USA v. Mike Singh and Paul Busara, Nos. 05-4509 & 05-4575.  The intriguing issue in this case is when does "transportation" begin in a prosecution under the Federal Kidnapping Act, 18 U.S.C. § 1201(a). A jury found Singh guilty on all three counts and Busara entered a guilty plea to counts 2 and 3. Singh was sentenced to a term of 35 years. Busara received a life sentence.

As stated, the intriguing issue raised by this appeal is when does "transportation" begin under the statute. Depending on the answer, we can determine whether the jury instructions were proper and, if so, whether there is evidence to support a verdict based on those instructions. We review de novo the correctness of the jury instructions regarding the elements of an offense. United States v. Jones, 454 F.3d 642 (7th Cir. 2006).

The federal kidnapping statute is based on Congress’s power to regulate interstate commerce. Perez v. United States, 402 U.S. 146 (1971). For that reason, to be a federal crime, kidnapping must involve moving the victim across state lines. For many years, the statute required that the victim was alive at the moment he was transported across a state line.  In 1998, Congress amended the statute to eliminate the requirement that the victim be alive at the moment the state line is crossed.

So now what must be established is whether the victim was alive when the transportation began.

Relying on a case from the Court of Appeals for the Fourth Circuit, the government contends that transportation begins with any movement of the victim. United States v. Horton, 321 F.3d 476 (2003). In this court, Singh relies on the dissent in Horton to argue that the question of whether a defendant made a single journey that took him across state lines or made a stop or series of movements that broke the trip into multiple journeys was a question for a properly instructed jury.

The Seventh Circuit agrees with the court in Horton that the transportation of a victim begins when he or she is "willfully moved from the place of her abduction." At 481. To use any other point in time would, in fact, be arbitrary and would insert an unnecessary element of uncertainty into the statute.

As such, the moment Akhbar (the kidnapping victim) was seized, he was kidnapped. If he was alive at the moment he was moved, and if ultimately he was taken across a state line, the federal kidnapping statute applies.

The instruction given by Judge Griesbach in this case is as follows:  The government does not have to prove that Waheed Akhtar was alive when he crossed the Wisconsin boundary; it is sufficient if Akhtar was alive when the transportation began. Transportation begins within the meaning of the statute when a defendant moves the victim from one location to another as part of a plan or scheme that takes the victim to a place across the state line.

During deliberations, the jury asked where transportation begins-when the body was moved to the tarp, or when it was rolled over and tying began. The judge stated:  [T]ransportation means to carry from one place to another. To convey. Transportation of a victim for purposes of the Federal Kidnapping Act begins at the place, including a place within a residence, where the victim is seized, if the transportation from that place is part of a plan or scheme that takes the victim across the State boundary.

We find this instruction also to be in keeping with our view of the scope of the revised federal kidnapping law. 

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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