d 221, 227–28 (3d Cir. 1979), regarding the sufficiency of a kidnapping conviction, as he did not cite that case to the district court.
The government‘s procedural premises are correct. To be sure, while making his Rule 29 motion, Mr. Murphy did not specifically urge the district court to adopt the Berry test or to hold that the kidnapping of George was indistinguishable from his murder. However, we disagree with the government‘s conclusion that those omissions mean that Mr. Murphy has not preserved those arguments for our review.
Our precedent makes clear that defendants do not waive appellate review of discrete theories that build upon broad arguments made before the district court. In other
For example, in United States v. Streett, 83 F.4th 842 (10th Cir. 2023), we held that the defendant had preserved his challenge to a certain clause within
Here, Mr. Murphy made a “generalized” Rule 29 challenge to the kidnapping evidence against him, thereby giving the district court notice that all potential insufficiency arguments were in play vis-à-vis his kidnapping-related charges. Streett, 83 F.4th at 853. In his Rule 29 motion, he asserted that “what happened to [George] did not
In opposition to this view, the government draws our attention to a line of our рrecedent; however, that precedent is factually inapposite. As that precedent suggests, we have consistently held that defendants waive sufficiency arguments when they make specific challenges in the district court in support of a Rule 29 motion and then later raise entirely separate claims before us. Our preservation doctrine on this point is chiefly concerned with preventing defendants from raising for the first time on appeal entirely distinct arguments from those presented to the district court. In this regard, the government relies on Maynard in making its waiver argument. In Maynard, the defendant expressly limited the scope of his Rule 29 motion to one count in a multi-count prosecution. See 984 F.3d at 961. On appeal, however, he challenged the sufficiency of the evidence to support his convictions on several of the other counts, and we held that he waived those separate claims. See id.
Similarly, in Goode, the defendant made a Rule 29 motion and maintained only that there was not a sufficient “legal nexus . . . between the weapon and [himself] to meet the element of possession.” 483 F.3d at 681 (alteration in original). We therefore held
As our review should reveal, these authorities are inapposite. Unlike those defendants, Mr. Murphy avoided effectively focusing the district court‘s decision-making on one specific theory, to the exclusion of other possible theories. In other words, unlike those defendants, Mr. Murphy did not advance for the trial court‘s consideration specific theories for relief and then attempt to raise in seeking reversal before us other distinct theories. For example, Mr. Murphy is not challenging a different element of the indictment against him like the defendant in Goode, see 483 F.3d at 681, nor is he introducing a new constitutional argument like the defendant in Kimler, see 335 F.3d at 1141. Instead, on appeal he is building upon a broad challenge to the insufficiency of one element of the charged conduct. Because he did not articulate any specific theories—but
III
A
1
We review de novo a district court‘s decision to deny a defendant‘s motion for acquittal under Rule 29. See United States v. Fuller, 751 F.3d 1150, 1153 (10th Cir. 2014). “We must view the evidence, both direct and circumstantial, in the light most favorable to the govеrnment, and without weighing conflicting evidence or considering the credibility of witnesses, determine whether that evidence, if believed, would establish each element of the crime.” Id. (quoting United States v. White, 673 F.2d 299, 301–02 (10th Cir. 1982)). “Our review is very deferential; we will not overturn a jury‘s verdict unless no reasonable juror could have concluded, on the basis of the evidence presented, that the defendant was guilty of the crime charged.” United States v. Gabaldon, 389 F.3d 1090, 1094 (10th Cir. 2004).
2
(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—
. . .
(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;
. . .
