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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-5727
UNITED STATES OF AMERICA,
Plaintiff- Appellee,
v.
CHRISTOPHER J. BAILEY,
Defendant- Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR- 95- 2)
Argued: September 24, 1996
Decided: May 2, 1997
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Russell and Judge Hall joined.
_________________________________________________________________
COUNSEL
ARGUED: Hilary Gerard Kelley, Sr., Roberta Frances Green, SHU-
MAN, ANNAND & POE, Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Charleston, West Virginia,
for Appellee. ON BRIEF: Mychal S. Schulz, JACKSON & KELLY,
Charleston, West Virginia, for Appellant. Charles T. Miller, Assistant
United States Attorney, Stephanie D. Thacker, Assistant United States
Attorney, Philip J. Combs, Assistant United States Attorney, Charles-
ton, West Virginia, for Appellee.
OPINION
WIDENER, Circuit Judge:
Christopher J. Bailey appeals his convictions and subsequent sen-
tencing in the district court for the Southern District of West Virginia
under Title 18 U.S.C. § 1201(a)(1), kidnapping, and Title 18 U.S.C.
§ 2261(a)(2), interstate domestic violence. The jury found Bailey
guilty of both counts after the government presented evidence at trial
that Bailey had assaulted his wife in their home and subsequently
driven her in and out of the State for a period of five days before tak-
ing her to a hospital in Kentucky. The court sentenced Bailey to life
imprisonment for the kidnapping conviction and imposed a concur-
rent 20 year sentence, a five year term of supervised release, and
ordered him to pay $40,000 in restitution for the interstate domestic
violence conviction. Bailey claims numerous errors by the trial court,
and we affirm.
I. FACTS
Defendant Christopher Bailey married Sonya Bailey on December
19, 1991. Mrs. Bailey's 14 year- old daughter from a previous mar-
riage, Jessica, lived with the couple and was adopted by Bailey.
Christopher Bailey is an alcoholic.
On November 25, 1994, a Friday evening, the defendant and his
wife went out to a local bar. At some point thereafter they began to
argue, and at about 10:30 p.m. Mrs. Bailey went to another bar, the
Circle C. About a half hour later the defendant joined her there.
Bailey was drunk and disruptive at the Circle C. The bouncer asked
Bailey not to disturb his wife and other patrons. Eventually, sometime
between 2:00 a.m. and 2:30 a.m. the bouncer required Bailey to leave
the Circle C. Mrs. Bailey stayed until after 2:45 a.m.
Christopher Bailey testified that he remembered going to the Circle
C, that he argued with Sonya Bailey, and that he was asked to leave
by the bouncer. He testified that the last thing he remembered about
that night was going to Big Bertha's across the street, and that he did
2
not remember leaving that establishment. He attributes this memory
loss to an alcoholic blackout which he claims lasted until late the next
afternoon.
On Saturday November 26, 1994 Bailey was due at work by 7:00
a.m. At 8:10 a.m., as a result of his failure to report, Lucy Curry, a
co- worker of the defendant, called the Bailey home to inquire why he
was late for work. A woman whom Miss Curry believed to be Mrs.
Bailey answered the phone and spoke briefly with Miss Curry before
she summoned Bailey. Bailey said that he would not be coming into
work that day.
When Jessica Bailey and her house guest came downstairs at about
10:00 a.m., Jessica looked into her parents' bedroom. She saw Bailey
on the bed, but could not see over him to see whether her mother was
on the bed.
At some point during that morning Mrs. Bailey suffered a head
injury which included a laceration on her forehead. Investigating offi-
cer Jeff Gundy testified that Mrs. Bailey lay on the bed for an
extended period. The blood had saturated one pillow, soaked through
the sheet and mattress cover, and pooled on the mattress of the water-
bed.
The government presented evidence that the defendant had pulled
the covers up over the blood- stained areas, which obscured the blood.
Bailey told his cellmate at the county jail that he placed his wife in
the trunk, in case he was stopped by police. The government pointed
to blood in the spare- wheel well of the trunk, the strong odor of urine,
and the scratch and dent marks on the inside of the trunk door, as evi-
dence indicating that Mrs. Bailey was locked in the trunk of the car
for some period of time over the next six days. Jessica Bailey's house
guest stated that by noon the Camry and Bailey were no longer at the
residence. At 12:26 p.m. Bailey cashed a $75 check at a bank in South
Charleston.
