The opinion
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2782
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Brian Brown, also known as Brian *
Lee Brown, *
*
Defendant - Appellant. *
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Submitted: February 10, 2003
Filed: June 9, 2003
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Before HANSEN,* Chief Judge, LOKEN and SMITH, Circuit Judges.
___________
LOKEN, Chief Judge.
A jury convicted Brian Brown of kidnaping and aggravated sexual abuse of a
child in violation of 18 U.S.C. §§ 1201(a)(1) and 2241(c). The district court1
*
The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. The Honorable James B. Loken became Chief Judge on April 1, 2003.
1
The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.
sentenced him to concurrent terms of life in prison. On appeal, Brown argues that the
district court violated the Religious Freedom Restoration Act (RFRA), 42 U.S.C.
§ 2000bb-1, and the Free Exercise Clause of the First Amendment by granting the
government’s motion for an involuntary blood sample for DNA testing; that the
verdict form constructively amended the aggravated sexual abuse count in the
indictment; that the government’s proof at trial created two material variances from
the indictment; and that his conduct fell within the parent exception to the federal
kidnaping offense. He also challenges sentencing enhancements under U.S.S.G.
§§ 2A3.1(b)(3)(A) and (5). We affirm.
I. Background
While visiting friends in Kansas, truck driver Brown offered to take the
family’s ten-year-old daughter, Jane Doe,2 on an overnight trip to Texas while he
made a delivery. The child’s mother signed a note giving Jane permission to go with
Brown to Dallas and return the next day. Brown and Jane left Kansas and arrived in
Dallas that night. While sleeping in the truck, Jane awakened to find Brown putting
his hands into her pants. Jane asked Brown to take her home. The next day, Brown
left Dallas heading north but instead went to a rural campground in Arkansas, where
he sexually assaulted Jane the following day. On the third day, a grocery store owner
became suspicious and contacted police. Though Jane told the investigating officer
she was Brown’s daughter, as Brown had instructed, the officer contacted Kansas
police and learned that Brown was driving a stolen truck and had kidnaped a girl.
When officers arrested Brown, a distraught Jane reported that Brown had sexually
assaulted her. A medical examination revealed bruises on her face and body, a
vaginal tear, and semen in the crotch of her pants.
2
To protect the identity of the minor, we will refer to her as Jane Doe.
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Following Brown’s indictment, the government obtained a search warrant and
moved for production of a sample of his blood for DNA testing. Brown objected,
arguing that an involuntary blood sample would violate his right to religious freedom
as a Jehovah’s Witness under RFRA and the Free Exercise Clause. The district court
overruled Brown’s objection after an evidentiary hearing. At trial, an Arkansas State
Crime Lab employee testified, without objection, that Brown’s blood sample had
been tested, his DNA matched that of the semen found on Jane’s clothing, and the
random probabilities of such a match are 1 in 6,369. The jury convicted Brown on
both counts. The district court denied his post-trial motions and sentenced him to
concurrent life terms. Brown appeals his conviction and sentence.
II. The Blood Sample Issue
On appeal, Brown renews his contention that the involuntary blood sample
violated his rights under RFRA and the Free Exercise Clause. But he challenges only
the district court’s pretrial order granting the government’s motion for production of
a blood sample. He never moved to suppress any evidence that might result from the
blood sample, and at trial he did not object to the state crime lab expert’s testimony
explaining the results of the DNA testing. Admission of that testimony, which we
review for plain error, was the only aspect of this issue that had an impact on Brown’s
conviction. The district court granted the motion for production after hearing
testimony from Brown regarding his religious beliefs,3 from an Elder and an Overseer
of a local Jehovah’s Witness congregation contradicting Brown’s testimony, and from
an FBI agent explaining the importance of a blood sample in obtaining accurate DNA
3
To support his position, Brown submitted an article from the October 15, 2002
edition of The Watchtower, a Jehovah’s Witness publication, which stated that “tests
involving an individual’s own blood are not so clearly in conflict with God’s stated
principles” as is, for example, donating blood. Thus, Brown failed to show that
forbidding blood samples is a “central tenet” of the Jehovah’s Witness religion. See
Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997).
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evidence.4 After this careful consideration of the RFRA and First Amendment issues
before trial, the court did not commit plain error in admitting trial testimony
explaining the results of the DNA testing conducted on Brown’s blood sample.
