Appeal from the United States District Court for the Eastern District of Illinois No. 74 Cr. 80-E JAMES L. FOREMAN, Judge.
Fairchild, Chief Judge, Hastings, Senior Circuit Judge, and Campbell, Senior District Judge.*fn*
HASTINGS, Senior Circuit Judge.
Defendant, William Dean Atchison, after a trial by jury, was convicted of kidnaping Kimberly Gossett in violation of 18 U.S.C. § 1201,*fn1 the Federal Kidnaping Act. He was sentenced to six years' imprisonment. Defendant appeals from the judgment of conviction, charging error in the trial court's denial of his motions for judgment of acquittal and for arrest of judgment.*fn2 Defendant contends that a variance between the charge in the indictment and the proof at trial requires a judgment of acquittal under this court's decision in United States v. Varner, 7 Cir., 283 F.2d 900 (1960).
Defendant was convicted on the following facts. On July 7, 1974, he had taken five-year-old Kimberly Gossett, with the consent of her babysitter, for an outing at Forest Hills Lake in Illinois. At the end of the day, Atchison did not return the child to her babysitter. Instead, he transported her to Dallas, Texas. For two months he lived with the child in Dallas, then in New Orleans, Louisiana, and finally in Houston, Texas, where he was arrested by federal agents on September 19, 1974. During this time, the child was not intentionally mistreated, although Atchison apparently worked only intermittently and had some difficulty providing for himself and the child.
The language of the indictment upon which he was tried charged that the child was held "for ransom, reward and otherwise." At trial there was no evidence that Atchison had ever requested any ransom or reward for the child's return. Evidence established instead that his action was motivated by concern for the child's well-being and a belief that she was being mistreated by her parents. Defendant asserts that the reason for the kidnaping which was proved at trial is not the reason which was charged in the indictment and that this variance requires his acquittal.
This court has so held under quite similar facts in United States v. Varner, supra. In that case, the defendant was convicted of kidnaping the child for whom she was babysitting and transporting him from Chicago, Illinois, to Gary, Indiana. The defendant never requested ransom or reward; the only motivation suggested by the Government's evidence was her maternal instinct and desire for a child of her own. The indictment charged her with holding the child "for reward or other reasons." The court held that the words "or other reasons" were meaningless and that the indictment was sufficient only to charge the defendant with kidnaping for ransom or reward. Since the Government did not prove that any ransom or reward was requested, the variance between the proof and the indictment was held to be fatal and to require that a defense motion for judgment of acquittal be granted. The court further held that where the Government intends to prove some purpose for the kidnaping other than ransom or reward, that purpose must be specifically set forth in the indictment.
The facts of this case fall squarely within our holding in United States v. Varner, and our continued adherence to that decision would require us to overturn defendant's conviction. The trial court, though fully aware of Varner, denied defendant's motion for judgment of acquittal, concluding that this court would no longer follow that decision. United States v. Atchison, E.D.Ill., 390 F. Supp. 539, 541 (1975). Upon reconsideration, we find that our decision in Varner is now inconsistent with subsequent decisions of the Supreme Court and of this circuit, and with established law in the other circuits.
No other circuit has followed our decision in United States v. Varner ; indeed, several courts have expressly rejected Varner. These courts have consistently held that an indictment need not contain details of purpose and that evidence showing some purpose other than ransom or reward is sufficient under an indictment charging kidnaping "for ransom, reward or otherwise." Hall v. United States, 4 Cir., 410 F.2d 653, 659, cert. denied, 396 U.S. 970, 90 S. Ct. 455, 24 L. Ed. 2d 436 (1969); Loux v. United States, 9 Cir., 389 F.2d 911, 916, cert. denied, 393 U.S. 867, 89 S. Ct. 151, 21 L. Ed. 2d 135 (1968); United States v. Bentley, 6 Cir., 310 F.2d 685 (1962), cert. denied, 372 U.S. 946, 83 S. Ct. 941, 9 L. Ed. 2d 971, reh. denied, 373 U.S. 954, 83 S. Ct. 1682, 10 L. Ed. 2d 708 (1963). See also Hayes v. United States, 8 Cir., 296 F.2d 657, 667 (1961), cert. denied, 369 U.S. 867, 82 S. Ct. 1033, 8 L. Ed. 2d 85 (1962).
