Argued February 20, 2014
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:11cr163-001 -- James T. Moody, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: David E. Hollar, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Hammond, IN.
For MARTIN J. JONASSEN, Defendant - Appellant: Kate E. Gehl, Attorney, Thomas L. Shriner, Jr., Attorney, FOLEY & LARDNER LLP, Milwaukee, WI.
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
Sykes, Circuit Judge.
Martin Jonassen kidnapped his 21-year-old daughter E.J. from her home in Missouri and took her to a motel in Indiana, where he held her against her will and sexually assaulted her. On the third day of her captivity, E.J. managed to escape and was seen fleeing naked from the motel, rope still tied around her leg, desperately screaming for help. Jonassen chased her through the street and into a nearby liquor store, and after a violent struggle, recaptured her. Police responding to the scene arrested him in the liquor store parking lot. E.J. described the ordeal to police, and Jonassen faced serious federal felony charges.
Almost immediately after he was arrested, Jonassen began a concerted effort to get E.J. to recant. She did not do so, but the intimidation was successful in the sense that it made her unavailable as a witness. Although she had cooperated with the government when Jonassen was indicted and throughout the pretrial period, she suddenly clammed up when called to testify at trial, saying " I don't remember" (or something equivalent) in response to all of the prosecutor's questions. The government moved to admit her statements to police under Rule 804(b)(6) of the Federal Rules of Evidence, which allows admission of hearsay against a party who wrongfully procures a witness's unavailability. The district court granted the motion. The jury convicted Jonassen of kidnapping, see 18 U.S.C. § 1201(a)(1), and obstruction of justice, see id . § 1512(b)(1), and the court imposed a lengthy prison sentence.
Jonassen raises three issues on appeal. First, he argues that the district court should have conducted a competency hearing under 18 U.S.C. § 4241. Second, he challenges the court's decision to admit E.J.'s prior statements under Rule 804(b)(6). Finally, he argues that the court erred in denying his posttrial motion regarding Jencks Act material. See 18 U.S.C. § 3500.
We reject these arguments and affirm. The district court properly declined to conduct a competency hearing. Although Jonassen asserted bizarre legal theories based on his claim of " sovereign citizenship," that alone does not provide a reason to doubt his competence to stand trial, and the record does not otherwise suggest that he lacked the ability to understand the proceedings. The court's evidentiary ruling also was sound. The government laid an ample foundation for admission of the hearsay statements under Rule 804(b)(6); the evidence established that Jonassen used bribery, guilt, and various forms of psychological intimidation to procure E.J.'s unavailability. Finally, because Jonassen did not request Jencks Act material before the close of trial, his claim for relief under the Act necessarily fails.
E.J. was born in November 1989 to Martin and Alice Jonassen in the back of their family van. She led what appears to have been an isolated life; she was homeschooled and had only once seen a doctor before her kidnapping. The record suggests that Martin subjected the family to harsh discipline and physical, emotional, and sexual abuse. Her parents separated when E.J. was young, and she thereafter lived with her mother and three of her brothers on a farm near Jameson, Missouri. Martin Jonassen also lived in the area.
On Saturday, September 10, 2011, Jonassen picked up E.J. from the farm ostensibly to take her shopping. When E.J. did not return as planned for her brother's birthday celebration, her mother began to worry and tried unsuccessfully to contact her. Jonassen had driven her to Portage, Indiana, where he checked into a motel on Sunday evening. At around ten-thirty on Monday morning, two motel employees saw E.J. running naked down the motel service road with a rope tied to her leg. Jonassen emerged from the motel room and chased her on foot, pulling up his pants as he ran (he was wearing nothing else) before getting into his car to follow her. A witness would later testify that E.J. looked like she was " running for her life," frantically darting through traffic on a very busy road.
E.J. ran into a nearby liquor store screaming " help me, help me, please help me" to the store clerk. Jonassen followed her into the store and told the clerk that his daughter was on drugs. He struggled violently to recapture her, and they fell to the ground, knocking over merchandise in the process. Jonassen succeeded in overpowering his daughter, and he dragged her back to his car.
Portage police officers responding to a 911 call about the incident arrived at the scene and arrested Jonassen in the liquor store parking lot before he was able to leave with E.J. He told police that he was taking his daughter to Michigan to prevent her from dating a 60-year-old man, whom he later referred to as " some Hugh Hefner." After securing Jonassen, officers then sought to assist E.J., who was huddled in the back of the car crying. E.J. told Officer Flora Ryan that Jonassen had taken her to Indiana against her will because he thought she was going to have sex with an older man. When asked if she was raped, she first shook her head no. But she told the officer that she had been tied up in the motel room and nodded when asked if her father had sex with her, and the officer observed the rope still around her ankle. After the on-scene interview with the police, E.J. was taken to the hospital where she was examined by nurse Janice Ault, who observed abrasions, cuts, a rash, and bruises all over her body. E.J. also told Ault that Jonassen had taken her from her home in Missouri against her will.
The police searched the motel room, which was in total disarray. There was rope around a chair, and more rope was found in Jonassen's car. A table had been moved to a location consistent with it being used to block the door. Near the table was a toilet-tank cover, also apparently used as a door block. The bedding was submitted to the Indiana State Crime Lab for testing. Jonassen's semen was found on the sheets, and one stain contained both Jonassen's and E.J.'s DNA.
The day after his arrest, Jonassen began what would be an extended campaign to get E.J. to retract her statements to the police. Ignoring a no-contact order prohibiting any communication with E.J.--including by letter, phone, or intermediary--Jonassen contacted her both directly and through several family members. Over a
seven-month period, Jonassen made more than 75 calls and sent 20 letters attempting to dissuade E.J. from testifying. As the district judge characterized the calls and letters, Jonassen variously used guilt, bribery, veiled threats, and other forms of psychological intimidation in a persistent effort to get E.J. to recant. For example, when speaking directly with E.J. on the phone, Jonassen told her that he loved her and did not want to spend years in prison. Through multiple channels he offered her money (up to $14,000), a moped, and part of his property in Michigan. His letters reiterated these offers, promised to stay out of her life, and claimed he was being mistreated in jail. He characterized the whole episode as nothing more than a family spat and suggested that she would be blessed for lying to the police like the Jewish midwives who lied to Pharaoh to save newborn children and Rahab who lied to ...