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
This case calls upon us to decide an unsettled question in this circuit: whether the statutory requirement of “hold[ing]” in § 1201 contains a temporal limitation. We hold that it does. As we explain, to sustain a kidnapping conviction under § 1201, the government must offer evidence showing that the defendant held the victim for an appreciable period of time. Though we refrain from defining the exact contours of that period here, it must be more than coterminous with the time necessary tо carry out any related offense. This is an especially critical point to underscore in circumstances like this one, where a defendant is charged with other
2
We have not had reason to definitively address the meaning of “holds” under § 1201. However, the Supreme Court has considered the issue, and its reasoning shapes our holding here. The Court first interpreted the federal kidnapping statute9 in 1946 in Chatwin v. United States, 326 U.S. 455 (1946), in the context of a kidnapping prosecution of a man who convinced a fifteen-year-old girl to join him in traveling from Utah to Mexico, where they married before returning to Utah. Though their journey and marriage were “without the consent and against the wishes of [the girl‘s] parents,” the Court found that the defendant did not hold the girl against her will, as she was free to leave at any time. Id. at 458–60. The defendant‘s conduct may have been “unattractive or immoral,” the Court reasoned, but it “lack[ed] the characteristics of true kidnap[p]ings.” Id. at 464. And the Court said there was no “indication that Congress desired or contemplated that the punishment of death or long imprisonment, as authorized by the [kidnapping] Act, might be applied to those guilty of immoralities lacking the characteristics of true kidnap[p]ings.” Id. Accordingly, the Court unanimously reversed the kidnapping convictions of the defendant and his two accomplices because the government “failed to prove an act of unlawful restraint.” Id. at 460.
This reasoning was reflected in the Court‘s narrowly tailored view of the statute. The Court observed that “seizure and detention [are] the very essence of the crime of kidnap[p]ing.” Id. at 464. Thus, “[t]he act of holding a kidnapped person for a proscribed purpose necessarily implies an unlawful physical or mental restraint for an appreciable period against the person‘s will and with a willful intent so to confine the victim.” Id. at 460 (emphasis added). But the Court did not define what amount of time constituted “an appreciable period,” leaving that question to be resolved by lower courts. Id.
Chatwin leaves us with a crucial limiting principle: courts must cabin
3
Several of our sister circuits have applied the limiting рrinciple of Chatwin when interpreting the “hold[ing]” provision of
We discussed the Berry test in Gabaldon. See 389 F.3d at 1096–97. As with this case, Gabaldon involved a kidnapping and murder in Indian Country charged under
Among those circuits that have spoken with greater definitiveness, the Ninth and Eleventh Circuits have endorsed the Third Circuit‘s Berry test, but others have taken different approaches while still limiting the application of
Regardless of the exact doctrinal path of those cases that have definitively opined on the matter, the unifying theme across thosе decisions is the recognition that—without the limiting requirement of an appreciable temporal period—a literal interpretation of “hold[]” under
We endorse this unifying theme, which interprets the scope of
4
The government expressly resists any interpretation of the statutory “hold[ing]” requirement that includes a temporal limitation. Without recognizing the weight of extra-circuit decisions to the contrary, the government urges us to refuse to add a “time requirement” to the holding element within
In support of its position, the government points to a District of Columbia Court of Appeals case,14 Ruffin v. United States, 219 A.3d 997, 1006 (D.C. 2019). In Ruffin, the defendant was convicted of kidnapping under the District of Columbia kidnapping statute, which mirrors the language of
driving him to several locations in the process. See 80 F.4th at 147–48. In stark contrast, as discussed infra, Mr. Murphy fatally attacked George within minutes after encountering him and Mr. Sumka on Vernon Road.
Affirming the defendant‘s conviction, the court ruled that his argument was “‘foreclosed’ by ‘binding precedent.‘” Id. (quoting Richardson v. United States, 116 A.3d 434, 438 (D.C. 2015)). Rather than engaging with the defendant‘s argument, the court noted that it had previously denied similar challenges to the District of Columbia kidnapping statute. See id. at 1005–06. Previously, in Richardson, the court held that the plain statutory language contained “no exception for cases in which the conduct underlying the kidnapping is momentary or incidental to another offense.” 116 A.3d at 439. As that court made clear in Ruffin, Richardson, and its other related precedents, the District of Columbia Court of Appeals has long understood the statute to contain “no requirement that the victim be moved any particular distance or be held for any particular length of time to constitute a kidnapping; all that is required is a ‘seizing, confining’ or the like and a ‘holding or detaining’ for ransom or reward ‘or otherwise.‘” Id. (quoting West v. United States, 599 A.2d 788, 793 n.9 (D.C. 1991), partially abrogated on other grounds by Byrd v. United States, 598 A.2d 386 (D.C. 1991) (en banc)).
