GOVERNMENT OF the VIRGIN ISLANDS v. Warren P. BERRY. Appeal of Warren BERRY. Appeal of Guillermo BRIGNONI, 604 F.2d 221

OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge: In these consolidated cases, Warren Berry and Guillermo Brignoni appeal from judgments of conviction for (1) kidnapping for ransom, extortion, or robbery, V.I. Code Ann. tit. 14, § 1052 (1978), and (2) robbery in the third degree, id. § 1864. We affirm the robbery conviction and reverse the kidnapping convictions) I The facts of this case are unique. The evidence, viewed in the light most favorable to the government, is as follows.

On March 8, 1978, Luis Raul Morales, who had just quit his job, was walking home after having picked up his last paycheck. -Defendant-appellant Berry, whom Morales had known since childhood, drove by and offered Morales a ride. Hearing that Morales was no longer employed, Berry offered to give him $375 credit for a pound of marijuana. Morales was to sell the marijuana and repay Berry the next day. After Morales accepted the offer, Berry drove him to Berry’s house, where the marijuana was kept, gave the marijuana to him, and then dropped him off near town.

Morales rolled the marijuana into joints and sold about $400 worth. However, he promptly spent the entire amount on personal items and old debts. The next day, Berry and his co-defendant-appellant, Brignoni, began to look for Morales to get him to repay his debt, and eventually found him at the Black & White bar. Berry asked Morales for the money which he believed Morales owed him, and Morales told him that he did not have it. According to Morales: [Berry] told me to come with him and see if I could get the money.

I said “Well, okay.” Then, I asked him to take me over to my brother’s place and I would ask him for the money and pay him, you know, and then I would pay back my brother after that. He said “Okay.” On the way to Morales’ brother’s house, Morales saw a man known to him as “Fre-ston” coming out of a McDonald’s restaurant. The driver (the testimony is unclear as to whether it was Berry or Brignoni) stopped the car next to the McDonald’s and Morales got out. By this time, Freston had crossed the road on foot and was in his car. Morales, unaccompanied by either defendant, crossed the road and spoke to Freston.

Morales testified that “I asked him if he had any money that he could lend me because I needed it, I owed it to [defendants].” Freston loaned Morales $35 which Morales gave to Berry when he returned to the car. The trio then drove to a bar owned by Morales’ brother. They parked the car next to the bar and Morales emerged from the car alone. He saw a friend, Christian, standing outside the bar, called to him and asked him for a loan.

Christian had no money and Morales told him: “Okay, I will go into the bar and ask my brother for the money.” Next, according to Morales: I went into the bar and I explained to my brother I owe these men some money, if he could loan me some money and then when I get it back I will pay him back. He said all that he had that he could have given me then was a hundred dollars.

So, I took the hundred dollars and went back outside to give it to Warren Berry and told him I would pay him the rest of the money the next day, you know, or later that night, and he said “Okay.” Morales then got into the car and Brigno-ni told him that they would drop him off at the Black & White bar. However, as they drove toward the bar, they turned off in a different direction. Morales testified that he then told the defendants: [I]f [you] are going someplace else, drop me there and I get a ride into town.

They said that they were just going to see a friend in that area and they would give me a ride back when they come back out, so I stayed in the car with them. Instead of visiting a friend, the defendants stopped the car at a beach near the Salt River. According to Morales, Brignoni and Berry “came out of the car, so I walked out of the car, too, and we walked towards the beach.” Once at the beach, Berry told Morales to take all his clothes off and go for a swim. As Morales removed his clothes, Berry told Brignoni to “[g]o and get the gun.” Brignoni removed a shotgun from the car trunk and gave it to Berry.

The record does not reveal whether the gun was pointed at Morales. Morales walked into the water and went swimming. Berry then called for Morales to return, and he did so. Berry told him that he wanted the money by 10:00 a. m. the next day and that if Morales did not bring it to him, Morales would be killed. As Berry and Brignoni walked back to the car, Berry told Morales not to come with them, and that he would find his clothes in the middle of the road when he walked home. As Morales began his walk, he met a man who loaned him a raincoat to cover himself.

Subsequently, he flagged down an automobile and was driven home. Sometime later, Morales contacted the police; as he drove with two detectives to the Salt River beach, they discovered his clothes lying “in the middle of the street.” His wallet, which contained $50, was missing. A two count indictment was issued against both Berry and Brignoni. Count I alleged that the defendants seized, confined, carried away, and detained Morales “to extract money from him,” in violation of the aggravated kidnapping statute, V.I. Code Ann. tit. 14, § 1052 (1978).

