Appeals from judgments entered in the United States District Court for the Southern District of New York, after a jury trial before Lee P. Gagliardi, Judge, convicting each defendant of one count of kidnapping and one count of conspiring to kidnap, in violation of 18 U.S.C.§§ 1201(a) and (c). Vacated and remanded for a new trial.
Before: OAKES, KEARSE, and PRATT, Circuit Judges.
Defendants James Pedroza, Francisco C. Pelaes, Jose Perez, and Enrique Jesus Osorno appeal from judgments entered in the United States District Court for the Southern District of New York, after a jury trial before Lee P. Gagliardi, Judge, convicting them on one count of kidnapping Luis Almeida ("Luis") and transporting him in interstate commerce, in violation of 18 U.S.C. § 1201 (a)(1) (1982), and one count of conspiring to commit those acts, in violation of 18 U.S.C. § 1201(c) (1982). On appeal, defendants contend, inter alia, that the trial court erred in refusing to allow them to cross-examine government witnesses as to whether Luis's father, Carlos Almeida ("Carlos" or "Almeida"), had voluntarily given them custody of Luis. Finding merit in this contention, we vacate the judgments of conviction and remand to the district court for a new trial.
On November 25, 1983, Perez, Pelaes, and two others intercepted 11-year-old Luis as he left his house in Los Angeles, California, and, at gunpoint, caused him to enter their van. They took him, blindfolded, to a recently rented house where he was kept for about two weeks, and then they took him to New York. On December 16, 1983, in New York, Luis was recaptured by agents of the Federal Bureau of Investigation ("FBI"). The government's theory was that the kidnapping was narcotics-related, i.e., that the defendants and others*fn1 had kidnapped Luis as part of an effort to recover seven kilograms of cocaine that had been entrusted to Jose Alfredo Almeida ("Freddy"), who was Carlos's brother and Luis's uncle, and to Freddy's father-in-law, Victor Jimenez.
A. The Proof of Kidnapping
The government sought to prove its theory principally through the testimony of Luis, his father, and his stepmother as to the taking of Luis and the ensuing events; the testimony of Freddy, his wife, and police officers as to the antecedent narcotics transactions; tape recordnigs [recordings] of calls to the Almeidas by certain of the defendants following the taking of Luis; and the testimony of law enforcement officers who participated in the investigation.
1. The Cocaine Connection
Early in 1983, Freddy was introduced to Ramon Antonio Serrano, a/k/a "Gilberto," who thereafter hired Freddy and two others to transport cocaine, apparently supplied to him by Osorno on consignment, from Miami, Florida, to Los Angeles. Some weeks after Freddy and his fellow drivers delivered the cocaine to Serrano in Los Angeles, Serrano asked Freddy to recommend a trustworthy person to hold the cocaine, which at that point amounted to seven kilograms. Freddy suggested his father-in-law, Victor Jimenez, who agreed. Freddy and Serrano hid the cocaine in Jimenez's house.
In June 1983, Freddy was arrested on narcotics charges. While in jail, he sent word to remove the cocaine from Jimenez's house. Before Serrano could do so, however, the cocaine apparently was taken to the home of Jimenez's daughter, Diane. Thereafter, local police arrested a person who informed them of the narcotics at Diane's home, and the police promptly seized the seven kilograms of cocaine.
Serrano, however, according to Freddy's testimony, did not believe that the cocaine had been seized by the police, believing instead that it had been stolen by Jimenez, who by this time had disappeared. In an effort to locate Jimenez and the cocaine, Serrano threatened Freddy and his family. Serrano told Freddy that he "had a beautiful wife and two nice kids" and that if Freddy didn't "want somebody to get hurt" he had "better. . .tell the truth. . .[about] what happened with the cocaine." Serrano told Freddy's wife that "he could take one of [her] kids" if she didn't tell him where Victor Jimenez had gone, and that "if something. . .happen[ed] to [her] mother it wouldn't be [Serrano's] fault."
At the same time, Osorno was looking for Serrano to inquire what had become of the cocaine.
In November 1983, Serrano went to Miami to recruit men to help him recover the cocaine. He returned to Los Angeles with Perez and Angel Lastre-Parrada; Pelaes and Pedroza followed shortly. On November 15, Serrano and his girlfriend Carmen Gloria Hernandez, accompanied by Pedroza and Pelaes, purchased a black 1977 Chevrolet van; on November 19, Serrano and Hernandez rented a house at 2000 Fulton Street, Monterey Park, California; on or about November 21, Serrano and Lastre-Parrada reconnoitered the area around Luis's house, particularly the adjacent parking lot, where they were seen by Luis.
In the early morning of November 25, 1983, Perez, Pelaes, Lastre-Parrada, and Antonio Martines drove the van to the Almeida residence. At approximately 5:45 a.m., when Luis emerged from the house carrying a bag of trash and a bundle of baby clothes, the occupants of the van grabbed Luis. Pelaes pointed a gun at him, and Perez told him that if he yelled, Perez would tape his mouth. The men put Luis in the van and drove him to the Fulton Street house. Luis was unable to observe their route because the van's windows were taped. When they arrived, Luis was blindfolded and taken into the house, where he and his captors were met by Serrano and Hernandez. Pedroza arrived shortly thereafter, as did a woman named Gloria ("Gloria").
