   11-3678-cr
   United States v. Larry Corbett


                      UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                     August Term, 2013

            (Argued: November 25, 2013                   Decided: April 29, 2014)

                                    Docket No. 11-3678-cr


                                     UNITED STATES,

                                             Appellee,

                                              – v. –

                                     LARRY CORBETT,

                                      Defendant-Appellant,




Before: KATZMANN, Chief Judge, WINTER, CALABRESI, Circuit Judges.



       Larry Corbett appeals his federal kidnapping conviction after bench trial in the

District Court of Connecticut (Droney, J.). Corbett argues that the trial evidence was

insufficient to prove that he “held” his kidnapping victim against the victim’s will, as

required by statute. We disagree. There was sufficient evidence to conclude that Corbett

lured his victim into a van for the purpose of robbing him, and then kept the victim

confined in the vehicle—whether by physical force, psychological intimidation, or trickery—




                                         1
until Corbett had a chance to kill him. Corbett’s remaining challenges are without merit.

We, therefore, AFFIRM the kidnapping conviction and sentence.


                                    H. GORDON HALL (Robert M. Spector, on the brief),
                                    Assistant United States Attorneys for David B. Fine,
                                    United States Attorney for the District of Connecticut,
                                    New Haven, CT, for Appellee.

                                    CRAIG A. RAABE (Kori Termine Wisneski, on the brief),
                                    Robinson & Cole LLP, Hartford, CT, for Defendant-
                                    Appellant.




CALABRESI, Circuit Judge:

       This case presents a question that is new to our circuit: what evidence is sufficient

under the Lindbergh Law, 18 U.S.C. § 1201(a), to convict a defendant of “holding” a victim

against the victim’s will? Other circuits differ as to whether a defendant who first “takes”

control of his victim by “decoy” or trick must intend to back up his pretense with physical

or psychological force in order to “hold” the unwilling victim under the statute. Compare

United States v. Boone, 959 F.2d 1550, 1555 & n.5 (11th Cir. 1992) (requiring that the

defendant “ha[ve] the willingness and intent to use physical or psychological force to

complete the kidnapping in the event that his deception fail[s]”), with United States v. Hoog,

504 F.2d 45, 50-51 (8th Cir. 1974) (finding the evidence to be sufficient where the defendant

promised the victim a ride and then kept her in his car by inventing an emergency detour).

We need not join either side of the split to decide this case. Here, the evidence was

sufficient that Corbett, after tricking his victim into a minivan, intended to continue holding

                                              2
the victim against his will—and so Corbett did—before robbing and killing the victim, and

leaving his body along the road.

       We therefore AFFIRM the kidnapping conviction and sentence of the District Court.

                                    I.     BACKGROUND

   A. Kidnapping and Homicide of George McPherson

       The following facts, relevant to this appeal, are presented in the light most favorable

to the Government. See, e.g., United States v. Gaines, 295 F.3d 293, 299-300 (2d Cir. 2002)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

       The morning of January 14, 2008, Larry Corbett borrowed his wife’s minivan and

drove from Bridgeport, Connecticut to the Bronx, New York, where Corbett planned to buy

27 pounds of marijuana from George McPherson for $27,000. Corbett had done business

with McPherson before, albeit on a smaller scale. Corbett arrived at McPherson’s house

early, and McPherson suggested he get breakfast nearby while McPherson finished preparing

the marijuana for sale. McPherson was stalling. In fact, according to Neville Fuller, who

was with McPherson that morning, McPherson had not been able to round up what he had

promised Corbett, and he was scrambling to locate more marijuana. By the time Corbett

returned to McPherson’s house, McPherson had managed to secure only about 9-10 pounds.

       McPherson’s habit was to conduct all drug business within his apartment, located in

an attached townhouse on Tiemann Avenue, a dead-end residential street.              Corbett,

however, convinced McPherson to bring the marijuana out to Corbett’s van, explaining that

he “didn’t feel safe coming to [McPherson’s] house” because Corbett had seen two

suspicious cars—one resembling an unmarked police car—parked on McPherson’s block



                                                 3
near the wooded dead end. Carrying a duffle bag containing what Neville Fuller estimated

to be between 9-10 pounds of marijuana, McPherson left his home and entered the

minivan.1 Fuller “peeped” out the second floor window to watch. Corbett’s van was parked

directly in front of McPherson’s home, but facing away from the dead end so that the

driver’s side was on the left-hand side of the street, facing any oncoming traffic.         Fuller

described it as a “get away park,” explaining that the van would not need to turn around at

the dead end in order to “move out fast.” A few seconds after his first peep, Fuller looked

again, and the van was gone. Fuller testified that he had not heard any gunshots, squealing

tires, argumentative voices, or slamming doors before the van drove off.

