Petition for certiorari filed at, 08/06/2014
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. NO. 1:11-CR-00303-REB-1; 1:11-CR-00303-REB-2; 1:11-CR-00303-REB-3).
Richard A. Hostetler, Law Office of Richard A. Hostetler, Denver, Colorado, appearing for Appellant Tracy Morgan.
Ronald Fujino, Salt Lake City, Utah, appearing for Appellant Killiu Ford.
Jeffrey S. Pagliuca, Haddon, Morgan, and Foreman, P.C., Denver, Colorado, appearing for Appellant Augustus Sanford.
John F. Walsh, United States Attorney, and Paul Farley, Assistant United States Attorney, Office of the United States Attorney for the District of Colorado, Denver, Colorado, appearing for Appellee.
Before HOLMES, MATHESON, and BACHARACH, Circuit Judges. HOLMES, Circuit Judge, concurring.
MATHESON, Circuit Judge.
Tracy Morgan, Killiu Ford, and Augustus Sanford (the " Defendants" ) were indicted and tried together. A jury convicted them of kidnapping, conspiracy to kidnap, and possession of a firearm during a crime of violence. Each defendant brought a separate appeal, raising overlapping but not identical issues. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm as to each defendant.
A. Factual History 
In August 2009, Mr. Morgan and his friend, Marvin Tabor, plotted to kidnap
and rob Mario Armendariz. Pursuant to their plan, Mr. Morgan attached a GPS tracking device to Mr. Armendariz's car while Mr. Armendariz was visiting Mr. Tabor's home. Mr. Tabor then tracked Mr. Armendariz's location on the Internet using Google Maps, enabling Mr. Morgan and Mr. Ford to follow Mr. Armendariz in their vehicle.
Also in late summer 2009, Mr. Tabor's brother-in-law, Mr. Sanford, persuaded a police officer's minor child to steal four weapons and parts of a police uniform--including cargo pants, a black police shirt, and an orange reflective vest--from his father in exchange for two ounces of marijuana. Mr. Sanford also painted his Chevrolet Tahoe black.
Around 11:00 p.m. on September 22, 2009, the Defendants and Mr. Tabor met at Mr. Tabor's house. Mr. Sanford wore the stolen police gear. The Defendants then departed to locate Mr. Armendariz. Mr. Tabor remained at his home and tracked Mr. Armendariz using the GPS device and Google Maps, speaking with the Defendants on a cell phone to update them with Mr. Armendariz's location.
That night, Mr. Armendariz and his wife, Perla Flores, were getting into their car with their two young daughters outside of a cousin's house when they saw two armed men exit a black Chevrolet Tahoe and at least one other man arrive from across the street. The men announced they were police officers and ordered Ms. Flores and Mr. Armendariz to lie on the ground. One of the men was wearing a reflective police vest. Evidence at trial established the Defendants were present.
Two of the men zip-tied Mr. Armendariz's arms and legs together, covered his head, and put him into the back of the Tahoe. Mr. Ford got into the Tahoe and questioned Mr. Armendariz about where he kept his money while an unknown co-conspirator drove the Tahoe around. Eventually the Tahoe dropped off Mr. Ford at Mr. Armendariz's home. The Tahoe drove away and parked in a different location.
Meanwhile, Mr. Sanford drove Ms. Flores and her daughters in her car to the Flores-Armendariz home. Mr. Ford and Mr. Morgan met him there. The Defendants confronted Ms. Flores, demanding to know where Mr. Armendariz kept his money. Ms. Flores refused to tell them.
Mr. Morgan put a gun to the three-year-old daughter's head, and Ms. Flores then told them the money was under her daughter's dresser. Mr. Morgan retrieved $30,000 from under the dresser and left the home. Mr. Sanford and Mr. Ford continued to search the house, but after realizing Mr. Morgan had already left with the money, they also exited the home.
Ms. Flores left the house looking for help. She saw a black sport utility vehicle pick up Mr. Sanford and Mr. Ford. The driver then drove away from the home, stopped several miles away, and dropped off Mr. Armendariz on the side of the road.
Later that night or early the next morning, Mr. Ford and Mr. Sanford looked for Mr. Morgan and found him at a Taco Bell. They divided the money Mr. Morgan took from Mr. Armendariz's home.
Mr. Sanford returned to Mr. Tabor's home and complained to Mr. Tabor and Mr. Patterson about Mr. Morgan's keeping too much of the proceeds. Mr. Ford called Mr. Tabor's home to discuss the kidnapping
and robbery with Mr. Tabor and Mr. Patterson. He also complained that Mr. Morgan kept more than his share of the money. Mr. Morgan joined the phone call for a brief moment and told the others he would arrive at Mr. Tabor's house within several hours. The group met at Mr. Tabor's house and redistributed the proceeds from the kidnapping and robbery.
