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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 97-1452 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                          PAUL E. LOWE, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>            [Hon. Patti B. Saris, U.S. District Judge] <br>         [Hon. Robert B. Collings, U.S. Magistrate Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Aldrich, Senior Circuit Judge, <br> <br>                    and Boudin, Circuit Judge. <br> <br>                      _____________________ <br> <br>    E. Peter Parker, Federal Defender Office, for appellant. <br>    Paula J. DeGiacomo, Assistant United States Attorney, with <br>whom Donald K. Stern, United States Attorney, and Despena F. <br>Billings, Assistant United States Attorney, were on brief, for <br>appellee. <br> <br> <br>                       ____________________ <br> <br>                          May 27, 1998 <br>                       ____________________

          TORRUELLA, Chief Judge.  Defendant Paul E. Lowe appeals <br>his three-count conviction for carjacking in violation of 18 U.S.C. <br> 2119, kidnapping in violation of 18 U.S.C.  1201, and interstate <br>transportation for illegal sexual activity in violation of the Mann <br>Act, 18 U.S.C.  2421.  He was sentenced to a total term of 432 <br>months of imprisonment.  Lowe argues that he was deprived of his <br>full complement of peremptory challenges during voir dire, alleges <br>that the jury was exposed to prejudicial facts not in evidence, and <br>challenges the sufficiency and admissibility of certain evidence.  <br>He also contends that the district court erred in sentencing him <br>for the carjacking count.  We affirm. <br>                         I.  BACKGROUND <br>          On an appeal from a jury conviction, we view the facts, <br>consistent with record support, in the light most favorable to the <br>jury's verdict.  United States v. Rosen, 130 F.3d 5, 6 (1st Cir. <br>1997).  We find that a jury could have found the following facts. <br>          At approximately 5:00 a.m. on Sunday, December 10, 1995, <br>Lowe helped a young woman ("K.") by pushing her car as she drove it <br>out of a snowbank at the end of her driveway in Lowell, <br>Massachusetts.  Upon freeing K.'s car, he forced her to let him in, <br>and drove her to New Hampshire, where, in the front passenger seat, <br>he forced her to perform oral sex on him while holding a <br>screwdriver to her neck, and then raped her vaginally.  He then <br>drove K. back to Massachusetts, and after stealing her jewelry and <br>money, left K. in her car in Lowell near the Belvedere police <br>precinct. <br>          She immediately drove to the house of her boyfriend, <br>Steve Makris, and told him about the kidnapping, but did not <br>recount the rape.  Makris called the police, and when the <br>responding officer arrived, K. again failed to mention the rape.  <br>However, en route to the police station, K. stated to Makris that <br>she had been raped.  Upon arriving at the police station, she was <br>immediately taken to Saints Memorial Hospital, where emergency room <br>nurse Kathleen Sweetser spoke to K. for approximately 25 minutes.  <br>She was eventually examined by an emergency room physician, and <br>released.  After giving her statement to the police, she retraced <br>Lowe's route to New Hampshire and back for police detectives.  On <br>December 13, 1995, FBI agents and police officers arrested Lowe at <br>his girlfriend's apartment in Waltham, Massachusetts. <br>          The evidence presented at trial also showed that in the <br>hours prior to kidnapping K., Lowe had been involved in an incident <br>in which he purposely and repeatedly rammed his pickup truck into <br>the car in which his friends Nancy Goudreau and Rachel Briggar and <br>their boyfriends were driving.  When they confronted Lowe, he <br>threatened to continue hitting the car until Goudreau got into the <br>truck with him.  Eventually, Goudreau and her friends parked at the <br>Lowell police station, and there, Lowe rammed the truck right into <br>the car.  Lowe fled and drove to Goudreau's apartment in Lowell <br>where he found her sister, Priscilla Champagne.  The police arrived <br>at Goudreau's apartment, searched for Lowe, who was hiding in a <br>closet, but failed to find him.  However, they towed Lowe's truck.  <br>Lowe left the apartment on foot with two screwdrivers Champagne had <br>provided.  A short time later, Lowe encountered K. with her car <br>stuck in a snowbank. <br>          During trial, the government presented DNA evidence, <br>which Lowe's counsel moved to exclude.  