Bailey testified that he came out of his blackout some time that
afternoon while driving on Route 119, whereupon, he claims, he dis-
covered his wife on the back seat of the car under a blanket. She was
unconscious with blood on her head and clothes. Bailey's brief states
3
that he was "shocked by the appearance of his wife" and was "scared
that he may have inflicted her injuries." He claims that at that time
he decided not to take her to a hospital, but rather to "avoid publicity
and to treat her himself."
Bailey testified that they spent the night on the side of the road and
that he tried to clean Mrs. Bailey with a washcloth. Based on receipts
and documents collected upon Bailey's arrest it is undisputed that on
Sunday, November 27, 1994, he stopped at a K- Mart in Pikeville,
Kentucky. There he purchased shampoo, soap, a razor, hydrogen per-
oxide, one pair of sweat pants, and a package of T- shirts. That night
he used his Visa card to register under his own name for two people
in a Knight's Inn in Ashland, Kentucky. The next day, November 28,
Bailey drove to Hurricane, West Virginia, 20 miles from their home,
and withdrew all of the couple's joint savings account. Bailey then
drove to Georgetown, Kentucky where he registered for two people
at the Flag Inn. On Tuesday, November 29, he drove to Walton, Ken-
tucky and registered for two people for the next two nights at a Red
Carpet Fountain Inn. During this time Bailey purchased various items
to treat Mrs. Bailey. Finally, on December 1, Bailey drove to Corbin,
Kentucky where at 1 p.m. he registered at a Days Inn. Bailey testified
that at this time he realized Sonya was beyond his efforts to help her
and that he had to get her medical assistance. At 6:15 p.m., five days
after Bailey claims he came out of the blackout, Bailey brought his
wife to the emergency room at Baptist Regional Medical Center in
Corbin.
Upon arrival at the hospital Mrs. Bailey's condition was desperate,
as she was suffering from both external and internal injuries. She had
a three- inch laceration on her forehead and two black eyes. She also
had three wounds on her forehead that were still bleeding when the
police photographer arrived at the hospital. She exhibited a subcon-
junctive hemorrhage in her right eye, and corneal abrasions had
resulted from having her contact lenses in place for almost a week.
There were bruises around her throat, abrasions on her knees, and
pressure sores on her feet. She also had ligature bruises on her wrists,
and her ankles had similarly been bound and resulted in what would
be permanent scars.
Internally the damage was more extensive. The doctors diagnosed
Mrs. Bailey as suffering from very severe anoxic brain injury, a con-
4
dition which results when nerve cells are destroyed due to a lack of
oxygen. This condition often results from a loss of the flow of blood
to the brain. Finally, as a result of not receiving adequate food or
water for at least three or four days, Mrs. Bailey suffered from pro-
found dehydration, which in turn caused her to experience renal fail-
ure.
Many of Mrs. Bailey's injuries are permanent. At trial the govern-
ment presented the testimony of Dr. Biundo, Mrs. Bailey's treating
physician, as to her condition at the time of trial and her prognosis.
He testified that she was unable to follow commands and had minimal
comprehension of what was said to her. She lacked the ability to talk,
and was capable only of making vowel sounds. Mrs. Bailey was inca-
pable of feeding herself and relied on a gastrointestinal tube to receive
most of her nutrition. She was incontinent, suffered severe contrac-
tions in her upper and lower extremities, and the only voluntary
movement she could perform was the slight extension of her left knee.
Additionally, her sense of hearing, smell, and sight were impaired.
The doctor testified that most likely she will never walk again, but
that with years of rehabilitation she may learn to feed herself and to
talk.
Corbin police officers arrested Christopher Bailey at Baptist
Regional Medical Center on December 1, 1994. A criminal complaint
was filed in the Southern District of West Virginia on December 6,
1994 charging Bailey with kidnapping, in violation of 18 U.S.C.
§ 1201(a)(1). The federal grand jury on January 4, 1995 returned a
two- count indictment charging Bailey with the kidnapping count, and
one count of interstate domestic violence, 18 U.S.C.§ 2261(a)(2).
After the defendant's arraignment on January 19 the court entered a
standard discovery order on January 24, 1995.
Three days later, Bailey filed an ex parte motion requesting a con-
ference regarding his need for private investigative services and
experts. In his motion Bailey requested approval and funds for the
services of a forensic expert or criminalist to determine the age of the
blood and human waste in the Camry, and to inspect the back seat of
the Camry for anything that could have been left by Mrs. Bailey.
