U.S. v. Jackson , 978 F.3d 903 ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-7084
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JACKSON and GENARO CAMACHO,
Defendants-Appellants.
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Appeal from the United States District Court for the
Northern District of Texas
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(November 23, 1992)
Before POLITZ, Chief Judge, JOHNSON, and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In this appeal, Juan Jackson and Genaro Ruiz Camacho contest
their convictions for the kidnapping of Evellyn Banks and her
three-year-old son Andre. The kidnapping arose out of a drug
transaction and it ended in the cold-blooded murder of Evellyn and
Andre Banks.
Camacho asserts that the district court reversibly erred when
it denied him a forty-five day continuance. It further erred, he
says, when it allowed the government to introduce evidence of an
earlier kidnapping. He contends additionally that the government
failed to timely disclose Brady material. Jackson argues that the
evidence was insufficient to establish kidnapping under federal law
because he could not reasonably foresee that the victims would be
transported in interstate commerce.
Both defendants argue that they were improperly denied access
to the presentence reports of their co-defendants. Both defendants
also urge that the court incorrectly sentenced them under the
guideline for murder and ordered them to pay restitution in an
amount that is unrelated to the losses of their victims.
Finding no merit in the bulk of the defendants' arguments, we
affirm their convictions and their sentences. However, we reverse
and remand the restitution orders for both Jackson and Camacho
because the district court did not support its orders with factual
findings.
I
On May 20, 1988, Genaro Ruiz Camacho enlisted the aid of Juan
Jackson and several others to collect a debt that Sam Junior Wright
owed him as a result of a drug-related transaction. The men went
to Wright's home in Pleasant Grove, Texas, which he shared with
Evellyn Banks, their three and a half year old son Andre Banks, and
Evellyn's two school aged children. The two older children were at
school. Camacho insisted that Wright owed him between $10,000 and
$20,000, and demanded that Wright pay him. Wright had $1,500,
which he gave to Camacho. Camacho was not satisfied. He and his
fellow defendants, who were all armed, proceeded to terrorize their
captives.
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David Wilburn, a young, retarded man who worked for Wright,
interrupted the kidnappers when he knocked on the door. Camacho
told Wilburn to come in, searched him and made him lie flat on the
floor. Wilburn was not armed and offered no resistance. Camacho,
without warning or provocation, shot and killed Wilburn.1
Turning his attention back to Wright, Camacho asked him when
he could get the money. When Wright replied in a couple of days,
Camacho demanded to know how he would get the money. Wright told
Camacho he would sell his house and his car. Camacho replied that
he would kill Evellyn and Andre if Wright failed to pay him.
Camacho then ordered the other defendants to handcuff Evellyn and
Andre and put them in the car. At this point, Wright managed to
escape the house and yelled to a neighbor to call the police. The
kidnappers chased Wright around the block. Camacho ordered Jackson
to shoot him. Jackson did not comply.
The kidnappers took Evellyn and Andre to an apartment in
Dallas that several of the defendants shared. While two of the
other defendants watched Evellyn and Andre, Jackson and another
defendant counted and split the money. A few hours later, Jackson
left with his share of the money and never returned. The
kidnappers kept them there for two days. On May 22, Camacho and
the other defendants decided to take Evellyn and Andre to Oklahoma
to kill them because they had witnessed the murder of Wilburn and
1
The state tried and convicted Camacho for the murder of David
Wilburn and sentenced him to death.
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could provide evidence to the police if released. That evening,
they took Evellyn and Andre to Ardmore, Oklahoma, and the next
morning, they took them to a location near Arbuckle National
Forest. There the kidnappers killed their victims and buried them
in a pre-dug grave. The autopsies of the bodies revealed that the
kidnappers shot Evellyn in the head twice and that they shot Andre
in the head four times.
At trial, the government introduced evidence of a prior
kidnapping incident involving Jackson and Camacho. In that
incident, the men had driven to Wichita, Kansas, to collect a debt
owed to Camacho. Not finding the debtor, they kidnapped his
sister-in-law and brought her to Dallas until the debt was paid a
few days later. After obtaining the money, they released the woman
and gave her a plane ticket back to Kansas.