Embracing a literal interpretation of
Further, unlike other courts analyzing
Lastly, in rejecting the government‘s position, we note that even acknowledging that the “appreciable period” language in Chatwin is dicta, rather than an express holding, does not affect our analysis here. See United States v. Booker, 63 F.4th 1254, 1260 n.3 (10th Cir. 2023) (“This court considers itself bound by dicta from the Supreme Court almost as firmly as we are by its holdings.“). The Chatwin Court‘s overarching interpretive guidance was clear, and we refuse to endorse the government‘s contrary, proposed interpretation of
C
Thus, guided by Chatwin, we interpret the scope of
Even viewing the facts in the light most favorable to the government, see Fuller, 751 F.3d at 1153, any holding of George was only incidental to his murder. Mr. Sumka‘s testimony indicates that a very short amount of time passed between Mr. Murphy forcing the car that Mr. Sumka was driving to stop, and George being pulled from the car. By the time Mr. Sumka had parked and exited the driver‘s seat, Mr. Long and Kevin had already pulled George from the car and begun assaulting him. The record does not indicate—nor does the government suggest—that there was any appreciable period of delay between the time George was dragged from the car and the time that the three men, including Mr. Murphy, began assaulting him.17
Though Mr. Murphy first approached Mr. Sumka after he exited the car and told him to “stay out of it,” that interaction could not have lasted more than a few seconds, as Mr. Murphy promptly went to the back of the car—where George was lying prone on the road. R., Vol. III, at 242.
Mr. Sumka went to look for help, but soon returned because he “couldn‘t leave George.” Id. at 243. By the time he returned, George was in the ditch by the side of the road, “gurgling” and unable to speak, and dying from his wounds. Id. at 245. Though Mr. Murphy boasted that he personally stabbed and dismembered George resulting in his death, the government offered no proof that Mr. Murphy somehow personally held George for an appreciable period apart from the time necessary to commit the acts that killеd him. Nor did the government establish that he aided and abetted his two accomplices in holding him for such an appreciable period. Indeed, the government would have been hard pressed to make such a showing on this record—which suggests that the time between Mr. Sumka being forced to park on Vernon Road and George bleeding out in the ditch was only a matter of minutes.
Aside from its threshold legal argument that the addition of a “time requirement to . . . the holding element” is misguided and contrary to the plain terms of the statute, Aplee.‘s Resp. Br. at 23—which we have rejected here—the
Comparing the facts here to those in Gabaldon and cases in which other courts have upheld kidnapping convictions, moreover, confirms our holding. In Gabaldon, the defendant conceded that he “held [the victim] longer than would have been minimally necessary for her to be murdered,” because he and the co-defendant “drove around with [the victim] while ‘dеciding what to do with her.‘” 389 F.3d at 1098. The facts of Krivoi and Peden also clearly fall on the former side of the line between
***
We conclude that Mr. Murphy did not hold George for an appreciable period beyond the time necessary to kill him. Any holding of George was entirely “inconsequential and [an] inherent side-effect of h[is] murder.” Gabaldon, 389 F.3d at 1098. Consequently, in our view, no reasonable juror could conclude that Mr. Murphy kidnapped George. See id. at 1094.
We therefore agree with Mr. Murphy that his convictions on Counts Two and Three cannot stand. However, we now address Mr. Murphy‘s other arguments for reversal, and, after careful study, we reject them.
IV
Mr. Murphy next contends that the district court erred in denying his motion to dismiss on statute-of-limitations grounds. As he does on appeal, Mr. Murphy argued
We reject Mr. Murphy‘s statute-of-limitations challenge and accordingly uphold the district court‘s denial of his motion to dismiss.
A
We review de novo a district court‘s determination that a litigant‘s claims are not barred by the statute of limitations. See Fulghum v. Embarq Corp., 785 F.3d 395, 413 (10th Cir. 2015).