Under the heading of medical experts the defense requested a psychi-
atrist and psychologist to examine Bailey and a medical practitioner
5
specializing in trauma patients who could review and explain Mrs.
Bailey's injuries. The conference was held and the court advised
defense counsel on the procedural steps available to obtain the neces-
sary resources, noting in particular the requirement of filing separate
ex parte motions for each service requested. 1 As a result of that first
ex parte motion Bailey advises that he received additional counsel.
Bailey next filed three ex parte motions seeking funds for investi-
gators and experts. The court in an in camera proceeding the next day
denied the motions. The court described the requests as seeking
an open- ended approval for hiring expert services to prove
a defense or defenses that might develop factually and
legally during the course of investigation.
Accordingly, the court required the defendants to isolate what points
needed investigation, and then request with specificity funds for those
limited purposes.
On February 17 the court held a pretrial motion hearing. The defen-
dant had filed two motions, one for a continuance of the March 7,
1995 trial date and another reserving the right to file future motions.
The court continued the trial for more than 60 days, rescheduling it
for May 16, 1995.
Meanwhile, pursuant to the discovery order, the government pro-
vided the defendant discovery, thereby putting the defendant on
notice that the government was conducting hair, fiber, and blood anal-
ysis. In addition to answering standard discovery requests, this com-
prehensive discovery disclosure included some 500 pages of reports
and photographs, revealed areas in which the government intended to
employ expert testimony, and identified over 100 exhibits. The gov-
ernment supplemented this disclosure on five separate occasions in
February and March.
_________________________________________________________________
1 Title 18 § 3006A establishes the procedures to be followed by the
counsel of an indigent defendant in seeking the resources necessary to
provide a constitutionally sound defense. It allows defense counsel to
make ex parte applications for investigative, expert, and other services
if they are necessary for an adequate defense. 18 U.S.C. § 3006A(e)(1).
6
Weeks later, between April 5 and April 18, 1995 Bailey filed sepa-
rate ex parte motions for experts. His April 13 ex parte motion
requested approval to retain a criminalist. The motion stated that Bai-
ley required a criminalist to respond to the testimony of the govern-
ment's forensic pathologist, forensic serologist, and hair and fibers
analyst. In a footnote the defense noted that Dr. William Cox, a foren-
sic pathologist engaged by the defense for preliminary discussion
about the case, had indicated that a criminalist, not a forensic patholo-
gist, could best address the blood, hair, and fiber analysis.
At an April 18, 1995 ex parte hearing the court granted the defen-
dant's request for approval to retain (1) investigative services, (2) a
forensic psychiatrist; and (3) a forensic pathologist. The court denied
without prejudice the defense's motions for approval to obtain a
criminalist and an addictionologist.2 The court noted that it did not
perceive any justification for a criminalist in addition to the forensic
pathologist.3 The court stated that perhaps the forensic pathologist the
defense had talked to might not be "qualified by experience to testify
in some of these areas, but there are plenty of forensic pathologists
who . . . can give such testimony."4
_________________________________________________________________
2 Bailey obtained a physician to testify as to an alcoholic addiction,
apparently without previous court approval.
3 In attempting to articulate a difference between a forensic pathologist
and a criminalist the defense stated that pathologists:
look at bodies and . . . injuries and causes of death . . . but if you
really want to get into the actual analysis of the blood and of the
hair fibers and the other types of fibers, the clothing fibers, you
need to get somebody that does that. . . . I used the word "crimi-
nalist" because it seems to me more encompassing- - it tends to
encompass hair, blood, clothing, semen, all of that.
4 A comparison of the definitions of these professions does little to illu-
minate the specific distinctions between them. According to Black's Law
Dictionary, Abridged 6th Edition, a criminalist is
[o]ne versed in criminal law, one addicted to criminality, and,
also, a psychiatrist dealing with criminality.
p. 261. The field of forensic pathology is described as:
[t]hat branch of medicine dealing with diseases and disorders of
the body in relation to legal principles and cases.
p. 449.
7
The court at that hearing also removed the seal from portions of the
ex parte proceedings. In response to the defense objections that such
action would reveal attorney- client communications, the court agreed
to redact information that the attorney had received from Bailey, not-
ing that it couldn't "imagine that the government will have divined
much about the defense of the case from what you have told me." The
court also offered to, on motion, assign the ex parte motions to
another judge. Such a motion was not made by the defendant, how-
ever.
Bailey filed his final ex parte motion on April 27, 1995. It specifi-
cally requested approval to retain "an expert in the analysis of hair,
fiber and blood." The court set the hearing for May 3, 1995, but at the
defendant's request rescheduled the hearing for Friday May 5, follow-
ing the second pretrial motions hearing.
