United States v. Guidry

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 20, 2006
• Docket: 05-50977
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit F I L E D CORRECTED July 18, 2006 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk

_____________________

No. 05-50977 _____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DWAUN JABBAR GUIDRY,

Defendant - Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas _________________________________________________________________

Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Defendant Dwaun Guidry was charged with depriving Denise

Limon of her civil rights by kidnapping (Count One) and with

violating her constitutional right to bodily integrity by

sexually assaulting her (Count Two), both in violation of 18

U.S.C. § 242; carrying a firearm “during and in relation to” the

sexual assault of Limon, in violation of 18 U.S.C. § 924(c)(1)(A)

(Count Three); and conspiring to deprive five other women of

their due process right to bodily integrity, in violation of 18

U.S.C. § 241 (Count Four). After trial, the jury found him

guilty on all counts. On appeal, Guidry makes five arguments:

1 (1) the district court improperly admitted the testimony of Julie

Ristaino accusing Guidry of extrinsic sexual assault offenses of

which he was not convicted; (2) the prosecutor made remarks in

his closing argument amounting to reversible error; (3) the

evidence was insufficient to prove that Guidry conspired to

deprive the five victims of their Fourteenth Amendment rights;

(4) the evidence was insufficient to prove that Guidry carried a

firearm “during and in relation to” the rape of Denise Limon,

because Guidry carried a gun in his gunbelt as a matter of

course; and (5) the kidnapping enhancement in 18 U.S.C. § 242

cannot be applied to Guidry because he did not transport or

attempt to transport Limon across state lines. For the

forthcoming reasons, we AFFIRM.

I. FACTUAL SUMMARY

Guidry was a police officer in the small town of Balcones

Heights, Texas and typically worked the night shift from 10:00

p.m. to 6:00 a.m., when often there were only two patrol officers

on duty. The two incidents giving rise to the charges for which

Guidry was convicted occurred while Guidry was on duty. First,

he sexually assaulted five women at the Balcones Heights Police

Station; and, second, he raped Denise Limon after a routine

traffic stop.

A. Sexual Assault at the Balcones Heights Police Station

The sexual assault at the Balcones Police Station gave rise

2 to Count Four, which alleged that Guidry conspired to deprive

five women of their due process right to bodily integrity.

Guidry and his partner Rolando Trevino arrested Denise Almodovar,

Sarah Adams, Candace Ramirez, Becki Taylor, and Lindsey Valsamaki

at 1:00 a.m. on November 24, 2002, when a local gas station

attendant reported that the women were visibly intoxicated when

they arrived in separate cars at the station. The women had each

consumed over 11 alcoholic drinks that night and acknowledged

they were drunk. Guidry and Trevino handcuffed the five women,

placed them in their patrol car, and drove them to the Balcones

Heights police station. The only other person at the police

station, besides the two officers and the five women, was the

dispatcher, who sat in a secure booth in a separate part of the

police station. The officers followed normal booking procedure

by taking the women’s personal belongings, fingerprinting and

photographing them, and placing them in holding cells. When the

officers were photographing the women, they allowed the women to

take “stupid mug shots.” They also allowed the women to be in

one cell together.

After a while, Guidry and Trevino led the five women out of

their cell and into the patrol workroom, which is one of few

rooms without video surveillance. Generally, adult arrestees are

not permitted in the patrol workroom. The officers informed the

women that they were not going to charge them and were going to

“pretend like it never happened.” Guidry ripped up the arrest

3 papers. Guidry said, “[Y]ou are all going to be free to go, but

it will take a while,” and asked what the women were “going to do

for” him and Trevino in return for letting them go without filing

criminal charges.

Guidry pulled Becki Taylor to him and kissed her on the

mouth. At trial, Taylor testified that this advance was

unwanted. The officers told the women to dance for them and

turned on the workroom radio. The women danced. Taylor and

Adams called their friend Will Thompson, who had also been

drinking with them, to pick the women up at the police station.

The officers then made sexual advances on the five women.

Trevino moved behind Candace Ramirez and reached his hand down

her jeans and underwear. Ramirez turned around to find that

Trevino had unzipped his pants. Trevino forced Ramirez’s hand to

touch his exposed penis. When she resisted, he forced her head

towards his penis. Ramirez resisted and extricated herself. She

moved closer to her friend Valmasaki, who was talking to Guidry.

Guidry turned to Ramirez and forced her to kiss him. Meanwhile,

Trevino moved on to Almodovar and Adams. Almodovar testified

that Trevino shocked her by putting his hands down her pants and

touching her genital area. Adams stated that Trevino reached

around from behind her and put his hand down her pants while he

tried to pull his penis out of his pants.

At some point, Guidry told Valsamaki to go with him to

retrieve the women’s personal belongings. Instead, Guidry led

4 her to a bathroom, where he opened the door, unzipped his pants,

pulled out his penis, and attempted to force her to grab it. She

resisted, and Guidry masturbated in front of her. Valsamaki

testified that she did not feel she could run away because “[h]e

had his gun and I was singled out. I was by myself. I didn’t

know what door led out. I couldn’t go anywhere.”

Thompson arrived to pick the women up, and the officers

returned their personal belongings. Three of the women walked

out of the building. Thompson later testified that the women

“were pretty shocked” and that “they had tears in their eyes and

they were running down their face.” Taylor and Adams, meanwhile,

did not want the officers to retain the photographs they took of

the women and asked the officers to give them the pictures. The

officers told them to “come back in here.” The two returned to

the patrol workroom. Guidry put Adams in a chair, undid her

pants, and put his tongue on her vagina. Trevino took a picture

of the event with a Polaroid camera. Trevino then did the same

thing to Taylor while Guidry took a photograph. Taylor

testified, “I didn’t want to be in there all. . . . I just wanted

to leave.” The women expressed their desire to leave, and the

officers led them out of the station saying, “Nobody is going to

know about this.” Taylor took the picture of Guidry and Adams.