The Supreme Court has held that a kidnaping within the meaning of the statute need not be for pecuniary benefit nor for an illegal purpose. Gooch v. United States, 297 U.S. 124, 128, 80 L. Ed. 522, 56 S. Ct. 395 (1936); United States v. Healy, 376 U.S. 75, 82, 11 L. Ed. 2d 527, 84 S. Ct. 553 (1964).
The Court in Gooch v. United States, supra, relied on the legislative history behind the 1934 amendment to the kidnaping statute, which added the words "or otherwise" to the previous phrase, "held for ransom or reward," citing the following language: ". . . The object of the addition of the word 'otherwise' is to extend the jurisdiction of this act to persons who have been kidnaped and held, not only for reward, but for any other reason. . . . S. Rep. 534, 73d Cong., 2d Sess., March 22, 1934." 297 U.S. at 127, n. 1. See also H. Rep. 1457, 73d Cong., 2d Sess., May 3, 1934. Id. at 128. The Court concluded that holding and transporting a police officer in order to escape arrest was kidnaping within the meaning of the statute.
In United States v. Healy, supra, the Supreme Court rejected the argument that the object of the kidnaping, if not pecuniary gain, must at least be illegal. That case involved an indictment charging the defendants with kidnaping the pilot of a private airplane and forcing the pilot to transport them to Cuba. The Court held that the defendants' action constituted kidnaping under the statute without regard to the legality of their ultimate purpose. The Court pointed to the statute's exception for parent-child kidnaping and noted that the exception would be superfluous if the statute were intended to distinguish between legal and illegal purposes. The Court concluded: "We find no compelling correlation between the propriety of the ultimate purpose sought to be furthered by a kidnaping and the undesirability of the act of kidnaping itself." 376 U.S. at 82.*fn3
The Supreme Court's decisions have consistently been read to permit a prosecution for kidnaping regardless of the defendant's purpose. United States v. Martell, 4 Cir., 335 F.2d 764, 766 (1964); Clinton v. United States, 5 Cir., 260 F.2d 824, 825 (1958), cert. denied, 359 U.S. 948, 79 S. Ct. 731, 3 L. Ed. 2d 681, reh. denied, 359 U.S. 981, 79 S. Ct. 899, 3 L. Ed. 2d 931 (1959); Hayes v. United States, 8 Cir., 296 F.2d at 667; Gawne v. United States, 9 Cir., 409 F.2d 1399, 1403 (1969), cert. denied, 397 U.S. 943, 90 S. Ct. 956, 25 L. Ed. 2d 123, reh. denied, 397 U.S. 1059, 90 S. Ct. 1368, 25 L. Ed. 2d 680 (1970);*fn4 DeHerrera v. United States, 10 Cir., 339 F.2d 587, 588 (1964). See also United States v. Parker, 3 Cir., 103 F.2d 857, 861, cert. denied, 307 U.S. 642, 59 S. Ct. 1044, 83 L. Ed. 1522 (1939). Moreover, an indictment has been held to be sufficient where no purpose whatsoever has been charged. Clinton v. United States, supra; United States v. Martell, supra, and Hayes v. United States, supra.
In determining the sufficiency of an indictment, "minor or technical deficiencies" no longer require reversal; courts look instead to whether the substantial rights of the defendant have been prejudiced by the omission or error. Russell v. United States, 369 U.S. 749, 763, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962); Smith v. United States, 360 U.S. 1, 9, 3 L. Ed. 2d 1041, 79 S. Ct. 991 (1959); United States v. De Stefano, 7 Cir., 476 F.2d 324, 328 (1973), cf. Federal Rules of Criminal Procedure, 18 U.S.C., Rule 52(a). The same standards apply in determining whether a variance between the charge in the indictment and the proof at trial requires reversal. United States ex rel. Harris v. State of Illinois, 7 Cir., 457 F.2d 191, 197, cert. denied, 409 U.S. 860, 93 S. Ct. 147, 34 L. Ed. 2d 106 (1972). An indictment is sufficient if (1) it states the essential facts underlying each element of the offense charged, (2) it informs the defendant of the offense charged with sufficient clarity to enable him to prepare his ...