Count II accused the defendants of unlawfully taking from Morales $50, his wallet, and articles of his clothing while displaying a dangerous weapon, in violation of the first degree robbery statute, id. § 1862(2). After a jury trial, both defendants were convicted of kidnapping, and of the lesser included offense of robbery in the third degree, id. § 1864. They were each sentenced to consecutive terms of life imprisonment on the kidnapping count and ten years on the robbery count.

On appeal, both defendants contend that there was insufficient evidence to support the verdict as to either kidnapping or robbery; that certain evidence used to corroborate Morales’ assertion that Berry had given him drugs to sell, and was attempting to collect a drug debt, was seized unconstitutionally; and that even if the evidence was seized legally, it was inadmissible under rule 404(

b) of the Federal Rules of Evidence. In addition, Brignoni argues that the district court erred in denying his motion for a severance. We have reviewed these claims and find all of them meritless, with the exception of the one regarding the sufficiency of the evidence to support the kidnapping convictions. II Virgin Islands Code tit. 14, § 1052 (1978) provides: § 1052.

Kidnapping for ransom, extortion or robbery Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains, such individual for ransom, reward or to commit extortion or to exact from any person or entity any money or valuable thing, or any person who kidnaps or carries away any individual to commit robbery, or any person who aids or abets any such act, is guilty of kidnapping for ransom and shall be imprisoned for life. On its face,

section 1052 appears to apply not only to traditional kidnappings, but also to any situation in which a person, against his will, is transported, no matter what the distance, or restrained, no matter for how long, during the commission of a robbery, an extortion, or an attempt to exact money. Thus, our first task is to determine whether defendants at any time either transported or restrained Morales against his will.

Until the defendants told Morales that they were going to visit a friend, but instead drove towards Salt River, the evidence could not reasonably be interpreted to suggest that they had committed a kidnapping. The principal witness for the prosecution was the “victim,” Morales. Nowhere in his testimony, however, is there the slightest inference that either Brignoni or Berry had engaged in any of the acts which

section 1052 prohibits. Instead, Morales’ testimony is directly to the contrary. First, he does not allege that the defendants used or threatened to use any force to compel him to go with them. Second, he states that at both places where he asked the driver to stop so that he could borrow money — the McDonald’s and his brother’s bar — he left the car unaccompanied by either defendant.

Third, when the defendants began to drive toward Salt River, Morales told them: “If [you] are going someplace else, drop me there and I get a ride into town.” ‘ This request is not one that is likely to be made by a person who believes that he is being “kidnapped.” Finally, Morales testified that he spoke to three people after he and the defendants left the Black & White bar: “Freston”, Christian, and Morales’ brother.

Yet, despite the fact that the defendants were sitting inside the car when Morales spoke to each of these men, and despite the fact that Morales was out of defendants’ earshot, at least while speaking to “Freston” and his brother, Morales did not tell any of them that he was being kidnapped.

We find it inconceivable that a kidnap victim, blessed with the opportunity to be alone with uninvolved third parties, including his own brother, would not immediately inform them of the fact of his “kidnapping.” III Under the literal meaning of the statutory language, however, the defendants did “inviegle,” “entice,” and “decoy” Morales to remain with them when they told him that they were going to visit a friend, but instead drove to the beach. Moreover, while on the beach, Morales was in some sense “confinefd].” We do not believe, though, that our inquiry ends at this point.

Instead, bearing in mind that the aggravated kidnapping statute carries a mandatory sentence of life imprisonment, we must determine whether the Virgin Islands legislature intended that every act which comes within the literal language of the statute be deemed to constitute kidnapping. If we find that this was not the legislature’s intent, we must then decide whether Brigno-ni’s and Berry’s acts were of sufficient gravity to warrant being treated as kidnapping, rather than as a lesser or different crime. IV We begin by invoking a settled principle of statutory

interpretation — first announced more than a century ago in United States v. Kirby, 74 U.S. (7 Wall.) 482, 486-87, 19 L.Ed. 278 (1868) — which we believe is particularly applicable with regard to statutes making kidnapping a crime: All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.

The traditional rule in American jurisprudence was that any asportation — i. e., carrying away — of the victim, no matter how short in distance or duration, was sufficient to establish the crime of kidnapping. See Note, A Rationale of the Law of Kidnapping, 53 Col.L.Rev. 540, 541 (1953). This rule, which is still in force in some jurisdictions in the United States, was most succinctly stated in People v.

Chessman, 38 Cal.2d 166, 192, 238 P.2d 1001, 1017 (1952), where the California Supreme Court held: “It is the fact, not the distance, of forcible removal which constitutes kidnapping in this state.” We are convinced, however, that the emerging body of law, and the all-but-unanimous view of the commentators, constitutes a rejection of Chessman, and an adoption of a rule consistent with the dictates of Kirby.

