Appeal from judgments of conviction entered after a jury trial in the Southern District of New York before Hon. Vincent L. Broderick, Judge, for conspiracy to kidnap, 18 U.S.C. § 1201(c) (Count I), kidnapping, 18 U.S.C. § 1201(a) (Count II), conspiracy to transmit in interstate commerce a demand for ransom, 18 U.S.C. §§ 371 and 875(a) (Count III), and transmitting in interstate commerce a demand for ransom, 18 U.S.C. § 875(a) (Count IV). Judgment of conviction on Count II reversed; judgments of conviction on remaining counts affirmed.
Gurfein and Van Graafeiland, Circuit Judges, and Coffrin, District Judge.*fn*
Vankirk Moore and Harold Burnell appeal from judgments of conviction entered in the United States District Court for the Southern District of New York following a thirteen day jury trial before the Honorable Vincent L. Broderick. Both Moore and Burnell were convicted on all four counts of an indictment charging them with crimes arising out of the December 1, 1976, kidnapping of Henry "Buster" Huggins, a narcotics dealer and the owner of the H & S Transmission Shop in the Bronx. Count I charged appellants with conspiracy to kidnap Huggins, in violation of 18 U.S.C. § 1201(c). Count II charged them with the actual kidnapping, in violation of 18 U.S.C. § 1201(a). Count III charged them with conspiracy to transmit in interstate commerce a communication containing a demand for ransom for Huggins' release. Count IV charged them with actually transmitting in interstate commerce such a ransom demand.*fn1
In this appeal, both Moore and Burnell argue that the essential element of transportation in interstate or foreign commerce was never proved, and, therefore, federal jurisdiction did not exist. They claim both that there was insufficient evidence of any interstate or foreign transportation of Huggins and that the statutory presumption contained in 18 U.S.C. § 1201(b) that a kidnapped person who is not released within 24 hours has been transported in interstate or foreign commerce is unconstitutional. It is argued that, in view of the meager evidence of interstate transportation, the judge's instruction to the jury that it could find the interstate transportation element by using the § 1201(b) presumption was highly prejudicial error. Burnell also asserts that there was insufficient evidence that he transmitted or conspired to transmit in interstate commerce a demand for ransom for Huggins' release.
At about 7:45 P.M. on Wednesday, December 1, 1976, Buster Huggins walked out of the apartment of his girlfriend, Janet Lee, at 1818 Anthony Avenue in the Bronx and has never been seen or heard from again. A few moments earlier he had been speaking on Miss Lee's telephone to Harold Burnell, one of his employees at H & S Transmission, who lived on a lower floor in the same apartment building as Miss Lee. According to Lee, Huggins told Burnell on the telephone that he was on his way downstairs. After asking Lee for Burnell's apartment number, Huggins walked with her to the elevator, told her he would be back in ten or fifteen minutes, and left.
Ten minutes after Huggins left Lee's apartment, Burnell arrived there to inquire about Huggins' whereabouts and claimed that Huggins had not shown up at his apartment. Lee told Burnell that Huggins had left to see him about ten minutes earlier. After another ten minutes had passed, Burnell called Lee over the building intercom and told her that he still had not seen Huggins but that Huggins' car was in front of the building. About five minutes later, Burnell called Lee again and told her that he had not seen Huggins, but that now his car was gone. The Government characterizes this series of conversations as an attempt by Burnell to establish an alibi through Lee. In light of the overwhelming evidence summarized below that it was Moore and Burnell who abducted Huggins, this appears to be the most plausible explanation for Burnell's numerous communications with Lee during the period immediately following Huggins' departure from her apartment.
Huggins' disappearance on December 1, 1976, during what was supposed to have been a ten or fifteen minute meeting with Burnell would not, of course, necessarily implicate Burnell. However, certain of Burnell's conversations in November, 1976, are significantly incriminatory. Burnell first spoke to one Kissoon "Kojak" Adams, a friend of both Moore and Burnell, and asked Adams if he wanted to participate in the kidnapping of Huggins for a $25,000 share of the ransom. Adams declined the invitation. On November 7 or 8, 1976, Burnell discussed the kidnapping plan with his girlfriend, Mary Burch. He said that Moore was planning to "rip Huggins off because Huggins had ripped off three Rastafarians," Trial Transcript at 347-48,*fn2 and that only Moore, Adams and he knew of the plot they would follow in doing it. Burnell claimed that he would not have anything to do with the actual kidnapping but would go to work every day as usual. He told Burch that "they would hold Buster for money," id. at 348; they would divide the money; and they would probably take Huggins "out of the states where he would never be found." Id. at 349. However, he did not say to whom the word "they" referred. Id.
Between 9:30 and 10:00 P.M. on December 1, 1977, two ransom demands were made by Huggins' kidnappers. A call was made to Huggins' parents in South Carolina and was answered by Huggins' sixteen-year-old brother, Ira. The male caller asked to speak to Ira's father. When Ira Huggins said that his father was not in, the man asked to speak to his mother. After his mother picked up an extension phone, Ira continued to listen while the caller told Mrs. Huggins that her son had been kidnapped and that he was asking for a quarter of a million dollars if she wanted to see her son alive again. The caller then put Buster Huggins on the phone and he said, "Mom, do what these men say." Id. at 887.
