                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 01-4681
JAMES HORTON,
                Defendant-Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
             Alexander Williams, Jr., District Judge.
                         (CR-00-105-AW)

                      Argued: December 6, 2002

                      Decided: March 10, 2003

        Before WILKINS, Chief Judge, and MICHAEL and
                    KING, Circuit Judges.



Affirmed by published opinion. Chief Judge Wilkins wrote the major-
ity opinion, in which Judge King joined. Judge Michael wrote a dis-
senting opinion.


                            COUNSEL

ARGUED: Thomas J. Saunders, Baltimore, Maryland, for Appellant.
Deborah A. Johnston, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United
States Attorney, Odessa P. Jackson, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
2                      UNITED STATES v. HORTON
                              OPINION

WILKINS, Chief Judge:

  James Horton appeals his convictions for kidnapping resulting in
death, see 18 U.S.C.A. § 1201(a)(1) (West 2000), and conspiracy to
commit kidnapping, see 18 U.S.C.A. § 1201(c) (West 2000). Finding
no error, we affirm.

                                   I.

   In late November 1998, Stephen Satcher visited his cousin Daniel
Stancil and asked Stancil to help him bring some "bodies" from
Maryland to North Carolina in exchange for a quantity of cocaine.
J.A. 69. Stancil in turn asked his friend, Horton, if he would assist,
and Horton agreed. Once Stancil and Horton arrived in Maryland,
Satcher informed them that the person whose body they were to dis-
pose of was Jovita Dickerson, the still-living mother of Satcher’s
child. Stancil and Horton then agreed to assist in kidnapping Dicker-
son.

   On the afternoon of December 4, 1998, Horton, Satcher, and Stan-
cil drove to a parking lot in Bowie, Maryland, and waited for Dicker-
son to emerge from her workplace. Horton, armed with a toy firearm,
forced Dickerson into her vehicle and held her there while Satcher
drove them to Satcher’s stepfather’s house in Cheverly, Maryland.
When Stancil arrived, he found Horton, Satcher, and Dickerson in the
basement; Dickerson was on her knees bent over a couch with her
hands tied behind her back. Stancil immediately returned upstairs,
where he heard choking sounds coming from the basement. Horton
joined Stancil upstairs a few minutes later and reported that Satcher
had tried to choke Dickerson.

   After Satcher and Stancil were unsuccessful in a second attempt to
kill Dickerson, Satcher instructed Horton to "finish her off." Id. at
117. Horton then went down to the basement for two to three minutes,
after which he returned upstairs and said he "was finished." Id. at 118.
He and Satcher then carried Dickerson from the basement and placed
her in the trunk of her vehicle. Stancil later stated that at that point
                        UNITED STATES v. HORTON                             3
"she looked dead." Id. at 194. Stancil and Horton then drove the vehi-
cle to North Carolina, where they stayed in a hotel for the night. The
next morning, after determining that their victim was in fact dead,
they set the vehicle on fire in a field in Wake County with Dicker-
son’s body still in the trunk. Dickerson’s vehicle and her body were
discovered later the same morning.

                                     II.

    The Federal Kidnapping Act establishes criminal penalties for a
person who "unlawfully seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away and holds for ransom or otherwise any per-
son . . . when . . . the person is willfully transported in interstate
. . . commerce, regardless of whether the person was alive when trans-
ported across a State boundary if the person was alive when the trans-
portation began." 18 U.S.C.A. § 1201(a).1
  1
   Section 1201(a), in its entirety, states:
       (a) Whoever unlawfully seizes, confines, inveigles, decoys,
    kidnaps, abducts, or carries away and holds for ransom or reward
    or otherwise any person, except in the case of a minor by the par-
    ent thereof, when—
         (1) the person is willfully transported in interstate or foreign
         commerce, regardless of whether the person was alive when
         transported across a State boundary if the person was alive
         when the transportation began;
         (2) any such act against the person is done within the special
         maritime and territorial jurisdiction of the United States;
         (3) any such act against the person is done within the special
         aircraft jurisdiction of the United States as defined in section
         46501 of title 49;
         (4) the person is a foreign official, an internationally pro-
         tected person, or an official guest as those terms are defined
         in section 1116(b) of this title; or
         (5) the person is among those officers and employees
         described in section 1114 of this title and any such act
         against the person is done while the person is engaged in, or
         on account of, the performance of official duties,
    shall be punished by imprisonment for any term of years or for
    life and, if the death of any person results, shall be punished by
    death or life imprisonment.
4                       UNITED STATES v. HORTON
                                     A.