After evidentiary hearings, <br>the district court issued a detailed memorandum and order denying <br>the motion and admitting the DNA evidence.  A jury convicted Lowe <br>of carjacking, kidnapping, and interstate transportation for <br>illegal sexual activity.  He was acquitted on an additional count <br>for using and carrying a firearm during a crime of violence.  The <br>district court sentenced Lowe to 300 months imprisonment for <br>carjacking, 432 months for kidnapping, and 60 months for the <br>interstate transportation charge, all terms to be served <br>concurrently with each other.  Lowe appeals. <br>                        II.  DISCUSSION <br>          A.   Peremptory Challenges <br> <br>          Lowe argues that the district court's refusal to strike <br>for cause two prospective jurors, one of whom had been sexually <br>molested and the other who had been the victim of an attempted <br>rape, unfairly forced him to expend two peremptory challenges.  <br>Citing United States v. Cambara, 902 F.2d 144, 147 (1st Cir. 1990), <br>Lowe claims that the district court committed reversible error by <br>denying him the full number of peremptory challenges required by <br>law.  Before addressing Lowe's grounds for reversal, we must first <br>determine whether the district court erred in failing to excuse <br>these two jurors for cause.  We review a district court's ruling on <br>for-cause challenges to prospective jurors for clear abuse of <br>discretion.  See United States v. Gonzlez-Soberal, 109 F.3d 64, <br>69-70 (1st Cir. 1997). <br>          The two jurors at issue, juror number 18 and juror number <br>19, were among a group of ten prospective jurors who responded <br>during voir dire to questions concerning sexual abuse committed on <br>themselves, a family member or a friend.  The district court <br>excluded five of these jurors for cause because they stated they <br>could not be impartial.  The district court also excused three <br>additional jurors for cause even though they either claimed that <br>they could be impartial or professed uncertainty regarding their <br>impartiality.  The record reflects that the judge did not believe <br>these three jurors after assessing their demeanor. <br>          In contrast, juror number 19 stated that although she had <br>been sexually molested in the past, she did not think it would <br>interfere with her ability to be fair and impartial.  The juror <br>stated that the incident had occurred a long time ago, and she had <br>not filed a complaint or gone through a trial.  When asked, "Will <br>it in any way bias you against the defendant in this case?" she <br>responded, "no."  Lowe's counsel challenged juror number 19 for <br>cause, but the district court refused to strike the juror because <br>"[u]nlike the . . . two other women who were just in front of me <br>who appeared so visibly upset, she didn't.  She seemed to be able <br>to put it aside, she said she'd be fair and impartial." <br>          Juror number 18 stated that she had a friend who had been <br>beaten and raped about 35 years ago and that the juror had been the <br>victim of an attempted rape about 40 years ago.  The juror said she <br>did not report her own case or go through a trial.  The judge asked <br>whether her experiences would in any way interfere with her ability <br>to serve on the jury, she replied "I don't think so."  The juror <br>also responded "no" to a question whether she would hold any bias <br>against the defendant.  When Lowe's counsel moved to excuse this <br>juror, the judge responded, "I'm not going to excuse her based on <br>my evaluation of her demeanor that she could be fair and impartial.  <br>And I view her as credible.  It was a long time ago, 35, 40 years <br>ago."  Since the district court denied his motions to strike jurors <br>number 18 and 19 for cause, defense counsel used two peremptory <br>challenges to exclude these jurors. <br>          We find that the district court did not abuse its <br>discretion in denying Lowe's motions.  "There are few aspects of a <br>jury trial where we would be less inclined to disturb a trial <br>judge's exercise of discretion, absent clear abuse, than in ruling <br>on challenges for cause in the empaneling of a jury."  Gonzlez- <br>Soberal, 109 F.3d at 69-70 (quoting United States v. McCarthy, 961 <br>F.2d 972, 976 (1st Cir. 1992)).  In the instant case, the judge <br>asked each juror several questions regarding their experiences with <br>sexual abuse to ascertain any potential bias.  