One kidnapper also telephoned the home of Martha Wigfall, a woman with whom Buster Huggins had been living for about three years. Her brother, Mark, answered the telephone and was told to tell Martha "we have Buster" and "he owes us $250,000." Id. at 230. The caller also told Mark that Martha and Buster Huggins' father were to meet the kidnappers at the transmission shop, and that if Martha and Mr. Huggins, Sr. were followed by the police, Buster would be killed.
At approximately 6:30 A.M. on December 2, 1976, Martha Wigfall was called by a man ("the first caller") who told her to come with Mr. Huggins, Sr. and to bring $250,000 to the H & S shop at 4:00 P.M. on Friday, December 3. When Wigfall asked to speak to Buster, she was told that he had already spoken to his mother the previous night.
That afternoon the FBI entered the case, and with Wigfall's consent, placed a recording device on her phone. Based on an identification of Burnell's voice by Huggins' brother Ricky, who had listened in on the 6:30 A.M. call, FBI agents visited Burnell's apartment looking for Huggins at about 5:30 P.M. Upon entering Burnell's apartment on a ruse, the agents saw and spoke with Burnell for about three minutes, but did not see Huggins. They also observed Burnell's car, a 1968 brown Buick Wildcat with South Carolina license plates bearing the numbers NMV-109. The car matched a description given the agents by Ricky Huggins.
At about 1:35 A.M. on Friday, December 3, 1976, Mark Wigfall received another call at his sister's apartment. The caller was the same person who had spoken to Mark earlier. The caller stated that Martha Wigfall was to bring the money to the garage at 4:00 P.M. in a paper bag.
That afternoon at about 4:00 P.M., Martha Wigfall and Samuel Huggins, another of Buster's brothers, went to the H & S Transmission Shop. At the shop, Wigfall received another call from the first caller. She told him that she had $50,000; he reluctantly gave her twenty-four hours to be at the same place with the balance.
At about 11:30 that evening, Wigfall received a call at her apartment from another man ("the second caller"), who identified himself as "Buster's boss." Id. at 141. The conversation was somewhat longer than the previous calls, and included a statement by the caller that he and his accomplice were " get[ting] ready to take the M/--F--- out of town." Id. at 142. Wigfall asked to speak to Huggins, but was told that Huggins had already spoken to his mother on Wednesday night.
On the afternoon of Saturday, December 4, 1976, Martha Wigfall and Samuel Huggins, accompanied by FBI agents, returned to the H & S Transmission Shop. After the FBI had placed a recording device on the telephone there, Wigfall received three telephone calls from Huggins' kidnappers. First, the first caller of the previous afternoon telephoned and asked how much money she had, to which she replied she had only about $100,000. The caller said that "his boss" would call her back in about ten minutes. A few moments later, the second caller telephoned and told her Huggins was worth more than $100,000 and warned her that if she had been followed, they would "call it off." Id. at 148. Finally, Wigfall received another call from the first caller, who instructed her to go to the pay telephones in a parking lot alongside Nathan's Restaurant opposite the Korvette's Shopping Center on White Plains Road in the Bronx, and to answer the telephone in about twenty minutes.
Miss Wigfall and Samuel Huggins then drove to the designated parking lot and waited. When the telephone rang, she answered and found herself speaking to the second caller. He instructed her to take the money to the Rocky Point Lookout on the Palisades Parkway in New Jersey, where she would find three garbage cans. She was to place the money in the center can and then return to the same telephone to receive instructions on where to find Huggins.
Meanwhile, two FBI agents were driving through the Korvette parking lot, looking for a place to stop and observe the telephone booths. While there they saw two people driving Burnell's brown Buick Wildcat. The car stopped near the Korvette's store and the passenger, later identified as appellant Moore, made a call at 5:32 P.M., exactly the same time that Martha Wigfall received the call in the telephone booth at Nathan's.
The FBI then arrested the two men who had been in Burnell's car. Moore first identified himself as his brother, Lennox, and denied knowing Buster Huggins or his whereabouts. He was given a pat-down search which turned up a washcloth, the keys to a canvas bag containing a revolver found in Burnell's car, and two business cards. One of the cards had written on it the number of one of the telephones located inside Nathan's. The other, which Moore tried unsuccessfully to destroy enroute to FBI headquarters, contained the numbers of both the telephones outside of Nathan's. Burnell identified himself and told the agents only that he knew Huggins but had last seen him on the afternoon of December 1 at the H & S Transmission Shop.
On December 23, 1976, Huggins' car was discovered in a long-term parking lot at the John F. Kennedy Airport. The keys had already been recovered from Moore's apartment by FBI agents on December 4.
Section 1201(a)(1) of 18 U.S.C. reads as follows:
(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:
(1) the person is willfully transported in interstate or ...