     Case: 19-10641      Document: 00515472599         Page: 1    Date Filed: 06/30/2020




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

                                                                                  FILED
                                      No. 19-10641                            June 30, 2020
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

TREVEON DOMINIQUE ANDERSON,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-340-9


Before KING, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Treveon Dominique Anderson was convicted of numerous felonies,
including two counts of kidnapping. Anderson argues that the restraint of two
individuals with zip ties was incidental to the robbery offense and therefore
insufficient to support a kidnapping charge. Because all the elements of the
relevant kidnapping statute were met, we affirm the district court’s judgment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10641
                                       I.
      On November 17, 2013, seven people, covered from head to toe, exited a
cargo van and approached the Tilak Jewelry Store in Irving, Texas. The men
broke through two sets of doors and destroyed the jewelry display cases. The
men used zip ties to secure the two storeowners’ hands behind their backs and
held them face-down, unable to move, at gunpoint. The men seized
approximately $400,000 worth of jewelry, in what the storeowners estimated
to be about one and a half minutes.
      Although the two storeowners could not identify the robbers, DNA
evidence led the police to identify the van used in the robbery. The van
contained jewelry displays and zip ties, which appeared to have been prepared
for use as handcuffs and resembled those used in the robbery. The police also
located another vehicle associated with the robbers, which ultimately revealed
Anderson’s role in the robbery.
      Two codefendants testified that Anderson traveled with the robbers to
Dallas from Houston and, as relevant here, entered the jewelry store with a
firearm and restrained the storeowners at gunpoint with zip ties. The
government introduced cell-phone records establishing that Anderson
communicated with other robbers near the time of the robbery and that he
traveled from Houston to Dallas, and then back to Houston, on the day of the
robbery. Anderson later met the other robbers at a strip club to divide the
proceeds.
      A jury convicted Anderson of conspiracy to interfere with commerce by
robbery; interference with commerce by robbery; using, carrying, and
brandishing a firearm during and in relation to a crime of violence; and two
counts of kidnapping. Anderson moved twice for a judgment of acquittal, once
during trial and once afterwards, each time asserting that the evidence was


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                                          No. 19-10641
insufficient to establish a kidnapping conviction. 1 The district court denied
these motions. Anderson timely appealed.
                                                 II.
        “[W]e review preserved challenges to the sufficiency of the evidence de
novo, but we are ‘highly deferential to the verdict.’” United States v. Bolton,
908 F.3d 75, 89 (5th Cir. 2018) (quoting United States v. Scott, 892 F.3d 791,
796 (5th Cir. 2018)), cert. denied, 140 S. Ct. 47 (2019). Accordingly, “we view
all evidence, whether circumstantial or direct, in the light most favorable to
the government, with all reasonable inferences and credibility choices to be
made in support of the jury’s verdict.” Scott, 892 F.3d at 796 (quoting United
States v. Ford, 558 F.3d 371, 375 (5th Cir. 2009)). Because “[i]t is the province
of the jury to weigh any conflicting evidence . . . [o]ur question is whether the
jury’s verdict was reasonable, not whether we believe it to be correct.” Bolton,
908 F.3d at 89 (internal quotation marks omitted) (quoting Scott, 892 F.3d at
797).
                                                III.
                                                 A.
        The federal kidnapping statute states, in pertinent part, that:
        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 parent
        thereof, when . . . the offender travels in interstate or foreign
        commerce or uses the mail or any means, facility, or
        instrumentality of interstate or foreign commerce in committing or
        in furtherance of the commission of the offense . . . shall be
        punished by imprisonment for any term of years or for life . . . .
18 U.S.C. § 1201(a)(1); see also United States v. Barton, 257 F.3d 433, 439 (5th
Cir. 2001) (listing elements). To withstand a sufficiency-of-the-evidence



        1   Anderson’s motion, in the alternative, for a new trial, was also denied.
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                                      No. 19-10641
challenge, “[t]here must be proof that the victim was unlawfully seized,
confined, inveigled, kidnapped, abducted, or carried away.” United States v.
Garza-Robles, 627 F.3d 161, 166 (5th Cir. 2010).
       Though earlier iterations of § 1201(a)(1) required the asportation of a
victim in interstate commerce, 2 a 2006 amendment broadened the crime to
include intrastate activity if an instrumentality of interstate commerce was
used. See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No.
109-248, § 213, 120 Stat. 587, 616 (codified at § 1201(a)(1)). Relatedly, this
court upheld an intrastate kidnapping conviction under § 1201(a)(1) because
the defendant “admitted to kidnapping the victim for ransom and using an
instrumentality of interstate commerce ‘to-wit, a cellular telephone in
committing and in furtherance of the commission of this offense.’” United
States v. Margarito-Casimiro, 667 F. App’x 130, 130 (5th Cir. 2016) (citing
United States v. Marek, 238 F.3d 310, 318 (5th Cir. 2001) (en banc)); accord
United States v. Morgan, 748 F.3d 1024, 1032 (10th Cir. 2014).
       The definition of “seize” is “[t]o forcibly take possession (of a person or
property).” Seize, Black’s Law Dictionary, supra. In the Fourth Amendment
context, this court has defined a “seizure” as a “termination of freedom of
movement through means intentionally applied.” Mason v. Lafayette City-Par.
Consol. Gov’t, 806 F.3d 268, 278 (5th Cir. 2015) (emphasis omitted) (quoting
Brower v. County of Inyo, 489 U.S. 593, 597 (1989)); see also Terry v. Ohio, 392
U.S. 1, 19 n.16, (1968) (noting that a seizure occurs “by means of physical force”