Taylor gave Trevino her telephone number, and testified that she

was afraid if she refused the officers would take them back into

the patrol room.

5 Afterward, Guidry wrote up an incident report, noting the

women’s detention. No criminal charges were filed against the

five women. Guidry then went to see the police dispatcher, Lee

Faz, to ask him what he had seen on the video surveillance that

night. Faz said he did not see anything, and Guidry asked to

borrow the surveillance tape. This is a departure from normal

procedure, which requires that the surveillance tapes be stored

in the dispatch area.

The five women filed a civil lawsuit, which they settled.

Upon learning of the lawsuit, the City of Balcones Heights asked

the Texas Rangers to investigate the assault. The surveillance

tape, the fingerprint cards, and the mug shots were never found,

except for the photo Taylor retrieved before leaving the police

station, which depicted Guidry in police uniform with his head

between Adams’s legs. The Texas Rangers executed two federal

search warrants to search for the missing evidence at Guidry’s

home. Guidry admitted he had destroyed the pictures (after first

showing them to other officers), fingerprint cards, and arrest

documentation. According to Texas Ranger Skylor Hearn, Guidry

said, “Man, I don’t keep trophies. When I knock someone down, I

don’t keep panties or pictures. . . . I am married. I don’t need

no pictures floating around.” Although his incident report

stated the women were “too intoxicated,” and noted that they had

“slurred” speech, he told Hearn that no charges were filed

against the five women because they were “stone cold sober” when

6 they arrived at the police station. Guidry did not deny engaging

in sexual activity with the women and said it was consensual.

B. Sexual Assault of Denise Limon

The sexual assault of Denise Limon gave rise to Count One,

depriving Limon of her civil rights by kidnapping; Count Two,

violating her constitutional right to bodily integrity; and Count

Three, carrying a firearm “during and in relation to” the sexual

assault of Limon.

Approximately one month after the sexual assault at the

Balcones Heights police station, Guidry raped Denise Limon. On

December 19, 2002, between 1:00 a.m. and 3:00 a.m., Denise Limon

and her fiancé Ricardo Alvarez were arguing while driving home

from a friend’s party. Alvarez pulled the car over, and the two

got out of the car and continued arguing. They got back in the

car to continue their drive home and noticed a police vehicle was

following them. Alvarez was nervous because he had outstanding

traffic warrants, did not have his driver’s license, and had been

drinking. The officer signaled for Alvarez to pull over, and

Alvarez complied. When the officer approached the car, Alvarez

gave him a copy of his license. The officer looked at it and

gave it back to him without further investigation. The officer

told Alvarez that he received a report of a domestic dispute and

that Limon could not remain in the car. He took Limon and put

her in the back of his patrol car. The officer told Alvarez “to

go home and to wait by the phone” for Limon’s phone call.

7 The officer drove Limon to a dark, wooded area, parked the

car, unzipped his pants, pulled his penis out, and opened the

driver’s side back door. He pushed Limon down, removed her

pants, and raped her. The officer wore his gun belt throughout

the rape. Limon heard the gun hitting the side of the car while

the officer was raping her. The officer stood up, turned away

from her, “moaning and grabbing himself.” Limon quickly

collected her clothes and ran home. She told Alvarez and

Alvarez’s mother that the officer had raped her. Limon refused

to call the police that night, fearing the officer who raped her

would come to her house. The next day Limon reported the crime

to the police. The police took statements from Limon and

Alvarez, and took Limon to a hospital for a sexual assault

examination. Both Limon and Alvarez described her assailant as a

bald or shaved-headed black police officer with “pronounced

lips.” Limon described him as weighing 200-pounds and standing 5

feet 5 inches. Limon believed her assailant was a San Antonio

police officer, and that the police vehicle had a laptop computer

in it. Laptop computers are common in San Antonio Police

Department (“SAPD”) cars, but not in Balcones Heights police

vehicles. Balcones Heights police vehicles do have electrical

equipment other than laptop computers in them. Based on Limon’s

account, the investigating officers first showed Limon a

photographic line-up with SAPD officers. Limon stated that her

assailant was not in the photos. The investigating officers

8 expanded their search to surrounding police departments and local

security guards. When the investigating officers learned that

Guidry matched the physical description Limon had provided, and

then learned that he had been on patrol the night of the rape,

they included Guidry’s photo in a second photographic line-up.

Limon identified Guidry as the rapist, as part of a photographic

line-up and also in the courtroom.

Guidry’s police vehicle was impounded and searched by a

forensic team. They found a hair in the backseat that had

similar characteristics to a hair sample taken from Limon. They

also found DNA in the backseat that matched Limon’s DNA.

Guidry’s DNA was not found on Limon’s body or clothing. The DNA

expert testified that DNA would not necessarily be found on

Limon’s body or clothing.

At some point, Guidry telephoned his friend Terry Moten who

worked in the Sex Crimes Unit of SAPD and told him he had been

charged with rape. Guidry indicated to Moten that he had sex

with Limon, but claimed it was consensual. After Guidry’s

arrest, he phoned Moten to inquire if their previous conversation

in which he admitted having sex with Limon was on or off the

record.

II. PROCEDURAL HISTORY

Guidry pled not guilty to all counts. The jury trial began

on January 19, 2005. On January 21, Julie Ristaino contacted the

9 Assistant United States Attorney (“AUSA”) prosecuting the case

with information about Guidry. She had learned from a website

that Guidry was charged with raping Limon, and an attorney had

advised her to contact the United States District Court Clerk’s

Office in order to contact the AUSA handling the case. When

Ristaino and the AUSA met, she told him that Guidry had sexually

assaulted her while he was on duty.

