[00:00:02] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:00:04] Speaker 03: I'm Jeremy Barron, and I'm here on behalf of John Matthew Chapman. [00:00:08] Speaker 03: I'd like to save five minutes for rebuttal, and I will watch the time. [00:00:11] Speaker 02: Thank you. [00:00:13] Speaker 03: The parties agree a new trial is necessary based on the judicial coercion issue. [00:00:18] Speaker 03: I'm happy to answer questions about that issue today, but because it's undisputed, I intend to focus first on the holding element, and then second time permitting on the interrogation. [00:00:30] Speaker 04: I do have one question, and I understand the position, the bottom line position taken on the new trial by you and the United States. [00:00:43] Speaker 04: But my question is, and I didn't see this in the record, and I don't know whether it's in the record, and I would only want you to answer this question based on what's in the record, not if you know the answer, not based on the record. [00:00:59] Speaker 04: How did it happen that with all of these very clear substantive notes, the courtroom deputy and the district judge indicated on the record that there weren't any substantive notes? [00:01:16] Speaker 04: And again, if it's not, if that's not in the record, then that's all I'd like you to say. [00:01:22] Speaker 04: If it is in the record, I'd like to have a better understanding of that, even if it might not affect the bottom line. [00:01:29] Speaker 03: I don't know the answer, and in any event, it's not in the record. [00:01:32] Speaker 03: Again, I'm happy to answer further questions on that issue. [00:01:37] Speaker 03: Otherwise, I will turn to the holding element. [00:01:41] Speaker 03: To prove a federal kidnapping, it is not enough for the government to establish that the defendant moved a victim. [00:01:48] Speaker 03: The government must also show that the defendant held, in other words, restrained the victim against the victim's will. [00:01:57] Speaker 03: In a case involving deception, the holding element requires the use of force or fear or, at a minimum, the willingness to use force or fear if necessary. [00:02:14] Speaker 04: 80 years ago, the Supreme Court's decision in Chatwin? [00:02:17] Speaker 04: Yes. [00:02:18] Speaker 04: All right. [00:02:18] Speaker 04: So the Supreme Court said that I think at 326 U.S., well, I'm not sure whether this page number goes to the U.S. [00:02:32] Speaker 04: side or not, but [00:02:33] Speaker 04: There is no proof that Chatwin or any of the other petitioners willfully intended through force, fear, or deception to convine the girl against her desire. [00:02:50] Speaker 04: And doesn't your argument require us to read out of the Supreme Court's opinion or deception? [00:02:58] Speaker 03: No, Your Honor, because deception can be enough so long as it is backed up by the mens rea of a willingness to use force or fear, if necessary. [00:03:07] Speaker 04: Where does it say that? [00:03:10] Speaker 04: But that's not what the Supreme Court said. [00:03:12] Speaker 03: So Chatwin doesn't purport to set out the standard for when deception does or does not qualify as holding. [00:03:19] Speaker 03: They do say there's no allegation in this case that there was a use of force, fear, or deception. [00:03:23] Speaker 03: But that's not equivalent to a clear statement that [00:03:27] Speaker 03: Here's the test that court should apply when there's a case involving deception. [00:03:31] Speaker 04: Although, counsel, I have to push back on that a little bit. [00:03:35] Speaker 04: From time to time, the Supreme Court has taken a dim view of our court parsing their language in ways that you're suggesting we should. [00:03:46] Speaker 03: Understood. [00:03:46] Speaker 03: But Chatwin did not reach the issue of when deception does or does not qualify. [00:03:51] Speaker 03: It did not purport to say that deception always qualify. [00:03:54] Speaker 03: And the facts of Chatwin [00:03:55] Speaker 03: involved conduct that many people might say is immoral or manipulative or even deceptive. [00:04:03] Speaker 03: That's a case where the two defendants hired a 15-year-old girl who is intellectually disabled to be a housekeeper and then converted the young girl to their religion. [00:04:15] Speaker 03: the girl became pregnant and they took the girl to Mexico so that she could marry one of the two defendants. [00:04:21] Speaker 04: How is that more immoral than what the evidence the government presented here? [00:04:28] Speaker 03: We're certainly not trying to compare the morality of either situation. [00:04:32] Speaker 03: The point is that Chapman was a case involving immoral and even arguably deceptive conduct. [00:04:37] Speaker 03: But