   Horton argues that "the transportation" of Dickerson commenced
when her body was put in the trunk of her vehicle at Satcher’s stepfa-
ther’s house in Cheverly, Maryland, and therefore no violation of
§ 1201(a)(1) occurred because Dickerson was already dead at that
point. He further alleges that the jury instructions given by the district
court wrongfully precluded him from presenting this defense.2

   We review de novo the correctness of jury charges regarding the
elements of an offense. See United States v. Ellis, 121 F.3d 908, 923
(4th Cir. 1997). In so doing, we must give the applicable statute its
plain meaning. See United States Nat’l Bank of Or. v. Indep. Ins.
Agents of Am., Inc., 508 U.S. 439, 454 (1993). And, in order to deter-
mine the plain meaning of a statute, we must consider its "language,
structure, and purpose." United States v. Ehsan, 163 F.3d 855, 858
(4th Cir. 1998). If after such consideration we are left with a "griev-
ous ambiguity or uncertainty" in the meaning of the statute, the rule
of lenity requires us to adopt the construction most favorable to the
defendant. Chapman v. United States, 500 U.S. 453, 463 (1991)
(internal quotation marks omitted).
    2
    Horton argues that the district court erred by (1) giving a jury instruc-
tion that would allow conviction if the jury found that he kidnapped
Dickerson, transported her within Maryland, killed her, and then trans-
ported her body outside the state; and (2) refusing to instruct the jury that
it must acquit unless it found beyond a reasonable doubt either that the
conspirators intended to carry Dickerson alive across state lines or that
Dickerson was actually alive during the commencement of her transpor-
tation across state lines.
   Horton also argues that the district court responded incorrectly to a
question submitted by the jury during deliberations, inquiring, "[A]t what
. . . point does transportation in this case begin[ ]?" J.A. 419 (internal
quotation marks omitted). The district court instructed the jury that "[a]
defendant transports a victim when he willfully moves her. Therefore,
transportation commences with the movement of the victim, at any point
during the kidnapping." Id. at 435 (internal quotation marks omitted).
Horton argues that the court should have responded by stating that "[i]f,
after . . . Dickerson was kidnapped, but before transportation is initiated
which carries her across state lines . . . Dickerson dies, then there cannot
be any interstate transportation of the victim." Id. at 481.
                       UNITED STATES v. HORTON                         5
   The statutory language in question here is ambiguous when viewed
outside the context of the purpose of the statute. It is apparent that
"the transportation" in § 1201(a) refers to the only transportation pre-
viously referenced in the statute, namely interstate transportation.
However, the statutory language does not clarify whether, when a kid-
napper moves his victim after abducting her and then stops at some
point before transporting her out of the state, "the transportation"
includes only the last leg of the journey or all of the movement from
the scene of the abduction across the state border. Nor does the struc-
ture of the statute suggest the correct interpretation.