B
After his indictment, Mr. Murphy filed a motion to dismiss all of the charges against him because the grand jury returned the indictment over a decade after the expiration of the statute of limitations contained in
The district court issued a written order denying Mr. Murphy‘s motion on February 18, 2021. Though finding Mr. Murphy‘s position to be “both understandable and rational,” the district court concluded that “[t]he death penalty‘s unavailability due to a jurisdictional quirk does not, and cannot, affect the statute of limitations for charging the offense.” R., Vol. I, at 244, 246 (Order Den. Mot. to Dismiss Under Statute of Limitations, filed Feb. 18, 2021).
On appeal, Mr. Murphy largely repeats the argument that he made to the district court. Specifically, he contends that the reference in
Thus, Mr. Murphy concludes that the five-year catchall statute of limitations applicable to non-capital federal crimes applies to his specific charges, which arose frоm conduct dating back to 1999. See
C
1
Section 3281 provides that “[a]n indictment for any offense punishable by death may be found at any time without limitation.”
It is perhaps for this reason that Mr. Murphy urges us to interpret
In any event, to the extent that
Accordingly, Mr. Murphy‘s challenge, as a textual matter, is unavailing. By reading the two statutes in concert with
2
Even if that textual analysis were not enough to doom Mr. Murphy‘s statute-of-limitations challenge—and it is—Mr. Murphy would struggle to prevail because, as he himself acknowledges, no caselaw supports his position. See Aplt.‘s Opening Br. at 24 (“Granted, this argument has failed to find much favor in the cases addressing it.“). This is an issue of first impression in our court, but persuasive authority counsels against adopting Mr. Murphy‘s position. Notably, in United States v. Gallaher, 624 F.3d 934 (9th Cir. 2010), the Ninth Circuit considered this
Similarly, in United States v. Martinez, 505 F. Supp. 2d 1024 (D.N.M. 2007), the defendant moved to dismiss the case against him on statute-of-limitations grounds, as he was facing federal murder charges under a superseding indictment that was filed more than five years after the Indian Country killing, and the tribe in question banned the imposition of the death penalty. See id. at 1025–26. The district court held that the defendant “improperly conflated the availability of a ‘capital sentence’ under
By contrast,
The district court properly observed that finding in Mr. Murphy‘s favor on this point would allow individuals otherwise guilty of murder and similarly severe capital offenses to “permanently escape justice simply because [the offenses occurred] on lands associated with a Native American tribe that objects to the death penalty.”
V
Mr. Murphy argues that the district court erred in denying his motion to dismiss the indictment against him based on the twenty-year delay between George‘s murder and the filing of the federal indictment. We disagree.
A
1
We review the denial of a motion to dismiss for an abuse of discretion. See United States v. Stevens, 881 F.3d 1249, 1252 (10th Cir. 2018). And we have held that “‘[a]n error of law is per se an abuse of discretion,’ and we review legal questions de novo.” Id. (citations omitted) (quoting United States v. Lopez-Avila, 665 F.3d 1216, 1219 (10th Cir. 2011)).
The Supreme Court has long understood that statutes of limitations “provide ‘the primary guarantee[] against bringing overly stale criminal charges.‘” United States v. Lovasco, 431 U.S. 783, 789 (1977) (quoting United States v. Marion, 404 U.S. 307, 322 (1971)). But those statutes do not “‘fully define (defendants‘) rights with respect to the events occurring prior to indictment,’ . . . [because] the Due Process Clause has a limited role to play in protecting against oppressive delay.” Id. (emphasis added) (quoting Marion, 404 U.S. at 324).
In Lovasco, the Supreme Court held that pre-indictment delay “solely ‘to gain tactical advаntage over the accused,’ . . . deviat[es] from elementary standards of ‘fair play and decency‘” required by the Due Process Clause of the Fifth Amendment. Id. at 795 (quoting Marion, 404 U.S. at 324). The Court thus highlighted that actual prejudice resulting from pre-indictment delay, standing alone, will not be enough to violate the defendant‘s due process rights. See id. at 796. Instead, “proof of prejudice is generally a necessary but not sufficient element of a due process claim, and . . . the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” Id. at 790. Thus, “proof of actual prejudice makes a due process claim concrete and ripe for adjudication,” but it does not render the claim “automatically valid.” Id. at 789. Moreover, actual prejudice caused by only “investigative delay” on the part of the government does not create a due process violation; instead, the Court indicated that delay for the purpose of gaining “tactical advantage over the accused” would support a violation. Id. at 795–96 (quoting Marion, 404 U.S. at 324).