B. Procedural History
A grand jury indicted the Defendants on two counts of kidnapping in violation of 18 U.S.C. § 1201(a)(1) for kidnapping Mr. Armendariz and Ms. Flores; two counts of kidnapping in violation of 18 U.S.C. § § 1201(a)(1) and 3559(f)(2) for kidnapping the couple's two minor children; one count of conspiracy to kidnap in violation of 18 U.S.C. § 1201(c); and one count of use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c).
The Defendants were tried together. The jury found each of them guilty on all counts. Mr. Morgan and Mr. Ford were each sentenced to 600 months in prison, and Mr. Sanford was sentenced to 384 months. Each defendant timely filed his notice of appeal. We will discuss additional procedural history as it pertains to each issue addressed below. Although the appeals were not formally consolidated, the Government filed only one answer brief, and the cases were argued consecutively at oral argument.
The Defendants raise seven issues. Only one applies to all three Defendants. First, Mr. Sanford and Mr. Ford challenge the constitutionality of the federal kidnapping statute. Second, Mr. Ford challenges the district court's jury instructions. Third, the Defendants all argue the district court violated Federal Rule of Evidence 801(d)(2)(E) and the Sixth Amendment in admitting the post-kidnapping phone call. Fourth, Mr. Morgan contends the district court erred by not declaring a mistrial after the jury heard the post-kidnapping phone call based on a violation of Federal Rule of Evidence 404(b). Fifth, Mr. Sanford and Mr. Morgan argue the district court erred in denying their motions for mistrial after Ms. Flores testified she could identify one of the perpetrators but did not make the identification. Sixth, Mr. Sanford alleges the district court erred in denying his motion for severance. Seventh, Mr. Morgan contends there was reversible cumulative error.
A. Constitutionality of Federal Kidnapping Statute
Mr. Sanford and Mr. Ford argue the district court should have dismissed the indictment because (1) Congress lacked Commerce Clause authority to enact the Federal Kidnapping Statute, 18 U.S.C. § 1201(a)(1), as amended in 2006; and (2) the statute was unconstitutionally applied here. We review the as-applied
challenge de novo. See United States v. Carel, 668 F.3d 1211, 1216 (10th Cir. 2011). Because we conclude the as-applied challenge fails, we need not and do not address the facial challenge. See Renne v. Geary, 501 U.S. 312, 324, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) (endorsing the practice of (1) deciding an as-applied challenge first, thus (2) obviating the need to address a facial challenge); Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1155-56 (10th Cir. 2007).
Congress enacted the Federal Kidnapping Act in 1932 to outlaw interstate kidnapping in response to the widely publicized abduction of aviator Charles Lindbergh's son. See Chatwin v. United States, 326 U.S. 455, 462-63, 66 S.Ct. 233, 90 L.Ed. 198 (1946). A 2006 amendment expanded the crime to include intrastate activity when an " offender . . . uses . . . any . . . instrumentality of interstate . . . commerce in committing or in furtherance of the offense." Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 616 (codified at 18 U.S.C. § 1201(a)(1)).
In accordance with this amended statute, each of the four kidnapping counts alleged the Defendants " use[d] a means, facility, and instrumentality of interstate and foreign commerce, those being cellular telephone(s), the internet[,] and a Global Positioning System, in committing and in furtherance of the commission of the offense." Ford ROA, Vol. I at 15-17.
The Defendants do not appeal the jury's determination that they used a cell phone, the Internet, or a GPS device to accomplish the abductions. Instead, Mr. Sanford and Mr. Ford argue the indictment's reliance on their use of any of these devices violates the Commerce Clause because the charged criminal activity all occurred intrastate. We disagree based on Supreme Court precedent.
In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Chief Justice Rehnquist, writing for the majority, identified " three broad categories of activity that Congress may regulate under its commerce power" : (1) " use of the channels of interstate commerce," (2) " the instrumentalities of interstate commerce," and (3) " activities having a substantial relation to interstate commerce." Id. at 558-59.
Based on the language of the federal kidnapping statute and the indictment, this case falls in the second category, which includes regulation aimed at local, in-state activity involving instrumentalities of commerce. Lopez cited the Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), as an example. See 514 U.S. at 558. In Shreveport, the Court upheld Congress's authorizing the Interstate Commerce Commission to regulate intrastate rates charged by railroads providing interstate service. 234 U.S. at 351. Lopez also mentioned Southern Railway Co. v. United States,
222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911), which upheld penalties under the Safety Appliance Act for operating defective railroad cars in intrastate traffic that were also part of interstate traffic. Lopez, 514 U.S. at 558.
Nowhere in Lopez or any other case has the Supreme Court limited Congress's regulatory authority to prevent the harmful use of an instrumentality of interstate commerce. Indeed, the Lopez Court sad " Congress is empowered to regulate and protect the instrumentalities of interstate commerce . ...