We decline to <br>second-guess the district court's determination that jurors number <br>18 and 19 could be impartial at trial because "[i]t is the <br>fundamental task of the district court judge to make this sort of <br>distinction."  Cambara, 902 F.2d at 148.  The trial judge is in the <br>best position to assess a potential juror's credibility by <br>observing her demeanor, reaction to questioning, and overall <br>behavior on the stand.  Moreover, nothing in the record suggests <br>that the district court judge lacked judgment or was prejudiced <br>toward Lowe.  Cf. Gonzlez-Soberal, 109 F.3d at 70. <br>          Because the district court did not abuse its discretion <br>in denying the defendant's motions to exclude jurors number 18 and <br>19 for cause, we need not reach the question whether Lowe's use of <br>two of his peremptory challenges for these jurors mandates <br>reversal. <br>          B.   Jury Exposure to Prejudicial Facts <br>          Lowe contends that he was denied a fair trial because the <br>jury was presented with prejudicial facts not in evidence during <br>voir dire and the government's closing argument.  He argues that, <br>during voir dire, the jury was made aware of his pretrial escape <br>from the Wyatt Detention Facility when the district court asked the <br>entire panel of potential jurors, "[H]as anyone read or heard <br>anything about an escape involved in this case from a Rhode Island <br>jail?" <br>          It was well within the district court's discretion to <br>probe prospective jurors about the escape or any other pretrial <br>publicity to uncover any bias.  Lowe himself moved for individual <br>voir dire on the issue of pretrial publicity.  "When pretrial <br>publicity threatens to impede selection of an unbiased jury, the <br>trial judge must take extra care to ensure that the particular <br>jurors selected do not come to the trial with preconceived notions <br>about the defendant's guilt."  See United States v. Samalot Prez, <br>767 F.2d 1, 5 (1st Cir. 1985).  The district court, in fact, <br>excused two prospective jurors for cause because they said they <br>could not be fair and impartial due to publicity concerning the <br>escape.  Another juror was excused because of publicity about the <br>case generally. <br>          On the record, we see no specific proof that pretrial <br>publicity either tainted the trial process or prejudiced jurors.  <br>Only one of the deliberating jurors, juror number 28, had heard <br>about the case, and had done so over a year prior to the voir dire.  <br>The district court asked this juror, among other questions, whether <br>he could put aside what he had heard on the news and decide the <br>case on the evidence.  The juror responded, "Yes, I think so."  The <br>juror also said that he was sure he could be fair and impartial.  <br>Indeed, Lowe's counsel did not move to excuse juror number 28 for <br>cause. <br>          Lowe also contends that the government's statement in <br>closing argument that "K talked to Sweetser and she told her <br>everything" denied him the right to a fair trial.  The defendant's <br>counsel objected to this statement during side bar conference since <br>K did not testify that she had told the nurse everything.  He then <br>requested an instruction that the jurors' deliberations should be <br>controlled by their own memories of what happened.  While the <br>district court did not issue an immediate curative instruction, <br>which is a practice we regularly encourage to dispel potential <br>prejudice, see United States v. Rivera-Gmez, 67 F.3d 993, 999 (1st <br>Cir. 1995), the judge stated during her charge to the jury: <br>               There are certain things I want to <br>            emphasize that are not evidence in this <br>            case.  The first is, the opening <br>            statements and the closing arguments made <br>            by the lawyers are not evidence in this <br>            case . . . .  In the final analysis, it's <br>            your own recollection and your own <br>            interpretation of the evidence that <br>            controls in this case. . . . <br>               Don't speculate about what was <br>            redacted.  You will see the word "redacted" <br>            when it was redacted, and you won't see <br>            the word when the portions of the form are <br>            simply blank. <br> <br>Transcript at 9:104-105. <br>          In oral argument as well as in its brief, the government <br>admitted to inaccurately restating trial testimony when it made the <br>challenged comment.  