Rather than “determine in the abstract the circumstances in which preaccusation delay would require dismissing prosecutions,” the Court left to “lower
2
We have “understood the Supreme Court to have ‘establish[ed] a two-pronged due process test against which to measure pre-indictment delay’ requiring (1) ‘a showing of actual prejudice resulting from the preindictment delay’ and (2) ‘that the delay was purposefully designed to gain tactical advantage or to harass the defendants.‘” Garcia, 74 F.4th at 1096 (alteration in original) (quoting United States v. Revada, 574 F.2d 1047, 1048 (10th Cir. 1978)). Under this test, prejudice is necessary but not sufficient to establish a due process violation. See Lovasco, 431 U.S. at 790; see also 5 Wayne R. LaFave et al., CRIMINAL PROCEDURE § 18.5(b) (4th ed.), Westlaw (database updated Dec. 2023).
As understood by the lower courts, including but not limited to our own, under the Lovasco criteria it is “extremely difficult for a defendant to prevail” on a claim that the government‘s pre-indictment delay violated his due process rights. 5 LaFave, supra, § 18.5(b); see also United States v. Mitchell, 558 F. App‘x 831, 833 (10th Cir. 2014) (“These deeply restrictive criteria are a natural consequence of the prosecutor‘s wide discretion to decide when to bring charges.“). Thus, we have held that the identified delay must prejudice the defendant‘s “substantial rights,” and the defendant‘s claims of prejudice must be “definite,” not “speculative” or “[v]ague and conclusory.” Garcia, 74 F.4th at 1097, 1099 (quoting United States v. Colonna, 360 F.3d 1169, 1177 (10th Cir. 2004), overruled on other grounds by Henderson v. United States, 575 U.S. 622 (2015)); see also United States v. Abdush-Shakur, 465 F.3d 458, 465 (10th Cir. 2006) (“Vague and conclusory allegations of prejudice resulting from the passage of time and absence of witnesses are insufficient to constitute a showing of actual prejudice.” (quoting United States v. Trammell, 133 F.3d 1343, 1351 (10th Cir. 1998))). And the length of the delay, without more, is insufficient to establish actual prejudice. See Garcia, 74 F.4th at 1100–01; see also United States v. Engstrom, 965 F.2d 836, 839 (10th Cir. 1992) (concluding that a five-year delay between the offense and the indictment did not demonstrate actual prejudice); cf. Lovasco, 431 U.S. at 796 (holding that investigative delay alone does not create actual prejudice, “even if [the defendant‘s] defense might have been somewhat prejudiced by the lapse of time“).
“[G]enerally,” actual prejudice in the pre-indictment delay context “take[s] the form of either a loss оf witnesses and/or physical evidence or the impairment of their effective use at trial.” Garcia, 74 F.4th at 1103 (second alteration in original) (quoting United States v. Comosona, 614 F.2d 695, 696 (10th Cir. 1980)). But it is not enough that the evidence has been lost or impaired; rather, the defendant must show that the loss of the particular evidence actually prejudiced the defense. See id.; see also United States v. Wood, 207 F.3d 1222, 1235 (10th Cir. 2000) (finding that the defendant‘s claim of pre-indictment delay was too vague and conclusory despite the fact that an autopsy of the victim‘s body took place 42 months after his death, “at which time the body was putrefied” and less susceptible to examination).
3
In the specific context of motions to dismiss indictments for pre-indictment delay, we have articulated particular factors that courts must consider in reviewing such motions. Specifically, in Comosona we articulated a test to apply when “determining whether dismissal is appropriate for pre-indictment delay“: (1) “there must be demonstration of actual prejudice to the defendant resulting frоm the delay. Generally, such prejudice will take the form of either a loss of witnesses and/or physical evidence or the impairment of their effective use at trial“; (2) “the length of delay must be considered“; and (3) “the Government‘s reasons for the delay must be carefully considered.” 614 F.2d at 696. This test is part of the overall “balancing process” set forth by the Supreme Court. Id.