              Around 11:20 a.m., a Greenwich, Connecticut resident reported finding McPherson’s

body dumped on the side of Sterling Road. She told police that the body had not been there

when she left her home for a 10:30 a.m. exercise class. Home security camera footage

caught Corbett’s minivan backing down Sterling Road at 11:15 a.m. and driving off a minute

later. McPherson had been shot twice in the back with a semi-automatic and robbed of his

cell phones, wallet, and the duffel of marijuana.

              Fifteen days later, Greenwich police arrested Corbett.         Detective Timothy

Hilderbrand told Corbett that his arrest was part of a homicide investigation, but did not

mention McPherson’s name. Corbett accompanied the officers to the Greenwich police

station and, after waiving his Miranda rights, agreed to answer questions. Corbett gave the

officers his background information, but when Detective Hilderbrand displayed
                                                            
1 Corbett, in his post-argument letter brief, asserts that there is “no evidence” that the duffle
contained marijuana. Corbett’s written statement—in which he describes McPherson
bringing a “bag of weed” into the van and “checking out” McPherson’s product—is more
than sufficient for the fact finder’s conclusion that the bag contained marijuana.

                                                               4
photographs of McPherson’s body and Corbett’s minivan on Sterling Road, Corbett said he

thought he ought to get a lawyer.2 Substantive questioning ceased. The officers asked

Corbett if he had an attorney to call; finding he did not, they told Corbett that one would be

appointed.

              Officer Hilderbrand left the interrogation room to retrieve paperwork for booking

Corbett.                Corbett and Detective Charlie Brown remained alone together.    Almost

immediately, Corbett remarked on Brown’s Masonic ring, which Brown had worn for the

past 10 years. Corbett revealed that his grandfather—who coincidentally shared Charlie

Brown’s name—was a Freemason and a mentor to Corbett. Corbett asked Brown if he were

“on the square,” using a Masonic phrase by which members identify each other. Brown

responded affirmatively, and Corbett, who revered both his grandfather and the Masons,

asked if he could call his grandfather. Brown dialed the number Corbett dictated and passed

him the receiver. Making no effort to conceal his conversation, Corbett told his grandfather

that he was speaking to a “Brother Mason” and needed advice; Corbett then passed the

phone to Brown, saying his grandfather wanted to talk to the detective.

              Brown explained that Corbett had been arrested for conspiracy to commit murder.

Brown said that Corbett had invoked his right to silence and to an attorney, but that Brown

just wanted to get Corbett’s side of the story. Before returning the phone to Corbett, Brown

told Corbett’s grandfather that he would “treat [Corbett] like a Brother Mason.” At the

suppression hearing, Brown testified that he meant to convey that he would treat Corbett

“with respect, dignity, honesty.” Corbett took back the receiver. Again speaking in front of
                                                            
2Neither side contests the validity of Corbett’s Fifth Amendment counsel invocation, and
Corbett dropped his Sixth Amendment challenge in the District Court.

                                                               5
Brown, Corbett confessed to his grandfather that he had made some “bad decisions,” but

insisted that he “did not kill that man.” After hanging up, Corbett told Brown that he

wanted to talk. The detectives reread Corbett his Miranda rights, and Corbett signed a

second waiver.

              Over the next couple of hours, Corbett gave oral and written statements, which

acknowledged that he had persuaded McPherson to conduct the drug sale inside the

minivan, but blamed McPherson’s death on an unidentified shooter who robbed them while

they were parked on Tiemann Avenue. According to Corbett, while he and McPherson

checked out the duffle of marijuana, two men approached the van’s driver side; one reached

for a gun and demanded the cash.                               Corbett said that he threw $25,000 in bundled cash3 at

the robber and then “quick frisk[ed]” McPherson, discovering a revolver at McPherson’s left

waist. As Corbett and McPherson struggled for the gun, it discharged, hitting McPherson’s

hand. Meanwhile, the robber shot two or three times into the van, hitting McPherson in the

back. Corbett said that he felt McPherson’s body “go limp.” Corbett “jump[ed] up quick”

and peeled away from Tiemann Avenue.