In assessing whether improper statements <br>during closing argument require a new trial, we examine (1) whether <br>the prosecutor's conduct was isolated and/or deliberate; (2) <br>whether the trial court gave a strong and explicit cautionary <br>instruction; and (3) whether it is likely that any prejudice <br>surviving the judge's instruction could have affected the outcome <br>of the case.  See United States v. Hodge-Balwing, 952 F.2d 607, 610 <br>(1st Cir. 1991); United States v. Boldt, 929 F.2d 35 (1st Cir. <br>1991).  We see no deliberate attempt on the government's part to <br>mislead the jury with its stray comment.  During side bar, the <br>prosecutor acknowledged that her memory of K.'s testimony may have <br>been incorrect.  In addition, as previously mentioned, the <br>government was forthright in oral argument and in its brief in <br>recognizing its error.  It appears that the government made an <br>honest mistake rather than a deliberate one. <br>          We also find that the district court's curative <br>instruction adequately addressed Lowe's concerns regarding the <br>government's misstatement.  The district court emphasized to the <br>jurors that any statement during the closing was not evidence and <br>that their interpretation of the evidence presented during trial <br>should control their decision.  While Lowe claims that the mistaken <br>reference could have related to redacted parts of the hospital <br>records, the district court specifically admonished the jury not to <br>consider any redacted portions of the record.  The court properly <br>accounted for any possible prejudice from the government's remark.  <br>Under these circumstances, we find no reversible error. <br>          C.   Evidentiary Rulings <br>          Lowe opposes the admission of DNA evidence as well as <br>evidence of his involvement in a car crash prior to the alleged <br>rape.  In addition, he contests the sufficiency of evidence  used <br>to convict him of kidnapping.  We review a district court's <br>decision to admit evidence for abuse of discretion.  See United <br>States v. Alzanki, 54 F.3d 994, 1008 (1st Cir. 1995).  We engage in <br>de novo review of claims of insufficient evidence.  See United <br>States v. Ruiz, 105 F.3d 1492, 1494 (1st Cir. 1997). <br>          With respect to the admissibility of the DNA evidence, we <br>affirm on the grounds stated in the district court's well-written <br>memorandum and order on this issue.  See United States v. Lowe, 954 <br>F. Supp. 401 (D. Mass. 1996).  We write only to note the following.  <br>Since Lowe admitted to having sex with K., he contends that the <br>prejudicial impact of the DNA evidence far outweighs its probative <br>value on the issue of identity.  However, as the district court <br>observed, the evidence "was probative not only on the issue of <br>identity but also on the location of the alleged rape."  Id. at <br>408, n.8.  Thus, the district court found that, under Fed. R. Evid. <br>403, "[i]ts probative value was not substantially outweighed by the <br>danger of unfair prejudice, confusion of the issues, or misleading <br>the jury."  Id.  On appeal, we afford a trial court's construction <br>of a Rule 403 balancing substantial discretion.  See Veranda Beach <br>Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364, 1372 (1st <br>Cir. 1991).  Finding no abuse of discretion, we affirm the district <br>court's determination. <br>          The defendant also challenges the admission of evidence <br>of his involvement in a car ramming incident hours prior to his <br>encountering K. in her driveway.  Lowe asserts that the evidence <br>should have been excluded as prior bad acts evidence under Fed. R. <br>Evid. 404(b) and 403.  Rule 404(b) provides: <br>            Evidence of other crimes, wrongs, or acts <br>            is not admissible to prove the character <br>            of a person in order to show action in <br>            conformity therewith.  It may, however, be <br>            admissible for other purposes such as <br>            proof of motive, opportunity, intent <br>            preparation, plan, knowledge, identity, or <br>            absence of mistake or accident . . . . <br>  <br>Fed. R. Evid. 404(b).  In the instant case, the district court <br>admitted the car ramming evidence as probative of his desire for <br>sex and of his motive for committing carjacking. <br>          Lowe argues that the evidence did not have any relevance <br>to his desire for sex because he conceded having sex with K.  