It is noteworthy that this prima facie case requirement in Comosona‘s burden-shifting framework embodies, in substance, the same two-part test derived from Lovasco. See 431 U.S. at 789–91. Thus, at the threshold stage, in demonstrating that pre-indictment delay warrants dismissal of an indictment under Comosona‘s burden-shifting framework, a defendant, in effect, must satisfy Lovasco‘s two-part inquiry. Significantly, this underscores that—irrespective of the relief sought—a defendant must satisfy this two-part inquiry before we will “second-guess” the government‘s timing in bringing criminal charges. Comosona, 614 F.2d at 696 (quoting Francisco, 575 F.2d at 817). In other words, whether the defendant is seeking dismissal of the indictment on the grounds of pre-indictment delay through invocation of Comosona or not, or the defendant is seeking another fоrm of relief entirely for such delay, at
“[W]e recognize that ‘we must endeavor to interpret our cases in a manner that permits them to coexist harmoniously.‘” United States v. Mier-Garces, 967 F.3d 1003, 1018 (10th Cir. 2020) (quoting United States v. Hansen, 929 F.3d 1238, 1254 (10th Cir. 2019)). And, having carefully studied the relevant cases, we conclude that they do coexist in this manner. Specifically, because of the substantive overlap between the threshold, prima facie stage of the Comosona test and the Lovasco-derived two-part inquiry, we see that all of these cases are substantively congruent. That is, they all impose, in effect, the same substantive burden on defendants at the threshold. Thus, even where defendants seek dismissal of the indictment for pre-indictment delay and thus Comosona‘s burden-shifting framework ordinarily would be implicated, to the extent that defendants fail to overcome the two-part inquiry, our panels’ failure to expressly rely on Comosona‘s burden-shifting framework or even to cite Comosona is substantively of no moment. Given the threshold overlap, Comosona only would have a distinctive role to play—in cases seeking dismissal of the indictment—where defendants are able to satisfy the prima facie test; at that point, the two other burden-shifting stages would be triggered. However, the defendants in the cases we have examined herein have failed to satisfy that prima facie test. Therefore, whether the panels expressly cited Comosona or relied on its burden-shifting framework, or simply employed the two-part inquiry—centered on a showing of actual prejudice and the government‘s deliberate delay in pursuit of a tactical advantage—is of no substantive moment. In effect, the analysis would demand that, at the threshold, thе defendants carry the same burden as found in the
B
1
Here, without explicit reference to Comosona‘s burden-shifting framework, the district court undertook the two-part inquiry and determined that Mr. Murphy could not satisfy “either part of the test.” R., Vol. I, at 249 (Order Den. Mot. to Dismiss for Pre-Indictment Delay, filed Feb. 18, 2021). First it assessed Mr. Murphy‘s claim that he was prejudiced by the death of potential defense witnesses, and concluded that his argument was “speculative at best, because he provide[d] no specific indication as to how they would have testified except to claim they would have contradicted their statements to law enforcement made twenty years ago.” Id. at 250.
Acknowledging that Mr. Murphy‘s failure to satisfy the first part of the inquiry, without more, would suffice to sink his motion to dismiss, the district court nevertheless moved on to the second part of the inquiry and found that his argument there was unsuccessful as well. The court found that Mr. Murphy “made no showing that the Government purposefully delayed charging him to gain a tactical advantage or to harass him.” Id. As the court reasoned, Mr. Murphy‘s prosecution was in direct response to a critical development that was not instigated by the prosecution, and it did not emerge until 2020—that is, the Supreme Court‘s issuance of McGirt and the Court‘s application of that precedent to Mr. Murphy‘s appeal. As the district court
For the reasons that we explain below, we conclude that the district court did not abuse its discretion in reaching that conclusion.
2
Like his failure in district court, Mr. Murphy has given us no grounds to second-guess the timing of the government‘s prosecutorial charging decision. He has not shown that he can satisfy either prong of the two-part inquiry. In effect, then, he cannot make out the prima facie showing that Comosona requires. Therefore, his due process claim must fail.
