JOHN ANTHONY TAYLOR, PETITIONER V. UNITED STATES OF AMERICA No. 89-6408 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-7) is not reported. JURISDICTION The judgment of the court of appeals was entered on November 9, 1989. The petition for a writ of certiorari was filed on January 8, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether, based on his participation in a scheme in which his confederates momentarily seized two marshals as part of an attempted escape, petitioner was properly convicted of a violation of 18 U.S.C. 1201(a)(5), which prohibits seizing or confining a federal law enforcement officer in the performance of his duties. 2. Whether the district court abused its discretion in receiving testimony at petitioner's sentencing hearing from a clinical psychologist and from relatives of petitioner's co-defendants. 3. Whether the district court abused its discretion in denying petitioner's continuance motion, which he made on the day of trial. STATEMENT After a jury trial in the United States District Court for the Western District of Virginia, petitioner was convicted of abducting a United States marshal, in violation of 18 U.S.C. 1201(a)(5), 1114, and 2; conspiring to commit that offense, in violation of 18 U.S.C. 1201(a)(5) and 1201(c); conspiring to impede a United States marshal in the performance of his duties, in violation of 18 U.S.C. 372; committing assault with a deadly weapon on a United States marshal, in violation of 18 U.S.C. 111, 1114, and 2; aiding and abetting the use of a firearm during an assault on a federal law enforcement officer, in violation of 18 U.S.C. 924(c) and 2; and attempted escape, in violation of 18 U.S.C. 751(a). /1/ He was sentenced to life imprisonment. The court of appeals affirmed. Pet. App. 1-7. 1. The evidence at trial, which is not disputed, showed that on March 9, 1988, petitioner, who was incarcerated while awaiting trial for bank robbery, was taken by federal marshals to a medical clinic for a doctor's appointment. After petitioner's examination was over, the marshals escorted him to their automobile. As the three men walked through the parking lot, two armed confederates of petitioner -- Barry Dotson and Tina Marie Julian -- approached. They pointed guns at the marshals and shouted that the marshals should "freeze" and not move. Dotson pointed a revolver at one marshal, Michael Thompson, while petitioner grabbed at Thompson in an attempt to disarm him. Dotson then tried to disarm the second marshal. At that point, Thompson shot Dotson twice and then turned and shot Julian twice, killing both instantly. The parking lot episode took only a matter of a few seconds. Pet. App. 2. Julian was petitioner's girl friend; petitioner had written her to plan the escape attempt and to recruit Dotson. Those letters were introduced at trial. Ibid.; Gov't C.A. Br. 2. Petitioner testified in his own defense at trial. He admitted that he had tried to escape and had planned the escape effort with Julian and Dotson, but he claimed that he had not planned to abduct the marshals. Pet. App. 2; Gov't C.A. Br. 3. 2. On appeal, petitioner argued that he should not have been convicted of kidnapping under Section 1201, because the marshals were not taken away from the scene of the attempted escape. The court below rejected that argument, holding instead that the statute covers more than common-law kidnapping, and that the seizure of the marshals here satisfied the requirements of Section 1201. /2/ The court also held that petitioner's rights were not violated when the trial court received testimony, at the sentencing phase of the case, from a clinical psychologist and relatives of both the victims and perpetrators of the crime. The court found that such testimony was permissible under 18 U.S.C. 3661. In addition, the court held that any error in admitting such testimony was harmless, because the Sentencing Guidelines called for a sentence of from 360 months to life imprisonment, to be followed by a mandatory consecutive sentence of 10 years' imprisonment on the 18 U.S.C. 924 count. Since petitioner was 43 at the time of sentencing, it was clear that he would spend the rest of his life in jail, even if the trial court had imposed the minimum sentence available under the Guidelines. Pet. App. 5-6. /3/ ARGUMENT 1. Petitioner contends (Pet. 3-5) that the courts below erred in determining that his conduct fell within Section 1201(a)(5). Contrary to his claim, the decision below is correct and does not conflict with the decision of any other court of appeals. Further review is unwarranted. Petitioner argues that Section 1201(a)(5) requires more than a momentary detention as a prerequisite to conviction; he also claims that such a detention must be different from the elements of his attempted escape offense. In support of this claim he relies on Government of the Virgin Islands v. Berry, 604 F.2d 221 (3d Cir. 1979), which construed a Virgin Islands statute similar to Section 1201. Despite the language of the statute, the court there held that the Virgin Islands legislature could not have intended the statute to have a broad reach, because the offense carried a mandatory sentence of life imprisonment. Accordingly, the court held that a seizure that was merely incidental to the commission of another crime did not violate the statute. Id. at 224-229. By contrast, the federal statute has been held to apply to much more than common law kidnapping, even before the addition of Section 1201(a)(5). United States v. McInnis, 601 F.2d 1319, 1324-1325 (5th Cir. 1979), cert. denied, 445 U.S. 962 (1980); United States v. Young, 512 F.2d 321, 323 (4th Cir. 1975), cert. denied, 424 U.S. 956 (1976). The essential elements of a violation of the federal kidnapping statute are a seizure and a holding; there is no requirement of transportation or carrying away. See United States v. Lorick, 753 F.2d 1295, 1297 (4th Cir.), cert. denied, 