   We therefore turn to the purpose of the statute. The Federal Kid-
napping Act was promulgated to address an increasing number of
interstate kidnappings and the problem of kidnappers taking their vic-
tims across state lines, to places where state law enforcement officers
had no authority to investigate the crimes and pursue the criminals.
See Chatwin v. United States, 326 U.S. 455, 462-63 (1946). Congress’
authority to address this problem falls under its power to prevent the
misuse of channels of interstate or foreign commerce. See Perez v.
United States, 402 U.S. 146, 150 (1971); United States v. Toledo, 985
F.2d 1462, 1466 (10th Cir. 1993); cf. Brooks v. United States, 267
U.S. 432, 438-39 (1925) (holding that prohibition on interstate trans-
portation of stolen automobiles is within Commerce Clause power in
part because it helps prevent criminals from using channels of inter-
state commerce to move stolen property outside of the jurisdiction of
state law authorities and to conceal their crimes). Congress amended
the statute in 1972, expanding its scope. See Act for the Protection of
Foreign Officials and Official Guests of the United States, Pub. L.
No. 92-539, § 201, 86 Stat. 1070 (1972). As the statute was amended,
interstate transportation of the victim became "merely a basis for fed-
eral jurisdiction rather than an integral part of the substantive crime."
United States v. Wills, 234 F.3d 174, 176 (4th Cir. 2000) (internal
quotation marks omitted); see S. Rep. No. 92-1105 (1972), reprinted
in 1972 U.S.C.C.A.N. 4316, 4317-18. As a result of that change,
courts have held that a defendant need not even realize he has left the
state of abduction in order for the interstate transportation element to
be satisfied. See, e.g., United States v. Duncan, 855 F.2d 1528, 1536-
38 (11th Cir. 1988); see also United States v. Darby, 37 F.3d 1059,
1067 (4th Cir. 1994) ("Numerous cases have held that criminal stat-
utes based on the government’s interest in regulating interstate com-
6                      UNITED STATES v. HORTON
merce do not generally require that an offender have knowledge of
the interstate nexus of his actions.").

   The statute was again amended in 1998 to provide that the inter-
state element is satisfied when a person is willfully transported in
interstate commerce "regardless of whether the person was alive when
transported across a State boundary if the person was alive when the
transportation began." Protection of Children from Sexual Predators
Act of 1998, Pub. L. No. 105-314, § 702(a), 112 Stat. 2974, 2987
(1998). Prior to the amendment, courts had held that the government
was required to prove that the kidnapping victim was alive when the
victim crossed a state line. See, e.g., United States v. Jones, 508 F.2d
1271, 1273 (4th Cir. 1975). It is apparent that in passing the 1998
amendment, Congress recognized the difficulty of proving the exact
events that took place once a kidnapper was "on the move" with his
victim, and sought to relieve the burden on the government of proving
these events.

   Consideration of the purposes behind § 1201 and its amendments
demonstrates the incorrectness of Horton’s interpretation of the stat-
ute. There is no basis for the proposition that interruptions between
the commencement of movement of the victim and the crossing of a
state line affect when the interstate transportation commenced, even
when the path from the place of abduction to the state line is not
straight. Were we to rule otherwise, we would thwart Congress’
attempt to relieve the government from proving the specific events
that occurred during a kidnapper’s movement of his victim. We
would force the government in every federal kidnapping case to prove
beyond a reasonable doubt that the kidnappers did not kill their victim
during a significant pause in their travel or on a circuitous path to the
state line. This would be at odds with Congress’ goal of preventing
kidnappers from misusing interstate commerce channels to avoid
responsibility for their kidnappings.

   Consider the following hypothetical: The government introduces
evidence showing only that Kidnapper grabbed Victim and drove off
with her and that her body was found two days later in a neighboring
state. Certainly this is the quintessential case that the federal kidnap-
ping statute is designed to address. Horton’s interpretation, however,
could prevent a successful prosecution in such a case because the
                        UNITED STATES v. HORTON                           7
government could not establish beyond a reasonable doubt that Kid-
napper did not stop somewhere within the state where the abduction
occurred, kill Victim, and then transport her body to the neighboring
state to dispose of it.

