UNITED STATES of America, Plaintiff-Appellee, v. Robert Paul KAPLANSKY, Defendant-Appellant, 42 F.3d 320

SUHRHEINRICH, Circuit Judge. The Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”), provides that a felon in possession of a firearm who has been previously convicted of three or more “violent felonies” is subject to an enhanced sentence. “Violent felony” is defined in § 924(e)(2)(

B) as any crime punishable by imprisonment for a term exceeding one year that “has as an element the use, attempted use, or threatened use of physical force,” or “involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)®, (ii). The principal issue before the en banc court is whether attempted kidnapping under Ohio Rev.Code Ann. § 2905.01, which provides that the crime of kidnapping may occur by “force, threat, or deception,” see Ohio Rev.Code Ann. § 2905.01 (Anderson 1993), satisfies either prong of the statute and is therefore a predicate crime under the ACCA. I.

Defendant Robert Paul Kaplansky entered a conditional plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court, citing defendant’s three prior convictions for rape, gross sexual imposition, and attempted kidnapping, imposed the mandatory fifteen years imprisonment without parole under the penalty enhancement provisions of 18 U.S.C. § 924(e).

Defendant conceded at sentencing that his prior conviction for rape qualified as a “violent felony,” but argued that his prior conviction for gross sexual imposition was not, because the language of the statute is such that the crime can be committed without the use of force. He made a similar argument regarding the attempted kidnapping conviction because of the Ohio statute’s inclusion of deception as one of the means by which the crime of kidnapping may be committed.

The district court held that although neither conviction qualified as a “violent felony” under a “categorical approach,” the actual conduct underlying each conviction demonstrated that each prior crime did in fact involve force and otherwise presented a serious risk of injury to the victim. In reaching the latter conclusion, the court relied on the underlying facts set forth in the presentence report as well as the testimony of the victims, which was given at the sentencing hearing.

Defendant exercised his reserved right to appeal any adverse sentencing determinations and the district court’s denial of his motion to suppress. The original three-member panel vacated defendant’s sentence, holding that the lower court erred in examining the actual conduct underlying Kaplansky’s convictions, but otherwise agreed with the district court’s conclusion that the statutory possibility of kidnapping by deception for the purpose of committing a nonviolent felony precluded defendant’s conviction from being classified categorically as a “violent felony” under either clause of § 924(e)(2)(B).

It therefore did not address defendant’s argument regarding his gross sexual imposition conviction. United States v. Kaplansky, No. 94-3744, 1993 WL 366362 (6th Cir. Sept. 22, 1993) (vacated). The dissent felt that all kidnappings by deception, even ones for the purpose of committing a nonviolent felony or obstructing a function of government, invariably present a “potential” for physical injury. A majority of the court voted for rehearing en banc, thereby vacating the previous opinion and judgment of the original panel. United States v. Kaplansky, 5 F.3d 177 (6th Cir.1993). II. As noted above, § 924(

e) mandates that a person who violates 18 U.S.C. § 922(g), and who has three previous convictions for “violent felonies,” shall be subject to an enhanced sentence. The statute defines “violent felony” as any crime punishable by imprisonment for a term exceeding one year ... that— (

i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.... 18 U.S.C.A. § 924(e)(2)(B)(West 1994). The statute targets so-called “career offenders,” those who by their very nature “present at least a potential threat of harm to persons.” Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 2152, 109 L.Ed.2d 607 (1990).

The Supreme Court has stated that in deciding whether a crime is a “violent felony” under either subparagraph of § 924(e)(2)(B), sentencing courts should look to the statutory definition of the crime charged, rather than the actual facts of the individual’s prior conviction. Taylor, 495 U.S. at 600-02, 110 S.Ct. at 2159-60. See also United States v. Lane, 909 F.2d 895, 901 (6th Cir.1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 977, 112 L.Ed.2d 1062 (1991).