At the May 5 pretrial motions hearing the court entertained five
defense motions. These included an April 11 motion to suppress hair
and blood samples; an April 13 motion for a change of venue due to
the local pretrial publicity; and three motions to dismiss the indict-
ment, which were filed at 4:30 p.m. on May 4, 1995- the day before
the motion hearing. On May 9, 1995 the court denied all five motions.
In the absence of the attorney for Bailey, having continued the
hearing until May 5th, the court, at Bailey's instance, granted the
motion for funds for a hair, fiber, and blood expert. Its written order
was entered on Tuesday May 9, one week before the May 16 trial was
to begin.
On Friday afternoon, May 12, defense counsel filed a motion for
a second continuance claiming that his hair, fiber, and blood expert
had insufficient time to review the evidence. The court denied the
motion stating that any delay in securing the assistance of a hair,
fiber, and blood expert was the fault of the defendant. The court
rejected the defendant's claim that the previous ex parte motions of
January 27 and April 13 had requested a hair, fiber, and blood expert.
Finally, in denying the continuance the court noted that the defendant
had already received a two- month continuance and had failed to
attend the May 5th hearing.
8
On May 15, 1995, pursuant to the court's request, the defendant
submitted proposed voir dire questions for the jurors. Subsequently,
during voir dire, most, if not all, the jurors acknowledged that they
had heard of the events of the case through the press. The court then
asked if any of the prospective jurors would be predisposed in favor
of one side or the other, to which all the jurors responded in the nega-
tive. In response the defendant renewed his motion for a change of
venue and moved for the first time for individual voir dire about what
each potential juror "specifically remembers about the case" from the
media coverage. The court denied both motions.
The case went to trial and on May 23, 1995 the jury found Bailey
guilty of both counts. On September 1, 1995 the district court sen-
tenced the defendant. The sentencing guidelines recommended a
range of 121- 151 months, but the court departed upwards. The court
cited U.S.S.G. § 5K2.2 as permitting the more severe sentence, and
noted five aspects of the crime as supporting the departure. Among
the court's justifications was the "massive impairment to [Mrs. Bai-
ley's] total body functioning." On September 13, 1995 the district
court entered its judgment, imposing a life sentence with a concurrent
20 year term, a five year term of supervised release, and $40,000 in
restitution, from which the defendant appealed.
II. THE CLAIMED ERRORS
Bailey raises a panoply of purported errors by the district court. He
begins by challenging the constitutionality of the interstate domestic
violence statute and then faults each following step of the proceedings
to the court's upward departure from the sentencing guidelines. We
address the alleged errors in general in the order that they are said to
have occurred, and not by degree of merit, or lack thereof, we find
them to possess.
A. Validity of the Domestic Violence Statute
Bailey claims that the second charge of his indictment, alleging
violations of the recently enacted interstate domestic violence statute
18 U.S.C. § 2261(a), should have been dismissed because he claims
that Congress exceeded its power under the Commerce Clause. The
9
interstate domestic violence statute is in Title II of the Violence
Against Women Act. The statute provides:
(a) Offenses.-
(1) Crossing a State Line.- A person who trav-
els across a State Line or enters or leaves Indian
Country with the intent to injure, harass, or intimi-
date that person's spouse or intimate partner, and
who, in the cause of or as a result of such travel,
intentionally commits a crime of violence and
thereby causes bodily injury to such spouse or inti-
mate partner shall be punished as provided in sub-
section (b).
(2) Causing the crossing of a State Line.- A
person who causes a spouse or intimate partner to
cross a State line or to enter or leave Indian Coun-
try by force, coercion, duress, or fraud and, in the
course or as a result of that conduct, intentionally
commits a crime of violence and thereby causes
bodily injury to the person's spouse or intimate
partner, shall be punished as provided in subsec-
tion (b).
18 U.S.C. § 2261(a).5
Bailey was one of the first charged under the statute, and so far as
has come to our attention, the statute has not been previously chal-
lenged in a reported case or in any of the courts of appeals. Two dis-
trict courts, however, have reached opposite conclusions as to the
constitutionality of a part of Title III of the Violence Against Women
Act, which creates a private right of action against an individual who
commits a crime of violence motivated by gender. 6 See 42 U.S.C.
§ 13981(c).
_________________________________________________________________
5 We do not deal here with an intimate partner, Mrs. Bailey was Bai-
ley's wife.