The Government sought admission of Ristaino’s testimony to

show Guidry’s propensity to engage in such conduct. The

prosecutor called defense counsel on the day he met Ristaino,

faxed a written description of her testimony to defense counsel

the next day, and filed a notification and memorandum with the

court on the next business day, Monday, January 24, 2005.

On January 25, the district court held a preliminary hearing

outside of the jury’s presence to hear from Ristaino and to

determine whether to admit her testimony under either Federal

Rule of Evidence 404(b) or Rule 413. The district court

determined that the Government had established good cause for

excusing the 15-day notice period provided by Rule 413(b). It

said:

The Court having held a preliminary hearing outside of the presence of the jury and having heard the witness’s testimony finds that . . . a jury could reasonably find by a preponderance of the evidence that the other act did, indeed, occur. And that Rule 413 evidence, it is Congressional intent to allow such testimony [sic].

The district court attempted to mitigate the lack of prior

10 notice by requiring the Government to procure Ristaino’s

employment records and provide them to Guidry’s defense counsel,

to subpoena Ristaino’s former supervisor and her ex-boyfriend for

defense counsel to interview them, and to secure the timecards

and attendance logs to determine if Guidry was on duty the night

on which Ristaino alleged the assault took place. The

prosecution complied that afternoon. The court also stated that

it would permit defense counsel to recall Ristaino if there was

insufficient time for investigation.

Later that day, the Government put Ristaino on the stand.

She testified that during her 6:00 p.m. to 2:00 a.m. shift as a

veterinary technician in Balcones Heights, Guidry had fondled her

at her place of employment. After that incident, he often waited

until the end of her shift at 2:00 a.m. to pull her vehicle over

in traffic stops and would proceed to make sexually suggestive

comments while fondling Ristaino over her clothing.

Ristaino said that, on approximately October 12, 2005, she

was driving home from her shift when Guidry pulled her over in an

isolated area. In uniform and badge, and carrying a gun, he

entered Ristaino’s car through the front passenger door and

forced Ristaino to perform oral sex on him. Ristaino stated that

the contact was nonconsensual, but she did not resist because she

was intimidated and physically overpowered.

Immediately after her testimony, the district court gave the

11 jury an instruction limiting the consideration of Ristaino’s

testimony to the question of Guidry’s state of mind or his

intent. Meanwhile, Ristaino’s employer was unsuccessful in

locating a more detailed version of Ristaino’s employment

records. Defense counsel requested a recess to investigate

further whether Ristaino’s and Guidry’s shifts coincided. The

district court denied defense counsel’s motion for a recess.

Defense counsel called Ristaino’s employer to the stand, who

confirmed that Ristaino generally worked from 6:00 p.m. until

2:00 a.m. The district court again gave a limiting instruction

regarding Ristaino’s testimony, restricting the use of the

evidence to the question of intent.

The jury found Guidry guilty of all four counts. A

presentence report set Guidry’s offense level at 43, which

carries a recommended sentence of life imprisonment for Counts

One and Two. The district court departed from the United States

Sentencing Guidelines (“Guidelines”) and sentenced Guidry to

concurrent terms of 405 months imprisonment on Counts One and

Two. The district court followed the Guidelines’ recommendation

on the other counts, and sentenced Guidry to a consecutive term

of 60 months imprisonment on Count Three, and a concurrent term

of 120 months imprisonment on Count Four.

III. DISCUSSION

A. Ristaino’s testimony

12 Guidry argues that the district court’s admission of

Ristaino’s testimony leads to reversible error for three reasons.

First, he contends it violated Federal Rule of Evidence 413,

which he sees as limiting propensity evidence to extrinsic sexual

misconduct that is the subject of a prior conviction. Second,

Guidry contends that the district court’s refusal to exclude

Ristaino’s surprise testimony alleging extrinsic sexual

misconduct and its refusal to grant additional time to the

defense to counter the testimony violated Federal Rule of

Evidence 403 and deprived him of his right to present a defense.

Third, he argues that the scope of the Government’s closing

remarks exceeded the limitations placed by the court on the

jury’s consideration of the testimony and deprived him of a fair

trial.1 Guidry claims this court should vacate his convictions

and remand.

In a criminal case, we review the district court’s

evidentiary rulings under an abuse of discretion standard.

United States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th Cir.

2002) (“We review a district court’s decision to admit or exclude

evidence for abuse of discretion.”). We review de novo a court’s

interpretation of law. United States v. Bell, 367 F.3d 452, 465

(5th Cir. 2004).

1 This latter argument is addressed in Part III.B, infra.

13 1. Application of Rule 413

We have not previously examined the issues presented with

regard to the application of Rule 413. Congress passed Rules

413, 414, and 415 as part of the Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. No. 103-322, § 320935, 108 Stat.

1796, 2135-37 (1994).2 Rule 413 relaxes the longstanding bar to

propensity evidence restricted by Rule 404(b) and allows the

admission of such evidence in trials that involve charges of

sexual misconduct. See United States v. Sioux, 362 F.3d 1241,

1244 (9th Cir. 2004); Johnson v. Elk Lake Sch. Dist., 283 F.3d

138, 151 (3d Cir. 2002); United States v. Enjady, 134 F.3d 1427,

1431 (10th Cir. 1998).

In order for evidence of “another offense of sexual assault”

to be admitted under Rule 413, the district court has to

determine that the act satisfied the definition provided by Rule

413(d). Federal Rule of Evidence 413 in pertinent part states:

Evidence of Similar Crimes in Sexual Assault Cases

(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. . . . (d) For purposes of this rule . . . “offense of sexual

2 Rules 413, 414, and 415 provide exceptions to the general prohibition on character evidence in cases involving sexual assault and child molestation. Rules 413 and 414 apply to criminal proceedings, and Rule 415 applies to civil trials.