what the Supreme Court said is we need to be careful here because [00:04:41] Speaker 03: quote, were we to sanction a careless concept of the crime of kidnapping, the boundaries of potential liability would be lost in infinity. [00:04:48] Speaker 03: And the courts need to keep in mind the core of a kidnapping charge, which is the involuntariness of the seizure or confinement. [00:04:57] Speaker 03: And so courts since Chatwin, including the Fifth Circuit in McGuinness, the Eleventh Circuit in Boone, and the Fourth Circuit in Higgs have understood [00:05:06] Speaker 03: the deception requirement to include the willingness to use force or fear if necessary in order to finish the kidnapping if the deceptive ruse fails. [00:05:17] Speaker 03: And we're asking the court to adopt a standard that's in line with those circuits. [00:05:21] Speaker 03: And it's important to adopt that standard to carry into effect the cautionary language from Chatwin, because if deception [00:05:29] Speaker 03: is enough to count as holding, you can imagine all sorts of situations where someone's movement is induced by deception that doesn't qualify under the common understanding or the plain text of the kidnapping statute. [00:05:42] Speaker 03: If there were a surprise party and a husband deceives a wife into coming to a restaurant to go to a surprise party, that's movement induced by deception. [00:05:52] Speaker 03: If there's a sufficient interstate nexus, like the use of a car or a phone, then the government could theoretically pursue [00:05:58] Speaker 03: a kidnapping prosecution in that type of innocuous situation. [00:06:03] Speaker 03: Our rule prevents that type of conduct from being improperly charged by the government because if the government needs to establish willingness to use force or fear, if necessary, then in the type of innocuous hypotheticals you can imagine involving deception, [00:06:21] Speaker 03: There isn't going to be that extra backup of willingness to use force or fear if necessary. [00:06:26] Speaker 03: Here the government presented no evidence that Chapman was willing to use force or fear or did in fact use force or fear to keep the girlfriend on the interstate trip to Las Vegas. [00:06:36] Speaker 03: The government in its answering brief does not appear to argue that if the standard is willingness to use force or fear they can satisfy that standard. [00:06:45] Speaker 03: They certainly dispute whether that's the standard. [00:06:48] Speaker 03: But they don't appear to argue that they presented sufficient evidence under that standard. [00:06:53] Speaker 03: This is not a case where Chapman brought weapons like a gun or a knife along with him to complete the kidnapping if the deception failed. [00:07:00] Speaker 03: He did not take the victim's phone from her. [00:07:03] Speaker 03: In fact, the girlfriend had the phone on her. [00:07:05] Speaker 03: the entire trip, and there's evidence she was texting friends throughout the trip. [00:07:10] Speaker 03: There is an interrogation that was the centerpiece of the state's case. [00:07:14] Speaker 03: There are no incriminating statements in the interrogation where Chapman says anything to the effect of, well, if she had asked to leave, I would have forced her to stay. [00:07:22] Speaker 04: Nonetheless, and although I understand your point on this, the facts are that he zip-tied her hands and feet around the signpost. [00:07:31] Speaker 04: put duct tape over her mouth and took pictures of it and then put duct tape over her nose while she attempted to escape and looked at him? [00:07:39] Speaker 04: That raises a separate issue involved. [00:07:41] Speaker 04: I understand, but those are essentially the undisputed facts, right? [00:07:47] Speaker 03: Well, the defense would certainly dispute Chapman's intent and maintain the trial that this was an accidental death, not a purposeful death, but even if [00:07:58] Speaker 03: we assume the government presented sufficient evidence of an intentional death. [00:08:02] Speaker 03: These are two different types of intent that we're considering here. [00:08:05] Speaker 03: There is an intent, an alleged intent to kill if everything goes according to plan. [00:08:12] Speaker 03: And then there's this separate question of whether Chapman would have been willing to use force or fear if, let's say, in Colorado the girlfriend had said, you know what, I don't want to go on this trip to Las Vegas anymore. [00:08:24] Speaker 03: I'd like to just go back to Pennsylvania. [00:08:25] Speaker 03: Would Chapman have [00:08:27] Speaker 03: abandoned the existing plan and come up with a new plan on the spot despite his neuro-atypicality and used force or fear at that point to ensure that the