3. The Early Post-Seizure Communications
Shortly after Luis was abducted, his stepmother, Guadalupe Almeida ("Lupe"), noticed his absence. At about 8:15 a.m., after a search of the neighborhood and several telephone calls had failed to locate Luis, Lupe filed a missing persons report with the local police. During the day, Carlos received three telephone calls from an unidentified caller who told Carlos that Luis had been kidnapped and demanded the seven kilograms of cocaine as ransom. Carlos and Lupe made a series of telephone calls in an attempt to find Luis. Eventually, Carlos received a call from Osorno who stated that he would attempt to help. Three days later, when no progress had been made, Carlos and Lupe told the police of the cocaine transaction, the ransom demands, and their unsuccessful efforts to secure Luis's return. The police called in the FBI.
With the consent of Carlos and Lupe, the FBI installed a recording device on the Almeidas' telephone on November 29. Beginning on December 2, law enforcement officers were on around-the-clock duty in the Almeidas' home. Between November 29 and December 16, the Almeidas and the FBI recorded a number of telephone conversations relating to Luis's abduction, fifteen of which were introduced by the government at trial. These included four calls from Lastre-Parrada on November 29 and December 1, 3, and 4, demanding seven "aparatos," a word used to denote kilograms of cocaine, in return for Luis. Lastre-Parrada refused to believe Carlos's claim that he did not have access to such a quantity of cocaine and that Serrano's cocaine had been seized by the police. On December 8, 1983, Osorno called Carlos and, adopting the role of go-between, expressed surprise that Luis had still not been returned. Stating that he did not know how to contact those who held Luis, Osorno promised that he would nonetheless attempt to do so.
4. Luis Is Taken to New York and is Recaptured
Luis, was kept at the Fulton Street house for about two weeks, with Serrano, Hernandez, Gloria, Pelaes, Perez, Lastre-Parrada, Martines, and Pedroza in constant attendance. Hernandez warned Luis that if he looked out the windows, men would come after him with guns. She told Luis that Carlos was to "go get some money for them" and that, though Carlos "wasn't involved," Jimenez had the money, and Luis had been taken so that Carlos would get the money for them. After two weeks, Pelaes, Serrano, Hernandez, Gloria, and Martines drove Luis from Los Angeles to New York in the van.
On December 13, Osorno called Carlos and told him to go to Newark, New Jersey, with seven kilograms of cocaine which Luis's captors would accept in exchange for the boy. He and Pelaes called again on the following day to make arrangements for Carlos's trip to Newark. During this conversation Carlos demanded to speak to Luis to determine that Pelaes and Osorno did indeed have Luis and that he was unharmed. Pelaes and Osorno resisted but eventually agreed, and, later that day, Pelaes called again and put Luis on the phone. After allowing Carlos to speak with Luis briefly, Pelaes told Carlos that the ransom was increased to include money and jewelry in addition to the seven kilograms of cocaine, stating that if Carlos did not deliver these items he would not see Luis alive again. Pelaes called Carlos twice on December 15 to make final arrangements for Carlos's trip and the exchange of Luis for the ransom.
On December 16, 1983, Carlos, accompanied by an FBI agent and an official from the Drug Enforcement Administration ("DEA"), flew to Newark carrying seven kilograms of cocaine (supplied by the DEA) to be exchanged for Luis. Upon his arrival, Carlos called a number that Pelaes had given him. Osorno returned the call and told Carlos to go to a hotel in New York and await another telephone call. That evening, Carlos again called the number provided by Pelaes and received a return call from Osorno. Carlos asked to speak with Luis; Osorno responded that Luis was not with him but that Carlos could speak with Luis later when they made the final arrangements for the exchange.
Meanwhile, on December 15 and 16, FBI agents had been keeping many of the alleged conspirators under surveillance. Some time after 8:00 p.m. on December 16, several agents followed a car carrying Osorno, Pedroza, Hernandez, and Luis to a street corner telephone booth. When Carlos received a call from Osorno and was allowed to speak to Luis, the agents were able to recapture Luis and arrest the other three. Other agents promptly arrested Perez, Pelaes, and Martines, who were under surveillance in the van several blocks away. Agents who had been following Serrano in another car lost him, and he was a fugitive at the time of trial.
Defendants' primary defense was that they lacked the intent necessary to be guilty of kidnapping because they had been led by Serrano to believe that Carlos had voluntarily given Luis to them as "security" for payment of a debt or for return of the missing cocaine. As discussed in greater detail in Part II, below, defendants commenced their efforts to establish their view of the events during their cross-examination of the government's witnesses. Among other things, they brought out through cross-examination of Luis that during the trip to New York and after their arrival in New York, Luis had not been treated like a captive nor acted like one. However, other attempts to elicit less circumstantial evidence to substantiate the theory of Carlos's consent through cross-examination of Carlos, Lupe, and Luis were forestalled when the court refused to allow defendants to pose such questions.
Only Perez and Pelaes testified on their own behalf. Perez testified that he went to Los Angeles in November 1983 because Serrano offered him $3,000 to help "collect a debt" from Carlos. Serrano told Perez that Carlos was going to give Luis to Serrano for two or three days as a good faith gesture that the money would be paid. According to Serrano, Carlos had arranged that Luis would be in the parking lot early on the morning of November 25 to be picked up; this subterfuge was required because Carlos had not told Lupe of the proposed "security" transaction. Perez stated that he therefore did not understand their pick-up of Luis to have been a kidnapping but rather thought it was a business arrangement between Carlos and Serrano.
Pelaes testified to much the same effect as had Perez. He had flown from Miami to Los Angeles with Pedroza, having been offered $1,500 to help Serrano collect a debt. Pelaes admitted making telephone calls to Carlos from New York after arriving there with Luis but ...