First, Mr. Murphy argues that he was prejudiced by the federal government‘s twenty-year delay in prosecuting him, contending that “the very passage of two decades is inherently prejudicial.” Aplt.‘s Opening Br. at 31. Yet, “[v]ague and conclusory allegations of prejudice resulting from the passage of time are insufficient to constitute a showing of actual prejudice for the purposes of preindictment delay.” Garcia, 74 F.4th at 1099 (quoting Colonna, 360 F.3d at 1177). Indeed, though courts must consider it, the length of the delay is “not enough standing alone” to establish prejudice. Id. at 1103. Beyond that vague assertion, Mr. Murphy does not identify any favorable witness
Though we may stop our analysis there, the district court also correctly held that Mr. Murphy cannot meet the second prong: that is, he cannot show “that thе delay was purposefully designed to gain tactical advantage or to harass [him].” Garcia, 74 F.4th at 1096 (quoting Revada, 574 F.2d at 1048). Indeed, Mr. Murphy implicitly concedes that the delay was in fact due to circumstances entirely out of the government‘s control. See Aplt.‘s Opening Br. at 30–31 (“The reason for the twenty year delay in securing the federal indictment was the false assumption of state jurisdiction, in complete derogation of the long-standing law upon which the Supreme Court majority in McGirt relied.“). Despite his effort to elide this obvious
Because Mr. Murphy cannot carry his burden under the two-part inquiry—viz., he cannot show actual prejudice or government delay for tactical advantage—in effect, he cannot satisfy the prima facie showing that the Comosona burden-shifting framework imposes. See 614 F.2d at 696–97. Therefore, his pre-indictment delay claim fails at the threshold.
***
Mr. Murphy fails to demonstrate that the twenty-year delay in bringing the federal prosecution against him violated his Fifth Amendment due process rights. Accordingly, we uphold the district court‘s order denying his motion to dismiss the indictment for pre-indictment delay.
VI
Our reversal of Mr. Murphy‘s convictions on Counts Two and Three necessitates remand to the district court for resentencing, even though his conviction for second-degree murder under Count One still stands. The district court imposed life sentences for each of thе three counts upon which Mr. Murphy was convicted and
And “[u]nder the ‘sentencing package’ doctrine, ‘after we vacate a count of conviction that is part of a multi-count indictment, a district court “possesses the inherent discretionary power” to resentence a defendant on the remaining counts de novo unless we impose specific limits on the court‘s authority to resentence.‘” United States v. Jackson, 82 F.4th 943, 949 (10th Cir. 2023) (quoting United States v. Hicks, 146 F.3d 1198, 1202 (10th Cir. 1998)). We impose no such limits here. Because the district court has the discretion to sentence Mr. Murphy to less than life
VII
For the foregoing reasons, we REVERSE Mr. Murphy‘s convictions under Counts Two and Three of the superseding indictment but AFFIRM his conviction under Count One. We VACATE the district court‘s sentencing judgment as to Count One, and REMAND the case for resentencing and any further proceedings consistent with this opinion.
Notes
(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder . . . [or] kidnapping, . . . shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
In pertinent part, the Rule provides:
(a) BEFORE SUBMISSION TO THE JURY. After the government closes its evidence or after the close of all the evidence, the court on the defendant‘s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government‘s evidence, the defendant may offer evidence without having reserved the right to do so.
. . .
(c) AFTER JURY VERDICT OR DISCHARGE.
(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.
(2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and entеr an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.
(3) No Prior Motion Required. A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge.
In relevant part, the statute provided:
(a) Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains, such individual for ransom, reward or to commit extortion or to exact from any person or entity any money or valuable thing, or any person who kidnaps or carries away any individual to commit robbery, or any person who aids or abets any such act, is guilty of kidnapping for ransom and shall be imprisoned for life.