This “categorical approach,” which is consistent with the statutory language as well as the legislative history, is designed to avoid “the practical difficulties and potential unfairness of a factual approach” to each prior conviction. Taylor, 495 U.S. at 601, 110 S.Ct. at 2159; Lane, 909 F.2d at 901. The Supreme Court also recognized an exception to the categorical approach in “a narrow range of eases where a jury was actually required to find all the elements” of the violent felony. Taylor, 495 U.S. at 602, 110 S.Ct. at 2160.

In such situations, the sentencing court may look to “the charging paper and jury instructions.” Id. When the defendant’s conviction is by way of guilty plea, it is appropriate under Taylor to look to the indictment and guilty plea. United States v. Barney, 955 F.2d 635 (10th Cir.1992); United States v. Sweeten, 933 F.2d 765 (9th Cir.1991)(per curiam); United States v. Garza, 921 F.2d 59, 61 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 91, 116 L.Ed.2d 63 (1991); United States v. Cornelius, 931 F.2d 490, 494 (8th Cir.1991); United States v. Payton, 918 F.2d 54 (8th Cir.1990); United States v.

Gallman, 907 F.2d 639, 645 n. 7 (7th Cir.1990), cert. denied, 499 U.S. 908, 111 S.Ct. 1110, 113 L.Ed.2d 219 (1991). See United States v. Bentley, 29 F.3d 1073, 1077-78 (6th Cir.) (court examined language of indictment to ascertain whether defendant pled guilty to elements of generic burglary where state statute proscribed broader range of conduct), cert. denied, — U.S. -, 115 S.Ct. 604, 130 L.Ed.2d 515 (1994). III. The government concedes that the district court erred in looking at the actual facts of the prior felony convictions.

Despite the district court’s belief, the Taylor exception stops short of embracing the actual conduct underlying a prior conviction. Taylor, 495 U.S. at 601, 110 S.Ct. at 2159 (legislative history of § 924(

e) reflects that Congress did not intend for sentencing courts to “engage in an elaborate factfinding process regarding the defendant’s prior offenses”); Payton, 918 F.2d at 56 (district court erred under Taylor in looking beyond state statute, charging paper and jury instructions to police report to determine nature of conduct leading to conviction). Rather, the government maintains that because kidnapping is a crime directed at the individual personally, it categorically presents a serious potential risk of physical injury.

The government also argues that a sentencing court could properly conclude from the indictment, plea and judgment that defendant physically harmed Colleen Lally. We consider the application of categorical approach to Ohio Rev.Code Ann. § 2905.01 first. A. The government does not argue that § 2905.01 has as a necessary element the use, attempted use or threatened use of force. We therefore examine the statute exclusively for language that requires conduct that presents a serious risk of physical injury to another. The statute provides in relevant part: (

A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes:

(1) To hold for ransom, or as a shield or hostage;

(2) To facilitate the commission of any felony or flight thereafter;

(3) To terrorize, or to inflict serious physical harm on the victim or another;

(4) To engage in sexual activity, as defined in

section 2907.01 of the Revised Code, with the victim against his will;

(5) To hinder, impede, or obstruct a function of government, or to force any action or concession on the part of governmental authority. Ohio Rev.Code Ann. § 2905.01 (emphasis added). Defendant argues, and both the district court and the original panel agreed, that because an attempted kidnapping by deception for statutory purpose (2) or (5) does not necessarily present “a serious potential risk of physical injury to another,” Kaplansky’s conviction for attempted kidnapping could not be classified as a violent felony under § 924(e)(2)(B)(ii) under the categorical approach.

We think this view overlooks the word “potential” in the “otherwise” provision of clause (ii), and also misunderstands the nature of the categorical approach. As the Tenth Circuit recently observed: It is worth emphasizing that § 924(e)(2)(B)(ii) only requires that there be a serious “potential” risk of injury; it does not require proof that any actual injury occurred, nor should it under a categorical approach.

