### The Honorable John B. Jones, United State s District Judge for 1 

### the District of South Dakota. ___________ No. 95-3299

___________ United States of America, * * Appellee, * * v. * * Darwin Thomas Bordeaux, * * Appellant. *

___________ Appeals from the United States No. 95-3317 District Court for the

___________ District of South Dakota. United States of America, * * Appellee, * * v. * * Augustin White Horse, * * Appellant. *

___________ Submitted: March 14, 1996 Filed: June 10, 1996

___________ Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

___________ WOLLMAN, Circuit Judge.
Darwin Thomas Bordeaux and Augustine White Horse were convicted i n the d istrict court of kidnapping, in violation of 18 U.S.C. §§ 2, 1153 , 1 and 1201(a)(2), and of voluntary manslaughter,

### The Honorable Charles B. Kornmann, United States Distric t 2 

### Judge for the District of South Dakota. -2- in violation of 18 U.S.C. §§ 2, 1153, and 1112. Both appeal thei r convictions of the kidnapping charge and the denial of their motions t o sever the trial. White Horse also appeals the district court's imposition 2 of a sentencing enhancement for a vulnerable victim. We affirm.

I.

On Ja nuary 16, 1993, Bordeaux and White Horse attended a drinkin g party at a residence in Mission, South Dakota, located within the Rosebud Indian Reservation. Codefendants Willis E. Dickson, Jr. and Daniel Anthony Provancial also atten ded the party. The four left the party together the next morning in Dicks on's car, picked up a male juvenile at the residence of an acquaintance, and continued driving around. Sometime after 6:3 0 a.m., the occupants of the car observed Dale Williams walking along th e road. Williams was w earing the leg brace he regularly wore because of an accident he had suffe red several years earlier. One of the group members offered Williams a ride. Williams accepted, saying that he was going to his mother's house.
Dickson i nstead drove to his own house, where all of the members of the group got out of the car and started kicking and hitting Williams as he attemp ted to leave the area. After kicking and beating Williams fo r several minutes, laughing and cheering all the while, the members of the group put Williams back into the car and drove to an isolated location eas t of Miss ion. Williams was removed from the car and again was kicked an d beaten with fists andwith a small baseball bat, which the members of the group too k turns using. White Horse broke the bat over Williams' head , whereupon the members of the group struck Willia ms with the broken pieces. Williams was then put into the trunk of the car, and the

### The Honorab le Mark A. Moreno, United States Magistrate Judge 3 

### for the District of South Dakota. -3- members of the group drove back to Dickson's home. Dickson, Provancial, and White Horse left Bordeaux and the juvenile in the car. Bordeaux got out of the car and, pursued by the juvenile, ran to the home of a n acquaintance. Dickson's father, who lived directly behind Dickson, got into t he car to move it and heard Williams in the trunk. Dickson's father opened the trunk and got Williams out. Ultimately, an ambulance was summoned
. Wil liams went into cardiac arrest while being transported to the India n Health Service Hospital in Rosebud, South Dakota , where he died soon after as a result of the injuries inflicted upon him by the members of the group
.

White Horse, Bordeaux, Provancial, and Dickson were charged wit h kidnapping and second-degree murder. All four defendants filed motions fo r severanc e. The magistrate judge denied the motions. Provancial an d 3 Dicks on pled guilty to a superseding information charging voluntar y manslaughter and agre ed to testify at trial. The juvenile pled guilty to an inf ormation charging him with becoming a juvenile delinquent an d likewise agreed to te stify at trial. Bordeaux and White Horse were tried together on the charges described above and were found guilty of kidnappin g and voluntary manslaughter.
The sentencing court departed downward to sentence Bordeaux to 6 3 months' imprisonment and five years' supervised release. The court gave White Horse an upward adjustment pursuant to U.S.S.G. § 3A1.1, finding tha t White Hor se knew or should have known that the victim was unusuall y vulnerable, and sentenced him to 188 months' imp risonment and three years' supervised release.

### -4- Both Bord eaux and White Horse appeal the magistrate's order denying severance and challenge the sufficiency of the evidence to support th e kidnapping convictions. White Horse also appeal s the upward adjustment in his sentence.