The principal danger of overzealous enforcement of kidnapping statutes is that persons who have committed such substantive crimes as robbery or assault — which inherently involve the temporary detention or seizure of the victim — will suffer the far greater penalties prescribed by the kidnapping statutes. The problem caused by overly literal

interpretation of the kidnapping laws was first raised in Chatwin v. United States, 326 U.S. 455, 66 S.Ct. 233, 90 L.Ed. 198 (1946). There, the Supreme Court noted that the purpose of the Federal Kidnapping Act, which contains language nearly identical to that in the Virgin Islands statute, was to combat an epidemic of “true kidnapping," id. at 464, 66 S.Ct. 233, in which “criminal bands”, with “[rjansom [as] the usual motive,” selected victims “from among the wealthy with great care and study,” after “fully and meticulously work[ing] out in advance” the details of the seizure. Id. at 462-63, 66 S.Ct. at 237.

The Court recognized the apparently long reach of the Act, but concluded that “the broadness of the statutory language does not permit us to tear the words out of their context . . . . Were we to sanction a careless concept of the crime of kidnapping or were we to disregard the background and setting of the Act the boundaries of potential liability would be lost in infinity.’’ Id. at 464, 66 S.Ct. at 237 (emphasis added).

The inequity inherent in permitting kidnapping prosecutions of those who in reality committed lesser or different offenses, of which temporary seizure or detention played an incidental part, figured prominently in the decisions of numerous state courts to limit severely the scope of their state kidnapping statutes. In People v.

Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225 (1969), the California Supreme Court cited with approval the Comments to § 212.1 of the 'Model Penal Code, which provide: t is desirable to restrict the scope of kidnapping, as an alternative or cumulative treatment of behavior whose chief significance is robbery or rape, because the broad scope of this overlapping offense has given rise to serious injustice . . Examples of abusive prosecution for kidnapping are common.

Among the worst is the use of this means to secure a death sentence or life imprisonment for behavior that amounts in substance to robbery or rape, in a jurisdiction where these offenses are not subject to such penalties . 71 Cal.2d at 1138, 80 Cal.Rptr. at 909, 459 P.2d at 237 (emphasis added). Similarly, in People v.

Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (1965), the New York court noted that the word “confines” in the state kidnapping statute “could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.” Id. at 164, 256 N.Y.S.2d at 796, 204 N.E.2d at 844.

The court concluded, however, that “[i]t is unlikely that these restraints, sometimes accompanied by asportation, which are incidents to other crimes and have long been treated as integral parts of other crimes, were intended by the Legislature in framing its broad definition of kidnapping, even though kidnapping might sometimes ■ be spelled out literally from the statutory words.” Id. In sum, the modern approach is to construe the kidnapping statutes so as “to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal.” People v.

Miles, 23 N.Y.2d 527, 297 N.Y.S.2d 913, 245 N.E.2d 688 (1969). If, then, not every asportation or detention rises to the level of a kidnapping, by what test do we determine whether a kidnapping.has taken place? In California, it has been held that kidnapping does not occur when asportation is merely “incidental to” the commission of other substantive crimes. Daniels, 71 Cal.2d at 1139, 80 Cal. Rptr. at 910, 459 P.2d at 238; see People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973); Cuevas v. State, 338 So.2d 1236 (Miss.1976).

New York cases have adopted a “merger” doctrine, which bars conviction for kidnapping when the “ultimate” crime, such as robbery or rape, “could not be committed in the form planned without the limited asportations” inherent in the crime. Miles, 23 N.Y.2d at 539, 297 N.Y.S.2d at 922, 245 N.E.2d at 694. The Model Penal Code treats the duration of the detention, and the distance of the asportation as significant, concluding that kidnapping exists only if the victim is isolated “for a substantial period,” or is carried away a “substantial distance.” Model Penal Code § 212.1; see People v.

Caudillo, 21 Cal.3d 562, 146 Cal. Rptr. 859, 580 P.2d 274 (1978); Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978). Finally, it has been held that kidnapping indictments should be dismissed unless the asportation or detention which occurs during the course of the commission of another crime “significantly increases the dangerousness or undesirability of the defendant’s behavior.” See People v. Timmons, 4 Cal.3d 411, 415, 93 Cal.Rptr. 736, 739, 482 P.2d 648, 651 (1971); Wright, 94 Nev. at 415, 581 P.2d at 443; Note, 53 Col.L.Rev. at 556; Comment, 110 U.Pa.L.Rev. 293, 296 (1961).