To <br>prevent the admission of bad acts evidence, a defendant's offer to <br>concede knowledge and/or intent issues must: (1) express a clear <br>and unequivocal intention to remove the issue such that, in effect <br>if not in form, it constitutes an offer to stipulate, and (2) the <br>concession must cover the necessary substantive ground to remove <br>the issue from the case.  See United States v. Garca, 983 F.2d <br>1160, 1174 (1st Cir. 1993).  Lowe's concession fails to satisfy the <br>second prong of this test.  Evidence that is probative of Lowe's <br>desire for sex is also relevant to show motive and intent to commit <br>kidnapping and interstate transportation for illegal sexual <br>activity. However, the defendant conceded to nothing more than <br>having consensual sex with K.  He did not concede the element of <br>intent required to prove kidnapping and the Mann Act offense.  <br>Thus, the fact that Lowe admitted to having sex with K. did not <br>remove the issue of intent from the case. <br>          The district court also properly admitted the car-ramming <br>evidence as probative of Lowe's motive and intent to carjack.  The <br>evidence showed that Lowe damaged his truck in the ramming, and the <br>police then towed the truck.  The jury could have inferred from the <br>evidence that the defendant needed to procure another vehicle to <br>evade the Lowell police who were searching for him. <br>          Lastly, despite Lowe's arguments to the contrary, the <br>probative value of the evidence was not substantially outweighed by <br>the risk of unfair prejudice under Rule 403.  In its jury <br>instructions on the challenged evidence, the district court warned: <br>            The only use you may make of Mr. Lowe's <br>            involvement in the car crash is to <br>            determine whether he had the intent to <br>            commit the offenses charged in the <br>            indictment. <br> <br>            You are free to determine that Mr. Lowe's <br>            alleged involvement in the car crash is <br>            not probative of his intent to commit the <br>            offense with which he is charged.  You may <br>            not consider evidence of the car crash as <br>            a substitute for proof that the defendant <br>            committed the offenses charged, nor may <br>            you consider evidence of the car crash as <br>            proof that the defendant has a propensity <br>            to engage in criminal acts or has a bad <br>            character. <br> <br>Transcript at 9:112-113.  Here, the district court minimized the <br>potential for prejudice by telling the jury explicitly not to draw <br>the forbidden inference.  Cf. United States v. Tuesta-Toro, 29 F.3d <br>771, 775 (1st Cir. 1994) (finding potential for prejudice minimized <br>by contemporaneous jury instruction which was reiterated in final <br>charge).  Thus, we find no error. <br>          Lowe's final evidentiary challenge relates to the <br>sufficiency of the evidence to convict him of kidnapping K.  Lowe <br>argues that since kidnapping is coextensive with the Mann Act, <br>which also requires transportation or confinement, the district <br>court may not convict him of kidnapping if the degree of <br>transportation or confinement imposed to commit the kidnapping is <br>no greater than that required for the Mann Act, citing Government <br>of Virgin Islands v. Berry, 604 F.2d 221, 227 (3d Cir. 1979); <br>United States v. Howard, 918 F.2d 1529, 1535-36  (11th Cir. 1990).  <br>In other words, Lowe contends that since the alleged transportation <br>and confinement of K. was merely incidental to the Mann Act <br>violation, these acts were insufficient to support a conviction for <br>kidnapping. <br>          The Mann Act and federal kidnapping charges are separate <br>and distinct offenses with different underlying congressional <br>purposes.  See United States v. Jones, 808 F.2d 561, 566 (7th Cir. <br>1986); United States v. Phillips, 640 F.2d 87, 95 (7th Cir. 1981).  <br>"[The] congressional intent of . . . the Mann Act was to protect <br>the morals of the community, while the purposes of the kidnapping <br>statute was to protect the liberty and life of the victim."  SeePhillips, 640 F.2d at 95, citing Sealund v. United States, 97 F.2d <br>742, 747 (7th Cir. 1938).  It is irrelevant that the kidnapping may <br>have been incidental to the Mann Act offense as long as the <br>government proved the elements of the kidnapping charge. <br>          For the kidnapping charge, the government needed to show <br>that Lowe knowingly and willfully seized, abducted, or confined K., <br>transported her in interstate commerce, and held her for "ransom, <br>reward or otherwise."  