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

                                                                    FILED
                                                                 January 22, 2009
                               No. 07-20848
                             Summary Calendar                  Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

CHARLES JAIRO SPEZZIA

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4: 07-CR-31-1


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Charles Jairo Spezzia was convicted by a jury of conspiracy to commit
hostage taking, two counts of aiding and abetting hostage taking; conspiracy to
harbor undocumented aliens; harboring and concealing from detection an
undocumented alien; brandishing a firearm during and in relation to a crime of
violence (i.e., hostage taking); and possession of an unregistered short-barrel
shotgun. He was sentenced to a total of 324 months of imprisonment and a five-


      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-20848

year term of supervised release. He now seeks to appeal his conviction of one
count of hostage taking.
      Spezzia specifically contends on appeal that there was insufficient
evidence to support the jury’s verdict that he “detained” Miguel Nunez-
Rodriguez (Miguel) in within the meaning of the Hostage Taking Act (HTA). See
18 U.S.C. § 1203(a). Spezzia notes that the HTA requires that an individual be
confined for an appreciable period of time against his will such that the
relationship with the defendant becomes non-consensual. According to Spezzia,
there was no evidence presented at trial that Miguel was held against his will;
Spezzia asserts that he and his cohorts adhered to the terms of a negotiated
smuggling agreement (i.e., the smugglers agreed to cross Miguel into the United
States in exchange for a specific fee), and that the interactions between the
smugglers and Miguel was devoid of any coercive or involuntary elements.
      Because Spezia failed to renew his motion for a judgment of acquittal
under FED. R. CRIM. P. 29 at the close of evidence, we review his sufficiency
challenge for a “manifest miscarriage of justice.” United States v. Green, 293
F.3d 886, 895 (5th Cir. 2002). We therefore review the record only to determine
whether it “is devoid of evidence pointing to guilt, or . . . [whether] the evidence
on a key element of the offense was so tenuous that a conviction would be
shocking.” United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992) (en banc)
(internal quotations and citations omitted).
      To establish the offense of hostage taking under the HTA, the Government
must establish that the defendant (1) seized or detained another person, and
(2) threatened to kill, injure, or continue to detain that person, (3) with the
explicit purpose of compelling a third person or entity to act in some way as an
‘explicit or implicit condition for the release of the person detained.’” United
States v. Ibarra-Zelaya, 465 F.3d 596, 602 (5th Cir. 2006) (citation omitted); see
18 U.S.C. § 1203(a). Spezzia solely contests whether the evidence was sufficient



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to establish the first element of the offense – i.e., whether Miguel actually was
seized or detained.
      This court has held that “a hostage is ‘seized’ or ‘detained’ within the
meaning of the [HTA] when [he] is held or confined against [his] will for an
appreciable period of time.” United States v. Carrion-Caliz, 944 F.2d 220, 225
(5th Cir. 1991). To seize or detain a hostage, the hostage taker need not use, or
even threaten to use, physical force or violence; non-physical restraint (e.g., fear
or deception) can be sufficient to restrain a person against his will. Id. (citing
United States v. Wesson, 779 F.2d 1443 (9th Cir. 1986)). Moreover, the HTA
“does not require that the seizure or detention of the hostage be against the
hostage’s will from its inception”; while the initial acquiescence of the victim may
be relevant to determining whether he was ever held against his will, it is not
dispositive of the question, and it does not preclude a conviction under the HTA.
Id. at 226.
      Spezzia has not shown that the record is devoid of evidence that he
detained Miguel, and thus has not shown that the jury’s verdict was a manifest
miscarriage of justice. See Pierre, 958 F.2d at 1310. Although Spezzia suggests
that Miguel consented to be smuggled into the United States in exchange for a
fee, such a contract was void ab initio and conferred no right on Spezzia to
engage in conduct that would otherwise violate the HTA. See Carrion-Caliz, 944
F.2d at 226. The evidence at trial demonstrated that after he surreptitiously
crossed into this country, Miguel was held in a hotel room under the constant
supervision of the smugglers, and was incapacitated by the same disabilities
that we previously have held to be indicative of detention: Miguel had not
previously been to the United States and was unfamiliar with the country, he
possessed no functional English language skills, and he lacked the resources or
abilities that might enable him to leave.         See id. The evidence further
established that Miguel was instructed by the smugglers that if he was unable
to secure the agreed-upon smuggling fee, he likely would be killed; such threats

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convinced Miguel that he could not leave the hotel room voluntarily and that he
was entirely under the smugglers’ control until the smuggling fee had been paid.
      In light of the foregoing, the jury could have reasonably concluded that
Miguel was sufficiently frightened that he remained in the presence of the
smugglers against his will; it is enough that the smugglers’ threats intimidated
Miguel and caused him to stay with them when he would have preferred to be
elsewhere. See id. at 226-27. Accordingly, the conviction is AFFIRMED.




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