* District Judge of the District of Maryland, sitting by

designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-3277

No. 93-3284

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD DAVIS, SR.,

Defendant-Appellant.

*****************************************************************

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JIM LEWIS and JOEY GRAY,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

(April 5, 1994)

Before HIGGINBOTHAM and WIENER, Circuit Jud ges, and KAUFMAN, *

District Judge.

HIGGINBOTHAM, Circuit Judge:

A grand jury indicted Richard Davis, Sr., Jim Lewis, Joey

Gray, Mark Facey, and Tom Coulton for conspiracy to kidnap William

H. Speiss, Jr. in violation of 18 U.S.C. § 1201(c). The grand jury

also charged Davis, Lewis, and Gray for kidnapping in violation of2

18 U.S.C. § 1 201(a)(1) and (2). Davis pleaded guilty. A jury

found Lewis and Gray guilty on both counts but acquitted Facey and

Coulton. The district court sentenced Davis and Lewis to 78 months

and Gray to 70 months imprisonment. Davis, Lewis, and Gray

appealed. Much of this appeal revolves around defendants' claimed

defense that a kidnap victim must be alive and the victim here was

dead, or so they thought. We affirm.

I.

This exotic story has its genesis appropriately in a dispute

over business dealings in the Bird Cage, a wholesale exotic bird

supplier located in Louisiana. On July 13, 1992, Davis, the owner

of the Bird Cage, accused Speiss and other employees of stealing

merchandise. The accusations turned violent when Davis started to

hurl obscenities and brandish a gun. Soon, Lewis and Gray,

employees of the Bird Cage, joined the melee. Speiss started to

leave the Bird Cage, but Davis and Gray bound him, took his car

keys, interrogated him, and poked him with a sizeable wooden stick.

Finally, they placed him in a trailer.

After about an hour, Davis and Gray returned with the wooden

stick. Gray cursed Speiss and beat him with the stick. When

Speiss began to scream, Gray stuffed a gag in his mouth. After

Davis had poked Speiss a few times with the stick, Davis and Gray

dragged Speiss to his car and heaved him into the trunk. Davis

demanded a confession from Speiss about the theft of store

property. He answered Speiss' denial of wrongdoing by slamming the

trunk closed.3

After Davis opened the trunk , he stuffed another gag in

Speiss' mouth and threatened to kill him . Next, Davis and Gray

drove the car out of the Bird Cage parking lot with Speiss in the

trunk, battered and bleeding. As they were leaving, Lewis replaced

Gray in the car. With Davis driving, Lewis in the passenger seat,

and Speiss in the trunk, the three drove to M ississippi. At one

point, Davis told Lewis that he thought Speiss was dead.

After Davis, Lewis, and Speiss reached Mississippi, Gray, who

had been following in a car taken from Harry Matthews, another Bird

Cage employee, drove away and dumped Matthews' car in a pond in

Natchez, Mississippi. He called relatives to come pick him up.

Davis and Lewis checked into a Natchez hotel under Davis' assumed

name. Lewis made several phone calls. Speiss remained in the

trunk. Early the next morning, Coulton and Facey arrived at the

hotel and discussed what to do with Speiss.

In the early morning hours of July 14, 1992, Davis and Lewis

drove from the hotel with Speiss still in the trunk. Coulton and

Facey followed in another car . They drove for a couple of hours

before they found a rural field in which they planned to dump

Speiss' body. Seeing that Speiss was still alive, Davis and Lewis

pulled him out of the trunk as he pleaded for his life. Davis told

Speiss to lie down in the back seat of the ca r. The party drove

south toward New Orleans. Eventually, Davis and Lewis took Speiss

to an apartment in Mandeville, Louisiana.

At the apartment, Speiss called his wife and son. Davis,

Lewis, and Coulton began cleaning Speiss' wounds. Eventually,4

Coulton and Neil Ledett, another Bird Cage employee, allowed Speiss

to escape. They assisted Speiss into his car and arranged a

meeting with his wife. The next day, Speiss contacted the

authorities. Given the foul nature of the crime, the jury

convicted and the district court decided that the sentence should

not be paltry. Davis, Lewis, and Gray appealed.

II.