14 assault” means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved– (1) any conduct proscribed by chapter 109A of title 18, United States Code; (2) contact, without consent, between any part of the defendant’s body or an object and the genitals or anus any part of another person; (3) contact, without consent, between the genitals or anus of the defendant and any part of another person’s body; (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

FED. R. EVID. 413 (emphases added). Guidry contends that the

terms “offense” and “crime” in the statute necessarily require

conviction for admissibility.

Where a “statute’s language is plain, ‘the sole function of

the courts is to enforce it according to its terms.’” United

States v. Ron Pair Enters., Inc. 489 U.S. 235, 241 (1989)

(quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).

“The plainness or ambiguity of statutory language is determined

by reference to the language itself, the specific context in

which that language is used, and the broader context of the

statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337,

341 (1997) (citing Estate of Cowart v. Nicklos Drilling Co., 505

U.S. 469, 477 (1992)).

The plain language of Rule 413 does not support Guidry’s

argument. Black’s Law Dictionary defines the term “crime” to

mean “[a] social harm that the law makes punishable.” BLACK’S

15 LAW DICTIONARY, 377 (7th ed. 1999). It defines “offense” as “[a]

violation of the law,” and alternatively, “a crime.” Id. at

1108. Thus, crime and offense are interchangeable terms, to

describe a harm that may be punishable by law. A conviction is

not required.

Guidry argues that the phrase “commission of an offense”

limits the admissible evidence to that which is proven by

conviction. But “commission” is defined as the “act of doing or

perpetrating.” BLACK’S LAW DICTIONARY 286 (8th ed. 2004). The

Rule provides no basis for limiting admissibility of evidence of

the act of doing or perpetrating other sexual offenses only to

those acts proven by conviction. Accordingly, the evidence of

the act of doing or perpetrating an offense is admissible under

the Rule.

Guidry contends that, at best, the language in Rule 413 is

ambiguous. He thus argues that the rule of lenity applies and

requires any ambiguity in a criminal provision to be resolved in

the defendant’s favor. However, his argument fails when

considering the context of Rule 413. See Shell Oil, 519 U.S. at

341. The conclusion that the terms “offense” and “crime” in Rule

413 do not necessitate conviction is supported by the plain

language and interpretation of Rule 404(b) to include uncharged

16 conduct.3 See Sioux, 362 F.3d at 1246 (“This understanding of

Rule 413's plain language finds further support in the prevailing

interpretation of the exceptions to Rule 404(b).”). The

interpretation of Rule 404(b) and the similarity between it and

Rule 413 militates against the application of the rule of lenity,

because the interpretation of Rule 413 advocated by the

Government is consistent with language and the history of the

statute. See Crandon v. United States, 494 U.S. 152, 160 (1990).

Even if we were unable to discern congressional intent from

the plain language, the legislative history suggests Congress

intended to allow admission of other uncharged sexual offenses.4

3 Rule 404(b) provides in pertinent part,

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .”

FED. R. EVID. Rule 404(b). 4 The sponsoring members of Rule 413 legislation, Senator Dole and Representative Molinari, made statements that explicitly assert that the new rule applies to uncharged conduct.

In contrast to rule 404(b)’s general prohibition against evidence of character or propensity, the new rules for sex offense cases authorize admission and consideration of evidence of an uncharged offense for its bearing “on any matter to which it is relevant.” . . .

The practical effect of the new rules is to put evidence of uncharged offenses in sexual assault and child molestation cases on the same footing as other types of relevant

17 Because sexual assault allegations are often reduced to a

swearing match, Congress aimed to assist the fact finder’s

assessment of credibility through allowing evidence of the

defendant’s extrinsic sexual misconduct as character or

propensity evidence. See Enjady, 134 F.3d at 1431. Congress

intended to expand the admissibility of character or propensity

evidence relating to sexual assault by creating a broad exception

to the prohibition in Rule 404(b). See Sioux, 362 F.3d at 1244;

Elk Lake Sch. Dist., 283 F.3d at 151; Enjady, 134 F.3d at 1431.

Rule 404(b) permits evidence of prior bad acts, including

uncharged conduct, to be admitted in a criminal trial, as long as

it is not used to show character or propensity. Rule 413 expands

on Rule 404(b) in that it allows the admission of other sexual

misconduct in order to show propensity. Consistent with its

expanding on Rule 404(b), Rule 413 also allows the admission of

relevant uncharged conduct. See Elk Lake Sch. Dist., 283 F.3d at

151 (“Congress intended to allow admission not only of prior

convictions for sexual offenses, but also of uncharged

conduct.”); United States v. Withorn, 204 F.3d 790, 794 (8th Cir.

evidence that are not subject to a special exclusionary rule.

140 Cong. Rec. H8991 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari); 140 Cong. Rec. S12990 (daily ed. Sept. 20, 1994) (statement of Sen. Dole).

18 2000) (finding that the district court did not abuse it

discretion in allowing evidence of uncharged conduct); United

States v. Mann, 193 F.3d 1172, 1173 (10th Cir. 1999) (“[C]ourts

are to ‘liberally’ admit evidence of prior uncharged sex offense

. . .” (quoting United States v. Meacham, 115 F.3d 1488, 1492

(10th Cir. 1997) (alteration in original)); United States v.

Norris, 428 F.3d 907, 913-14 (9th Cir. 2005) (finding evidence

that defendant had also molested victim’s sister was properly

admitted under Rule 414). We join our sister circuits in holding

that, subject to other admissibility considerations, Rule 413

allows the admission of other sexual assaults including those

that are the subject of uncharged conduct.