II
On October 6, 1988, the United States charged Jackson and
Camacho in a seven-count indictment with: (1) knowingly and
willfully conspiring to kidnap Evellyn and Andre Banks in
interstate commerce; (2) knowingly and unlawfully kidnapping and
transporting Evellyn and Andre Banks in interstate commerce; and
(3) willfully and unlawfully carrying and using a firearm during
the commission of a felony. On February 27, 1991, the United
States returned a virtually identical indictment that only deleted
counts that pertained solely to a few co-defendants who had plead
guilty, and who had agreed to testify against the defendants. In
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the meantime, the State of Texas tried and convicted Camacho on a
charge of capital murder.
On March 6, 1991, the district court entered an order setting
this case for trial on May 6. Camacho filed his first motion for
continuance on April 12. The district court granted the requested
continuance and set the case for trial on its June docket. On
June 12, Camacho again moved for a continuance. Camacho requested
a forty-five day continuance, but the district court granted a
continuance for only seven days.
From June 24 to July 9, 1991, the United States tried Jackson
and Camacho before a jury in the United States District Court for
the Northern District of Texas, Dallas Division, with the Honorable
A. Joe Fish presiding. On July 9, the jury returned a verdict
finding Camacho guilty on all counts, and finding Jackson guilty on
all but one count. The district court gave both defendants life
sentences under the sentencing guidelines for murder. The court
also ordered Camacho to pay the estate of Evellyn Banks $1,000,000
in restitution, and Jackson to pay $250,000 in restitution. Both
defendants moved for new trials, and when the district court denied
those motions, they filed timely notices of appeal. These appeals
followed.
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III
A
We begin with Jackson and Camacho's contention that the
district court improperly denied them access to the presentence
reports of their co-defendants.
Prior to trial, Jackson filed a motion requesting all
exculpatory evidence, including a copy of any federal or state
probation or presentence report of any prospective government
witness. The district court denied the motion pursuant to Rule
32(c)(1) of the Federal Rules of Criminal Procedure and United
States v. Trevino, 556 F.2d 1265 (5th Cir. 1977). Both Camacho and
Jackson now contend that the Jencks Act, 18 U.S.C. § 3500, required
the government to produce the presentence reports of their co-
defendants and that the district court erred in denying them access
to the material.
The Jencks Act provides that upon a defendant's motion to a
district court, the court shall "order the United States to produce
any statement (as hereinafter defined) of the witness in the
possession of the United States which relates to the subject matter
as to which the witness has testified." 18 U.S.C. § 3500(b). The
Act defines written statements subject to the Act as a statement
made by the witness that the witness has "signed or otherwise
adopted or approved." 18 U.S.C. § 3500(e)(1).
A presentence report, on the other hand, is not a statement
made by the witness. Instead, it is a statement that a probation
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officer makes to aid the court in sentencing a defendant. Once the
probation officer makes the report, he gives a copy to the
prosecution, the defendant, and the court. Pursuant to Rule
10.9(b) of the Local Rules of the Northern District of Texas, the
defendant must either object to the statement in writing or adopt
it. Assuming that their co-defendants in the instant case adopted
their presentence reports, Jackson and Camacho argue that their
co-defendants' presentence reports are adopted statements under the
Jencks Act.
In Trevino, we held that the presentence reports at issue were
not "in the possession of the United States," and, thus, not
subject to the Jencks Act. At that time, Rule 32(c)(3)(D) of the
Federal Rules of Criminal Procedure required the prosecution to
return its copy of the presentence report to the probation officer
after the court sentenced the defendant. We found that the "United
States" meant the "prosecution" and concluded that the United
States did not possess a copy of the report once the prosecution
returned the report to the probation officer. Trevino, 556 F.2d at
1270-1272. We noted, however, that a "witness's presentence report
held by the prosecution might thus be subject to Jencks Act
production." Id.Under the current rules of criminal procedure, the prosecution
retains a copy of the defendant's presentence report. As a result,
we must face the question we avoided in Trevino: whether a
defendant's presentence report is a statement within the meaning of
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the term as it is used in the Jencks Act. Two other circuits have
already concluded that presentence reports are not statements
discoverable under the Jencks Act. United States v. Moore, 949
F.2d 68, 70-72 (2d Cir. 1991); United States v. Dingle, 546 F.2d
1378, 1380-1381 (10th Cir. 1976). Still other circuits, without
regard to the Jencks Act, have held that the presentence reports of
co-defendants are not discoverable unless the district court, after
an in camera inspection, concludes that report contains exculpatory
or impeachment material. See United States v. De Vore, 839 F.2d
1330, 1332 (8th Cir. 1988); United States v. Cyphers, 553 F.2d
1064, 1068-1069 (7th Cir. 1977).