We believe that despite the variance in terminology, four factors are central to each of these approaches. Those factors are: (1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent ■ in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.

We hold that in the absence of any legislative history to the contrary, whether a defendant has engaged in kidnapping as defined by

section 1052 of the Virgin Islands Code must be determined in light of these four considerations. Applying these considerations to the facts of this case, Berry and Brignoni cannot be said to have kidnapped Luis Morales. V While at the Salt River beach, defendants robbed Morales (an offense for which they were convicted), may have assaulted him, and may have attempted to commit extortion. To the extent that Morales was confined while on the Salt River beach, that confinement occurred during the commission of those other offenses.

Moreover, the degree of confinement to which Morales was subjected was no greater than that which is inherent in the commission of those crimes. To be convicted of robbery, a defendant must take the property of another “from his person or immediate presence and against his will, by means of force or fear.” V.I.Code Ann. tit. 14, § 1861 (1964). Similarly, the crime of assault requires that a person make “a threatening gesture showing in itself an immediate intention coupled with an ability to commit a battery.” Id. § 291.

Necessarily implicit in both of these violent crimes is some limited confinement or asportation. During a robbery, it is common for the victim to be confined while the robber takes his money, or to be moved a short distance so as to be secluded from public view. In like manner, it is virtually inevitable that during an assault, the victim will be confined for a brief period or moved for a short distance.

We do not believe that Morales’ confinement while on the beach was any different than that which is incident to the crimes of robbery and assault; as a result, under the test described earlier, that confinement will not support a conviction for kidnapping. There remain only two other situations in which Morales was transported or required to move against his free will. The first took place when Morales was forced to take a swim in the ocean. The second occurred during the car ride when he was “inveigle[d]” or “decoyfed]” into accompanying defendants to the Salt River beach.

Regarding the forced swim, the defendants plainly did not commit any acts prohibited by

section 1052. It is beyond dispute that with respect to a statute containing a mandatory life imprisonment term, the statutory language must be narrowly construed. Thus, the defendants did not “seize” Morales, because they did not clutch him, grasp him, or take him prisoner. Webster’s Third New International Dictionary 2057 (1961 ed.). Nor did they “confine” him, which is to say, hold him within bounds, or keep him in narrow cramped quarters. Id. at 476. They did not “abduct” him or “carry him away,” because they did not accompany him into the water.

Finally, they certainly did not “inveigle” him, “entice” him, “decoy” him, or “conceal” him. As to the ride to the Salt River beach, it is abundantly clear that this act of inveiglement, standing alone, is insufficient to support the conviction. First, the duration of the ride was apparently quite brief. Although the record does not disclose the length of the drive, the government concedes that it was not of “particularly long duration.” Brief for Ap-pellee at 22. This is in sharp contrast to the traditional kidnapping case, in which the victim is held for a substantial period.

Second, there is no indication in the record that the brief ride created any appreciable risk of injury to Morales. In sum, while the acts of defendants were hardly admirable, we do not believe that it was the intent of the Virgin Islands legislature to deem these acts kidnapping. We therefore cannot sustain the kidnapping conviction. CONCLUSION The judgment of conviction for robbery in the third degree will be affirmed. The judgments of conviction for kidnapping will be reversed. .

Morales was actually in an apartment near the bar, but went to the bar when a barmaid informed him that appellants were looking for him. . “Freston’s” real name, and the name under which he testified at trial, is Winston Isaac. . Conviction for robbery in the third degree does not require that the defendants displayed, used, or threatened to use a dangerous weapon in the commission of the offense. See V.I. Code Ann. tit. 14, § 1864 (1978). .

Section 1052 of the Code, under which defendants were convicted, provides a mandatory sentence of life imprisonment. See id. § 1052. . The government relies on “Freston’s” statement, made in response to a question during cross examination, that when Morales approached him, he appeared “scared,” and “told me that those guys were going to kill him.” We do not believe that this statement standing alone, was sufficient to enable the jury to believe beyond a reasonable doubt that defendants had committed any of the acts prohibited by

section 1052. We note first that “Freston’s” statement is directly inconsistent not only with Morales’ recollection of his conversation with “Freston”, but also with Morales’ version of the entire series of events leading up to the drive to the Salt River. Moreover, even if the jury disregarded Morales’ testimony and found, based on “Freston’s” recollection of his conversation with Morales, that Morales believed that he was being kidnapped, we still could not hold that a kidnapping actually took place.

It is an elemental principle under the Virgin Islands statute and all others of which we are aware that a kidnapping does not occur merely because the supposed victim thinks that he is being kidnapped. Instead, the “kidnappers” must intentionally commit acts which legitimately lead the victim to believe that he is being seized. Here, the evidence viewed in the government’s favor plainly reveals that, at least until the defendants turned towards Salt River, they committed no such acts.