II. The Constructive Amendment Issue
Count II charged Brown with aggravated sexual abuse of a child in violation
of 18 U.S.C. § 2241(c). The statute prohibits “cross[ing] a State line with intent to
engage in a sexual act with a person who has not attained the age of 12 years . . . .”
The district court quoted the statute and then instructed the jury that the government
must prove its four essential elements beyond a reasonable doubt to convict Brown
of the crime charged in Count II. However, in the verdict form for Count II, the jury
found Brown guilty of “transporting a minor in interstate commerce with the intent
to engage in a sexual act with a minor,” language which more closely tracks the
prohibition in 18 U.S.C. § 2423(b) than the language of 18 U.S.C. § 2241(c). Brown
argues this verdict form constructively amended the indictment.
Jury instructions constructively amend if they allow the jury to convict the
defendant of a different offense than the one alleged in the indictment. United States
v. Barrios-Perez, 317 F.3d 777, 779 (8th Cir. 2003). But we are aware of no case in
which a verdict form by itself was held to constitute a constructive amendment. Here,
the jury instructions accurately tracked the language of § 2241(c) and Count II.
Although the verdict form found Brown guilty of intent to engage in a sexual act with
4
RFRA provides that exercise of a person’s religion may be substantially
burdened “in furtherance of a compelling governmental interest” that is furthered by
“the least restrictive means.” 42 U.S.C. § 2000bb-1(b). At least two circuits have
held that the government’s strong interest in obtaining DNA evidence from blood
samples overrides the Fourth Amendment interests of inmates objecting to mandatory
blood samples. See Roe v. Marcotte, 193 F.3d 72, 79 (2d Cir. 1999); Jones v.
Murray, 962 F.2d 302, 307 (4th Cir.), cert. denied, 506 U.S. 977 (1992).
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“a minor,” the instructions repeatedly told the jury it must find that the victim was
less than 12 years old at the time of the offense. Thus, the jury instructions and
verdict form viewed as a whole did not allow the jury to convict Brown of a different
offense than Count II charged. There was no constructive amendment.
III. The Material Variance Issues
A. Kidnaping “for Ransom or Reward or Otherwise.” Brown was
convicted of violating the federal kidnaping statute, 18 U.S.C. § 1201(a)(1), which
proscribes a kidnaping in interstate commerce where the victim is held for “ransom
or reward or otherwise.” Count I of the indictment charged him with kidnaping and
holding Jane Doe for “ransom, reward and otherwise.” The district court instructed
the jury in the language of the statute -- you must find that Brown “held the person
named in the indictment for ransom, reward or other benefit or reason.” Brown raises
two related issues based upon this difference in language. First, he argues the
evidence was insufficient to convict because the government failed to prove he held
Jane for ransom or reward. Alternatively, he argues that use of the word “and” in the
indictment created a variance between the indictment and the proof at trial.
It is well established that an indictment may be phrased in the conjunctive,
when the statute and jury instructions are phrased in the disjunctive, without creating
a constructive amendment of the indictment or a material variance in the proof. See
Barrios-Perez, 317 F.3d at 779-80 (no constructive amendment); United States v.
Atchison, 524 F.2d 367, 368, 370-71 (7th Cir. 1975) (no material variance). Indeed,
we have observed that it is “bad pleading” if an indictment alleges alternative
statutory purposes in the disjunctive. Bram v. United States, 302 F.2d 58, 60 (8th Cir.
1962) (quotation omitted). Thus, the indictment and the jury instructions were
properly phrased. Brown’s separate attack on the sufficiency of the evidence is
without merit because it is well-settled that he violated § 1201(a) by kidnaping and
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holding Jane Doe for a non-pecuniary purpose, whether or not he also held her for
ransom or reward. See United States v. Healy, 376 U.S. 75, 81-82 (1964).
B. Traveling in Interstate Commerce. Brown argues that a material variance
occurred regarding the interstate commerce element of the kidnaping count because
the indictment alleged that he kidnaped Jane from “Texas to Arkansas,” but the trial
evidence showed that he took her from Texas to Oklahoma and then from Oklahoma
to Arkansas. We doubt this is even a slight variance, because the allegation that
Brown traveled from Texas to Arkansas reasonably encompassed a route passing
through Oklahoma. But in any event, any variance was not material because the
indictment “fully and fairly apprised [Brown] of the charges he . . . must meet at
trial.” United States v. Begnaud, 783 F.2d 144, 148 (8th Cir. 1986).