              Once he was sure that he was not being followed, Corbett pulled over to check on

McPherson and realized he was dead. Corbett told the police that he tossed McPherson’s

wallet and cell phones along the road and left his body in a “deserted,” wooded area.

Corbett could not remember what became of McPherson’s revolver. Although some aspects



                                                            
3Corbett never addressed the discrepancy between the purchase price for McPherson’s
marijuana, $27,000, and the amount Corbett claimed to have brought with him on the day of
McPherson’s death, $25,000.

                                                                       6
of the stories Corbett told Greenwich police differed, he remained adamant about two

things: (1) that he had driven the van alone; and (2) that he did not kill McPherson.


   B. Procedural History

       The case proceeded to a bench trial before then-District Judge Droney in Hartford,

Connecticut. The District Court denied Corbett’s motion to suppress his statements as

involuntary. Although the Government did not present evidence identifying any accomplice

of Corbett’s, it did call Rayshawn Smith, who worked with Corbett as a nightclub bouncer.

Smith testified that prior to McPherson’s death, Corbett had recruited him to rob a Jamaican

drug dealer in New York. According to Smith, Corbett let on that he knew the Jamaican

dealer and had done business with him before, at the dealer’s home. Corbett told Smith that

he would call him prior to the robbery, and pick him up on the way to New York. Smith

insisted that he believed Corbett was kidding around, and when confronted with evidence

that Corbett additionally had, in fact, called Smith early on January 14—the day of

McPherson’s murder—Smith said he could not remember talking to Corbett on that date.

There was no evidence that Smith, or any other particular individual, rode with Corbett to

Tiemann Avenue, or helped Corbett carry out the robbery and homicide.


       The court convicted Corbett of kidnapping resulting in McPherson’s death (18 U.S.C.

§ 1201(a)(1)); felony murder (id. § 924(j)(1)); robbery (id. § 1951(a)); possession with intent to

distribute marijuana (21 U.S.C. § 841(a)(1), (b)(1)(D)); and using a firearm during a drug

trafficking crime (id. § 924(c)(1)(A)(iii)).   Pursuant to Federal Rule of Criminal Procedure

23(c), the District Court issued written fact findings.




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       The District Court then sentenced Corbett to life imprisonment for kidnapping; life

imprisonment for felony murder; 240 months for robbery; and 60 months for the drug

charge, all to run concurrently.        The court also sentenced Corbett to a mandatory

consecutive term of 120 months for the gun charge, amounting to “life imprisonment plus

ten years.”


       This timely appeal, in which Corbett raises several challenges to his conviction and

sentence, followed. Because the Lindbergh Law mandates a sentence of life imprisonment

or death when a kidnapper causes another person’s death during the kidnapping, a key

question before us is whether the evidence is sufficient to prove that Corbett “held”

McPherson against his will, as required by § 1201(a)(1) of that law. We hold that it is.

Essential to that analysis is the mens rea of the defendant—not the seeming consent of a

deluded or coerced victim. Whether McPherson realized that he had been duped, or

whether he died unaware of Corbett’s betrayal, is beside the point. If Corbett intended to

lure McPherson into his van, to drive him somewhere to be robbed and killed, and to dump

his body in a “deserted” place, that is enough to satisfy the Lindbergh Law. The evidence

was sufficient to show Corbett did just that. Because the evidence permitted the fact-finder

to conclude that Corbett possessed the requisite culpability at each stage of the kidnapping,

we uphold his conviction under § 1201(a). His remaining challenges lack merit. We,

therefore, affirm the District Court.




                                               8
                                     II.     DISCUSSION


   A. Standard of Review

       We review de novo a criminal defendant’s challenge to the sufficiency of the evidence

underlying his conviction. See, e.g., United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999).

We must draw all reasonable inferences in the Government’s favor, and if we “conclude[]

that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible,

[we] must let the [fact-finder] decide the matter.” Id. (internal quotation marks omitted); see

also McCarthy v. N.Y.C. Technical Coll., 202 F.3d 161, 166 (2d Cir. 2000) (same standard for

bench trial). “The ultimate question is not whether we believe the evidence adduced at trial

established defendant’s guilt beyond a reasonable doubt, but whether any rational trier of fact

could so find.” United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998) (emphasis original).

       The federal kidnapping statute, also known as the Lindbergh Law, states:

          Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts,
          or carries away and holds for ransom or reward or otherwise any person
          . . . , when—(1) the person is willfully transported in interstate . . .
          commerce, regardless of whether the person was alive when transported
          across a State boundary . . . shall be punished . . . .