We agree with the result these cases reach. A presentence
report is not a statement made by a defendant; it is a report that
the probation officer makes for the court. Under the local rules
applicable in this case, a defendant must either object to the
report or adopt it. Adopting the report under the local rules,
however, is very different from adopting a statement under the
Jencks Act. The purpose of the local rule is to prevent a
defendant from objecting to the report after sentencing. Adopting
a report under the local rules amounts to little more than failing
to object to the report.
To adopt a statement under the Jencks Act, on the other hand,
a witness must read the entire statement and formally approve the
statement. United States v. Newman, 849 F.2d 156, 160 (5th Cir.
1988) (Witness did not adopt a DEA report when he told the DEA
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agent that he did not disagree with anything in the report.)
Otherwise, the witness could be impeached with a statement to which
he did not agree. Jackson and Camacho's co-defendants did not
formally approve the statements in their presentence reports; they
only interposed no objection to the reports. Thus, they did not
adopt their reports within the meaning of the Jencks Act.
Our decision that presentence reports are not statements under
the Jencks Act is heavily influenced by the confidential nature of
those reports. Every court that has looked at this question has
recognized that there is a need to protect the confidentiality of
the information contained in the reports. Accordingly, courts have
required "some showing of special need before they will allow a
third party to obtain a copy of a presentence report." U.S. Dept.
of Justice v. Julian, 486 U.S. 1, 12 (1988). Indeed, defendants
did not obtain the right to see their own presentence reports until
1975, almost twenty years after Congress enacted the Jencks Act.
Id.The defendants' inability to obtain the reports under the
Jencks Act, however, does not end the matter. The Supreme Court
has held that the due process clause requires the prosecution to
disclose all evidence favorable to the accused. See Brady v.
Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150(1972). The Court reasoned that our system for the administration
of justice "suffers when any accused is treated unfairly." Brady,
373 U.S. at 87. The Court concluded that the system treats a
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defendant unfairly when it denies him access to favorable evidence.
Id. It follows that a defendant ordinarily has a right to
exculpatory or impeachment material that is contained in the
presentence reports of his co-defendants. See Moore, 949 F.2d at
70-72, De Vore, 839 F.2d at 1332; Cyphers, 553 F.2d at 1068-1069.
Because presentence reports are necessarily confidential, the
district court should examine the report in camera and release any
exculpatory or impeachment material to the defendant while
protecting the confidentiality of the rest of the report.
In the case at bar, the district court examined the
presentence reports at issue and found that: 1) the defendants
already had access to all of the information the reports contained,
and 2) the reports did not contain any evidence that was favorable
to the defendants. The district court, thus, fulfilled its duty
and afforded the defendants all the rights to which they were
entitled.
B
Jackson also contends that the evidence was insufficient to
support his kidnapping convictions because the government failed to
prove that he transported the victims across state lines or that he
knew, or could reasonably foresee, that his co-defendants would
transport the victims across state lines. He further contends that
we must reverse his conviction for the use of a firearm during the
commission of a felony because the underlying kidnapping
convictions cannot stand.
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Jackson's arguments are ultimately unconvincing. The standard
of review here is whether, based on all the evidence, a reasonable
minded jury must necessarily entertain a reasonable doubt about the
defendant's guilt. United States v. Gonzalez, 617 F.2d 104, 106
(5th Cir. 1980). The federal kidnapping statute provides that:
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 by imprisonment for any term of
years or for life.
18 U.S.C. § 1201(a). We have held that before a defendant can be
found guilty of kidnapping under this statute "four elements must
be established: 1) the transportation in interstate commerce 2) of
an unconsenting person who is 3) held 'for ransom or reward or
otherwise,' 4) such acts being done knowingly and willfully."
United States v. McBryar, 553 F.2d 433 (5th Cir. 1977); see also
United States v. McInnis, 601 F.2d 1319, 1324 n.11 (5th Cir. 1979).
Jackson argues that the government must establish that he
personally transported the victims in interstate or foreign
commerce. The evidence at trial showed that Jackson, Camacho, and
the other defendants went to Wright's house, took $1,500, abducted
Evellyn and Andre Banks, and moved them to another apartment in
Dallas. At that point, Jackson took his share of the money and
left. After Jackson left, Camacho and the other defendants moved
the victims to Oklahoma and killed them. Jackson had parted
company before the other kidnappers moved the victims to Oklahoma.