The record is barren of any suggestion that the defendants either used or threatened to use force or trickery to compel Morales to accompany them. . “Inveigle” is defined as to delude, mislead, hoodwink, or beguile. Webster’s Third New International Dictionary, at 1188 (1961 ed.). “Entice” is defined as to allure, attract, or tempt. Id. at 757. “Decoy” is defined as to allure, entice, or entrap. Id. at 588. . See, e. g., Levshakoff v. State, 565 P.2d 504 (Alaska 1977); State v. Padilla, 106 Ariz. 230, 474 P.2d 821 (1970); Johnson v. State, 262 Ind. 516, 319 N.E.2d 126 (1975).

See generally 43 A.L.R.3d 399 (1972 & Supp.1978). . The Chessman rule was subsequently rejected in California. See People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225 (1969). . See, e. g., People v. Caudillo, 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274 (1978); Cuevas v. State, 338 So.2d 1236 (Miss.1976); State v. Johnson, 549 S.W.2d 627 (Mo.Ct.App.1977); Wright v. State, 94 Neb. 415, 581 P.2d 442 (1978); People v. Miles, 23 N.Y.2d 527, 297 N.Y.S.2d 913, 245 N.E.2d 688 (1969). See generally Calloway v. Commonwealth, 550 S.W.2d 501 (Ky.1977). See also State v.

Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). . 18 U.S.C. § 408a, as amended 18 U.S.C. § 1201 (1976). That statute punishes anyone who knowingly transports or aids in transporting in interstate commerce “any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward or otherwise.” . See note 5 supra. . Model Penal Code § 212.1, Comments (Tent. Draft No. 11, 1960). . We also hold that the four factor test governs the construction of the lesser included offense of false imprisonment.

Virgin Islands Code tit. 14, § 1051 (1978), provides: § 1051.

False imprisonment and kidnapping Whoever without lawful authority confines or imprisons another person within this Territory against his will, or confines or inveigles or kidnaps another person, with intent to cause °him to be confined or imprisoned in this Territory against his will, or to cause him to be sent out of this Territory against his will; and whoever willfully and knowingly sells, or in any manner transfers, for any term, the services or labor of any other person who has been unlawfully seized, taken, inveigled or kidnapped from this Territory to any other state, territory or country, is guilty of kidnapping and shall be imprisoned for not less than one and not more than 20 years.

This action shall not apply in any case when a parent abducts his own child. That statute uses language virtually identical in breadth to that employed by the kidnapping statute. Thus, the risk of overzealous application of this statute by prosecutors intending to saddle the defendant with multiple penalties or penalties of substantially greater magnitude than those which attach to other substantive crimes, is equally as great as that which exists with regard to § 1052. . Virgin Islands Code tit. 14, § 291, quoted in the text, requires that the accused make a “threatening gesture” at a defendant. .

A jury might find that Berry’s instruction to Brignoni to “[g]o and get the gun,” and Brignoni’s compliance with that instruction constituted a threatening gesture, even if the jury found that the gun was never pointed at Morales. . The Virgin Islands extortion statute, Virgin Islands Code tit. 14, § 701 (1964) defines extortion as “the obtaining of property from another person, with his consent, induced by a wrongful use of force or fear,” and provides for a punishment of not more than five years. Appellants did not apparently commit

an act of extortion, because there is no evidence that they succeeded in getting any money from Morales, with his consent, after their use of “force or fear” at the beach. They could, however, have been prosecuted for attempted extortion under id. § 331. . Battery is defined as the use of “any unlawful violence upon the person of another with intent to injure him.” Id. § 292. .

The phrases “abduct” and “carry away” appear to be synonymous. “Abduct” is defined as “to carry off (a person) by force” or “to lead away [a child or an underage woman] wrongfully.” Webster’s Third New International Dictionary, at 3. (1961 ed.). . As previously noted in note 7 supra, “inveigle” is defined as to delude, mislead, hoodwink, beguile. Id. at 1188. “Entice” is defined as to allure, attract, or tempt. Id. at 757. “Decoy” is defined as to allure, entice, or entrap. Id. at 588.

Each of these phrases carried “the connotation of persuasion by ruse; it is evident that in directing Morales to go for a swim, appellants did not employ a ruse to get him into the water. Finally, “conceal” is defined as “to prevent disclosure or recognition of,” i. e., to “hide.” Id. at 469. There is nothing in the record to indicate that appellants’ purpose in telling Morales to enter the water was to hide him.