We agree with the position of the United States that it is plausible, and indeed even likely, that a nonconsen-sual, unlawful kidnapping under the Missouri statute could potentially result in physical injury to an involved party. United States v. Phelps, 17 F.3d 1334, 1342 (10th Cir.) (conviction under Missouri kidnapping statute would be used as predicate offense, even though physical force is not element of crime, because it is plausible that physical injury could potentially result), cert. denied, — U.S. -, 115 S.Ct. 135, 130 L.Ed.2d 77 (1994).

The Phelps court found persuasive dicta from a Ninth Circuit decision, United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir.1988). In Sherbondy, the court, anticipating the categorical approach later adopted by the Supreme Court, see Taylor, 495 U.S. at 600, 110 S.Ct. at 2159 (citing Sherbondy with approval), observed that clause (ii) supplements the scope of the term “violent felony” through its final “otherwise” provision, by reaching other statutory and common law offenses not covered by clause (

i) that generieally involve a similarly serious risk. To illustrate, the court noted that one of the ways the Model Penal Code defines kidnapping is “unlawfully re-mov[ing] another from his place of residence or business, or a substantial distance from where he is found ...” Model Penal Code,

Section 212.1. Violence is not an element of kidnapping defined this way, for removal of a person through trickery or deceit can be as unlawful as abduction at gunpoint. Thus, subsection (

i) would not apply to a conviction under the kidnapping statute. Nevertheless, kidnapping entails a “serious potential risk of physical injury” to the victim, making the offense a “violent felony” under subsection (ii). Sherbondy, 865 F.2d at 1009. See also United States v.

Lonczak, 993 F.2d 180 (9th Cir.1993)(ehild stealing under California law qualified as a “crime of violence” for purposes of determining career offender status under sentencing guideline § 4B1.2(l)(ii) (an analogous provision to § 924(e)(2)(B)), though the crime can be achieved by fraud or abduction without force, because it “offers the same serious potential risk of physical injury to the stolen child as kidnapping does to a kidnapped person”; adopting Sherbondy dicta); United States v.

Patino, 962 F.2d 263 (2d Cir.)(conspiraey to kidnap qualifies as “crime of violence” under § 924(c), because kidnapping is unquestionably a crime of violence; and when a conspiracy exists to commit a crime of violence, the conspiracy itself poses a “substantial risk” of violence), cert. denied, — U.S. -, 113 S.Ct. 354, 121 L.Ed.2d 268 (1992).

As the foregoing cases recognize, the essence of kidnapping is requiring another to do something against his or her will; and because physical force or restraint is usually the best way to overbear the will of another, physical force or threat of force is a latent, but more often actual, companion of the coercive element. That deception may be used to effect the kidnapping does not erase the ever-present possibility that the victim may figure out what’s really going on and decide to resist, in turn requiring the perpetrator to resort to actual physical restraint if he is to carry out the criminal plan.

Thus, the potential for violence against the victim is an inherent aspect of the crime of kidnapping, a fact which the Ohio legislature recognized. See Commission Committee Comment to H 511, Ohio Rev.Code Ann. § 2905.01 (kidnapping is “the most serious offense among the abduction offenses in the [Ohio] code”) and Committee Comment to Ohio Rev.Code Ann. § 2905.02 (lesser included offenses, such as abduction and unlawful restraint, are “distinguished mainly by the lesser degree of potential harm- to the victim”). It is for this reason that the dissent’s argument is unpersuasive.

Just because actual force or injury may not surface in a particular instance of kidnapping (i.e., in those instances initiated by deception) does not mean that it is not an undercurrent of the offense having the serious potential of rising to the surface.

This reasoning is consistent with the focus of the categorical approach, where we look to the nature of the offense rather than individualized facts to determine whether it qualifies as a “violent felony.” Because we think kidnapping is the “type” of offense where the risk of physical injury to the victim is invariably present, we conclude that a crime committed under Ohio Rev.Code Ann. § 2905.01, whether by force, threat of force, or deception, categorically qualifies as a “violent felony” under § 924(e) (2) (B) (ii).