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Thus, Jackson contends that the government failed to establish that
he transported the victims across state lines, and, consequently,
he cannot stand convicted under the federal kidnapping statute.
In support of this argument Jackson quotes language from two
cases that appears to support his position. In a recent case, we
held that:
[t]o establish a violation of 18 U.S.C. § 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 commerce.
United States v. De La Rosa, 911 F.2d 985, 990 (5th Cir. 1990)
(citing McBryar, 553 F.2d at 433). It is thus true that in De La
Rosa, we inartfully restated the elements of kidnapping we
announced in McBryar. Under our explication of the kidnapping
statute set out in McBryar, however, the government does not have
to prove that the defendant personally moved the victim in
interstate commerce. Instead, the government only has to establish
that the victim was transported in interstate commerce.
Jackson also relies on language in United States v. Bankston,
603 F.2d 528, 532 (5th Cir. 1979), where we found that "[s]o long
as he [the defendant] `willfully transports' his victim and, in
doing so, travels in interstate commerce, he need not do so
knowingly." Jackson, however, ignores the very next sentence where
we observe that "we have previously held that the `requirement that
the offender cross state lines merely furnishes a basis for the
exercise of federal jurisdiction and does not constitute an element
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of the offense [of kidnapping].'" Bankston, 603 F.2d at 532(quoting United States v. Napier, 518 F.2d 316, 319 (9th Cir.
1975)); see also United States v. Barksdale-Contreras, 972 F.2d 111(5th Cir. 1992) (We affirmed the kidnapping convictions of two
defendants who joined a conspiracy after the others had moved the
victim across state lines. We held that the "transportation of a
kidnapped victim in interstate or foreign commerce is necessary to
establish federal jurisdiction.")
In Bankston, Napier, and Barksdale-Contreras we recognized
that the transportation of the victim in interstate commerce is
jurisdictional and not an element of the crime. This principle is
sound. The plain language of the statute only requires that the
victim be "willfully transported" in interstate commerce. It does
not require that the defendant move the victim or that the
defendant know that the victim will be moved in interstate
commerce. In this case, the government proved beyond a reasonable
doubt that the victims were transported in interstate commerce.
That is all the statute requires.
C
We now turn to Camacho's argument that the district court
erred when it denied his motion for acquittal. Camacho contends
that there was a fatal variance between the indictment and the
evidence adduced at trial. According to Camacho, although the
indictment charged one conspiracy to kidnap Evellyn and Andre
Banks, the government proved, not one, but two separate
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conspiracies: one to kidnap Evellyn and Andre, and a second to
murder them.
This argument is without merit. We will not reverse a
conviction for such a variance in the evidence unless 1) the
defendant establishes that the evidence the government offered at
trial varied from what the government alleged in the indictment,
and 2) the variance prejudiced the defendant's substantial rights.
United States v. Richarson, 833 F.2d 1147 (5th Cir. 1987); Berger
v. United States, 295 U.S. 78 (1935). In determining the whether
the government proved a single conspiracy as charged, we examine
the following factors: 1) whether there was a common goal, 2) the
nature of the scheme, and 3) whether the participants in the
various dealings overlapped. Richarson, 833 F.2d at 1153.
In this case, there is a common scheme that united all of the
defendants' actions. Camacho and the other defendants conspired to
kidnap Evellyn and Andre Banks. Although the reasons for
kidnapping them may have changed, the object of the conspiracy--
kidnapping--remained the same. The defendants went to Wright's
house to collect a drug debt. They recognized from the beginning
that collecting the debt might require them to kidnap Evellyn and
Andre Banks to hold them for ransom. While at Wright's house,
Camacho killed David Wilburn. It then became necessary to cover up
their involvement in the crime by killing the witnesses. This
circumstance did not change the objective of the conspiracy; it
only meant that the defendants now had an additional reason for
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kidnapping the victims: eliminating the witnesses to the murder.
Eliminating the witnesses after kidnapping them was only one aspect
of the kidnapping conspiracy. Indeed, the members of the
conspiracy worked together continuously, and their activities were
guided by a single person, Camacho. We have found that where one
man directs all the illegal activity there is one conspiracy.
