Sample Memo Formatted

MEMORANDUM
To: Senior Assistant U.S. Attorney
From: Junior Assistant U.S. Attorney
Date: September 28, 2011
Re: Alan Grant's possible prosecution for kidnapping
Question Presented
Whether the government can prove the elements of federal kidnapping against a
man who invited a colleague to dinner, then drove the complaining colleague across the
state border to a deserted museum where he locked the doors and took the colleague’s
cell phone, in order to prevent her from giving negative testimony at a National Science
Foundation grant hearing that may have prevented another colleague from getting a large
NSF grant.
Brief Answer
Yes. To successfully prosecute a person under the Federal Kidnapping Act, the
government must prove that: (1) the defendant unlawfully restrained the victim; (2) the
victim was held for ransom, reward or otherwise; (3) the defendant willfully transported
the victim across a state border; and (4) the border was crossed while the victim was still
kidnapped. The government can prove all the elements in this case because the defendant
tricked the victim into accompanying him to a deserted museum where he held her by
force for three days. The defendant admitted he crossed a state border in transporting the
victim to the cabin. And, finally, the defendant secured an expectation of benefit to
himself when he held the victim at the museum, because he and another colleague have
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helped each other in the past, and the circumstances of the kidnapping suggest the act was
done to once again support the colleague in furtherance of the mutually beneficial
relationship.
Statement of Facts
This memo analyzes whether the government will be able to prove all elements of
federal kidnapping against thirty nine-year-old Dr. Alan Grant.
Prior to the alleged kidnapping, both Grant and the alleged victim, Dr. Mary
Schweitzer, were invited to Helena, Montana, to attend a meeting on Monday, June 20,
2011, designed to prepare Dr. Jack Horner for a hearing to take place on Wednesday,
June 22, on his grant proposal at the National Science Foundation. Grant Stmt. p. 1;
Schweitzer Stmt. p. 5. Dr. Jack Horner is a paleontologist and the director of the
Museum of the Rockies located in Bozeman, Montana. Grant Stmt. p. 1.
Upon arriving at the meeting on Monday, June 20, Schweitzer stated that she had
made a discovery that cast serious doubts on the viability of Horner’s proposal.
Schweitzer Stmt. p. 5; Grant Stmt. p. 2. Grant stated that Horner “did not want
[Schweitzer] appearing before the NSF panel” and that he had asked Grant to “talk some
sense into her.” Grant Stmt. p. 2. Later that day, Grant invited Schweitzer to an early
dinner, to which she agreed. Grant Stmt. p. 2; Schweitzer Stmt. p. 5. They went to
dinner, and when they got back into Grant’s truck, Grant announced that they were going
to the Museum of the Rockies in Bozeman. Grant Stmt. p. 2. Grant said the trip was
necessary for Schweitzer to “better understand the implications of [her] planned
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testimony before the NSF.” Schweitzer Stmt. p. 5. Schweitzer said she told Grant that
she “didn’t want to go there” but he “acted like he didn’t hear [her].” Id. Schweitzer said
she “repeatedly told him to turn around and take [her] back to Helena so [she] could
gather [her] things and catch [her] flight. [But] he just wouldn’t listen to [her].” Id.
Grant admitted that Schweitzer said she didn’t want to go to the museum, but he “kept
driving and she kept complaining.” Grant Stmt. p. 3. Grant said he “tuned her out.” Id.
During the trip to the museum, Grant stated that a major accident on I-90
involving semi-trailer trucks caused him to take a detour onto I-15, which runs toward
Idaho. Grant Stmt. p. 3. They traveled into Idaho before they could catch a direct road
back into Montana and to the museum. Id.
When they arrived at the museum, Schweitzer got out of Grant’s truck and
attempted to walk back to the main road. Id. Grant “directed her into the museum by
holding her arm.” Id. Once inside, Grant “flipped a switch to bolt down the fire doors”
and he “took her cell phone.” Schweitzer Stmt. p. 6. Schweitzer tried to yell to get
someone’s attention. Id. No one else was at the museum, however, because Dr. Horner
always closes the museum during that particular week in June. Grant Stmt. p. 3. Grant
and Schweitzer stayed at the museum from Monday evening until Thursday morning. Id.
Grant maintains that he did not kidnap Schweitzer. Grant Stmt. p. 4. He said they
were comfortable at the museum and that they were “colleagues having an important
discussion about career-changing matters.” Id. Grant further stated that he was prompted
to take these actions because he and Dr. Horner are “good friends” and he “wanted to do
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[Horner] a favor.” Id. Grant stated that Horner had “done a lot for my career in the past.
You know, one hand washes the other.” Id.