2. Rule 403 balancing test

Guidry next contends that the district court erred in

allowing Ristaino’s testimony under Rule 403. Rule 403 states in

relevant part that “evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice . . . .” FED. R. EVID. 403. Even if the district

court preliminarily found Ristaino’s evidence admissible under

Rule 104(b),5 it could have still excluded it under Rule 403.

5 The text of Rule 413 is silent as to the appropriate standard for admitting evidence of past acts of sexual assault. The district court followed the Tenth Circuit in allowing Ristaino’s testimony. The Tenth Circuit held that to be admissible, “the district court must make a preliminary finding that a jury could reasonably find by a preponderance of the

19 See Elk Lake Sch. Dist., 283 F.3d at 155. A district court must

apply the Rule 403 balancing test when considering the admission

of evidence under Rule 413, and in the instant case, it did.

Guidry argues that the value of Ristaino’s testimony is

substantially outweighed by the prejudice to him because the

extrinsic evidence of Ristaino’s sexual assault was not the

subject of a conviction. He also claims the district court

abused its discretion when it denied defense counsel’s motion for

recess. With respect to Guidry’s first concern, as discussed

supra, Rule 413 does not require evidence of other sexual

assaults to be the subject of conviction. As to Guidry’s second

concern, the district court indicated it applied Rule 403

balancing when it mitigated the prejudicial effects of allowing

Ristaino’s testimony without the notice otherwise required by

Rule 413(b).

Despite the relevance of Ristaino’s testimony,6 Guidry

evidence that the [extrinsic sexual misconduct] occurred.” Enjady, 134 F.3d at 1433. The Third Circuit similarly has used this standard for screening uncharged conduct. Elk Lake Sch. Dist., 283 F.3d at 152-53. Citing to Huddleston v. United States, 485 U.S. 681 (1988), the Third Circuit concluded that Huddleston’s standard for screening uncharged conduct applies to Rule 413, because of the similarity between Rules 404(b) and 413. Elk Lake Sch. Dist., 283 F.3d at 152-55. 6 The district court’s decision to admit Ristaino’s testimony was sound when considering the similarity between her testimony and the charged conduct. See United States v. Carter, 410 F.3d 1017, 1022 (8th Cir. 2005) (upholding the admission evidence of other sexual assaults where there were similarities

20 emphasizes that he received no pretrial notice, and, therefore,

her testimony’s relevance is substantially outweighed by the

prejudice to him. While Rule 413(b) generally requires fifteen

days notice, the district court has discretion where there is

good cause. Rule 413(b) reads:

In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

FED. R. EVID. 413(b). The Government had good cause for not

providing pretrial notice. It did not learn of Ristaino’s

testimony until after the trial had already started. The

Government alerted defense counsel to Ristaino’s testimony on the

same day it learned of it and faxed the content of the testimony

the next day. In fact, defense counsel had at least three days

between the incidents); Elk Lake Sch. Dist., 283 F.3d at 156 (noting the probative value of past acts that are “sufficiently similar to the type of sexual assault allegedly committed by the defendant”); Mann, 193 F.3d at 1174 (“Uncharged prior sexual acts are probative if they are similar to the charged crimes.”). The similarities between Guidry’s conduct toward Ristaino and the charged offenses heightens the probative value of her testimony because in all three instances Guidry used his official position and its accoutrements, including his police car, his badge, and his gun, to apprehend women during his night shift, isolate them, and then force them to perform sexual acts with him. In addition, Ristaino’s testimony indicates that she was sexually assaulted within two months of Guidry’s sexual assault of the five women at the police station. The close temporality of the instances further heightens the probative value of Ristaino’s testimony.

21 to prepare before the hearing on the matter. In response to

defense counsel’s concerns that Rule 403 balancing in favor of

admission was compromised by the late notice given to defense

counsel, the district court said:

But the relevance I do find . . . is although there are some factual dissimilarities between the events, there is enough similarity in other respects that I am going to allow this in. Now, let me try to cure what other defects may arise here. We are going to proceed today. We are not going to take a recess yet. This witness will go on. [Defense counsel] will have the opportunity to cross-examine this witness. In the interim, the government is going to do the following. [The Government is] to procure Ms. Ristaino’s employment records today. . . . [The Government is] also to make available [the individuals in whom Ristaino confided]. [Defense counsel] . . . will be able to recall [Ristaino] after you have had a chance to do the investigation that I am allowing you. . . . The government is ordered to secure all of the timecards or attendance logs . . . that would show when this defendant was working during the entire month of October 2002.

In deciding not to allow a recess, the district court said:

The Court has attempted to make every effort to provide an opportunity for discovery, albeit late notice to the defense. The Court further finds that if additional time was given to the defense, specifically to analyze payroll work records of Ms. Ristaino, that such opportunity would not lead to any meaningful or fruitful evidence.

Thus, the district court mitigated the prejudicial effect of

admitting Ristaino’s testimony with no pretrial notice by giving

defense counsel the opportunity to interview Ristaino, her

employer, her ex-boyfriend, and to review documentary evidence

relating to Ristaino’s work schedule as compared to Guidry’s

dispatch log. The district court did not abuse its discretion in

22 allowing Ristaino’s testimony without allowing for a recess.

B. Remarks made in prosecution’s closing statement

Guidry argues that the prosecutor’s closing statement

amounts to prosecutorial misconduct and reversible error,

requiring this Court to vacate his convictions and remand.

Because Guidry failed to make a timely objection at trial, we

apply plain error review. United States v. Gallardo-Trapero, 185

F.3d 307, 322 (5th Cir. 1999).