Gray claims that the district court erred by refusing to

charge the jury that the defendants could not have conspired to

kidnap and could not have actually kidnapped the victim because

they thought he had died after the beating. Lewis had proposed the

following instruction:

Y ou are hereby instructed that in order to establis h a

violation of the Federal Kidnapping Act it is necessary

that the person being transport ed be alive because the

transportation of a dead body doe s not violate the

Federal Kidnapping Act. Because the defendant believed

that the victim was dead there could not be a conspiracy

to kidnap the victim or an actual kidnapping. Therefore,

if you find that the defendant believed that the victim

was dead there could not be a violation of the Federal

Kidnapping Act. Thus, defendant could not be guilty of

a violation of the Act.

Davis had told Lewis that he thought Speiss was dead. The fact

that the defendants had left Speiss in the trunk overnight and had

searched f or a place to dump his body also suggests that they

thought the trunk contained a corpse rather than a live person.

The court did not mention the dead victim issue to the jury. No

party objected to the jury charge.

When no party objects at trial to a jury instruction, we will

uphold the charge absent plain error. United States v. Franklin

,5

586 F.2d 560, 569 (5th Cir. 1978), c ert. denied

, 440 U.S. 972

(1979). Plain error occurs only when the instruction, considered

as a whole, was so clearly erroneous as to result in the likelihood

of a grave miscarriage of justice. U nited States v. Varkonyi

, 645

F.2d 453, 460 (5th Cir. 1981). In this case, the jury charge

offered a correct statement of the law.

Lewis' proposed instruction was not accurate because a

defendant's mistaken belief that the victim is dead is not a

defense to the kidnapping offense. The federal kidnapping statute

provides:

Whoever unlawfully seizes, confines , inveigles,

decoys, kidnaps, abducts or carries away and holds for

ransom or reward otherwise any person, except in the case of a minor by a parent thereof, when:

(1) the person is willfully transported in

interstate or foreign commerce;

. . . . shall be punished by imprisonment for any term of years

or life.

18 U.S.C. § 1201(a). Under this provision, the government must

establish four elements: (1) the tran s portation in interstate

commerce (2) of an unconsenting person who is (3) held for ransom,

reward or otherwise, (4) such acts being done knowingly and

willfully. United States v. Jackson , 978 F.2d 903, 910 (5th Cir.

1992), cert. denied , 113 S.Ct. 2429 (1993).

It is true that under § 1201(a) the defendants must abduct a

live person who then moves in interstate commerce. Federal

kidnapping does not cover transportation of a corpse across state

lines. From this fact, however, it does not follow that a

defendant who thinks he has a dead person but who in fact has a6

live victim does not violate the federal kidnapping provision. If

the defendant has abducted an unconsenting live body that then

moves in interstate commerce, he has violated the federal

kidnapping law, even if he believed the person was dead.

To be sure, Jackson suggests that a federal kidnapper has to

knowingly and willfully abduct an unconsenting person, which could

only mean a live person, but the statute does not require that the

kidnapper know that his victim is alive. Instead, it requires only

that he overcome the will of a victim who then moves in interstate

commerce. J ackson did not confront the issue of whether a federal

kidnapper must believe his victim is alive, but the question is

answered by the express language of the federal kidnapping statute.

III.

Gray also alleges that the evidence is insufficient to sustain

his conviction. We review the evidence, whether direct or

circumstantia l, and all reasonable inferences drawn from the

evidence in the light most favorable to the jury's verdict. U nited

States v. Pigrum , 922 F.2d 249, 253 (5th Cir.), cert. denied , 111

S.Ct. 2064 (1991). We determine whether a rational trier of fact

could have found that the evidence established the es sential

elements of the offense beyond a reasonable doubt. United States

v. Carter

, 953 F.2d 1449, 1454 (5th Cir.), cert. denied

, 112 S.Ct.

2980 (1992).

Unfortunately for Gray, he waived his objection first made at

the close of the government's evidence when he did not renew it at7

the end of the trial. United States v. Daniel , 957 F.2d 162, 164

(5th Cir. 1992). Under these circumstances, we affirm the

conviction unless to do so would work a miscarriage of justice.

Id

. Because the evidence was sufficient for the jury to find Gray

guilty of kidnapping cons piracy and kidnapping, sustaining this

conviction entails no miscarr iage of justice.