471 U.S. 1107 (1985); Gawne v. United States, 409 F.2d 1399, 1403 (9th Cir. 1969), cert. denied, 397 U.S. 943 (1970)). Moreover, the holding may be brief. United States v. Lewis, 662 F.2d 1087, 1088-1089 (4th Cir. 1981), cert. denied, 455 U.S. 955 (1982). Certainly Congress did not intend to impose any time requirement on the seizure when it expanded Section 1201 to cover seizures or assaults on federal law enforcement personnel during or on account of the performance of their duties. Rather, Congress was concerned with protecting law enforcement officers from the kind of assault and attempted seizure that took place here. See S. Rep. No. 225, 98th Cong., 1st Sess. 318 (1983). Likewise, every court that has faced the question has rejected petitioner's claim that the "seizure" that satisfies the statute must be separate and apart from a seizure that was committed as part of another crime such as escape. E.g., United States v. Walker, 524 F.2d 1125, 1127 (10th Cir. 1975) (citing cases); see also United States v. West, 607 F.2d 300, 302-303 (9th Cir. 1979) (kidnapping as part of an escape). Petitioner's argument also ignores the plain language of the statute, which prohibits not only abductions, but also "seiz(ing), confin(ing), inveigl(ing, and) decoy(ing)" /4/ a federal law enforcement officer. Consequently, it is clear that the decision below is correct. 2. Petitioner also argues (Pet. 5-9) that the district court abused its discretion in receiving evidence at his sentencing hearing from a clinical psychologist and relatives of his co-conspirators concerning the distress the relatives experienced as a result of the events surrounding petitioner's attempted escape. Petitioner concedes (Pet. 5-6) that the Sentencing Reform Act has not eliminated a district court's discretion in considering information at sentencing. That concession is correct, for 18 U.S.C. 3661 simply recodified verbatim the prior Section 3557, which provided that "(n)o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." Relying on United States v. Ching, 682 F.2d 799, 801 (9th Cir. 1982), petitioner nevertheless claims that the sentencing court violated his due process rights by receiving testimony from relatives of his co-conspirators and from a clinical psychologist about the effects of petitioner's crimes. In United States v. Ching, the court held that a defendant challenging evidence at a sentencing hearing must show that the challenged evidence was materially false or unreliable, and that the evidence actually served as a basis for the sentence. But the court below applied that very standard to petitioner's claim and found it to be lacking. The court of appeals first held that neither the psychologist's nor the relatives' testimony was unreliable. Pet. App. 6. The court below then determined that the district court had not relied on the challenged testimony in imposing sentence, pointing to the district court's statement that, even without consideration of the disputed testimony, petitioner's offense level and criminal history background would dictate, at a minimum, the equivalent of a life sentence. Therefore, it could not matter that the court decided to hear the testimony of the relatives and psychologist, ibid., and it is clear that the district court did not rely on the challenged testimony. Hence, petitioner's claim would not succeed even in the Ninth Circuit. 3. Finally, petitioner argues (Pet. 9-10) that the district court abused its discretion in failing to grant his day-of-trial continuance request. The contrary decision below plainly was correct and does not warrant further review. It is well-settled that a trial judge has broad discretion in ruling on continuance requests. Morris v. Slappy, 461 U.S. 1, 11-12 (1983). Petitioner waited until the day of trial before asserting that he wanted to discharge his lawyers but needed a continuance to prepare for trial, even though, as the trial court recognized, petitioner could have made that decision at any time within the several months preceding trial. In the absence of any apparent justification for petitioner's failure to make an earlier request, the court did not abuse its discretion by refusing to delay the trial. See United States v. Mitchell, 777 F.2d 248, 257-258 (5th Cir. 1985), cert. denied, 475 U.S. 1096 (1986). CONCLUSION The petition for a writ of certiorari should be denied. Respectfuly submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General LOUIS M. FISCHER Attorney MARCH 1990 /1/ An additional charge of attempted abduction of a marshal, in violation of 18 U.S.C. 1201(a)(5), 1201(d), 1114, and 2, was dismissed after trial. Pet. App. 3-4. /2/ The court of appeals also noted that petitioner's argument might have had more force when interstate commerce was the jurisdictional basis of the statute, so that a taking and crossing state lines might have been necessary. The court pointed out, however, that Congress amended the statute in 1984 and added Subsection (5), under which petitioner was prosecuted. Section 1201(a)(5) prohibits the seizure of federal law enforcement officers while in the performance of their official duties, but contains no requirement of interstate transportation of the officer who is seized. Perforce, interstate commerce is no longer the sole jurisdictional basis of the statute. Pet. App. 4. /3/ The court also overruled petitioner's claim that the district court had abused its discretion in denying his motion for continuance, which was made on the day of trial. Pet. App. 6-7. /4/ Section 1201 provides in pertinent part: (a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, when * * * (5) the person is among those officers and employees in section 1114 of this title and any such act against the person is done while the person is engaged in, or on account of, the performance of official duties; shall be punished by imprisonment for any term of years or for life.