Furthermore, merely because defendant did not complete the kidnapping does not diminish the potential risk of injury to the victim. Lane, 909 F.2d at 903 (attempted burglary under Ohio law constituted violent felony; fact that defendant didn’t complete offense did not diminish serious potential risk of injury arising from the attempt); United States v. Fish, 928 F.2d 185,188 (6th Cir.)(attempted breaking and entering under Michigan law qualified as violent felony under “otherwise” clause; relying on Lane), cert. denied, — U.S. -, 112 S.Ct. 115, 116 L.Ed.2d 84 (1991).

We therefore hold that defendant’s attempted kidnapping conviction was properly used to enhance his sentence. B. The government’s alternative position is that defendant’s particular conviction for attempted kidnapping qualifies as a predicate crime under the exception in Taylor for cases where the jury necessarily found all the elements of a violent felony. The indictment underlying the conviction in our ease alleges that on or about September 27, 1979, defendant committed

an act in violation of Ohio Rev.Code Ann. §§ 2905.01 and 2923.02 when he did attempt by force, threat or deception removed [sic] Colleen Lally from the place where she was found or restrained her of her liberty for the purpose of facilitating the commission of a felony or the flight thereafter and/or terrorizing, or inflicting serious physical harm on Colleen Lally, and/or engaging in sexual activity with Colleen Lally against her -will and failed to release the victim in a safe place unharmed.

In support of its argument that defendant’s attempted kidnapping constituted a “violent felony,” the government focuses on the fact that the indictment here alleged not only that defendant attempted a kidnapping but also that he “failed to release the victim in a safe •place unharmed.” The government maintains that defendant’s plea of guilty includes admitting this element and, at a minimum, establishes that the crime involved a risk of injury to the victim.

Defendant counters that causing harm to the victim is not an element of the crime of kidnapping under Ohio law, and this allegation is mere surplusage which Kaplansky did not admit when he pled guilty. See Bridges v. United States, 346 U.S. 209, 222-23, 73 S.Ct. 1055, 1063, 97 L.Ed. 1557 (1953)(inser-tion of surplus words in indictment does not change nature of the offense); United States v. Levinson, 405 F.2d 971, 978 (6th Cir.1968)(same), cert. denied, 395 U.S. 906, 89 S.Ct. 1746, 23 L.Ed.2d 219 (1969).

Granted, under Ohio law the issue of whether defendant “releases the victim in a safe place unharmed” is a matter of affirmative defense and not an element of the crime. State v. Leslie, 14 Ohio App.3d 343, 471 N.E.2d 503, 506 (1984). Defendant’s contention is unavailing nonetheless for two reasons. First, by pleading guilty to the state law offense, Kaplansky has admitted to all the well-pleaded facts in the indictment. Department of Liquor Control v. Santucci, 17 Ohio St.2d 69, 246 N.E.2d 549, 551 (1969); Click v. Eckle, 174 Ohio St. 88, 186 N.E.2d 731, 733-34 (1962); Rodriguez v.

Sacks, 173 Ohio St. 456, 184 N.E.2d 93, 94 (1962). Second, the cited language cannot be considered surplusage, because it is material to the crime charged. Under Ohio law, “[a]n attempt to commit an aggravated felony of the first or second degree is an aggravated felony of the next lesser aggravated degree than the aggravated felony attempted.” Ohio Rev.Code Ann. § 2923.02(E). In other words, the fact that defendant was convicted of a second degree attempt means that he attempted to commit first-degree kidnapping. See § 2905.01(C)(“Whoever violates this

section is guilty of kidnapping, an aggravated felony of the first degree. If the offender releases the victim in a safe place unharmed, kidnapping is an aggravated felony of the second degree.”). Had this fact not been material, Kaplansky would have been charged with another crime. For example, if defendant had released the victim in a safe place unharmed, a second degree kidnapping offense, he would have been charged with third degree attempted kidnapping.