6 See Doe v. Doe, 929 F. Supp. 608 (D. Conn. 1996) (finding 42 U.S.C.
§ 13981, a part of Title III of the Violence Against Women Act to be a
10
Bailey's challenge to § 2261(a) relies on the Supreme Court's
recent decision in United States v. Lopez, 63 U.S.L.W. 4343 (1995),
which restricted Congress' commerce power. In Lopez the Court
reviewed the constitutionality of former 18 U.S.C.§ 922(q), the Gun-
Free School Zone Act of 1990, which made it a federal offense for
"any individual knowingly to possess a firearm at a place that the
individual knows, or has reasonable cause to believe, is a school
zone". Lopez, 63 U.S.L.W. at 4343 (quoting 18 U.S.C.
§ 922(a)(1)(a)(1988 ed., Supp. V)). The Court found that Congress
had acted beyond its commerce power in enacting the statute because
the statute had "nothing to do with `commerce' or any sort of eco-
nomic enterprise," 63 U.S.L.W. at 4346, nor any"jurisdictional ele-
ment which would insure . . . that the firearm possession in question
affects interstate commerce." Lopez, 63 U.S.L.W. at 4347.
Bailey asserts that after Lopez, where Congress is acting pursuant
to its commerce power it can regulate the (1) channels and (2) instru-
mentalities of interstate commerce, but beyond that it may only regu-
late (3) activities that are substantially related to commerce. Bailey
argues that § 2261(a) does not regulate either of the first two catego-
ries (channels or instruments of interstate commerce) and thus the
Lopez analysis requires that the conduct to be regulated must have
more than an interstate nexus, it must directly affect commerce.
The government argues that by contrast, the domestic violence stat-
ute contains such a provision (by requiring the crossing of a state line)
and thus is not subject to what is called the substantially and directly
analysis of Lopez.
We find it unnecessary to go in detail into the arguments applicable
in Lopez, for we think previous decisions of the Supreme Court apply
and that the statute in question is valid.
_________________________________________________________________
proper exercise of Congressional power under the Commerce Clause);
but see Brzonkala v. Virginia Polytechnic and State University, 935 F.
Supp. 779 (W.D. Va. 1996) (holding the same section invalid as an
unconstitutional exercise of Congress' power).
We express no opinion as to the constitutionality of 42 U.S.C.
§ 13981, a part of Title III of the Act. We are concerned only with the
validity of 18 U.S.C. § 2261(a), a part of Title II of the Act.
11
In Caminetti v. United States, 242 U.S. 470 (1917), the Court held
valid the White Slave Traffic Act of 1910. In that case, the defendant
had been convicted of transporting and causing to be transported and
aiding in the transportation of a certain woman from Sacramento, Cal-
ifornia to Reno, Nevada for the purpose of debauchery, that is to say,
that the woman should be the mistress of the defendant. The Court
upheld the conviction and stated:
The transportation of passengers in interstate commerce, it
has long been settled, is within the regulatory power of Con-
gress, under the commerce clause of the Constitution, and
the authority of Congress to keep the channels of interstate
commerce free from immoral and injurious uses has been
frequently sustained, and is no longer open to question.
242 U.S. at 491.
In Cleveland v. United States, 392 U.S. 14 (1946), the defendant
was convicted of a violation of the Mann Act, 18 U.S.C. § 398, which
forbade the transportation in interstate commerce of any woman or
girl for the purpose of prostitution or debauchery or for any other
immoral purpose. The defendants had transported women across state
lines for the purpose of cohabiting with them as plural wives in viola-
tion of law. The Court sustained the convictions and stated:
The fact that the regulation of marriage is a state matter does
not, of course, make the Mann Act an unconstitutional inter-
ference by Congress with the police powers of the States.
The power of Congress over the instrumentalities of inter-
state commerce is plenary; it may be used to defeat what are
deemed to be immoral practices; and the fact that the means
used may have "the quality of police regulations" is not con-
sequential.
329 U.S. at 19.
The present case is so similar to Cleveland and Caminetti that we
think those cases are controlling. The statute requires the crossing of
a state line, thus placing the transaction squarely in interstate com-
12
merce. And it requires the commission of a crime of violence causing
bodily injury, which certainly is not different from the immoral pur-
pose forbade in Cleveland and the debauchery forbade in Caminetti.
We are of opinion the statute is valid.