girlfriend made it to Las Vegas. [00:08:38] Speaker 03: We simply don't know. [00:08:39] Speaker 03: It would be purely speculative on this record evidence for a trial or effect to conclude Chapman had that necessary willingness to use force or fear that would turn the deception into holding. [00:08:52] Speaker 03: But even if the court is not with us on the sufficiency points, at a very minimum, the parties agree this case should go back for retrial on the judicial coercion issue. [00:09:04] Speaker 03: And as part of the sufficiency analysis, which the court should still conduct, it should explain that the holding element does require willingness to use force or fear if necessary, if it's a deception case. [00:09:16] Speaker 03: And that way, at a retrial, [00:09:18] Speaker 03: The parties will know, the district court will know what the proper jury instructions regarding holding are, and we could avoid this potential dispute if there were a second direct appeal in this case. [00:09:30] Speaker 03: I see I'm approaching the five minute mark, so if there are no further questions, I'll reserve the remainder of my time for rebuttal. [00:09:35] Speaker 02: Thank you. [00:09:36] Speaker 02: Thank you, counsel. [00:09:49] Speaker 01: Good morning, Your Honors, and may it please the Court, Andrew Noll on behalf of the United States. [00:09:53] Speaker 01: John Chapman deceived his girlfriend, Jamie Fedden, into accompanying him on a cross-country trip to Las Vegas on the false premise that the couple would be vacationing in or relocating there. [00:10:04] Speaker 01: Chapman, in fact, planned the trip for the purpose of murdering Jamie. [00:10:08] Speaker 01: And once in the Nevada desert, he bound Jamie to a signpost with zip ties and placed duct tape over her nose and mouth, causing her to asphyxiate to death. [00:10:17] Speaker 01: That conduct is federal kidnapping, resulting in death. [00:10:22] Speaker 01: So the government agrees this has to go back, right? [00:10:24] Speaker 01: Yes, Your Honor. [00:10:25] Speaker 02: And in doing so, we've got to reach the, just like when you wrongly give an Allen charge, we still have to talk about sufficiency and reach a determination on the scope of what holding means under the kidnapping statute? [00:10:40] Speaker 01: So I think that's right, Your Honor. [00:10:41] Speaker 01: I think as this court did in Williams, it should still reach the sufficiency issues. [00:10:46] Speaker 01: We've, of course, offered narrower theories under which the evidence is sufficient, even under Chapman's, we think, legally incorrect view of the statute, the scope of the statutory element of holding. [00:10:59] Speaker 01: The court could resolve the case on those narrow grounds, but I think we agree with Mr. Chapman that because we anticipate, I mean, with Mr. Chapman that because we anticipate retrying him, these issues will still arise on remand at retrial, even if the court doesn't resolve [00:11:15] Speaker 01: the questions in this case because the government has a right to pursue all legally valid theories and would continue to pursue a deception related theory in addition to the more narrow theories. [00:11:24] Speaker 01: And so I do think this court is up for your discretion, but we think the deception issue is a legal issue that is fully briefed in this court and is ripe for determination by this court should it choose to reach it. [00:11:38] Speaker 01: We do think that Chatwin, in particular, is very critical on this point. [00:11:42] Speaker 04: Counsel, before you move off this subject, do you have in mind the first question I asked your friend? [00:11:48] Speaker 01: I do, Your Honor. [00:11:49] Speaker 04: Do you have any different answer than your friend gave? [00:11:51] Speaker 01: I don't, Your Honor. [00:11:52] Speaker 01: Judge Bennett, I would just point you to page 2381 and 2382 of the excerpts of record. [00:11:58] Speaker 01: That is the short colloquy during which the courtroom deputy, the court acknowledges these notes are numbered, I think, six, seven, and eight. [00:12:06] Speaker 01: and the courtroom deputy says that they have the earlier notes. [00:12:09] Speaker 01: That's all that's in the record. [00:12:10] Speaker 01: The parties were not made aware of these earlier notes. [00:12:13] Speaker 01: And as you know from our brief, we weren't aware of them until we sought them for purposes of appeal. [00:12:19] Speaker 01: We just frankly don't know what happened. [00:12:22] Speaker 01: And I think everything that transpired thereafter was infected by what we understood the facts to be. [00:12:26] Speaker 04: My only question was, do we know why we reached this stage? [00:12:31] Speaker 04: And I appreciate both your and your