Even if Guidry had made a timely objection, his burden of

establishing that an allegedly improper remark by the prosecutor

is substantial. United States v. Mares, 402 F.3d 511, 515 (5th

Cir. 2005) (citing United States v. Virgen-Moreno, 265 F.3d 276,

290 (5th Cir. 2001)). “The determinative question in such an

inquiry is ‘whether the prosecutor’s remarks cast serious doubt

on the correctness of the jury’s verdict.’” Id. (quoting Virgen-

Moreno, 265 F.3d at 290). “Inappropriate prosecutorial comments,

standing alone, would not justify a reviewing court to reverse a

criminal conviction obtained in an otherwise fair proceeding.”

United States v. Young, 470 U.S. 1, 11 (1985). In reviewing the

possibility of reversible error, we consider “(1) the magnitude

of the prejudicial effect of the prosecutor’s remarks, (2) the

efficacy of any cautionary instruction by the judge, and (3) the

strength of the evidence supporting the conviction.” United

States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994).

23 It is undisputed that the district court at least twice

instructed the jury to consider Ristaino’s testimony only for

state of mind or intent, even though Rule 413 does allow such

testimony to be used for propensity purposes. Guidry argues that

some of the prosecutor’s references to Ristaino and her testimony

went beyond state of mind or intent by characterizing her as

another victim. Guidry recounts that at the end of the second

prosecutor’s closing statement, he urged the jury to “remember

the victims in this case, Denise Limon, Becki Taylor, Denise

Almodovar, Candace Ramirez, Lindsey Valsamaki, Sarah Adams, and I

hope you remember Julie Ristaino.” Similarly, earlier, the

prosecutor said,

It was our badge, and he defiled it and he violated it, just like he violated his victims. He used that badge to find victims. He found known targets, like poor Julie Ristaino.

Guidry fails to demonstrate plain error because these

remarks alone do not justify reversing the jury verdict. See

Young, 470 U.S. at 11. The prosecutor may have named Ristaino as

a victim, but this does not amount to an appeal to the jury to

punish Guidry for the sexual assault of Ristaino. Rather, he was

generally describing Ristaino as one of the victims of Guidry’s

sexual assaults. In light of the “wide latitude” given to

counsel in presenting closing argument, the degree to which these

remarks could be characterized as improper in view of the

limiting instructions the district court gave the jury and the

24 substantial evidence supporting conviction on all counts, the

prosecutor’s statements do not amount to reversible error. See

United States v. Holmes, 406 F.3d 337, 356 (5th Cir. 2005);

United States v. Hernandez-Guevara, 162 F.3d 863, 874 (5th Cir.

1998).

Because Guidry’s arguments do not cast doubt on the

correctness of the jury’s verdict, we find that the prosecutor’s

closing remarks, even if arguably improper, were not so

prejudicial as to constitute plain error.

C. Sufficiency of the evidence under 18 U.S.C. § 241

Guidry maintains that the Government failed to meets its

burden as to the elements in 18 U.S.C. § 241 because of

insufficiency of evidence.7 Guidry contends that his and

Trevino’s misconduct did not rise to the level of a

constitutional deprivation. Guidry argues that there was no

showing that the officers used force or intimidation, nor that

their actions shock the conscience. Thus, he claims that Count

Four should be vacated, the charge dismissed, and his case

remanded for resentencing.

We review an insufficiency of the evidence claim by

7 We recognize that Guidry disputes that substantive due process includes the right to be free from sexual assault. He acknowledges that this claim is foreclosed by Doe v. Taylor Independent School District, 15 F.3d 443, 450-52 (5th Cir. 1994) (en banc), but preserves the issue for further review.

25 inquiring “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979); United States v. Jones, 693 F.2d 343, 345-46 (5th Cir.

1982). “This standard of review applies to any criminal

conviction, including conspiracies.” United States v. Davila,

704 F.2d 749, 751 (5th Cir. 1983). “[U]nder Jackson, the

assessment of the credibility of witnesses is generally beyond

the scope of review.” Schlup v. Delo, 513 U.S. 298, 330 (1995).

We review questions of constitutional law de novo. United States

v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000).

The district court used the Fourteenth Amendment to frame

its instruction to the jury regarding Count Four, whether Guidry

deprived the five victims “of the right to be free from the

deprivation of liberty without due process of law, including the

right to bodily integrity.”8 Government officers violate

8 As the Government points out, this civil rights violation may have been more appropriately analyzed using the Fourth Amendment, because the five women were in the custody of the Balcones Heights police officers when the violation occurred. The Fourth Amendment standard balances the nature and quality of the intrusion against the importance of the Government interest justifying the intrusion. Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). Because the Fourteenth Amendment requires a heightened inquiry (the “shock the conscience” standard) than the Fourth Amendment, the satisfaction of the Fourteenth Amendment standard should satisfy the Fourth Amendment standard.

26 another’s substantive due process rights when their actions “can

properly be characterized as arbitrary, or conscience shocking,

in a constitutional sense.” Collins v. City of Harker Heights,

503 U.S. 115, 128 (1992).

Guidry’s conviction for Count Four, under 18 U.S.C. § 241,

stands if, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the following elements beyond a reasonable doubt: that Guidry and

Trevino 1) conspired to injure, oppress, threaten, or intimidate

one or more of the victims, 2) with the intent to interfere with

the victim’s due process rights, 3) under color of state law. 18

U.S.C. § 241. See also United States v. Vaden, 912 F.2d 780, 781

(5th Cir. 1990) (“To convict . . . , the government had to prove

that while acting under color of state law [the defendant]

conspired with others to deprive [the victim] of a right

guaranteed him by the Constitution or law of the United States.”)