Richarson, 833 F.2d at 1154. Even if the conspiratorial crime
established at trial varied from that which the government alleged
in the indictment, the variance did not prejudice Camacho's
substantial rights. See Berger, 295 U.S. at 82. We have long held
that when the indictment alleges the conspiracy count as a single
conspiracy, but the "government proves multiple conspiracies and a
defendant's involvement in at least one of them, then clearly there
is no variance affecting that defendant's substantial rights."
Richarson, 833 F.2d at 1155 (citing United States v. L'Hoste, 609
F.2d 796 (5th Cir. 1980)). Because the government proved Camacho
conspired to kidnap Evellyn and Andre Banks, there was no variance
that affected Camacho's substantial rights.
D
Camacho also contends that the district court erred when it
denied him the forty-five day continuance he requested. The grant
or denial of a continuance is a decision left to the sound
discretion of the district court, and our review is limited to
determining whether the district court abused its discretion.
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United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir. 1991); United
States v. Martinez, 686 F.2d 334, 339 (5th Cir. 1982).
The district court did not abuse its discretion. The district
court granted Camacho two continuances. Although the district
court originally set the trial for May 6, the trial did not begin
until June 24. Camacho's sole complaint is that when he requested
a forty-five day continuance on June 12, the district court granted
him only a seven-day continuance. Camacho contends that--
apparently sometime in early June--while he was reading the
statement of facts from a brief filed in his capital murder appeal,
he realized that there were several leads he needed to explore. He
also alleges that he needed more time to investigate the events
that occurred outside the State of Texas. Nevertheless, Camacho
never explains what he might have discovered with the extra time.
Camacho also complains that, in the absence of a continuance,
the government's late disclosure of Brady material also prejudiced
him. Camacho, however, was able to interview the witnesses
discovered through the Brady material, and they testified on his
behalf at trial. Finally, Camacho argues that the district court
denied the continuance for reasons of the judge's personal
convenience. This last argument, however, misses the point. It
does not matter why the district court denied the continuance.
Instead, the question is whether the district court abused its
discretion by unreasonably and arbitrarily insisting on an
expeditious trial. United States v. Terrell, 754 F.2d 1139, 1149
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(5th Cir. 1985). It did not. The district court granted the
defendant two continuances, which gave him plenty of time to
prepare for trial. Furthermore, the defendant has failed to show
that he was materially prejudiced by the lack of preparation time.
E
Camacho next contends that the government committed reversible
error when it violated the district court's pre-trial order
requiring it to turn over all Brady material by the designated
date. Specifically, he contends that the government failed to
timely disclose: 1) the sworn affidavit of Mr. James Scott, a
witness who had seen the kidnappers leave Wright's home and
indicated that only three men were involved in the kidnapping of
Evellyn and Andre Banks and that the driver of their automobile was
black; 2) a report that a Dallas police officer prepared that
indicated that only three men were involved in the kidnapping; 3)
that the eyewitnesses, Mr. James Scott and Ms. Jane Wallace, had
failed to identify Camacho as one of the kidnappers; and 4) that
Ms. Rose Minter was improperly forced to identify Camacho.
To succeed on a Brady claim, the defendant must establish 1)
the government suppressed the evidence, 2) the evidence favored him
in some way, and 3) the evidence was material either to guilt or
punishment. United States v. Ellender, 947 F.2d 748, 756 (5th Cir.
1991) (citing Smith v. Black, 904 F.2d 950, 963 (5th Cir. 1990)).
"[T]he evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense,
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the result of the proceeding would have been different. A
'reasonable probability' is a probability sufficient to undermine
confidence in the outcome." Ellender, 947 F.2d at 756 (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)).
Camacho cannot show any prejudice from the government's
failure to comply with the pretrial order. The government provided
Camacho with all of the alleged Brady material in sufficient time
to incorporate it into his defense. He had time to interview the
witnesses and they testified on his behalf at trial. Furthermore,
the witnesses helped Camacho establish his alibi defense. Indeed,
nothing in the record suggests that Camacho would have done
anything differently had the government given him the information
earlier. Accordingly, we reject Camacho's Brady claim.
F
Camacho's next complaint is that the district court erred when
it permitted the government to introduce evidence of a another
kidnapping in which both he and Jackson had participated because
the evidence was allegedly insufficient to establish that a
kidnapping had in fact occurred. Our review of the district
court's evidentiary rulings is deferential and, thus, we will only
reverse when the trial court abused its discretion. United States
v. Anderson, 933 F.2d 1261, 1267-1268 (5th Cir. 1991).