   Of course, the longer the pauses, or the more changes of direction
or changes in the kidnapper’s plans that occur during the transporta-
tion from the point of abduction to the state line, the easier it would
be to say—from a purely linguistic standpoint—that there may have
been multiple transportations rather than a single interstate transporta-
tion and therefore that the first leg of the transportation was not part
of "the transportation" to which the statute refers. But again, making
application of the statute depend on these factors would not serve the
purpose of preventing kidnappers from misusing interstate commerce
channels to prevent state law enforcement authorities from bringing
them to justice.3 We therefore conclude that the district court correctly
charged the jury that "the transportation" of Dickerson began when
she was willfully moved from the place of her abduction.4
  3
     The dissent concludes that, under our interpretation, the statute would
apply in the hypothetical case of a kidnapper who seizes his victim in
one state, transports her within that state, and then kills and buries her,
only to return one month later and move the body to another state. See
post, at 10-11. We do not find this outcome as troubling as the dissent
does, however. We see no reason why Congress would not have intended
the statute to reach such a misuse by a kidnapper of interstate commerce
channels to cover up his trail by moving evidence of his crime into a dif-
ferent state’s jurisdiction.
   4
     Horton contends that the Government’s interpretation would make
surplusage of the language "if the person was alive when the transporta-
tion began" because in any interstate transportation of a kidnapping vic-
tim, the victim would be alive when the transportation began. That
misconstrues the requirements of the statute. If, for example, Victim goes
to Kidnapper’s house voluntarily, after which Kidnapper holds her
against her will in an attempt to obtain a ransom for her safe release, that
would meet the non-jurisdictional elements of § 1201(a). See 18
U.S.C.A. § 1201(a) (making it a federal crime to "unlawfully . . . con-
fine[ ] . . . and hold[ ] . . . any person" when one of five jurisdictional
requirements is satisfied); United States v. Toledo, 985 F.2d 1462, 1466
(10th Cir. 1993) (stating that a kidnapping is complete when the victim
is unlawfully seized and detained); United States v. Hughes, 716 F.2d
8                       UNITED STATES v. HORTON
                                    B.

   Citing United States v. Moore, 571 F.2d 76 (2d Cir. 1978), Horton
next argues that the district court violated his right to due process by
instructing the jury concerning a statutory presumption allowing the
jury to infer that Dickerson was transported out of the state if she was
not released within 24 hours after she was abducted. See 18 U.S.C.A.
§ 1201(b) (West 2000) (creating presumption). We need not decide
whether this instruction was erroneous because any error was harm-
less. Even without the instruction, there was no reasonable basis in
the record for the jury to find that the interstate transportation element
was not satisfied. See United States v. Brown, 202 F.3d 691, 699-701
(4th Cir. 2000) (holding that an error that "effectively withdr[aws] an
element of the offense from the jury’s consideration" is harmless
when the record could not support a reasonable finding that the ele-
ment was not satisfied).

                                    III.

   Finally, with regard to the conspiracy charge, Horton contends that
the district court erred in refusing to instruct the jury that in order to
convict, it would have to find either (1) that Dickerson was alive
when her transportation across state lines began, or (2) that when the
conspiracy to kidnap Dickerson began, Horton had intended to carry
Dickerson across state lines. Again, we need not decide whether the
refusal to provide this instruction constituted error because any error
was harmless. In convicting Horton on the § 1201(a) charge, the jury
necessarily determined that Dickerson was alive when the interstate
transportation began, i.e., when she was moved from the place of her
abduction. See id. at 699-700 (explaining that error that "effectively
withdr[aws] an element of the offense from the jury’s consideration"
is harmless if jury necessarily made the required finding anyway or
if the record could not support a reasonable finding that the element
was not satisfied).

234, 238 (4th Cir. 1983) (same). If Kidnapper subsequently killed Victim
at his house prior to transporting her body to another state, the interstate
jurisdictional element would not be satisfied because Victim would not
have been alive when the transportation began.
                       UNITED STATES v. HORTON                         9
                                  IV.