18 U.S.C. § 1201(a). Where “the death of any person results” during the kidnapping, §

1201(a) requires a sentence of life imprisonment or death. Id. The federal felony murder

statute, under which Corbett was also convicted, allows imposition of a term shorter than

life. See 18 U.S.C. § 924(j)(1) (allowing for punishment by “death or by imprisonment for

any term of years or for life”). Accordingly, were we to overturn Corbett’s kidnapping

conviction, we would remand to the District Court to consider sentencing Corbett to a

shorter term than “life imprisonment plus ten years.” This is so despite the District Court’s


                                                 9
imposition of a concurrent life sentence for felony murder, and its statement, at sentencing,

that were it “not obligated to impose a mandatory term of life” under § 1201(a)(1), it did not

believe the facts warranted either downward departure or a non-guidelines sentence. See, e.g.,

United States v. Weingarten, 713 F.3d 704, 712 (2d Cir. 2013) (“When part of a conviction is

vacated and the case is remanded for resentencing . . . . [the district court] ‘must reconsider

the sentences imposed on each count, as well as the aggregate sentence.’”) (quoting United

States v. Rigas, 583 F.3d 108, 118 (2d Cir. 2009)).

   B. Section 1201(a)’s “hold” requirement

       “[T]he kidnapping statute sets forth three elements of the crime: the victim must be

unlawfully taken, coerced, or deceived into accompanying the accused nonconsensually; he

or she must be held by the accused for ransom, reward or otherwise; and he or she must be

transported in interstate or foreign commerce.” United States v. Macklin, 671 F.2d 60, 65 (2d

Cir. 1982) (footnote omitted). For this appeal, Corbett concedes that the evidence was

sufficient to satisfy § 1201(a)’s first prong (for “inveigling” McPherson into the minivan) and

third prong (for transporting him across state lines). He challenges only the District Court’s

conclusion on the second prong, arguing that there was insufficient evidence that Corbett

“held” McPherson against his will.

       Section 1201(a) plainly reaches a defendant who “seizes, confines, inveigles, decoys,

kidnaps, abducts, or carries away” his victim by deceit, as well as a defendant who uses

physical or psychological force instead of trickery. § 1201(a). See, e.g., United States v. Wills,

234 F.3d 174, 176-79 (4th Cir. 2000) (luring a victim across state lines with a fake job

advertisement in order to murder him is kidnapping under § 1201(a)); Miller v. United States,



                                                10
138 F.2d 258, 260 (8th Cir. 1943) (affirming a § 1201(a) conviction where the defendant

“decoyed” a victim by lying that he would take her to her dying grandfather and then

enslaved her on a cotton farm).

       Less clear is whether § 1201(a) covers a defendant who continues to use trickery to

“hold” his victim captive, without resorting to physical or psychological coercion. Cf. Miller,

138 F.2d at 260 (finding that the victim was “kept . . . in servitude” by beatings and death

threats once she realized her grandfather was not dying). This circuit has not addressed the

question of whether a defendant may “hold” a victim by trickery alone. Cf. Macklin, 671

F.2d at 66-67 (rejecting the government’s argument that defendant “induced” a runaway

child to remain in New York, since the child “w[as] free to come and go as [he] pleased . . .

and to leave [the defendant] at any time [he] wished . . . [as the child] did when he became so

inclined”).

       The Fourth and Eleventh Circuits interpret § 1201(a)’s “hold” requirement to be

satisfied when a defendant maintains control of his victim by continuing to employ a ruse, as

long as the evidence shows that the defendant was willing and intended to use force to back

up his deceit. See, e.g., United States v. Higgs, 353 F.3d 281, 313 (4th Cir. 2003) (concluding

that the “hold” requirement was satisfied where a defendant lured victims into a van by

promising them a ride home but detoured to a wildlife refuge where he executed them);

Boone, 959 F.2d at 1556 (concluding that the “hold” requirement was met because the

defendant’s “deception” that he would bring a victim to a marijuana field was reinforced by

his “apparent willingness to use force to keep [the victim] restrained”). As the Boone court

wrote: “[W]here a kidnapper accompanies his inveigled victim, preserving the deception and



                                              11
intending to use physical or psychological force if necessary, the volition of the victim is

undermined beyond mere inducement by deception.” Boone, 959 F.2d at 1557.