The district court allowed the government to introduce the
evidence under the conditional evidence rule. Fed. R. Evid.
404(b). Extrinsic evidence of other crimes is not admissible
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unless a reasonable jury could find, by a preponderance of the
evidence, that the defendant committed the offense. Anderson, 933
F.2d at 1269. The victim in the earlier crime, and several of
Camacho's co-defendants as well, testified that the earlier
kidnapping occurred. Based on this evidence, the district court
found that a reasonable jury could conclude that Camacho and
Jackson participated in the earlier kidnapping. Jackson's evidence
suggesting that the crime never occurred only goes to the
credibility of the witnesses. Credibility determinations belong to
the finder of fact. Furthermore, the district court instructed the
jury not to consider the evidence of the earlier kidnapping unless
it believed beyond a reasonable doubt that the defendants
participated in the crime. We, therefore, reject Camacho's
argument that the evidence was insufficient to establish that a
kidnapping had in fact occurred.
G
We have dealt with all of the defendants' trial complaints
that relate to the verdict itself. We are now ready to discuss the
defendants' arguments that relate to their sentences and the
districts court's restitution awards.
(1)
Both defendants contend that the district court improperly
sentenced them under the guideline for murder. The sentencing
guideline for kidnapping provided, at the time of the instant
offense, that "[i]f the victim was kidnapped, abducted or
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unlawfully restrained to facilitate the commission of another
offense: (A) increase [the base offense level of 24] by four
levels; or (B) if the result of this guideline is less than that
resulting from application of the guideline for such other offense,
apply the guideline for such other offense." United States
Sentencing Commission, Guidelines Manual, § 2A4.1(b)(5) (Nov.
1990). Here, the district court concluded that the defendants
kidnapped Evellyn and Andre Banks to facilitate their murders.
Accordingly, it sentenced them under the guideline for murder.
A district court can determine a criminal defendant's sentence
based both on facts that the government proved at trial beyond a
reasonable doubt and on facts it believes the government has proven
by a preponderance of the evidence. United States v. Casto, 889
F.2d 562, 570 (5th Cir. 1989). While we review application of the
guidelines to facts for clear error, questions concerning the
interpretation of the guidelines are questions of law subject to de
novo review. United States v. Shano, 955 F.2d 291 (5th Cir. 1992);
see also 18 U.S.C. § 3742(e).
It is true that the jury found Jackson and Camacho guilty only
of kidnapping. As we note above, however, under the guidelines if
the defendant kidnaps the victim "to facilitate the commission of
another offense," the defendant can be sentence under the guideline
for the other offense. U.S.S.G. § 2A4.1; see also United States
v. Galloway, 963 F.2d 1388, 1391 (10th Cir. 1992) (The government
convicted the defendant of kidnapping and then sentenced him under
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the guideline for sexual abuse); United States v. DePew, 932 F.2d
324 (4th Cir. 1991) (The government convicted the defendant of
kidnapping and sentenced him under the guideline for murder.)
With respect to Camacho, the district court's conclusion that
he kidnapped the victims to facilitate their murders is easily
supported by the facts. As noted above, Camacho knew from the
beginning that collecting the debt from Wright might require him to
kidnap Evellyn and Andre Banks. While at Wright's house, he killed
David Wilburn, and Evellyn and Andre witnessed the murder. It then
became necessary to cover up the murder. Thus, Wilburn's death
gave Camacho an additional reason for kidnapping the victims:
eliminating the witnesses to the murder. Indeed, shortly after
murdering Wilburn, Camacho ordered Jackson to shoot Wright, which
suggests that collecting a debt from Wright had ceased to be the
immediate objective of the kidnapping. Furthermore, he did not
even attempt to ransom the victims. All of this evidence strongly
supports the district court's conclusion that at least one of the
reasons Camacho kidnapped the victims was to murder them.
We now turn to Jackson's sentence. The following established
facts bear directly on Jackson's sentence. Jackson fully
participated in the kidnapping of Evellyn and Andre Banks. He was
an accomplice to Camacho when Camacho killed Mr. Wilburn. He knew
that Evellyn and Andre had witnessed the murder. When Camacho
ordered Jackson to shoot Wright, Jackson was on notice that
collecting the debt had, at best, faded as the immediate motive for
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the kidnapping. He knew that now there were new reasons for the
kidnapping and that, as an accomplice to the Wilburn murder, he had
virtually as much to gain as Camacho from the elimination of the
witnesses. The district court found that a reasonable person in
Jackson's situation would have known that the other kidnappers were
going to kill Evellyn and Andre Banks once they witnessed the
murder of David Wilburn. The district court thus concluded that
Jackson participated in the kidnapping of the victims to facilitate
their murder. This finding is not clearly erroneous.