  In sum, we affirm Horton’s convictions for the reasons stated.

                                                            AFFIRMED

MICHAEL, Circuit Judge, dissenting:

   I respectfully dissent because the majority extends federal jurisdic-
tion over the crime of kidnapping further than Congress intended. It
is true that federal jurisdiction exists "regardless of whether the [kid-
nap victim] was alive when transported across a State boundary if the
[victim] was alive when the [interstate] transportation began." 18
U.S.C. § 1201(a)(1). This statutory language, however, does not sanc-
tion the majority’s holding that interstate transportation begins when
the live victim is "willfully moved from the place of her abduction,"
ante at 7, so long as the defendant eventually carries the victim or the
victim’s body across state lines. This formulation erroneously sweeps
in a kidnapping that is begun and ended in one state, but is followed
at some point by the movement of the victim’s body across state lines.
James Horton argues that there is no federal jurisdiction in this case
because the interstate transportation (the movement of Jovita Dicker-
son’s corpse) did not begin until after the intrastate kidnapping had
ended. Because the district court’s instructions did not allow the jury
to decide when the interstate transportation began, I would grant Hor-
ton a new trial.

                                   I.

    The federal crime of interstate kidnapping has three distinct ele-
ments. The victim must (1) be "kidnap[ped]," (2) be held "for ransom
or reward or otherwise," and (3) be "willfully transported in interstate
. . . commerce." 18 U.S.C. § 1201(a)(1). The third element, which is
at issue here, allows for federal jurisdiction. Congress amended the
statute’s jurisdictional provision in 1998 to provide that interstate
transportation occurs "regardless of whether the [victim] was alive
when transported across a State boundary if the [victim] was alive
when the transportation began." Id. Prior to this amendment the gov-
ernment was required to prove that the victim was still alive when the
10                     UNITED STATES v. HORTON
kidnapper crossed state lines. Now, the focus is on whether the victim
was alive when interstate transportation began, raising the new ques-
tion of when interstate transportation begins. The 1998 amendment
has thus moved the focus of the jurisdictional element away from the
point where the kidnapper crosses the state border to the point where
his journey to the border begins. This shift expands the scope of the
federal kidnapping offense to include the case where the victim dies
before the state line is crossed, as long as the kidnapper starts the
interstate leg of his trip while the victim is alive. The 1998 amend-
ment, however, did not extend federal kidnapping jurisdiction to
include a kidnapping begun and ended with no interstate transporta-
tion, but followed by the movement of the victim’s body across state
lines. The question, therefore, is how to distinguish these two catego-
ries of cases: interstate kidnapping and intrastate kidnapping followed
by the movement of a body across state lines.

   The majority fails to make a distinction between the two kinds of
cases. Under the majority’s view, any movement of the victim is the
beginning of transportation in interstate commerce (assuming, of
course, that the defendant carries the victim, or the victim’s body,
across state lines at some point). In most cases it will be irrelevant
whether the movement of the victim involved one journey or two.
Specifically, it will usually be irrelevant whether stops in movement
were distinct breaks, separating the trip into multiple journeys, or
whether the stops were merely pauses in furtherance of a single jour-
ney. As long as the victim remains alive, the details of the journey
will not be important. However, when the victim dies after abduction,
there is the possibility that the kidnapping will have ended before the
jurisdictional element was satisfied.

   An example demonstrates why we cannot gloss over the question
of when interstate transportation begins. Suppose that a kidnapper
seizes his victim in a particular state, transports her to another loca-
tion within that same state, and then kills and buries her. A month
later the kidnapper digs up the body and moves it across state lines.
The kidnapping is purely an intrastate crime, completed with the
death and burial of the victim; the kidnapping was simply followed
by the separate act of interstate transportation of a corpse. The major-
ity, however, as I read its opinion, would say that interstate transpor-
tation "of [the victim] began when she was willfully moved from the
                        UNITED STATES v. HORTON                         11
place of her abduction." Ante at 7. The majority, in other words,
would allow the initial intrastate movement to satisfy the statutory
requirement that "the [victim be] alive when the transportation
beg[i]n[s]." In my example, according to the majority, the kidnapping
— for federal jurisdictional purposes — would continue after the vic-
tim’s death, even though she was dead (and buried) for a month
before transportation resumed.