Applicable Statute
Federal Kidnapping Statute
18 U.S.C. § 1201(a)(1) (2006)
(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) starts at .5 all at 1(1)the person is willfully transported in interstate or
foreign commerce, regardless of whether the person was alive when
transported across a state boundary, or the offender travels in interstate or
foreign commerce or uses the mail or any means, facility, or
instrumentality of interstate or foreign commerce in committing or in
furtherance of the commission of the offense;
. . .
shall be punished by imprisonment for any term of years or for life and, if the
death of any person results, shall be punished by death or life imprisonment.
Discussion
The government will be able to prove a charge of federal kidnapping against Alan
Grant. The statute requires the government to prove that the defendant “unlawfully
seize[d], confine[d], inveigle[d], decoy[ed], kidnap[ped], abduct[ed], or carr[ied] away
and [held] for ransom or reward or otherwise [the victim] . . . when . . . the [victim was]
willfully transported in interstate or foreign commerce . . . .” 18 U.S.C. § 1201(a)(1)
(2006). The Ninth Circuit sets out the elements of the crime as follows: (1) the defendant
unlawfully restrained the victim; (2) the victim was held for ransom, reward or otherwise;
(3) the defendant willfully transported the victim across a state border; and (4) the border
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was crossed while the victim was still kidnapped. United States v. Bancalari, 110 F.3d
1425, 1428 (9th Cir. 1997). The government will be able to show that Grant’s conduct
satisfies the elements of the crime because Grant tricked Schweitzer into joining him on a
trip that included taking the objecting Schweitzer across state lines to a deserted museum
where Schweitzer was locked in the building without access to her cell phone for three
nights. Further, Grant held Schweitzer in order to prevent her from providing negative
testimony at an NIH grant hearing on a grant application submitted by Grant’s colleague,
Dr. Jack Horner. To the extent that the government must prove that Grant acted in order
to receive a benefit to himself, the government can prove that Grant had an expectation of
future benefit in the form of career assistance or continued friendship with Horner.
1. Unlawful Seizure and Restraint
The government can prove that Grant unlawfully seized and restrained
Schweitzer. The Federal Kidnapping Act requires the defendant to “unlawfully seize[],
confine[], inveigle[], decoy[], abduct[], or carr[y] away and hold[]” the victim. 18 U.S.C.
§ 1201(a) (2006). The “involuntariness of the seizure and detention . . . is the very
essence of the crime of kidnapping.” Chatwin v. United States, 326 U.S. 455, 464
(1946). The act of kidnapping requires “an unlawful physical or mental restraint against
a person’s will.” Id. at 460. Unlawful restraint may be found when the victim initially
consents to accompany the eventual captor, but then either withdraws consent or is held
by force. United States v. Wesson, 779 F.32 1443, 1444 (9th Cir. 1986); United States v.
Redmond, 803 F.2d 438, 439 (9th Cir. 1986).
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For example, in Chatwin, the Court found no unlawful restraint when a young
woman left the custody of juvenile authorities and traveled to Mexico, where she married
the defendant. 326 U.S. at 460. The Court reasoned that “[n]othing indicate[d] that she
was deprived of her liberty, compelled to remain where she did not wish to remain, or
compelled to go where she did not wish to go.” Id. However, in Wesson, the court held
that a young woman was unlawfully restrained when she initially consented to
accompany the defendant on a long haul trip, but withdrew her consent when he began to
physically abuse her during the trip. 779 F.2d at 1444. The court stated that “although
she initially agreed, [the young woman] testified that she later wanted to go home and
told the defendant of her desires.” Id. The court reasoned that “[n]either the victim nor
her parents consented to the kind of trip eventually undertaken.” Id. Likewise, the court
held in Redmond that the victim had been unlawfully restrained when she had been
tricked into taking a ride with the defendant through the promise of an ice cream cone,
and then confined by force by the defendant. 803 F.2d at 439. The court reasoned that
“[t]he fact that one originally accompanies another without being forced does not prevent
the occurrence of a kidnapping where force is later used to seize or confine the victim.”
Id.
In our case, Schweitzer was not free to come and go like the young girl in
Chatwin. To the contrary, she was deprived of her liberty, compelled to remain where
she did not wish to remain, and compelled to go where she did not wish to go. Grant
admits that he took Schweitzer to the museum despite her protests. He further admits
that, once they arrived at the museum and Schweitzer attempted to walk back to the main
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oad, he “took [Schweitzer’s] arm and made her start back to the cabin.” Moreover,
escape from the museum became impossible when “Grant flipped a switch to bolt down
the fire doors” and “took her cell phone.” Schweitzer tried to get someone’s attention at
the museum, but “realized that was futile when no staff members arrived for work” the
next day. Thus, Schweitzer was unlawfully restrained by Grant.