II.
Generally, we will review a district court's refusal to gran t severance for an abuse of discretion that resulted in clear prejudice
. United States v. Luch t , 18 F.3d 541, 553 (8th Cir.), cert. denied , 115 S. Ct. 363 (1994). Defendants who do not give the district court th e oppor tunityto rule on the severance question in its concrete form ar e entitled to only plain error review. United States v. Dobin , 938 F.2d 867 , 869 (8th Cir. 1991). Under this standard, in addition to an abuse o f discret ion, a defendant must show prejudice affecting his substantia l rights and an extraordinary reason to reverse. Id. Because Bordeau x ren ewed his motion for severance at the time he moved for judgment o f acquittal or new trial, we conclude that he preserved the issue for plenar y review. White Horse did not renew his motion, however, and the district court was thus not gi ven an opportunity to rule on the motion at any time after the exact nature of Bordeaux's testimony w as known. Thus, we review the magistrate judge's denial of White Horse's motion for plain error.
Under e ither standard, we find that the district court did not er r in den ying the motions for severance. Two or more defendants may b e charged in the same indictment if they are alleg ed to have participated in the same offense. Fed. R. Crim. P. 8(b). There is a preference for joint trials of defendants who are charged together. United States v. Shivers , 66 F.3d 938, 939 (8th Cir.) (per curiam) (citing Zafiro v. United States , 506 U.S. 534, 537 (1993)), cert. denied , 116 S. Ct. 581 (1995). Disparity in the weight of the evidence between the codefe ndants is not a sufficient reason for severance. United States v. Blum , 65 F.3d 1436, 1444

### -5-

(8th Cir. 1995), cert . denied , 116 S. Ct. 824 (1996). Even the fact that defendants may have a ntagonistic defenses in which one defendant attempts to shift the blame to the other is not a sufficient reason for severance. United States v. Maso n , 982 F.2d 325, 328 (8th Cir. 1993). To show clear prejudice, a defendan t must show that his defense was irreconcilable with that of the codefendant or that the jury was unable to compartmentalize th e evidence. Shivers , 66 F.3d at 940.
AlthoughBordeaux and White Horse claim that their defenses wer e irreconcilable, we conclude that they were not. Bordeaux contended that he was coerced into participating by the other members of the group, but he te stified that Dickson was mainly responsible for the coercion. H e testifie d that at one point White Horse may have yelled at him to kic k Williams, but he did not know the voices well and the voice could have bee n Dickson's
. White Horse's defense was that he was not involved and tha t Dickson, Provancial, and the juvenile had attempted to shift the blame to him in order to get reduced sentences. The jury did not need to disbeliev e one defense in order to believe the other. The jury could have believed boththat the three defendants who had pled guilty were responsible fo r setting White Horse up and that they coerced Bordeaux into committing the offense. In fact, the jury disbelieved both defenses.
This was not a complex case. There were only two defendants, tw o counts each, and no complex issues. Accordingly, we conclude that the jur y was able to compartmentalize the evidence. See Blum , 65 F.3d at 1444
. Thus , the district court did not abuse its discretion in denying th e motions to sever.

III.
Bothdefendants also argue that the evidence was insufficient t o support their kidnapping convictions. In reviewing such a

### -6-

claim, we will examine the evidence in the light most favorable to th e government, giving the government the benefit of all reasonable inferences
. We will overturn the verdict only if a reasonable jury must have had a reaso nable doubt that the defendant was guilty of one of the essentia l elements of the offen se. United States v. Suppenbach , 1 F.3d 679, 681-82 (8th Cir. 1993).
White Hor se and Bordeaux contend that the evidence was insufficient to convict them of kidnapping because the government did not prove tha t Williams was held for "ransom or reward or otherwise," as required by 18 U.S.C. § 1201(a). We have noted that the "or otherwise" requirement has been broa dly interpreted and have held that it is met if the perso n kidn apped was taken for some reason that the defendant considered o f sufficient benefit to him, or for "`some purpose of his own.'" Unite d States v. Eagle Thunder , 893 F.2d 950, 953 (8th Cir. 1990) (quoting United States v. Melton , 883 F.2d 336, 338 (5th Cir. 1989)).