       Other circuits have not followed the Fourth and Eleventh Circuits’ seeming

requirement of “decoy backed by force,” deciding instead that continuing to “hold” the

victim by trickery is sufficient. See, e.g., United States v. Stands, 105 F.3d 1565, 1569 (8th Cir.

1997) (affirming a § 1201(a) conviction where the defendant pretended a familial relationship

with the victim and then lured the victim to a secluded spot on the pretext of looking at

ancestral lands); see also United States v. Carrion-Caliz, 944 F.2d 220, 225-27 (5th Cir. 1991)

(affirming a Hostage Act conviction but using § 1201(a) analysis where the defendant tricked

his victims into a border house and then held them in the house by lying that they would be

captured and deported if they ventured outside); Hoog, 504 F.2d at 48 (affirming a § 1201(a)

conviction where the defendant tricked a victim by offering her a ride and kept her in his car

by promising a job interview).

       Focusing, as we do, on the defendant’s intent, we need not, and hence, do not, decide

today whether § 1201(a) may be satisfied when a victim is “held” only by the victim’s

continuing belief in his kidnapper’s dupe. In this case, the Government produced sufficient

evidence that Corbett intended to lure McPherson into his van for the purpose of robbing

him; and that Corbett intended to “hold” McPherson in the van against McPherson’s will.

       Rayshawn Smith testified that Corbett invited him (facetiously, according to Smith) to

rob a New York marijuana dealer with whom Corbett had previously done business and

whose home he knew from prior deals. The Government presented evidence that Corbett

had twice bought marijuana from McPherson in the months before the January 14



                                                12
kidnapping—both times, according to the District Court, in McPherson’s home.              But, on

this occasion, Corbett refused to do business inside McPherson’s home and insisted that

McPherson bring the drugs outside to the van (an irregular demand that “worried” Fuller).

                 There was also evidence that soon after McPherson brought the drugs into the van,

Corbett drove off. In the minute or so between McPherson climbing in the van and the van

leaving Tiemann Avenue, neither McPherson’s neighbors nor Fuller (who kept lookout at

the window) heard gunfire or fighting. McPherson’s adult son, Sean, testified that his

father’s block of Tiemann Avenue was quiet, and that he had never heard gunfire there. Nor

did the police turn up spent casings or other ballistic evidence of a shooting in front of

McPherson’s door. A rational fact-finder could have inferred that McPherson—who died

from two semi-automatic wounds to the back—had not been shot until after he and Corbett

left Tiemann Avenue.

              Corbett is correct that the Government did not present evidence of what happened

to McPherson inside the minivan between the time he left Tiemann Avenue, alive, and the

time his body was dumped on the side of Sterling Road. Were we permitted to speculate, we

might imagine any number of possibilities: Corbett might have kept McPherson in the van at

gunpoint; Corbett might have deceived McPherson by saying that he would spare

McPherson’s life if McPherson could manage to round up the rest of the marijuana.4 With

McPherson dead and Corbett silent, it is impossible to know which of these or other things

might have occurred. But the evidence presented nonetheless permits a fact-finder to

conclude beyond a reasonable doubt, that Corbett intended to “take,” “hold,” and “transport”
                                                            
4The District Court offered its view of the evidence by referring to an as-yet-undiscovered
accomplice of Corbett’s, to whom it referred as “Mr. X.”

                                                               13
McPherson from New York to Connecticut, against McPherson’s will, and that Corbett did

so, causing McPherson’s death along the way. This conclusion is all that is needed to

support Corbett’s kidnapping conviction and his mandatory life sentence.5


       C. Voluntariness of Corbett’s Written and Oral Statements

              Corbett also appeals the District Court’s denial of his suppression motion, arguing

that his oral and written statements to the Greenwich police were coerced in violation of his

Fifth Amendment right against involuntary self-incrimination. See United States v. Plugh, 648

F.3d 118, 127 (2d Cir. 2011). Where a suspect waives his Miranda rights, as Corbett did, the

Government must show, by a preponderance of the evidence, that the waiver was knowing

and voluntary. United States v. Murphy, 703 F.3d 182, 192 (2d Cir. 2012). We review de novo

the District Court’s denial of a motion to suppress, accepting its factual findings unless

clearly erroneous. Id. at 188. The question key to voluntariness is whether the subject’s “will

was overborne.” Plugh, 648 F.3d at 128 (internal quotation marks omitted).