Although Schweitzer initially agreed to accompany Grant to dinner, this consent
is of no significance. Unlawful restraint began when Grant told Schweitzer that they
were going to the museum and Schweitzer responded by telling Grant that she “didn’t
want to go [there].” Like the young woman in Wesson who was unlawfully seized,
Schweitzer originally consented to accompany Grant for one purpose, dinner; she did not
consent “to the kind of trip eventually undertaken.” Furthermore, the fact that Schweitzer
was not initially seized by force does not prevent a finding of unlawful restraint. Like the
promise of ice cream in Redmond that lured the girl into the defendant’s car, Grant used
the promise of dinner to lure Schweitzer into Grant’s truck and his eventual control. The
fact that she was held by force thereafter is sufficient to prove unlawful restraint.
Because Schweitzer was held against her wishes after the dinner, the government can
prove that Grant unlawfully restrained her.
2. Held for Ransom, Reward or Otherwise
The government can prove that Grant held Schweitzer for ransom, reward or
otherwise. To prosecute a federal kidnapping charge successfully, the government must
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establish that the defendant held the victim “for ransom or reward or otherwise.” 18
U.S.C. § 1201(a)(1).
The terms “ransom” and “reward” are not limited in meaning to “benefits of
pecuniary value.” Gooch v. United States, 297 U.S. 124, 126 (1936). Rather, “reward”
implies something given in return for good or evil done or received.” Id. The word
“otherwise” broadens the reach of the Kidnapping Act by extending it to those defendants
who kidnap and hold victims not only for reward, but “for any other reason”. Id. at 127
(citing S. Rep. No. 534, 73rd Cong., 2d Sess., Mar. 20, 1934; H.R. Rep. No. 1457, 73rd
Cong., 2d Sess., May 3, 1934, pg. 2). Therefore, an expectation of benefit to the
transgressor that is not pecuniary and does not fall within the commonly understood
meaning of “reward,” falls within the broad term “otherwise.” Gooch, 297 U.S. at 129.
However, because “kidnapping is undesirable in itself, without regard to its
purpose,” the Court subsequently held that an illegal purpose need not be shown. Gawne
v. United States, 409 F.2d 1399, 1403 (9th Cir. 1969) (citing United States v. Healy, 376
U.S. 75 (1964)). The legislative wording of the statute “suggests no distinction based on
the ultimate purpose of a kidnapping.” Id. Instead, the focus is on the term “hold,” since
“involuntariness of seizure and detention . . . is the very essence of the crime of
kidnapping.” Id. at 1403 (citing Chatwin v. United States, 326 U.S. 455, 464 (1946)).
Consequently, “the true elements of the offense are an unlawful seizure and holding,
followed by interstate transportation,” rather than the defendant’s motive. Id.
Several circuits accept this theory that “the kidnaper’s [sic] motivation is not an
element of the offense.” Gawne, 409 F.2d at 1403 (internal citations omitted). Some
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courts reached this conclusion prior to the 1964 decision in Healey through their own
interpretation of Gooch; others, like the Ninth Circuit, arrived at this conclusion by way
of the Healy holding. Id. Regardless, at least one circuit still interprets Gooch as
requiring proof of purpose. Id. (citing United States v. Varner, 283 F.2d 900 (7th Cir.
1960)).
In Gooch, the Court held that the defendants secured a benefit to themselves when
they captured two law enforcement officers in order to avoid their own capture and arrest.
Gooch, 297 U.S. at 128. The Court reasoned that kidnapping for money and kidnapping
for freedom from arrest are “similar in their general nature,” and that if “the word
‘reward,’ as commonly understood, is not itself broad enough to include benefits
expected to follow the prevention of an arrest, they fall within the broad term
‘otherwise.’” Id.
In this case, because Grant will be prosecuted in the Ninth Circuit, his reason for
keeping Schweitzer from testifying against his friend Jack Horner’s proposal at the NSF
grant hearing is a non-issue to his successful prosecution. Therefore, no proof of that
reason will be required under the Healy-Gawne line of cases.
However, Grant will likely defend himself by invoking the Gooch rule requiring
proof of motive, asserting the position that he did not receive a direct benefit from taking
Schweitzer to the museum. This defense is not sustainable. Grant’s actions fell within
the broad language of the statute when he held Schweitzer at the museum to prevent her
from testifying at the NSF grant hearing, just as the defendants did in Gooch when they
held the law enforcement officers to keep themselves from being arrested.
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Grant may still argue that his actions do not fall within the purview of the statute
because, unlike the defendants in Gooch who held the officers “with the expectation of
benefit” to themselves, Grant did not hold Schweitzer with an expectation of benefit to
himself. Rather, he did so for the exclusive benefit to Dr. Horner, whose NSF grant
would be in jeopardy if Schweitzer appeared before the grant committee. This argument
fails for two reasons. First, Grant did receive a benefit from his actions, in that he
acknowledged his actions were conducted either as payment for Horner’s past assistance
or with an expectation of future benefit from Horner. Grant stated that Horner had asked
him “if [Grant] could do him a favor.” Acknowledging that Horner had “done a lot for
[Grant’s] career in the past,” Grant “wanted to do [Horner] a favor,” adding, “You know,
one hand washes the other.” Secondly, and more importantly, this argument fails because
the captor’s purpose or motivation for the kidnapping is irrelevant. Kidnapping a person
for “any reason” is sufficient. Thus, the government can prove that Grant “held
[Schweitzer] for ransom, reward or otherwise.”