Gray points to what he sees as a la ck of proof that he ever

agreed to transport Speiss anywhere. Interstate transportation of

the victim is a jurisdictional question and not an element of the

crime. Jackson , 978 F.2d at 910. The government proved beyond a

reasonable doubt that Speiss was transported in interstate

commerce. As well, ample evidence shows that Gray agreed to hold,

detain, and t ransport Speiss against his will. S ee id. The

government did not have to prove that Gray agreed to move Speiss in

interstate commerce to prove federal kidnapping.

Next, Gray suggests that there was no testimony t hat the

parties entered into a conspi ratorial agreement. The government

need not prove that the alleged conspirators entered into a formal

agreement; the agreement could have been silent or tacit. United

States v. Martin

, 790 F.2d 1215, 1219-20 (5th Cir.), cert. denied

,

479 U.S. 868 (1986). The government must prove the existence of an

agreement and the defendant's knowledge of the conspiracy and his

voluntary participation. It has met this burden.

Gray faults the district court for not instructing the jury on

the P inkerton theory of liability, which imputes a conspirato r's8

substantive offenses to his coconspirators. P inkerton v. United

States

, 328 U.S. 640, 645-48 (1946). Gray cannot demonstrate

prejudice from a failure to instruct on the Pinkerton doctrine

because the omission, if anything, deprived the jury of a

legitimate theory of conviction. See id.

IV.

Lewis challenges the admission of Matthews' testimony about

the early stages of the conspiracy. Matthews stated that Davis had

ordered Lewis to accompany him to retrieve some money. After the

two had left in Matthews' car, Matthews recounted, Lewis, who had

a gun in his lap, called Davis. Matthews said that, soon

thereafter, Lewis ordered him from the car and drov e away.

Although the district court excluded the testimony, Matthews also

stated that L ewis wanted him to act as if he had been beaten and

that Lewis had to return to the Bird Cage to help with Speiss. The

government argued that Matthews' testimony showed when the

conspiracy began and how the conspirators came to possess Matthews'

car without Matthews.

Prior to Matthews' testimony, the government explained the

intended purpose of Matthews' story, but Lewis objected on the

basis that the testimony was inadmissible character evidence. S ee

Fed. R. Evid. 404(b). The district court ruled:

Well, I would think that any conversation that the

defendant Lewis had that would place him within the

conspiracy prior to the time of his arrival at the scene

is admissible and is relevant. You have to be very

careful with the area in which you are dealing. If there

are objections, specific objections, that you want to

make, make them, and I'll rule on them. We'll see what

happens.9

We review such evidentiary rulings under the abuse of dis cretion

doctrine. J on-T Chem., Inc. v. Freeport Chem. Co.

, 704 F.2d 1412,

1417 (5th Cir. 1983).

On appeal, Lewi s again argues that Matthews' story was

inadmissible character evidence under Rule 404(b). This contention

fails to appreciate that the district court did not admit Matthews'

testimony pursuant to Rule 404(b), which would trigger the test in

United States v. Beechum , 582 F.2d 898 (5th Cir. 1978) (en banc),

cert. denied

, 440 U.S. 920 (1 979), for determining the

admissib i lity of extrinsic evidence, but instead admitted the

testimony as intrinsic evidence of the conspiracy. Far from being

Rule 404(b) evidence, Matthews' story and the inferences drawn from

it establish both when the charged conspiracy began and when Lewis

knowingly and willfully join it.

V.

The district court enhanced the sentences of Davis and Lewis

by two levels because they i nflicted serious bodily injury upon

Speiss. U.S.S.G. § 2A4.1(b)(2)(B). Serious bodily injury involves

extreme physical pain or the impairment of a function of a bodily

member, organ or mental faculty; it might require medical

intervention such as surgery, hospitalization, or physical

rehabilitation. U.S.S.G. § 1B1.1, application note 1(j). The PSR

had recommended such an enhancement due to numerous lacerations and

other injuries Speiss sustained during his ordeal.

Davis argues that Speiss suffered bodily injuries, but he

maintains that they did not rise to the level of serious bodily10

harm. The seriousness of Speiss' injuries is a fact inquiry

reviewable only for clear error. U nited States v. Moore

, 997 F.2d

3 0, 37 (5th Cir. 1993), c ert. denied

, 114 S.Ct. 647 (1993). The

dis trict court found that Speiss' ailments met the definition.

Davis himself had recognized on the road to Mississippi that Speiss

seemed more dead than alive. The district court did not commit

clear error.