Considering a defendant‘s challenge to his attempted kidnapping conviction, the Sixth Circuit noted that the logic of Chatwin and the Ninth Circuit‘s decision in Jackson “is not without force,” and expressed concern that a “liberal conception of the holding element [of
To be sure, Mr. Murphy urges us to adopt the Berry test. We are not persuaded of the necessity or wisdom of doing so. The Court‘s analysis in Chatwin offers clear interpretive guidance regarding the scope of
The Second Circuit published Krivoi after oral argument took place here. In a notice of supplemental authority filed pursuant to Federal Rule of Appellate Procedure 28(j), the government urges us to consider Krivoi. However, that case bolsters our holding here. Though the Second Circuit upheld the defendant‘s kidnapping conviction, the facts there are easily distinguishable and support the doctrinal unifying theme of an appreciable period of holding that both we and the Second Circuit have emphasized. The defendant in Krivoi detained the victim for roughly thirty minutes while assisting a co-defendant in extorting him, and
The District of Columbia Court of Appeals is the highest local court of the District of Columbia. See, e.g., M. A. P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (“As this court on February 1, 1971 became the highest court of the District of Columbia, no longer subject to review by the United States Court of Appeals, we are not bound by the decisions of the United States Court of Appeals rendered after that date.“).
In relevant part, the District of Columbia statute provided:
Whoever shall be guilty of, or of aiding or abetting in, seizing, confining, inveigling, enticing, decoying, kidnapping, abducting, concealing, or carrying away any individual by any means whatsoever, and holding or detaining, or with the intent to hold or detain, such individual for ransom or reward or otherwise shall, upon conviction thereof, be punished by imprisonment for not more than 30 years.
Also, a recent opinion of the Distriсt of Columbia Court of Appeals and the related rehearing proceedings regarding it have called that court‘s prior cases regarding the holding element into question. In Cardozo v. United States, 255 A.3d 979, 982–83 (D.C. 2021), vacated pending rehearing en banc, 268 A.3d 862 (D.C. 2022) (mem.). The court again rejected this argument as barred by its precedents and, though it briefly acknowledged that language in Chatwin “support[ed]” the defendant‘s argument, it considered that discussion to be dicta. Id. at 982-83.
Concurring, Judge Deahl agreed that the court‘s holding was required under its precedents, but maintained that this doctrine “embrace[s] an indefensible reading of the kidnapping statute [that] is an absurdity of [the court‘s] own invention.” Id. at
For purposes of contending that he did not hold George for an appreciable period, Mr. Murphy makes no effort in his briefing to draw a legal distinction—that is, to distinguish as a matter of law—between his conduct and that of his two accomplices. See Aplt.‘s Opening Br. at 18–19 (“As soon as [George] was forcibly removed from the automobile, he was beaten by Kevin King and Billy Jack Long. In short order, regardless of who inflicted the injuries, [George‘s] throat and abdomen were cut, his penis and testicles were excised, and he expired in a ditch at the side of the road. There was an uninterrupted series of events which quickly culminated in [George‘s] murder. The seizure of [George] from the сar and the events that followed were temporally no longer than necessary to accomplish the objective of murder.” (emphases added)). Nor does the government. Indeed, the government contends that Mr. Murphy has abandoned on appeal any claim that he was not criminally liable—at least under an aiding and abetting theory—for the actions resulting in the death of George, even if he did not personally do them. See Aplee.‘s Resp. Br. at 22–23 n.7 (“Defendant has abandoned any claim on appeal that he did not, at a minimum, aid and abet the actual kidnapping—no matter which of the three actually pulled George from the car.“). Mr. Murphy does not dispute this claim of abandonment in his Reply Brief, which is consistent with his failure to distinguish between his conduct and that of the other two men. Cf. Eaton v. Pacheco, 931 F.3d 1009, 1031 (10th Cir. 2019) (noting, as to the lack of a response in a reply brief, that
Though Mr. Murphy was convicted of a form of federal kidnapping that does not have asportation as an element of the offense, cf. United States v. Walker, 137 F.3d 1217, 1220 (10th Cir. 1998) (noting as one element of the
That statute provides:
Notwithstanding sections 1152 and 1153, no person subject to the criminal jurisdiction of an Indian tribal government shall be subject to a capital sentence under this chapter for any offense the Federal jurisdiction for which is predicated solely on Indian country (as defined in section 1151 of this title) and which has occurred within the boundaries of Indian country, unless the governing body of the tribe has elected that this chapter have effect over land and persons subject to its criminal jurisdiction.