     Case: 16-41089      Document: 00514013960         Page: 1    Date Filed: 05/31/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 16-41089                                FILED
                                  Summary Calendar                          May 31, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

WAYNE ROSS MAITLAND,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 1:14-CR-116-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Wayne Ross Maitland challenges the sufficiency of
the evidence to support his conviction for kidnapping his infant stepson, CW,
based on which the district court sentenced him to the statutory minimum of
20 years of imprisonment. See 18 U.S.C. § 1201(a)(1), (g). Maitland contends
that the government failed to prove beyond a reasonable doubt that he was not
acting in loco parentis when he drove CW from Texas to Louisiana.                                He


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-41089

contends that he was acting in loco parentis and was therefore exempt from
prosecution for kidnapping under § 1201. Although the parties disagree as to
the applicable standard of review, we need not resolve that conflict because we
conclude that the evidence is sufficient to sustain Maitland’s conviction under
the ordinary “rational jury” standard. See United States v. Rodriguez, 553 F.3d
380, 389 (5th Cir. 2008).
      Section 1201 exempts from prosecution a parent who “seizes, confines,
inveigles, decoys, kidnaps, abducts, or carries away” his own minor child. See
§ 1201(a). We have not yet decided whether someone who is not a biological
parent of the victim but who is acting in loco parentis is similarly exempted
from prosecution, although two other circuits have answered that question in
the affirmative. See United States v. Floyd, 81 F.3d 1517, 1522-25 (10th Cir.
1996); Miller v. United States, 123 F.2d 715, 716-18 (8th Cir. 1941), rev’d on
other grounds, 317 U.S. 192 (1942).
      Assuming without deciding that the in loco parentis doctrine applies, we
conclude that the jury’s verdict was rational. See Rodriguez, 553 F.3d at 389.
A person acts in loco parentis when he or she “voluntarily performs all of the
duties a parent normally provides to his or her child,” which includes
“bestowing upon the child love, affection, support, maintenance, instruction,
discipline, and guidance.” Floyd, 81 F.3d at 1523-24.
      Maitland and CW’s mother, CH, gave competing testimony about the
extent to which Maitland functioned as a parent toward CW before and during
the offense. The jury evidently chose to believe CH, and we will not second-
guess that decision. See United States v. Kuhrt, 788 F.3d 403, 413 (5th Cir.
2015), cert. denied sub nom. Lopez v. United States, 136 S. Ct. 1376 (2016). The
jury heard evidence that Maitland had no custodial rights to CW, could only
have access to CW with CH’s permission, and had no final say on childrearing



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                                No. 16-41089

decisions. At the time of the offense, Maitland and CH were separated and
had begun the divorce process, and Maitland no longer lived with CH or CW.
Maitland drove CW to Louisiana and left him outside a hospital in the middle
of a cold night then returned to Texas alone. Immediately before driving away,
Maitland told CH, “I’ve got your son now.”
      Viewing the evidence and the inferences drawn from it in the light most
favorable to the verdict, we conclude that a rational trier of fact could have
found beyond a reasonable doubt that Maitland was not acting in a parental
capacity at the time he carried CW away. See Jackson v. Virginia, 443 U.S.
307, 319 (1979); Rodriguez, 553 F.3d at 389.
      AFFIRMED.




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