By pleading guilty to this indictment, defendant has also necessarily admitted that he attempted to use some degree of actual physical force in restraining Colleen Lally. Thus, in our view, Kaplansky’s conviction satisfies both clauses of § 924(e)(2)(

B) under the Taylor exception. IY. Because of its determination that the attempted kidnapping conviction was not a predicate crime under the ACCA, the original panel had no reason to consider defendant’s challenge to the district court’s ruling that the gross sexual imposition conviction was also a “violent felony.” The district court based its conclusion on the text of the indictment and the testimony of the victim.

Although, as already stated, consideration of the victim’s testimony was improper, we agree with the district court that the offense may be considered a violent felony under the Taylor exception because the indictment to which defendant pled guilty unequivocally states that defendant “unlawfully and purposely had sexual contact with Vivian Smith not his spouse by compelling such person to submit by force or threat of force.” (Emphasis added.) Thus, defendant’s prior conviction for gross sexual imposition under Ohio Rev.Code Ann. § 2907.05 is a “violent felony” under clause (

i) of § 924(e)(2)(B), and qualifies as the third prior conviction for a “violent felony” under the federal statute. V. Finally, we note that defendant’s challenge to the district court’s denial of his motion to suppress, which was not the focus of the en banc court, remains unresolved. Finding no reason to revisit that question, however, we hereby adopt that portion of the original panel’s decision as set out in the unpublished appendix to this opinion. VI. For the reasons stated herein, the judgment of the district court is AFFIRMED.

The judgment of conviction is AFFIRMED; and the sentence is AFFIRMED, but for reasons other than those provided by the district court. APPENDIX PER CURIAM. In this appendix, we hereby address the remaining issue raised by this appeal. Because Kaplansky’s contention that the district court erred in holding that the police had reasonable suspicion to justify a “Terry stop” was thoroughly covered in the original panel decision by Judge Merritt, we hereby adopt it in its entirety here. “I.

At around 9 o’clock on the evening of January 11, 1992, Debra Richards called the Cuyahoga Falls police department to report the presence of a suspicious van in her apartment parking lot. Richards told the police dispatcher that a man had been in the van watching ‘the entire time,’ and that the man in the van ‘keeps coming around.’ She called back one minute later to report that the van had followed her fourteen year old daughter ‘a couple of times’ and that that night it had followed her daughter to a friend’s house.

The police dispatcher radioed all patrol cars in the area that there was ‘a suspicious male in a blue van, described as a white male with a pony tail and a beard’ in the apartment parking lot. Officers Guld-man and Curtis, driving separate patrol cars, responded to the broadcast. They arrived at about the same time, approaching from different entrances. As Officer Guldman pulled into the parking lot he noticed a blue van backing out of a parking space. Officer Guldman turned on his lights and pulled his patrol car in front of the van.

Officer Curtis approached the van from the other side, and parked behind the van. As Officer Guldman was radioing in the van’s license plate, Kaplansky, a white male with a pony tail and beard, exited the van, leaving the driver’s side door open. At Officer Guldman’s request, Kaplansky produced his driver’s license. He told the officer that the license indicated his current address, that he did not know anyone in the area, and that he had driven to the area after an argument with his wife. While Officer Guldman was questioning Kaplansky, Officer Curtis approached the van.

He shined his flashlight in the window of the passenger side door and saw what appeared to be the butt of a gun protruding from under the driver’s seat. He then walked around to the open driver’s side door, shined his flashlight under the driver’s seat, and confirmed his suspicion. The officers then arrested Kaplan-sky for carrying a concealed weapon. II.