friends' candor. [00:12:35] Speaker 04: Thank you, Your Honor. [00:12:36] Speaker 01: It's unusual, to be sure. [00:12:38] Speaker 01: It's very unusual. [00:12:40] Speaker 01: And so, again, as in Williams, I think there's nothing that, knowing the facts as we know now, that could have been done to avoid what we think is the right result, which is a retrial here. [00:12:48] Speaker 04: Well, certainly nothing by you or your friend. [00:12:51] Speaker 01: Of course. [00:12:52] Speaker 01: But going back to the holding element, Judge Bennett, I just wanted to address Chatwin, which, as you pointed out, has several statements, including the fact that the act of holding can include both a physical and mental restraint. [00:13:04] Speaker 01: and the fact that one can confine an individual through, among other things, deception. [00:13:09] Speaker 01: I think important for the purposes of how you read that statement is the fact that, as the Supreme Court explained in its opinion, that case proceeded on factual stipulations. [00:13:21] Speaker 01: And so there was no reference in the factual stipulations to any possible use of force or fear against the young woman who had been married to this individual and brought to Utah. [00:13:34] Speaker 01: And I think that is critical for understanding the fact that it would have been the easiest thing for the Supreme Court to say that deception alone is not sufficient for holding, given the absence of any allegations or stipulated facts, that there was any force or fear placed upon the woman. [00:13:50] Speaker 01: And so I think that statement is quite relevant because the court didn't rely on the fact that this was a deception case, but instead went on to say there was no holding against the will of the woman. [00:14:00] Speaker 01: And that, I think, is critical for understanding why, in our view, no circuit has foreclosed the use of deception as a continuation of the initial seizure when evaluating the holding element. [00:14:12] Speaker 01: We have a more narrow theory as well, though, that even under Mr. Chapman's view of the statute, the evidence was deficient to show that he [00:14:21] Speaker 01: both intended to and was willing to use force and in fact did use it against Jamie. [00:14:26] Speaker 01: I would point you to page 39 to 40 of our brief where we say, contrary to what Mr. Chapman argued this morning, that the evidence was sufficient to show that Chapman was willing to and in fact did use force against Jamie. [00:14:38] Speaker 01: We obviously emphasize the fact that he did use that force, he used the zip ties against Jamie, but that ultimately substantiates his willingness to do so antecedently. [00:14:48] Speaker 01: And I would also point you to page 2356 of the excerpts of record. [00:14:52] Speaker 01: This is the closing argument for the government. [00:14:54] Speaker 01: And there we say that we reference the free to leave requirement. [00:14:58] Speaker 01: And that is a reference to the jury instructions on the holding element that say that someone who is free to leave is not held. [00:15:05] Speaker 01: And we say, do you think for one minute Chapman is letting her go? [00:15:08] Speaker 01: He's got in his car a black backpack, duct tape, and zip ties. [00:15:13] Speaker 01: There's not a chance that he's letting her go. [00:15:15] Speaker 01: So although of course we emphasize the broader deception evidence at trial because that was our primary theory and we didn't think we have to actually show force or fear, but we did put into evidence the use of force and the ultimate use of the zip ties against Jamie. [00:15:31] Speaker 04: And as Judge Nguyen pointed out in a question in the previous case that the government's entitled to all reasonable inferences on a sufficiency challenge. [00:15:43] Speaker 01: That's correct, Your Honor. [00:15:44] Speaker 01: And so I think at a minimum we have the narrow view here. [00:15:50] Speaker 01: We think on the broader view, deception qualifies for all the reasons we've laid out in our brief. [00:15:55] Speaker 01: Just on the innocuous examples that Chapman's counsel gave both in his brief and here today, for example, a surprise party, I think it's critical to remember that the holding element, as the Supreme Court explained in Chapman, requires not just restraint of the person, but restraint against the will of that person. [00:16:11] Speaker 01: And so a welcome surprise, a wife who shows up to a surprise party, I don't think there's any reasonable way one could construe that constraint as against her will when she's fully apprised of the circumstances. [00:16:23] Speaker 01: Even in the case of a curmudgeonly idiosyncratic person who hates surprise parties, we think the