B. The Indictment is not Multiplicitous
Similarly, we reject Bailey's argument that the indictment is multi-
plicitous. The argument goes that the domestic violence statute is
merely a specific version of the kidnapping statute. Bailey argues that
the indictment charges him twice for a single course of conduct, i.e.
kidnapping, and kidnapping his wife. He claims that although the
interstate domestic violence statute requires proof of the additional
fact that the victim was his spouse, that in his case this is the only real
distinction between the two charged offenses. Therefore, Bailey con-
cludes, § 2261(a) is merely a more specific version of the kidnapping
statute, and that employing both would punish him twice for the same
offense.7 Bailey argues that under the Rule of Lenity of Busic v.
United States, 446 U.S. 398, 406 (1980), where there is multiplicity
the more specific statute, here the interstate domestic violence statute,
must take precedence and the more general charge of kidnapping
must be dismissed.
It is well established that two statutes, although punishing the same
transaction, are not multiplicitous where each requires proof of an
additional fact which the other does not require. Blockburger v.
United States, 284 U.S. 299, 304 (1932). The Court recently reaf-
firmed this standard for multiplicity.
_________________________________________________________________
7 The federal kidnapping statute, 28 U.S.C. § 1201(a) provides:
(a) Whoever unlawfully seizes, confines, inveigles, decoys,
kidnaps, abducts, or carries away and holds for ransom or reward
or otherwise any person, except in the case of a minor by the par-
ent thereof, when-
(1) the person is willfully transported in interstate or for-
eign commerce; . . .
shall be punished by imprisonment for any term of years or for
life, and if the death of any person results, shall be punished by
death or life imprisonment.
13
If "the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to deter-
mine whether there are two offenses or only one is whether
each provision requires proof of a fact which the other does
not."
Rutledge v. United States, 64 U.S.L.W. 4238, 4239 (1996) (quoting
Blockburger, 284 U.S. at 304).
Clearly, the domestic violence statute requires proof of several
facts which the kidnapping statute does not, the most obvious of
which is that the victim be "a spouse or intimate partner." Equally
apparent is that the kidnapping statute requires proof of the additional
element that the defendant held the victim "for ransom or reward or
otherwise." Although there are other differences between the elements
of the domestic violence statute and the crime of kidnapping, these
two stated differences satisfy the Blockburger requirement that each
statute require the proof of an element which the other does not.
Accordingly, we find that the interstate domestic violence statute pro-
scribes conduct distinct from that criminalized by the kidnapping stat-
ute. Therefore, Bailey's two- count indictment under the interstate
domestic violence statute and kidnapping statute is not multiplicitous
and must stand.
C. Argument Respecting Procedure
Bailey's next argument is that the district court"inappropriately
and unconstitutionally" protracted the process by which he sought to
obtain money for investigators and experts. The argument goes that
such protraction "required Bailey to expend far more attorney time
and resources than are envisioned under 18 U.S.C.§ 3006A and
allowed by the United States Constitution."
The essence of the argument is that the district court considered
Bailey's various requests one at a time instead of all together, not that
the necessary services were not provided. The series of motions is
referred to in the statement of facts in the early part of this opinion.
The rule in this circuit is that
14
Under 18 U.S.C. § 3006A(e)(1) the district court may grant
requests for expert services other than counsel upon a find-
ing that "the services are necessary and that the person is
financially unable to obtain them."
Jones v. Murray, 947 F.2d 1106, 1113 n. 4 (4th Cir. 1991), cert.
denied, 505 U.S. 1245 (1992).
Three months prior to trial, Bailey had been granted additional
counsel. About a month or more before trial, Bailey had had made
available to him a forensic psychologist, a forensic pathologist and an
addictionologist. And at least a week before trial, the court authorized
a blood, hair and fiber expert.
Bailey points to no prejudice on account of the dates of authoriza-
tion of the experts except perhaps that his attorney may have been
inconvenienced. The record does not show even that except by argu-
ment. We are of opinion the district court did not abuse its discretion
in the order or dates of authorization of such services and that without
prejudice there can be no constitutional violation. 8 Bailey's argument
is without merit.
Bailey also argues that the district court erred in disclosing to the
prosecution information revealed to it in the ex parte motion made
under 18 U.S.C. § 3006A. Subsection (e) of that code section pro-
vides for application for investigation and expert services through "an
ex parte application."
While the various applications for services were made ex parte, the
district court, on April 18, 1995, unsealed the motion papers for the
ex parte motions made to secure the services mentioned above.