       2 Asportation is defined as “[t]he act of carrying away or removing (property or a
person).” Asportation, Black’s Law Dictionary (11th ed. 2019). Though asportation was a
common-law requirement for kidnapping, it is no longer required under federal kidnapping
statutes. See, e.g., § 1201(a)(1); United States v. Guidry, 456 F.3d 493, 510 (5th Cir. 2006)
(“Under the common law definition of kidnapping, asportation was an essential element . . . .
Under modern statutes, by comparison, asportation is most often treated as an alternative
element . . . .”); United States v. Etsitty, 130 F.3d 420, 426 (9th Cir. 1997), amended by 140
F.3d 1274 (9th Cir. 1998).
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                                       No. 19-10641
that “has in some way restrained the liberty of a citizen”). The definition of
“confinement” is “[t]he act of imprisoning or restraining someone; the quality,
state, or condition of being imprisoned or restrained.” Confinement, Black’s
Law Dictionary, supra.
                                             B.
       Anderson argues that the evidence was insufficient to support his
kidnapping convictions because the zip-tying of the two storeowners was
incidental to the robbery. 3 He argues that § 1201(a) requires the victim to have
suffered from asportation or extended confinement rather than a brief,
incidental restraint, and that he did not intend to confine the storeowners
longer than necessary to complete the robbery.
       We decline to insert additional elements into the statute that Congress
did not, such as requiring the kidnapping to have been more than “incidental.” 4
As relevant here, § 1201(a)(1) requires the “unlawful[] seiz[ure]” or
“confine[ment]” of “any person” for “ransom or reward or otherwise” when the
defendant uses “any means, facility, or instrumentality of interstate . . .
commerce in committing or in furtherance of the commission of the offense.”
Notably, this language does not require extended confinement, that the
kidnapping was more than “incidental,” or that the defendant intended to
confine the victims for an extended period of time.
       Moreover, the jury’s verdict was reasonable in light of § 1201(a)(1)’s plain
language. Anderson handcuffed the store owners at gunpoint with zip ties and
forced them to lie face down on the floor, which prevented their movement, in



       3 Anderson asserts that “he does not seek relief for the submission of multiplicitous
charges.”
       4 Anderson’s reliance on United States v. Peden, 961 F.2d 517, 522 (5th Cir. 1992), for

the notion that kidnapping must not be “incidental” to another offense is misplaced. The
decision analyzed multiplicity, not sufficiency of the evidence. See id. As noted, movement of
the victim, i.e. asportation, is not a required element under § 1201(a)(1).
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                                  No. 19-10641
order to rob the jewelry store. In other words, the storeowners were “seize[d]”
and “confine[d].” See § 1201(a)(1); see also United States v. Ford, 726 F.3d 1028,
1034 (8th Cir. 2013) (upholding kidnapping conviction where the defendant
“barricaded the door when [the victim] tried to leave the room, and prevented
her from having access to her cell phone”); United States v. Gomez, 472 F. App’x
601, 604 (9th Cir. 2012) (same where the defendant “blocked one exit with a
refrigerator, pulled Marrietta around by her hair, pushed her down, threw her,
and trapped her on the floor just inside the door”).
      The record also reflects that Anderson, along with other robbers, used
their cell phones before, during, and after the robbery to communicate while
traveling, to maintain lookouts during the robbery, and to schedule a meetup
at a strip club in Houston to divide the stolen jewelry. Accordingly, Anderson
used an instrumentality of interstate commerce in furtherance of the offense.
See § 1201(a)(1); Margarito-Casimiro, 667 F. App’x at 130 (noting that the
defendant “use[d] an instrumentality of interstate commerce ‘to-wit, a cellular
telephone in committing and in furtherance of the commission of this offense’”);
see also Marek, 238 F.3d at 318-19 (observing that intrastate use of telephones
creates “criminal federal jurisdictional nexus”).
      Because a jury could reasonably conclude that all the elements of
§ 1201(a)(1) were satisfied, the district court correctly denied Anderson’s
sufficiency-of-the-evidence claim.
                                       IV.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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