Lewis also attacks his enhancement for the infliction of

serious bodily injury, though he does so on different grounds.

Lewis admits that Speiss suffered serious bodily injuries, but he

contends that he did not participate in inflicting these injuries

and that he could not have foreseen such a vicious attack. Lewis,

however, had plotted with Davis at the beginning of the conspiracy

and had travelled to Mississippi knowing th at Speiss, certainly

injured and possi bly dead, needed medical attention more than a

long ride in the trun k. Lewis is accountable for serious bodily

injuries because he reasonably could have foreseen them. S ee

U.S.S.G § 1B1.3(a)(1)(B).

VI.

A sentencing court must increase the base offense level by two

points if it finds that a dan gerous weapon was used. U.S.S.G.

§ 2A4.1(b)(3). The phrase "a dangerous weapon was used" means that

a firearm was discharged or a firearm or "dangerous weapon" was

"otherwise used." U.S.S.G. § 2A4.1(b)(3), application note 2. A

"dangerous weapon" is an instrument capable of inflicting death or

s erious bodily injury. U.S.S.G. § 1B1.1, application note 1(d).11

The phrase "otherwise used" means that the conduct did not amount

to the discharge of a firearm but was more than brandishing,

displaying, or possessing a firearm or other dangerous weapon.

U.S.S.G. § 1B1.1, application not e 1(g). T he district court

enhanced the sentences of Davis and Lewis because the wooden stick

and the gun constituted dangerous weapons in the hands of the

conspirators.

The district court did not clearly err in determining that the

wooden stick and gun were dangerous weapons. The wooden stick

served as a dangerous weapon because of its characteristics (a

rather large stick of manzanita wood, a hard wood used to make bird

cages) and the manner in which it was used by Gray (to beat Speiss

on his head, arms, and legs). Although Davis and Lewis did not

inflict major injuries with either the stick or the gun (Davis only

poked Speiss with the stick and Lewis spared the rod altogether),

they could have reasonably foreseen the way in which Gray used the

stick. As well, Davis and Lewis used the stick and the gun

respectively in ways that intimidated Speiss. These facts justify

the enhancement.

VII.

Davis and Lewis challen ge the findings of their respective

roles in the crime made in the sentencing proceeding. Davis

maintains that he should not have receiv ed the four level

enhancement under U.S.S.G. § 3B1.1(a) for exhibiting leadership of

or control over all of the five participants. The enhancement in

§ 3B1.1(a) requires that the enterprise involve five or more people12

criminally responsible for the offense, but not necessarily

convicted for the crime. U.S.S.G. § 3B1.1, application note 1.

The district court found that Davis had led and controlled Gray,

Lewis, Facey, Coulton, and himself. We review the district court's

determination on this front under the clearly erroneous standard.

United States v. Mejia-Orosco

, 867 F.2d 216, 221 (5th Cir.), cert.

denied , 492 U.S. 924 (1989).

Davis does not dispute that he led Gray, Lewis, and himself,

but he does claim that he did not lead Facey and Coulton. The

district court could have enhanced Davis' sentence based on his

leadership of Facey and Coulton despite their acquittals. As well,

Facey and Coulton played a meaningful role in the c riminal

enterprise. The record confirms the PRS's (and the district

court's) assessment that Davis "direct[ed] the actions of [Coulton

and Facey]." Coulton was present when the hapless Speiss was

beaten and stuffed in the trunk. Once in the Mississippi hotel,

Davis told Lewis to summon help. Lewis called Coulton and Facey

who drove to the hotel and accompanied Davis and Lewis to the field

t o dispose of the victim. The government proved the presence of

five criminally responsible participants.

Lewis challenges the co urt's determination that he did not

play a minor role in the offense. He contends that he should have

received a two level reduction in his sentence for his minor role.

See U.S.S.G. § 3B1.2. Again, the role of a defendant in the

offense is a sophisticate d factual determination we leave to the

district cour t under the protection of the clearly erroneous13

standard. M ejia-Orosco

, 867 F.2d at 221

. The fact that Lewis rode

to Mississippi in the car that contained Speiss in its trunk,

participated in conversations with Davis concerning the disposal of

Speiss' body, and stood ready to dispose of the body suggests that

Lewis was not less culpable than most other participants. S ee

U.S.S.G. § 3B1.2, application notes 1 and 3.

AFFIRMED.