Kaplansky’s initial contention is that the district court erred in holding that the police had reasonable suspicion to justify a ‘Terry stop.’ The government responds that (1) defendant waived this argument by failing to raise it in the district court, (2) the police did have reasonable suspicion justifying a Terry stop, and (3) the police encounter with Kaplansky was not a ‘stop’ or ‘seizure’ under the Fourth Amendment. Because we find that the police had reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we do not address the other arguments raised by the government.

Terry v. Ohio examines the circumstances under which a police officer may make an investigatory stop of a suspicious individual short of arrest. Investigating officers must be aware of specific, articula-ble facts creating a reasonable suspicion of criminal activity before an investigatory stop is allowed. Terry, 392 U.S. at 21, 88 S.Ct. at 1879; United States v. Hardnett, 804 F.2d 353, 356 (6th Cir.1986), cert. denied, 479 U.S. 1097, 107 S.Ct. 1318, 94 L.Ed.2d 171 (1987).

In a case such as this one, where officers are told to investigate a situation without being told all of the facts justifying investigation, the court must look beyond the specific facts known to the officers on the scene to the facts known to the dispatcher. See United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). It was permissible for Officers Guldman and Curtis to rely upon the dispatcher’s conclusion that Kaplansky was ‘suspicious’ without inquiring into the basis of the dispatcher’s knowledge. See id. at 231, 105 S.Ct. at 681.

The dispatcher knew of sufficient specific, articulable facts to justify ordering an investigatory stop of Kaplansky. Debra Richards reported that Kaplansky kept coming around the apartment complex, apparently just to sit in his van and “watch.’ When Ms. Richards called the dispatcher the second time, she reported that the van had followed her fourteen year old daughter more than once, and that it had followed her daughter earlier that night to a friend’s house.

Kaplansky contends that this behavior is consistent with a number of innocent explanations: that he was a private investigator, a process server, a repossession agent, a jealous boyfriend, or someone cooling off from an argument with his wife. Most of these explanations are completely incompatible with a man, over thirty years old with a full beard, repeatedly following a fourteen year old girl around her neighborhood in a van.

Even if the defendant could assert a plausible innocent explanation for his behavior, this would not preclude the police from investigating the possibility that defendant was planning some type of criminal activity. As the defendant concedes, the police need not rule out every innocent emanation for suspicious behavior in order to justify an investigatory stop. E.g., United States v. Thomas, 863 F.2d 622, 627 (9th Cir.1988). We conclude that the police stop was justified by reasonable suspicion under Terry v.

Ohio, and therefore affirm the district court’s denial of defendant’s motion to suppress and its entry of. a judgment of conviction.” SO ORDERED. . In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court considered whether the defendant’s prior conviction for second-degree burglary under Missouri law qualified as a "burglary” under § 924(e)(2)(B)(ii).

The Court held first that the federal statute refers not to common law burglary, but rather “generic burglary,” which includes "the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 599, 110 S.Ct. at 2158.

The Court also observed that where the state statute is broader than the generic definition, such as burglary statutes which include entry of an automobile as well as a building, "if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement." Id. at 602, 110 S.Ct. at 2160. .

The indictment charging gross sexual imposition reads as follows: The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OHIO, Do find and present, that the above named Defendant(s), on or about the date of the offense set forth above, in the County of Cuyahoga, unlawfully and purposely had sexual contact with Vivian Smith not his spouse by compelling such person to submit by force or threat of force. .

Defendant further contends that his behavior could be construed as innocent 'girl watching,’ citing Frank Loesser’s immortal number 'Standing on the Comer’ from Most Happy Fella (1956) ('Brother, you can't go to jail for what you're thinking/Or for the “Ooooh” look in your eye.'). Research indicates, however, that Mr. Loesser’s thoughts on the innocence of 'girl watching’ have been limited, if not directly overruled, by more recent Broadway musicals. See, e.g., Stephen Sondheim, ‘Pretty Lady,’ Pacific Overtures (1976), and accompanying scene.