It was reasonable for the jury to infer that the purpose of th e kidnapping was to ass ault Williams and that he was put back in the car to enable the defendants to continue the assault at a more isolated location and thus prevent dete ction. Both reasons constitute a sufficient benefit to the defendants. The fact that Williams originally got into the ca r without being forced did not prevent the asportation from turning into a kidnapping, as Williams believed he would be taken to his mother's home an d force w as later used to confine him. See United States v. Redmond , 80 3 F.2d 438, 439 (9th Cir. 1986) (fact that victim originally accompanie s another consensually does not prevent kidnappingwhere force later used to seize or confine victim), cert. denied , 481 U.S. 1032 (1987). Bordeaux also argues that because he did not personally seize o r hold Willia ms, the evidence was insufficient to convict him of kidnapping
. Bordeaux was charged both as a principal and as an

### -7-

aider and abettor under 18 U.S.C. § 2. Under this statute, the acts of th e principal become those of the aider and abettor as a matter of law. Unite d States v. Simpson , 97 9 F.2d 1282, 1285 (8th Cir. 1992) (citing Pereira v. United States , 347 U.S. 1, 9-10 (1954)), cert. denied , 507 U.S. 943 (1993)
. An individual who takes part in a criminal offense with others may no t isolate his involvement to avoid responsibility for a more serious offense committed by the group. United States v. Felix , 996 F.2d 203, 207-08 (8th Cir. 1993).
There w as testimony that Bordeaux was in the car when Williams wa s offered a ride, that he took part in the beatings both at Dickson' s residence and outside town, and that after Williams was placed back into the car Bordeaux sat next to him and occasionally hit him in the back of the head, saying, "[y]ou don't mess with the boys." Although there wa s testimonyto the effect that Bordeaux participated only to the extent he felt he h ad to, the jury obviously did not accept his coercion defense
. After Bordeaux left the group, he made no effort to get any assistance for Williams. From this evidence, the jury could reasonably infer tha t Bordeaux was a willin g participant, or at least that he aided and abetted the group, in holding Williams.

IV.
White Ho rse argues that the district court erred in increasing hi s base offense level two levels for a vulnerable victim under U.S.S.G
. § 3A1.1. A defendant's offense level is increased two levels "[i]f th e defend ant knew or should have known that a victim of the offense wa s unusuallyvulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to criminal conduct. " U.S.S.G. § 3A1.1. Such an adjustment is appropriate where the choice of victimshows an "extra measure of criminal depravity." United States v. Cron , 7 1 F.3d 312, 314 (8th Cir. 1995) (internal quotations omitted)
. White

### -8-

Horse arg ues that he did not know Williams, that he did not know tha t William s was physically disabled, and that he did not target William s because of his disability.
We review

a district court's factual determination that there was a vulnerable victim for clear error. United State s v. Coates , 996 F.2d 939, 942 (8th Cir. 1993). Williams' brother testifie d that Williams wore a leg brace, that he "walked with a real, real distinc t limp," and that he could not easily get up aft er he had fallen down. He also testified that White Horse knew Williams because they were distantly related and had been at th e same house on many occasions. Williams' mother also submitted a lette r stating that she believed that White Horse knew her son. We conclude , therefore, that the district court's factual fin ding that White Horse knew Williams or that he would have seen Williams' disability before White Hors e and his colleagues picked him up and in the course of the beating is not clearly erroneous.
We have held that the defendant must have actually chosen the victim as a ta rget for the crime because of the victim's handicap. See Unite d States v. Callaway , 9 43 F.2d 29, 31 (8th Cir. 1991) (citing United States
v. Cree , 915 F.2d 352, 354 (8th Cir. 1990)). Because of Williams' limp an d leg brace, he was unable to run away during the beatings. There wa s testimonythat White Horse told Dickson to pull over when they first saw Williams, that White Horse was the first person to hit Williams, and that at one point Williams tried to get up and White Horse kicked him in the le g to cause him to fall back down. The district could readily infer from thi s evidence that White Horse targeted Williams because of his handicap.
White Horse has moved to remand the case to the district court fo r the purpose of filing a motion for a new trial based on newly discovered evidence. We deny th e motion without prejudice to the filing of a motion for a new trial in the district court. See Fed.

### -9-

R. Crim. P. 33. The judgment and sentence are affirmed.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.