3. Willful Transportation Across A State Border
The government will be able to prove that Grant willfully transported Schweitzer
across a state border. The Federal Kidnapping Act requires that the defendant “willfully
transport [the victim] in interstate or foreign commerce . . . .” 18 U.S.C. § 1201(a)(1)
(2006). Willful transportation exists when the defendant transports the victim from one
point to another and, in so doing, crosses a state line. United States v. Napier, 518 F.2d
316, 319 (9th Cir. 1975). Neither the defendant’s knowledge nor his intention of crossing
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state lines is relevant. Id. (citing Bibbins v. United States, 400 F.2d 544 (9th Cir. 1968)).
The requirement that the offender cross state lines merely furnishes a basis for the
exercise of federal jurisdiction and does not constitute an element of the offense. Id.
In Napier, the court held that the jurisdictional element had been satisfied when
the defendant transported his victim from Oregon to Washington. Id. The defendant
argued on appeal that the trial court’s jury instructions were erroneous because
knowledge of crossing state lines was an essential element of the kidnapping offense. Id.
The court rejected the argument and held that knowledge of a border crossing is not an
essential element of the kidnapping offense. Id.
Here, Grant admitted he took Schweitzer across the state line from Montana into
Idaho: “We traveled into Idaho before I could catch a direct road back into Montana and
up to the museum.” Like the defendant in Napier who willfully transported his victim
from Oregon to Washington, Grant willfully transported Schweitzer when he took her
from Montana into Idaho.
Although Grant did not intend to take the road into Idaho, he did so, and the mere
occurrence is what matters since this element merely provides the jurisdictional predicate
for federal jurisdiction. Thus, the government will be able to prove that Grant willfully
transported Schweitzer across state lines.
4. While so Kidnapped
The government can prove that Schweitzer’s kidnapping was still in progress at
the time Grant drove across the border. Under the Federal Kidnapping Act, the victim
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must be “willfully transported in interstate or foreign commerce . . . in furtherance of the
commission of the offense.” 18 U.S.C. § 1201. The act of kidnapping requires the
government to prove that the defendant “willfully transported the victim across a border
in interstate or foreign commerce while so kidnapped.” Bancalari, 110 F.3d at 1428.
Sufficient evidence exists to find a kidnapping was ongoing when the victim did not give
voluntarily consent by the time the border was crossed, and when she was held
involuntarily after the border was crossed. Id. at 1429.
In Bancalari, the court held that the unlawful kidnapping of the victim continued
at the time the border was crossed. There, the defendant forced the victim and her
daughter into his truck by gunpoint, drove to the Mexican border, and threatened to use a
gun on the victim if she did not keep quiet. Id. at 1428. The court rejected the
defendant’s argument that the victim consented to crossing the border with him because
she did not want to leave her child. Id. The court found no evidence that the victim had
consented to accompany the defendant across the border, and found strong evidence that
the kidnapping continued even after the border was crossed. Id. at 1429.
Similarly, the evidence in this case is void of evidence of any consent by
Schweitzer to accompany Grant after they had left the restaurant, and specifically, when
Grant drove them across the Montana-Idaho border. Grant stated, “[Schweitzer] said she
didn’t want to go the museum . . . . [But he] kept driving and she kept complaining.”
Also, like the facts in Bancalari, where the victim was held by force after the border was
crossed, the evidence is strong that Schweitzer continued to be held against her will after
she and Dr. Grant crossed into Idaho and then back into Montana. Once Grant stopped
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his truck at the museum, Schweitzer attempted to walk back to the main road, but
“[Grant] directed her back into the museum by holding her arm.” Moreover,
Schweitzer’s statement indicates that Grant locked the doors to the museum and
confiscated her cell phone.
Although it is unclear whether Schweitzer complained to Grant at the moment the
border was crossed, the absence of evidence implying she consented to the trip prior to
crossing the border, as well as the ample evidence suggesting she was held by force at the
museum, are sufficient to prove the kidnapping had not terminated at the time the border
was crossed. Consequently, the government will be able to prove Grant transported
Schweitzer across state lines while she was kidnapped.
Conclusion and Recommendations
The law is clear in its application to these facts. Based on the analysis above, the
government should be able to prove Dr. Grant kidnapped Dr. Schweitzer under the
Federal Kidnapping Act, 18 U.S.C. § 1201(a)(1) (2006).
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