willfulness requirement in the statute takes care of those examples because the individual still has to be aware in the general sense of Brian v. United States that their conduct [00:16:37] Speaker 01: is against the law. [00:16:38] Speaker 01: And I think we have that in spades here with respect to Mr. Chapman's both Quora search histories throughout the two months leading up to the travel and during the travel itself, including the night before the couple arrived in Nevada when he searched from Colorado, the words dump body Nevada, but also just the more general course of conduct. [00:16:59] Speaker 01: We have that in spades here. [00:17:01] Speaker 01: So for all those reasons, we think the evidence was clearly sufficient [00:17:05] Speaker 01: to sustain the kidnapping resulting in death count here, and this court should permit retrial. [00:17:11] Speaker 01: I'm happy to answer any questions the court might have about the suppression issues or the instructional issues. [00:17:17] Speaker 01: With respect to the instructional ones, I think the court could leave several of those for retrial, where they might be infected by the evidence that comes in. [00:17:25] Speaker 01: But if you resolve the sufficiency issues, I think that will take care of several of the instructional ones. [00:17:31] Speaker 01: But unless the court has any further questions, we would ask that you remain for a retrial, but affirm the sufficiency of the evidence and the denial of the motion to suppress. [00:17:41] Speaker 02: Judge Goodall, do you have any additional questions for the government? [00:17:44] Speaker 01: No, no, I don't. [00:17:45] Speaker 01: Thank you, counsel. [00:17:46] Speaker 01: Thank you, your honors. [00:17:58] Speaker 03: I'd like to try to make four points on rebuttal. [00:18:01] Speaker 03: First, government counsel referenced how in chat when the Supreme Court used the term mental restraint. [00:18:07] Speaker 03: In our view, that primarily means fear. [00:18:11] Speaker 03: Similarly, in Boone, Boone talks about psychological force, that deception is not enough. [00:18:16] Speaker 03: There has to be a willingness to use physical or psychological force. [00:18:21] Speaker 03: Again, psychological force primarily means fear. [00:18:24] Speaker 03: Maybe there are other forms of psychological force or mental restraints out there, but the simplest way to think about it is fear, threats, things along those lines. [00:18:33] Speaker 00: So in our view... Council, why wouldn't that also include tricking someone into thinking that they were being moved for a different purpose? [00:18:49] Speaker 03: Because deception is not enough unless it's backed up by something more like the willingness to use physical force or psychological force, in other words, fear. [00:18:58] Speaker 03: So for example, in Boone, the Boone, the Eleventh Circuit explained in vagueling or decoying someone across state lines, tricking them across state lines, isn't in and of itself prescribed by the statute. [00:19:11] Speaker 03: The fact finder has to determine whether the alleged kidnapper had the willingness and intent to use physical or psychological force to complete the kidnapping in the event that the deception failed. [00:19:22] Speaker 03: So deception, trickery, that's not enough. [00:19:25] Speaker 03: These other circuits, including Boone and the 11th Circuit, require some other form of psychological force on top of trickery or deception. [00:19:33] Speaker 03: And in our view, that typically means fear. [00:19:37] Speaker 03: As for the government's backup sufficiency argument, [00:19:40] Speaker 03: which is the transitory holding. [00:19:42] Speaker 03: I just want to briefly explain our position, which is that under this court's decision in Jackson, when there is a separate crime and there is holding inherent in that separate crime, restraint inherent in that separate crime, those restraints do not amount to holding under the federal kidnapping statute and the government cannot bootstrap a kidnapping charge on top of that other charge. [00:20:05] Speaker 03: Here there is a state capital murder prosecution pending. [00:20:09] Speaker 03: The restraints that were applied were coextensive with the government's theory of an intentional killing. [00:20:15] Speaker 03: And so under Jackson, as well as the Tenth Circuit's decision in Murphy, those restraints are not enough to qualify as holding to support a kidnapping charge. [00:20:25] Speaker 03: And that was not a theory that was [00:20:28] Speaker 03: properly presented to the jury below. [00:20:31] Speaker 03: The government did not squarely argue, hey, if you don't think deception amounts to holding, well, there was holding that occurred with the