              Corbett was twice warned of his Miranda rights, and twice waived them. Corbett’s

appeal primarily attacks his second waiver, which was obtained after Corbett called his

grandfather. He argues that Detective Brown’s assurance that he would “treat [Corbett] like

a Brother Mason” was a promise of leniency that coerced Corbett into speaking. In United

States v. Gaines, we distinguished between “unfulfillable promises or . . . misrepresentations,”

which “might render a confession involuntary,” and “vague promises of leniency for

                                                            
5Despite Corbett’s argument to the contrary, it is well established that Congress may require
mandatory minimum criminal sentences, including § 1201(a)(1)’s sentence of life
imprisonment where the kidnapper causes any person’s death. See Chapman v. United States,
500 U.S. 453, 467 (1991).

                                                               14
cooperation . . . [which] will not, without more, warrant a finding of coercion.” 295 F.3d

293, 299 (2d Cir. 2002) (affirming conviction). The circumstances of Corbett’s interrogation

fit comfortably into the latter category.

              Brown’s Masonic ring piqued Corbett’s interest. Had Corbett overlooked the ring or

had his grandfather belonged to some other fraternal organization—say, the Elks club—

perhaps Corbett would not have changed his mind about talking to the officers. Brown’s

membership in the Masons certainly meant something to Corbett, but contrary to his

argument on appeal, the evidence suggests that Corbett was moved to cooperate, rather than

coerced.

              “Once warned, the suspect is free to exercise his own volition in deciding whether or

not to make a statement to the authorities.” Plugh, 648 F.3d at 125 (quoting Oregon v. Elstad,

470 U.S. 298, 308 (1985)). Having been warned previously, Corbett again was read his

Miranda rights, and again waived them. In these circumstances, Corbett’s change of heart

must be deemed an “exercise [of] his own volition.” Id.

       D. Admissibility of Minor’s Testimony

              Finally, Corbett challenges the District Court’s decision to admit recorded testimony

by his step-son, a minor.6 Given the District Court’s greater familiarity with the context in

which the evidence is offered, we review such evidentiary decisions for abuse of discretion.

United States v. Robinson, 702 F.3d 22, 36 (2d Cir. 2012).

              Corbett argues that his step-son’s testimony about seeing a semi-automatic weapon in

Corbett’s Bridgeport home was not probative, and constituted impermissible character
                                                            
6 Corbett does not object to admission of the recording itself, which Corbett requested in
lieu of live testimony.

                                                               15
evidence. We disagree. The testimony is plainly relevant to Corbett’s opportunity to get his

hands on the kind of gun used to shoot McPherson, and to the question of the gun’s

whereabouts after McPherson was killed. Corbett’s step-son told officers that he had

accidentally discovered a semi-automatic in his parents’ bedroom bureau. The child had

come home from school and was looking for his video game system, which Corbett had

confiscated as punishment. Corbett’s step-son, who was thirteen at the time, told police that

he could identify the gun as a semi-automatic because he “play[ed] a lot of Call of Duty,” a

police officer simulation game. Although he could not date his discovery of the semi-

automatic, the child remembered seeing the gun a second time on the morning of Corbett’s

arrest, January 29, 2008. The boy saw Corbett drop a “black bag” on the table before

running to the “mini-store” next to the family’s home. When he peeked inside the bag, the

child saw what he believed was the same semi-automatic and a small amount of marijuana.

Corbett returned from the store and left with his bag. It is unclear whether the boy saw

Corbett leave the house, or whether he assumed it; in any event, it was, he told the officers,

the last time he saw his step-father.

       It is true that this testimony neither established that the semi-automatic weapon seen

by the minor belonged to Corbett, nor that this semi-automatic was the one that killed

McPherson. But the evidence does show that Corbett had access to the type of weapon

used to shoot McPherson, contrary to Corbett’s statement to police that he had never

possessed a gun or ammunition and that he had never kept a gun or ammunition in his

home. Moreover, the boy’s testimony places a semi-automatic in Corbett’s control on

January 29, 2008: the day of Corbett’s arrest, and just fifteen days after McPherson’s



                                             16
murder—suggesting that the child’s discovery of the semi-automatic, on an unspecified prior

date, might well have been before or very near the day McPherson was shot. Admission of

such evidence was well within the District Court’s discretion.


                                  III.   CONCLUSION

       Corbett’s conviction and life sentence for causing George McPherson’s death during

the commission of a § 1201(a) kidnapping is AFFIRMED.




                                              17