   The majority interprets the new jurisdictional provision so broadly,
it says, because anything else "would force the government in every
federal kidnapping case to prove beyond a reasonable doubt that the
kidnappers did not kill their victim during a significant pause in their
travel or on a circuitous path to the state line." Ante at 6. But my
example presents much more than a "pause in [the] travel" or a "circu-
itous path to the state line." The interstate journey is altogether differ-
ent from the intrastate journey that brought the victim to the place of
her death and burial. The interstate journey did not begin when the
kidnapper first moved the victim from the place of abduction. Rather,
it only began when the kidnapper set out on the journey that took him
across state lines — weeks after the victim’s death and weeks after
the completion of the kidnapping.

   The significance of the break in the kidnapper’s travels in my
example distinguishes it from the "quintessential case" described by
the majority. See ante at 6 ("Kidnapper grabbed Victim and drove off
with her and . . . her body was found two days later in a neighboring
state."). The length of the break is relevant, but more important is
whether the break was in furtherance of the journey itself. A kidnap-
per’s periodic stops to eat, sleep, get gas, or simply hide and watch
do not break a single trip into multiple journeys; instead, they are
pauses that form part of the same journey. In contrast, the kidnapper
in my example did not take a break as part of his trip. He completed
one intrastate journey, killed his victim, and brought the kidnapping
to a close. His interstate journey followed the completion of the kid-
napping offense, and therefore that second journey cannot satisfy the
jurisdictional element of the statute.

   These questions — when a defendant set out on a single journey
that took him across state lines and when a stop acted to break a trip
into more than one journey — are questions for the jury. They are a
12                     UNITED STATES v. HORTON
matter of common sense, and juries will not be distracted by each stop
for gas or food. Travel is a common experience, and jurors will be
able to determine when a stop is part of an interstate trip and when
it is the end of an in-state trip. This is not an unusual task for a jury.
For example, when juries decide whether or not a felony has termi-
nated in a felony murder case, they routinely determine if specific acts
are discrete offenses or part of one ongoing crime. See Erwin S. Bar-
bre, Annotation, What Constitutes Termination of Felony for Purpose
of Felony-Murder Rule, 58 A.L.R.3d 851 (1974). Determining when
interstate transportation began is quite similar.

   My reading of the statute does not prevent the prosecution of Hor-
ton or place an unreasonable burden of proof on the government in
this case. After all, the government contends that "all of the evidence
. . . and the circumstances indicate that [Dickerson] was alive even
when she was put in the trunk" at Cheverly, Maryland. J.A. 305.
Under this theory the government would only have to show that when
Horton left Cheverly with Dickerson in the trunk, he was beginning
a journey across state lines. This chain of events would look much
like the "quintessential case" cited by the majority. Alternatively, the
government could argue that the stop in Cheverly was not a sufficient
break in the journey to serve as the completion of a kidnapping, even
if Dickerson might have died while in the house in Cheverly. See Cal-
ifornia v. Barnett, 954 P.2d 384, 464 (Calif. 1998) ("[A] kidnapping
does not terminate until the victim is released or otherwise disposed
of and the kidnapper reaches a place of temporary safety."). There is
evidence for the jury to believe either scenario, and either one satis-
fies the jurisdictional element. Neither requires the government to
pinpoint the time and place of Dickerson’s death.