(2)
Jackson also contends that the district court erroneously
believed that it was without authority to make a downward
adjustment in his sentence. This argument is based on the district
court's comments during sentencing that it regretted imposing the
same sentence on both Jackson and Camacho when Jackson was less
culpable. Contrary to Jackson's contention, the district court did
recognize its ability to make a downward departure in Jackson's
sentence but found no facts upon which to base such a departure.
We will uphold the district court's refusal to depart from the
guidelines unless the refusal was in violation of the law. United
States v. Buenrostro, 868 F.2d 135, 139 (5th Cir. 1989). The
district court's conclusions are not in violation of law.
(3)
We now turn to the defendants' contention that the district
court erred in ordering Jackson and Camacho to pay restitution to
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the estate of Evellyn Banks. The court ordered Jackson to pay
$250,000 in restitution and ordered Camacho to pay $1,000,000 in
restitution. Recognizing that this was a highly publicized case,
the court reasoned that the defendants might someday receive income
from a book or movie concerning the kidnapping. The court
concluded that the victims of the crime should benefit from such
income before the defendants.
The defendants argue that the statute does not authorize the
restitution order and that the order is inconsistent with the First
Amendment and, therefore, unconstitutional. See Simon & Schuster,
Inc. v. Members of the New York State Crimes Bd., U.S. , 112
S.Ct. 501 (1991).
The district court made the orders pursuant to the Victim and
Witness Protection Act, 18 U.S.C. § 3663. The statute provides
that the court may order the defendant:
(2) in the case of an offense resulting in bodily
injury to the victim--
(C) reimburse the victim for income lost by such
victim as a result of such offense;
(3) in the case of an offense resulting in bodily
injury also results in the death of a victim, pay
an amount equal to the cost of necessary funeral
and related services . . .
The statute grants the district court wide discretion in
determining the appropriate amount of restitution. United States
v. Anglian, 784 F.2d 765 (6th Cir. 1986). The district court has
the authority to award restitution in an amount greater than that
alleged in the indictment even if the defendant is unable to pay
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the amount of restitution when the court awards it. United States
v. Pomazi, 851 F.2d 244, 249 (9th Cir. 1988); see also United
States v. Ryan, 874 F.2d 1052, 1054 (5th Cir. 1989) (The court can
award restitution even when the defendant is indigent at the time
the award is made.)
In this case, the district court has the authority to order
the defendants to pay the victims' estates an amount equal to
victims' lost income and the victims' funeral expenses.
Nevertheless, the amount of the restitution must be supported by
the evidence and related to the victim's losses. Pamazi 851 F.2d
at 249; United States v. Hill, 798 F.2d 402, 406 (10th Cir. 1986).
In this case, the district court did not make any factual findings
concerning the amount of the victims' losses. In fact, the award
appears to be related to the defendants' income instead of the
victims losses. We, therefore, must set aside the district court's
restitution order and remand to the district court for factual
determinations that are supported by a preponderance of the
evidence.
Finally, the district court's award must take into account
certain constitutional rights of the defendant as noted in Simon &
Schuster. Simon & Schuster concerned a New York restitution law
that sought to take the money criminals earned on books and movies
associated with their illegal activities and to direct it to the
victims of the crimes they committed. The Court held that the law
unconstitutionally imposed a financial burden on criminals because
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of the content of their speech. The Court recognized that New York
had a powerful interest in compensating the victims of crime, but
held that the New York law was not narrowly tailored to meet that
objective. Simon & Schuster, 112 S.Ct. at 512. Under the Supreme
Court's holding in Simon & Schuster, the district court cannot
limit a restitution order solely to the income the defendants earn
on speech associated with their criminal activities.
IV
We summarize our holdings as follows: We AFFIRM the
convictions of both Jackson and Camacho. We also AFFIRM the
sentences the district court gave both Jackson and Camacho.
Finally, we REVERSE the restitution orders for both Jackson and
Camacho and REMAND to the district court for proceedings not
inconsistent with this opinion.
AFFIRMED in part, REVERSED in part, and
REMANDED.
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