The government, however, correctly points out that with less than
a month remaining for trial, the defendant had been detained and the
trial had been continued once on motion of the defendant. The defen-
dant had provided no discovery pursuant to the standard discovery
_________________________________________________________________
8 We do not imply that any prejudice which may exist brings on a con-
stitutional violation.
15
order and, although the defense intended to introduce expert testi-
mony with respect to Bailey's mental condition pursuant to Fed. R.
Crim. P. 12.2, the notice of intention to use such testimony had not
been filed. For that reason, the court unsealed the ex parte motions
and ordered both sides to immediately disclose all Jencks statements.
Following that, the United States was able to have Bailey undergo a
psychiatric examination and the trial proceeded as scheduled on May
16, 1995.
The government even agrees that if no ameliorating factors were
present in this case, the district court should not have unsealed the ex
parte motions. The government argues, however, that under the facts
of this case above related, the district court was justified in unsealing
the motions, and we agree. In all events, Bailey is unable to point to
any prejudice by the unsealing of the motions except that the mental
processes of the defense attorneys may have been revealed by them.
We do not believe this is sufficient and that a more concrete applica-
tion to the case must be present to show prejudice, if any there be.
D. Continuance
Bailey's last argument with respect to the procedural conduct of the
case is that he was denied a motion for a continuance made on May
12, 1995, the Friday before the trial was to begin on Tuesday, May
16, 1995. The argument on appeal is that he did not have sufficient
time to utilize an expert which had only been authorized one week
prior to trial. The witness we refer to here was what Bailey calls a
"hair, blood and fiber" expert.
Bailey moved for such an expert on April 27, 1995, and the court
set a hearing on that motion for May 3, 1995. But at Bailey's request,
the court rescheduled the hearing for May 5, 1995. Following that
hearing on May 5th, although Bailey's attorney was absent from the
hearing, the court on May 9th entered its written order authorizing the
hair, blood and fiber expert. At this point, it is well to say that Bai-
ley's attorney had previously talked to that expert but did not have the
money to pay the expert until after May 5. The attorney had also, pre-
vious to May 5, turned over to the expert the evidence of the govern-
ment with respect to hair, blood and fiber. The motion for a
continuance stated that the expert had made a preliminary report but
16
there was not time to make a fuller report before the date the motion
for a continuance was filed. Notably, a copy of the report is not a part
of the record and apparently it was not shown to the district judge.
Also, notably, at oral argument the attorney claimed the expert wit-
ness had a convention in Cincinnati during the trial. Of course, the
absence of a material witness is a standard reason for continuance.
The district court, however, was not notified of the convention in Cin-
cinnati so far as the record we have shows. Also, it is now acknowl-
edged that Mrs. Bailey was in fact in the trunk of Bailey's car, and
the only materiality of any testimony the expert witness might have
given would go to when she was placed in the trunk, rather than
whether she was placed in the trunk. We are also not told what the
expert would have testified to had he been called as a witness, which
he was not. In view of all of these facts, we are of opinion the district
court did not abuse its discretion in denying the continuance.
E. The district court did not abuse its discretion in refusing a
change of venue or individual voir dire
On April 13, 1995, pursuant to Federal Rule of Criminal Procedure
21(a), Bailey filed a motion for a change of venue to a different divi-
sion within the district, or alternatively, outside of the Southern Dis-
trict of West Virginia. Bailey claimed that due to the quantity and the
prejudicial quality of the press coverage it was impossible for him to
obtain a fair trial in that district, and more specifically, in the cities
of Charleston or Huntington, West Virginia. At a May 5, 1995 motion
hearing, after listening to testimony from members of the press as to
the amount of coverage the events had received, the court denied the
motion, which Bailey renewed on May 16th during the voir dire
examination of the jurors.
In considering the motion for a change of venue, the district court
complied with the two- step analysis which we discussed in United
States v. Bakker, 925 F.2d 728 (4th Cir. 1991). Bakker calls for first
addressing whether the publicity is so inherently prejudicial that trial
proceedings must be presumed to be tainted and, if that be not true,
then the second step is to conduct a voir dire examination of prospec-
tive jurors to determine if actual prejudice exists. Bakker at 732.
At the May 5th hearing, representatives of all the press testified:
radio, television and newspapers. At that hearing the representatives
17
of the press presented by Bailey repeatedly conceded that the case
was given no more, and indeed in some instances less, attention and
exposure in the media than other high profile federal cases. There was
evidence, for example, that in the intervening six months between the
temporary disappearance of the couple and the trial, one local televi-
sion station aired a total of 15,000 news items, only 30 of which con-
cerned this case. The district court found that the attention received
did not rise to the level of presumed prejudice against the defendant,
and denied the motion for a change of venue orally on May 5th and
entered its order on May 9th.