   We can all agree that the basic purpose of the federal kidnapping
statute is to prevent kidnappers from misusing the channels of com-
merce by "taking their victims across state lines, to places where state
law enforcement officers ha[ve] no authority to investigate the crimes
and pursue the criminals." Ante at 5. The 1998 amendment furthers
this purpose, as the majority explains, by relieving the government of
the burden to prove "the exact events that took place once a kidnapper
was ‘on the move’ with his victim." Ante at 6. The government must
nevertheless prove an interstate connection by showing that the kid-
napper began an interstate journey while his victim was alive. When
                        UNITED STATES v. HORTON                          13
the kidnapping journey begins and ends within a single state, there is
no federal jurisdiction, and that case must still go to the local authori-
ties.

                                    II.

   The majority’s decision — that the jurisdictional element can be
satisfied by any movement of the victim, as long as the defendant
eventually carries the victim, or the victim’s body, across state lines
— leads it to the erroneous conclusion that the final jury instructions
on interstate transportation were correct.

    The district court’s initial jury instruction on transportation (for the
kidnapping charge) explained that the government did not have to
prove that Dickerson "was alive at the time she crossed state lines,"
but it did have to prove that "she was alive when the transportation
of her began." J.A. 345. The court went on to say that the government
simply had to show "that at some point after the kidnapping began,"
the victim "was moved from one state to another." J.A. 346. After the
jury had deliberated for about two hours, it sent the following ques-
tion to the court: "at what . . . point does transportation in this case
begin[ ]?" J.A. 419 (emphasis added). The court, over Horton’s objec-
tion, gave the following supplemental instruction: "A defendant trans-
ports a victim when he willfully moves her. Therefore, transportation
commences with the movement of the victim, at any point during the
kidnapping." J.A. 435-36. This instruction was erroneous. In effect,
it required the jury to find that interstate transportation began with the
first movement of Dickerson, right after she was seized at her work-
place in Bowie, Maryland. This instruction conflated interstate trans-
portation with any movement of the victim, and it took from the jury
the question of when interstate transportation began.

   The district court’s instructions — also given over Horton’s objec-
tion — on the federal kidnapping conspiracy charge are also in error.
To satisfy the interstate element of such a charge, the government
may prove one of two things. First, it may prove that the defendant
agreed to participate in a kidnapping and that the kidnapping fell
within one of the federal jurisdictional provisions. See, e.g., United
States v. Davis, 19 F.3d 166, 170 (5th Cir. 1994); United States v.
Bankston, 603 F.2d 528, 532 (5th Cir. 1979). In such a case, the
14                     UNITED STATES v. HORTON
defendant is not required to have knowledge that the kidnapping satis-
fied the federal jurisdictional element. Bankston, 603 F.2d at 532.
This essentially requires the government to prove that Horton
intended to commit some sort of kidnapping and that the conspirators
actually committed a federal kidnapping. Second, the government
may prove that the conspirators planned to transport the victim across
state lines and that one conspirator committed an overt act in further-
ance of the conspiracy. United States v. Moore, 571 F.2d 76, 90 (2d
Cir. 1978). This second approach requires the government to prove
that Horton actually intended to commit a federal kidnapping, but it
does not require proof that a federal kidnapping actually occurred.
The district court’s instructions blended the two (alternative) bases for
proving jurisdiction on the conspiracy count, thereby failing to state
all of the components of either one. The district court explained that
in order to find that Horton was a member of an interstate kidnapping
conspiracy, "[i]t is not necessary that [he] know of the interstate
nature of the plan to kidnap so long as he knew the general nature and
scope of the conspiracy." J.A. 353. The court then required only that
the government prove that one of the conspirators committed "at least
one . . . overt act[ ]." J.A. 356. The court coupled the more lenient
intent requirement of the first basis for jurisdiction with the more
lenient overt act requirement of the second basis. This meant that the
government did not have to prove fully either jurisdictional basis for
a federal kidnapping conspiracy.

