By: Christopher Villanti
Courts face a variety of issues in a federal or state
prosecution for kidnapping. One such question that frequently
arises at both levels is the issue of whether a separate conviction
for kidnapping should be permitted when the acts that comprised the
alleged kidnapping are also involved in the commission of a
separate crime of violence. The answer to this fact-based
inquiry generally turns on the question of whether the kidnapping
was merely incidental to the underlying offense. If it was merely
incidental, then courts usually hold that the separate charge of
kidnapping is not justifiable. This ambiguous standard, however,
has produced more questions than answers, and because there has
been a complete lack of Supreme Court jurisprudence on this issue,
lower courts continue to struggle with when a separate charge for
kidnapping is proper.
The United States Court of Appeals for the Tenth Circuit
recently addressed this very issue in United States v.
Gabaldon. The Gabaldon case exemplifies a situation
in which a separate charge for kidnapping was held appropriate,
despite the acts constituting the alleged kidnapping also being
involved in the battery and murder of the victim. In its decision,
the court spent a great deal of time commending a four factor test,
developed by the Third Circuit in Government of the Virgin
Islands v. Berry, for distinguishing among crimes for which a
separate kidnapping charge is justified. Ultimately, however, the
court decided not to adopt the test, and concluded that had they
done so, the defendant’s kidnapping charge would, nonetheless, have
been sustained.
This Comment argues that had the Tenth Circuit applied the four
factor Berry analysis to the facts of this case, it would have had
no choice but to overturn Gabaldon’s kidnapping conviction. It
begins by taking a more in depth look at the Berry
decision, focusing particularly on the four factor test that was
created, the policy behind this test, and the extent of its
acceptance at both the federal and state level; it subsequently
asserts that the Gabaldon court erred in failing to adopt
it. This Comment then applies the four prongs of the Berry test to
Gabaldon’s factual record in order to show that, had the
Tenth Circuit adopted and applied the test, Gabaldon’s
kidnapping conviction would have been properly rejected. Finally,
this Comment suggests two additions to the Berry test that
would augment its value as well as lead to its broader adoption in
both federal and state jurisdictions.