IV. The “Parent” Exception to 18 U.S.C. § 1201(a)
The federal kidnaping statute includes an exception for actions “in the case of
a minor by the parent thereof.” 18 U.S.C. § 1201(a).5 Brown argues the district court
erred in denying his post trial motions because he had temporary custody of Jane with
her parent’s written permission and therefore his conduct came within the exception.
Though any parent-by-consent defense is obviously fact intensive, Brown did not
request a jury instruction on this issue nor object when such an instruction was not
given. Thus, we review this issue for plain error.
We have construed the term “parent” in the statutory exception as potentially
including “anyone who stands in a position equivalent to that of a parent,” as well as
a child’s biological parents. Miller v. United States, 123 F.2d 715, 717 (8th Cir.
1941), rev’d on other grounds, 317 U.S. 192 (1942); accord United States v. Floyd,
5
For the history and purpose of this exception, see United States v. Boettcher,
780 F.2d 435, 436-37 (4th Cir. 1985).
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81 F.3d 1517, 1523 (10th Cir.) (“a surrogate parent is exempt from prosecution under
section 1201”), cert. denied, 519 U.S. 851 (1996). Though Jane’s mother gave Brown
limited consent to take the child on an overnight trip to Texas, Brown abducted Jane
to Arkansas after she asked to be taken home, sexually abused her, and held her
against her will for days beyond her mother’s consent. By no stretch of the
imagination was this the conduct of a surrogate parent. “[E]ven under the broadest
and most latitudinarian definition or understanding of the term ‘parent,’ [Brown’s]
relationship to this minor at the time of the offense cannot be so characterized.”
Miller, 123 F.2d at 718. There was no plain error.
V. Sentencing Issues
A. Two-Level Increase for Custody of the Victim. The district court
increased the base offense level for criminal sexual abuse by two levels because Jane
was in Brown’s “custody, care, or supervisory control.” U.S.S.G. § 2A3.1(b)(3)(A).
Brown argues the increase was clearly erroneous. This enhancement applies
“whenever the victim is entrusted to the defendant, whether temporarily or
permanently,” because such a custodial relationship “represents the potential for
greater and prolonged psychological damage.” U.S.S.G. § 2A3.1, comment. (n.2 and
backg’d). Here, Jane’s parents entrusted her to Brown, as a friend of the family,
creating a relationship of temporary custody and care based upon trust. When he
abused that trust by abducting and sexually abusing the child, his sexual abuse
offense involved precisely the kind of potential for psychological damage
contemplated by this enhancement. See United States v. Crane, 965 F.2d 586, 587
(8th Cir. 1992). There was no clear error.
B. Four-Level Increase for Abducting the Victim. The district court further
increased the base offense level for criminal sexual abuse by four levels because Jane
Doe “was abducted.” U.S.S.G. § 2A3.1(b)(5). Brown argues this was clear error
because he had permission to take Jane to Texas. But the abduction occurred when
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Jane asked to be taken home, consistent with her mother’s consent, and Brown
instead took her to an Arkansas campground for the purpose of sexual assault. See
United States v. Kills in Water, 293 F.3d 432, 437 (8th Cir. 2002).
Brown further argues that enhancing his base offense level four levels for the
abduction under § 2A3.1(b)(5), and four additional levels for the use of force under
U.S.S.G. § 2A3.1(b)(1), was impermissible double counting. We disagree. Double
counting is permissible when the Sentencing Commission intended that two
provisions both apply and they address “conceptually separate notions relating to
sentencing.” United States v. Rohwedder, 243 F.3d 423, 427 (8th Cir. 2001). In
United States v. Saknikent, 30 F.3d 1012, 1013 (8th Cir. 1994), a case in which the
victim was abducted and then forcibly raped, we upheld the imposition of both these
enhancements. Likewise, in this case, Brown forcibly abducted Jane to Arkansas,
thereby increasing the likelihood of sexual assault, and then punched her in the face
and held her tightly when she tried to resist his sexual abuse, increasing the severity
of the assault. No impermissible double counting occurred when the district court
imposed both enhancements to punish these distinct offense characteristics.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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