   The supplemental kidnapping instruction and the conspiracy
instruction given in Horton’s trial were misleading and were incorrect
statements of the law. Cf. United States v. United Med. & Surgical
Supply Corp., 989 F.2d 1390, 1407 (4th Cir. 1993). The errors were
also prejudicial, undercutting the sole ground of Horton’s defense. Cf.
id. at 1406. Horton did not contest the facts of the case. He argued
instead that, although he may have committed a kidnapping in Mary-
land, he did not, and never intended to, commit an interstate kidnap-
ping. Finally, the erroneous instructions were not harmless error. I
recognize, of course, that a jury instruction that removed an element
of the offense from the jury can be harmless in one of two ways. First,
it may be clear that other decisions made by the jury, untainted by
error, required a finding of the omitted element. See United States v.
Brown, 202 F.3d 691, 699-700 (4th Cir. 2000). This is not such a
case. Both counts on which Horton was convicted are infected by the
                       UNITED STATES v. HORTON                         15
same error; neither conviction, therefore, demonstrates that the jury
concluded that the interstate element was satisfied. Second, the
instructional error may be harmless if there is no evidence that could
rationally support a different result than the one reached by the jury.
Id. at 701. Again, this is not such a case. Although on remand a jury
might well conclude that the crime of kidnapping had not ended
before Dickerson was moved in interstate commerce, this is not an
incontestable point. The question is one on which reasonable minds
could differ. Indeed, the fact that the jury asked for additional instruc-
tion on the issue of interstate transportation suggests that this issue
was a point of debate during deliberations.

   If I agreed with the majority that the jury had been correctly
instructed on the substantive count charging federal kidnapping, I
might conclude that the conspiracy instruction was harmless error. It
appears to be undisputed that Horton "knew the general nature and
scope of the conspiracy." J.A. 353. This broad intention to participate
with others in the crime, coupled with a conviction for actual commis-
sion of the crime, would allow conviction on a conspiracy charge.
Because the instructions on the kidnapping charge were in error, how-
ever, Horton could have been convicted on the conspiracy charge
even though the jury might have believed he committed a purely
intrastate kidnapping and had no intent to commit a federal kidnap-
ping.

                                   III.

   Horton also argues that the district court erred by instructing the
jury that it could presume that the victim had been transported across
state lines if she was not released within twenty-four hours. See 18
U.S.C. § 1201(b). Horton argues that this instruction violates the prin-
ciple that reliance on a presumption in a criminal case is only consti-
tutional when the "presumed fact is more likely than not to flow from
the proved fact on which it is made to depend." Leary v. United
States, 395 U.S. 6, 36 (1969). See also Moore, 571 F.2d at 86 (con-
cluding that the twenty-four hour presumption in the kidnapping stat-
ute is unconstitutional). The majority holds that any error in this
instruction is harmless because "there was no reasonable basis in the
record for the jury to find that the interstate transportation element
was not satisfied." Ante at 8. I believe, of course, that the majority’s
16                     UNITED STATES v. HORTON
basis for finding harmlessness is off the mark, but I do agree, for a
different reason, that any error in the instruction is harmless. In this
case, it is undisputed that the kidnappers moved the victim or the vic-
tim’s body across state lines within twenty-four hours. What is not
clear is whether this movement began while the kidnapping was still
ongoing, which is required to satisfy the jurisdictional element.
Because this particular instruction did not remove the jurisdictional
question from the jury but instead reiterated a point not disputed by
the defense — that at some point within twenty-four hours of her sei-
zure the victim or her body crossed state lines — I agree that the
instruction was harmless error.

                                  IV.

   A properly instructed jury could have concluded (1) that the kid-
napping ended if and when Dickerson was killed in Cheverly, Mary-
land, and (2) that the interstate transportation did not begin during the
commission of the kidnapping. I would therefore remand the case for
a new trial on the substantive kidnapping count, with instructions that
allow the jury to decide when interstate transportation began. I would
also allow a new trial on the conspiracy count.