See 18 U.S.C.  1201.  The term "otherwise" <br>can include sexual gratification.  See United States v. Sriyuth, 98 <br>F.3d 739, 746-47 (3d Cir. 1996).  The Mann Act required the <br>government to prove that the defendant knowingly and willfully <br>transported K. in interstate commerce for purposes of prostitution <br>or any other illegal sexual activity.  See 18 U.S.C.  2421.  <br>Consent is a defense to kidnapping but not to a Mann Act charge.  <br>See Jones, 808 F.2d at 565. <br>          On the record, we find sufficient evidence of the <br>elements of kidnapping.  In evaluating the sufficiency of evidence <br>underlying a conviction, we view the evidence in the light most <br>favorable to the prosecution.  See Ruiz, 105 F.3d at 1494.  The <br>evidence shows that Lowe took and carried away K. against her will <br>and held her for over six hours.  During the course of the <br>abduction, Lowe forced K. to travel with him from Massachusetts to <br>New Hampshire and back.  In addition, he forced her to perform oral <br>sex on him as well as raping her vaginally.  The government firmly <br>established the elements of the kidnapping charge, and therefore, <br>we affirm the conviction. <br>          D.   Appeal of Carjacking Sentence <br>          Lowe appeals his 25-year sentence under 18 U.S.C. <br> 2119(2), which enhances the 15-year sentence under  2119(1) "if <br>serious bodily injury (as defined in section 1365 of this title) <br>results" from the commission of a carjacking.  Lowe asserts that <br>the shorter sentence applies, arguing that K. did not suffer <br>serious bodily injury as defined in the statute, and that even if <br>the rape constitutes serious bodily injury, the rape is outside the <br>coverage of the statute because it did not result from the force, <br>violence and intimidation used to take the car. <br>          Section 1365(g)(3) provides that "serious bodily injury" <br>means bodily injury which involves: <br>          (A) a substantial risk of death; <br>          (B) extreme physical pain;  <br>          (C) protracted and obvious disfigurement; or  <br>          (D) protracted loss or impairment of the function of a <br>          bodily member, organ, or mental faculty . . .  <br> <br>18 U.S.C.  1365(g)(3).  After reviewing the record, the district <br>court determined that K. suffered "protracted . . . impairment of <br>. . . mental facult[ies]."  During trial, nearly 10 months after <br>the crime, the court noted that K. was "extremely tearful through <br>parts of her testimony, particularly when she [was] looking in the <br>defendant's direction," and that she was in a "fragile" state.  The <br>record reflects, inter alia, that K. underwent at least 10 months <br>of counseling at a rape crisis center.  The district court properly <br>enhanced Lowe's carjacking sentence.  The record amply demonstrates <br>that, as a direct consequence of the rape, K. suffered serious and <br>continuing mental trauma, constituting a "protracted . . . <br>impairment of . . . mental facult[ies]" under  1365(g)(3).  Cf. <br>United States v. Vzquez-Rivera, 135 F.3d 172, 177-78 (1st Cir. <br>1998) (holding that persistent psychological trauma resulting from <br>rape qualified as protracted impairment of mental faculties, and <br>therefore, as "serious bodily injury"). <br>          With respect to Lowe's claim that the rape was not the <br>result of the carjacking, we find our recent decision in Vzquez- <br>Rivera, 135 F.3d at 178, dispositive.  The defendant in that case, <br>who also raped his carjacking victim, raised a similar argument.  <br>However, we determined that "the choice of the word 'results' in <br>the statutory phrase 'if serious bodily injury . . . results' <br>suggests that Congress intended to cover a fairly broad range of <br>consequences flowing from a carjacking."  Id.  In addition, we <br>noted that "the legislative history characterized the provision as <br>imposing the enhancement when the carjacking 'involves bodily <br>injury,' . . . which supports the view that the injuries covered <br>are not limited to those resulting from the 'taking' of a vehicle, <br>but also include those caused by the carjacker at any point during <br>his or her retention of the vehicle."  Id. (internal citations <br>omitted).  Accordingly, we conclude that the carjacking resulted in <br>serious bodily injury. <br>                        III.  CONCLUSION <br>          For the foregoing reasons, the defendant's conviction is <br>affirmed.</pre>

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