restraints to the poll. [00:20:40] Speaker 03: That wasn't squarely presented to the jury. [00:20:42] Speaker 03: The defense still sought a jury instruction on that issue. [00:20:46] Speaker 03: The government opposed it, and the trial court failed to give it. [00:20:49] Speaker 03: So in our view, it's inappropriate for [00:20:51] Speaker 03: the court to reject a sufficiency argument based on a new legal theory that the government did not present below. [00:20:59] Speaker 04: What is the current status of the state case? [00:21:02] Speaker 03: It's pending. [00:21:03] Speaker 03: I don't know whether it's gone to preliminary hearing yet. [00:21:06] Speaker 03: Our client has been transferred from Bureau of Prison's custody to the Lincoln County State facility. [00:21:13] Speaker 03: I'm aware that there have been recent proceedings in that case. [00:21:16] Speaker 03: I just don't know how far along it is at this time. [00:21:18] Speaker 03: That's fine. [00:21:19] Speaker 03: Thank you. [00:21:21] Speaker 03: As far as the sufficiency standard, yes, the government is entitled to reasonable inferences, but there has to be more than mere speculation, and that's from this court's Nelvis case. [00:21:32] Speaker 03: So there has to be enough evidence from which a rational trier of fact can draw a non-speculative inference. [00:21:39] Speaker 03: And based on the evidence at trial, the government did not present sufficient evidence to allow a non-speculative inference that [00:21:48] Speaker 03: If, for example, the girlfriend in Colorado had said, I don't want to be with you anymore, put me on the next plane back to Pennsylvania, that Chapman would have resorted to force or fear at that point to complete the trip to Las Vegas. [00:22:03] Speaker 02: Finally... Well, the government did reference the internet searches and the evidence of intent to use some physical force. [00:22:12] Speaker 02: Even if that was not squarely argued, I don't know why that would be speculative. [00:22:17] Speaker 03: Because these are two different types of intent. [00:22:20] Speaker 03: They're very different types of intent. [00:22:22] Speaker 03: There's this alleged intent to kill, assuming everything goes according to plan. [00:22:27] Speaker 03: And then there's this backup question of willingness to use force, where the question is, what would Chapman have done if things didn't go according to plan and the girlfriend decided to leave early? [00:22:38] Speaker 03: They're just two different types of intent. [00:22:40] Speaker 03: And it is speculative to say that intent number one proves intent number two. [00:22:44] Speaker 03: But again, even if the court [00:22:46] Speaker 03: does not agree on the sufficiency argument, it should still clarify the holding element when it conducts its sufficiency analysis and adopt the willingness to use force or fear standard. [00:22:57] Speaker 03: Finally, government council referenced willfulness as a potential limiting construction on its view of the statute. [00:23:05] Speaker 03: There are two problems with that argument. [00:23:07] Speaker 03: The first is a line of authority that goes back to this court's decision in Ghani, G-A-W-N-E. [00:23:12] Speaker 03: where the court said an illegal purpose need not be shown. [00:23:16] Speaker 03: The kidnapper's motivation is not an element of the offense. [00:23:19] Speaker 03: The policy of the statute is offended, though the motivation for the kidnapping be laudable. [00:23:25] Speaker 03: Kidnapping is undesirable in itself without regard to its purpose. [00:23:29] Speaker 03: So that strain of authority [00:23:31] Speaker 03: in our view, is inconsistent with the government's argument that there needs to be knowledge of wrongful conduct. [00:23:36] Speaker 03: And if I could just complete the second part of that answer. [00:23:39] Speaker 03: Please. [00:23:39] Speaker 03: The willfulness word in the statute is tied to one of the many jurisdictional nexuses for a federal charge. [00:23:48] Speaker 03: So it's willfully transport and interstate commerce. [00:23:51] Speaker 03: The word willful does not appear with the other bases for federal jurisdiction, such as the use of interstate commerce facilities. [00:23:58] Speaker 03: So it would not make sense to interpret [00:24:01] Speaker 03: willfulness as applying to the entire statute and requiring knowledge of wrongful conduct. [00:24:07] Speaker 03: If there are no further questions, we would ask the court to order an acquittal or, at a minimum, reverse for a new trial. [00:24:12] Speaker 02: Thank you very much to both sides for your helpful arguments this morning. [00:24:16] Speaker 02: The matter is submitted, and we'll issue our decision in due course.