The facts in this case support the finding that a rational

trier of fact could have found, beyond a reasonable doubt, that

Guidry and Trevino conspired to intimidate the five intoxicated

women when they took the women into custody, then led the women

to a room in the police station beyond the reach of video

surveillance, where the officers expressed their willingness to

forego criminal charges while asking, “what will you do for us?”

The fact that Guidry and Trevino were on duty, in police uniform,

27 wearing their badges and carrying their weapons when they took

the women into custody and booked them would be enough for a jury

to find that the officers used their positions of power to, at

the very least, intimidate, and at the most, force the five women

to engage in non-consensual sexual conduct. In addition, the

officers handcuffed and booked the women, took their personal

belongings, fingerprinted and photographed them. Even

considering that at first, when the officers were booking the

women, there was a sense of joviality when the women posed for

“silly mug shots,” a jury could find that the atmosphere changed

when the women were led to an isolated room where the officers

essentially bartered for the women’s freedom and made sexual

advances toward them. This conclusion stands even considering

Guidry’s argument that he and Trevino did not make sexual

advances towards the women until after they were free to go. A

jury could find that the women were intimidated by Guidry’s and

Trevino’s official power such that they did not feel free to

leave, especially because Guidry and Trevino still had control

over the women’s belongings when they purport the women were free

to leave and explicitly said to them that “it would take a while”

before they were free to leave. A jury could reasonably conclude

that Guidry’s behavior “shocks the conscience.”

We find the evidence sufficient to prove that Guidry

conspired to deprive the five victims of their Fourteenth

28 Amendment rights.

D. Sufficiency of the evidence under 18 U.S.C. § 924(c)

Guidry contends that the Government failed to meet its

burden in showing that he carried a firearm in relation to the

deprivation of due process and aggravated sexual abuse of Denise

Limon. He maintains that the only evidence of a gun was hearsay,

when a detective who interviewed Limon testified that Limon told

her she heard the gun banging on the side of the car during the

rape. Guidry argues that the hearsay statement suffices to show

that Guidry carried a firearm during the offense, but fails to

show that it was carried “in relation to” the offense. As the

argument goes, as a police officer, Guidry must carry his gun,

and it was merely present when he raped Limon. In fact, Guidry

further argues that Limon said she did not resist Guidry because

she was physically overpowered rather than explicitly threatened

by Guidry when he raped her. The logical inference, as the

argument continues, is that Guidry’s gun was not used to

facilitate the crime. Guidry claims the conviction and

consecutive five-year sentence for Count Three must be vacated.

Section 924(c)(1)(A) of Title 18 of the United States Code

states in relevant part:

[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the

29 punishment provided for such crime of violence or drug trafficking crime– (i) be sentenced to a term of imprisonment of not less than 5 years; . . . .

18 U.S.C. § 924(c)(1)(A)(i). To prove a violation of §

924(c)(1), the Government must prove two elements beyond a

reasonable doubt: First, it must demonstrate that the defendant

carried a gun. Second, it must prove that the carrying was

during and in relation to a crime of violence or drug trafficking

crime. United States v. Polk, 118 F.3d 286, 293 (5th Cir. 1997).

It is undisputed that Guidry carried the gun on his gunbelt

during the rape of Denise Limon. The parties contest only the

second prong. To be carried “in relation to” an offense under

this section, a gun must have “some ‘purpose or effect’ with

respect to the crime of violence.” Id. (quoting Smith v. United

States, 508 U.S. 223, 237-38 (1993)). Yet, the Supreme Court in

Smith recognized that the phrase “in relation to” is expansive.

Id. (citing Smith, 508 U.S. at 237-38). The firearm must

“‘facilitate or have the potential of facilitating’” a crime of

violence for § 924(c)(1) liability to attach. Id. (quoting

Smith, 508 U.S. at 238).

Guidry’s argument fails in light of the analogous case

United States v. Contreras, 950 F.2d 232 (5th Cir. 1991). There,

this Court upheld a police officer’s § 924(c) conviction where

the on-duty police officer drove a female arrestee to a dark,

30 isolated location, and sexually assaulted her. Id. at 242. This

Court said:

The government does not have to show, however, that a defendant actually used or brandished the firearm to prove “use” within the meaning of section 924(c). . . . [I]f the evidence shows that the “firearm facilitated or had a role in the crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or intimidate others,” the defendant “used” the weapon regardless of whether such display or discharge occurred.

Id. at 241 (quoting United States v. Coburn, 876 F.2d 372, 375

(5th Cir. 1989)). Even though the defendant police officer

routinely carried a firearm as part of his job, and he took off

his gunbelt and put it on the roof of the car during the assault,

this Court found that a jury could have reasonably concluded that

he was emboldened by his possession of the gun to assault his

victim, that he displayed the gun in order to intimidate the

victim, and that he had the opportunity and ability to discharge

the gun throughout the sexual assault. Id. at 242. Thus, the

firearm played a sufficient role in facilitating the defendant’s

crime to support his § 924(c) conviction. Id.

As in Contreras, Guidry did not take his gun out of his belt

and actually threaten his victim, but he did keep his belt on

such that Limon heard his gun banging against the side of the car

while he was raping her. Guidry’s gun remained holstered during

the rape, but was always within his reach. A jury could

reasonably conclude that Guidry was emboldened by his possession

31 of the gun to rape Limon, and that the gun was a threat to and

intimidated Limon.

We find the evidence sufficient to prove that Guidry carried

a firearm “during and in relation to” the rape of Denise Limon,

in violation of 18 U.S.C. § 924(c).

E. Kidnapping enhancement under 18 U.S.C. § 242

Guidry argues the Government failed to prove under the

instant facts that Guidry qualified for the sentence enhancement

for kidnapping in 18 U.S.C. § 242. He contends that in the

absence of a definition of “kidnap” in § 242, this Court must

rely on the “common law” definition of “kidnap,” which he

contends requires proof that a victim was carried out of state or

out of the country to constitute kidnapping. Guidry states that

there is no evidence that Congress intended differently from this

common law meaning of “kidnapping.” Thus, he claims his sentence

on Count One must be reduced to the ten-year maximum applicable

to the lesser-included offense that does not involve kidnapping.

Section 242 of Title 18 of the United States Code states:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . ; and . . . if such acts include kidnapping or an attempt to kidnap . . . shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

18 U.S.C. § 242.

32 Although the statute does not define “kidnapping” or

“kidnap,” and there are no cases that define these terms in this

statute’s context, Guidry’s reliance on the common law definition

of “kidnap” is misplaced. We do not use the common law

definition of any term where it would be inconsistent with the

statute’s purpose, notably where the term’s definition has

evolved. See, e.g., Moskal v. United States, 498 U.S. 103, 116-

17 (1990) (rejecting the common law definition for the term

“falsely made,” used in 18 U.S.C. § 2314, because “Congress’

general purpose in enacting a law may prevail over this rule of

statutory construction, [i.e., the common-law meaning rule]”);

Taylor v. United States, 495 U.S. 575, 592-96 (1990) (refusing to

find that the term “burglary” in a sentencing enhancement statute

was limited to the common law meaning of the terms, which would

have required entry into a dwelling place in the nighttime);

Perrin v. United States, 444 U.S. 37, 45 (1979) (defining the

term “bribery” in 18 U.S.C. § 1952 based on the contemporary

understanding of the term because the common law definition had

evolved and now the term included the bribery of individuals

acting in private capacity). “Taylor instructs that where, as

here, the enhancement provision does not specifically define the

enumerated offense, we must define it according to its ‘generic,

contemporary meaning’ and should rely on a uniform definition. .

. .” United States v. Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th

33 Cir. 2004) (internal citation omitted). Following Taylor’s lead,

we look at other sources of authority for the definition of

“kidnapping”:

Under the common law definition of kidnapping, asportation was an essential element . . . . Under modern statutes, by comparison, asportation is most often treated as an alternative element, in that either asportation or confinement will suffice as the actus reus of the crime . . . .

3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 18.1, at 4 (2d ed.

2003). Indeed, the Taylor Court’s assessment with regard to the

term “burglary” in a sentencing enhancing statute holds true for

the term “kidnapping” in the instant statute: “[C]onstruing

‘[kidnapping]’ to mean common-law [kidnapping] would come close

to nullifying that term’s effect in the statute, because few of

the crimes now generally recognized as [kidnapping] would fall

within the common-law definition.” Taylor, 495 U.S. at 594.

Guidry’s argument fails.

Guidry also claims that the terms “kidnapping” and “kidnap”

should adopt the definition of the terms in the federal

kidnapping statute, 18 U.S.C. § 1201, which would require

interstate abduction. In that case, Guidry argues his conduct

did not meet the elements of kidnapping for purposes of this

statute. He contests the district court’s reliance on United

States v. Combs, 33 F.3d 667 (6th Cir. 1994), in which the

defendant had been charged with both the federal kidnapping

34 statute as well as the deprivation of civil rights under § 242

through kidnapping.

In Combs, a previous version of § 242 existed that did not

include an explicit kidnapping enhancement. The Government

charged the defendant under this statute with depriving the

victim’s civil rights by the means of kidnapping. The lower

court had defined “kidnapping” for purposes of § 242 as “an act

in which an individual forcibly holds, detains, or carries away

an alleged victim against his will.” Id. at 668. Combs held

that an acquittal of a federal kidnapping charge did not require

acquittal of a § 242 charge that also alleged kidnapping. Id. at

670. Guidry argues that Combs is inapposite given that the

current version of § 242 explicitly refers to kidnapping and

therefore must adopt the definition of kidnapping in the federal

sentencing statute, which requires interstate abduction. If

Guidry is correct, then, for the purposes of § 242, the term

“kidnapping” would have to meet the elements of the term as it is

defined in the federal sentencing statute. “To prove a charge

under 18 U.S.C. § 1201, the government must prove four elements:

(1) the transportation in interstate commerce (2) of an

unconsenting person who is (3) held for ransom or reward or

otherwise, (4) [with] such acts being done knowingly and

willfully.” United States v. Barton, 257 F.3d 433, 439 (5th Cir.

2001).

35 However, Guidry’s argument that the federal kidnapping

statute should define the elements for “kidnapping” under 18

U.S.C. § 242 is misplaced. If Guidry were charged with violating

the federal kidnapping statute when he took Limon to an isolated

spot in order to sexually assault her, for the purpose of federal

jurisdiction he indeed would have had to transport Limon out of

the state. But here, Guidry was charged with violating Limon’s

civil rights by kidnapping her. Federal jurisdiction exists

without interstate abduction because his action constituted a

violation of Limon’s constitutional rights. In the absence of §

242 requiring “kidnapping” to comport with the elements of the

federal kidnapping statute, the generic, contemporary meaning of

kidnapping statute suffices.

We hold that Guidry did not need to transport or attempt to

transport Limon across state lines in order to qualify for the

sentencing enhancement for kidnapping under 18 U.S.C. § 242. We

conclude that because Guidry drove Limon to a secluded area, he

intentionally abducted and confined Limon without her consent,

and thus his conduct comes under 18 U.S.C. § 242. Under this

analysis, a jury could have reasonably concluded that Guidry

deprived Limon of her civil rights by kidnapping her, supporting

the sentencing enhancement.

IV. CONCLUSION

We AFFIRM Guidry’s conviction on all four counts.

36 37