During the empaneling of jurors on May 16th, the district court
proceeded to the second step of determining if there was actual preju-
dice to the defendant from media items. Bakker , 925 F.2d at 732.
Here, the parties were permitted in advance to submit questions for
potential jurors and there is no complaint that the district court failed
to ask any question. The complaint is that the court did not permit the
individual examination of the jurors on the issue of pre- trial publicity.
In response to the questions asked, some jurors admitted that they
would not be able to render an unbiased opinion. They were excused.
After most or all of the potential jurors responded by a show of hands
that they had heard or read of the case through the press, the court
specifically asked the potential jurors if anything they had heard
would predispose them to favor one side or the other. After receiving
a negative response, the court couched the same question in other lan-
guage:
do any of you feel that you would be unable to reach a ver-
dict in this case solely based on the evidence as it comes in
in this courtroom and the law as I give it to you at the - -
during and at the conclusion of the case?
Again the responses were negative. The court proceeded to excuse
two potential jurors who indicated in response to another question that
their experience with family violence would bias their opinion. Then,
for the first time, the defendant made his request for individual voir
dire, and renewed his motion for a change of venue. The court
declined to permit individual voir dire and denied the motion.
18
The record shows that the district court conducted thorough ques-
tioning that was both fair and impartial. It asked all or substantially
all of the questions given to it in advance by the defendant. The
record shows that the district court excused every juror whose opinion
or inclination showed that he could not render a fair and impartial ver-
dict. The fact that the court did not permit individual voir dire exami-
nation of jurors was not error. "It is well established that a trial judge
may question prospective jurors collectively rather than individually."
Bakker at 734. And we note that the district judge did question indi-
vidually those jurors whose initial responses were less than satisfac-
tory. Bakker at 734.
In conducting voir dire, a district court has broad discretion. United
States v. ReBrook, 58 F.3d 961, 969 (4th Cir.), cert. denied, 64
U.S.L.W. 3332 (1995). The consideration of a change of venue is also
measured under the standard of abuse of discretion. Bakker at 732. In
this case, we are of opinion the district court did not abuse its discre-
tion in either instance. It followed the two- step analysis set out in
Bakker and the record supports its action.
F. Admissibility of Evidence
Bailey complains that evidence with respect to the lid and latch on
the trunk of his car, of blood and urine in the trunk, photographs of
his wife upon her admission to the hospital in Kentucky, and her
prognosis for recovery, even if relevant, should have been excluded
under Rule 403 because the probative value was outweighed by unfair
prejudice. We are of opinion the evidence was relevant. Again, this
is a matter under Rule 403 committed to the discretion of the district
court, and we are of opinion it did not abuse its discretion. United
States v. Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996).
G. Prosecutorial Abuse
We are of opinion there was no error in the cross- examination of
Dr. Biundo with respect to the cause of anoxia or in the cross-
examination of Bailey. Neither do we think there was error in the
closing argument of the government.
19
H. Sufficiency of the evidence
Finally, as to the merits and procedural aspects of the trial, Bailey
argues that the evidence does not support the verdict.
We need not discuss this at any great length. We rely on the state-
ment of facts in this opinion and hold that the evidence does support
the verdict on each count.
I. Sentencing
Bailey appeals the district court's upward departure from the stan-
dard guideline sentence for kidnapping.
After considering the presentence report, the court determined that
for the kidnapping offense the defendant's base offense level was 30,
and that with his criminal history category of III this warranted a sen-
tencing range of 121 months to 151 months. Although the guidelines
do not have a specific provision for the interstate domestic violence
conviction, the court likened it to aggravated assault, and, finding the
base offense level for that offense to be lower than the kidnapping
offense level, the court took the kidnapping offense level as the
appropriate total offense level. The court then found that aggravating
circumstances existed "of a kind and to a degree not adequately taken
into account by the Sentencing Commission when it promulgated the
guidelines." The court proceeded to explain at length the five aggra-
vating factors which it found. The written justification of the upward
departure succinctly sets forth each of the aggravating factors and the
corresponding guideline section permitting an increase in the sen-
tence. They may be summarized as follows, the first four being
encouraged factors under United States v. Koon , 64 U.S.L.W. 4512,
4516 (1996).
(1) Mrs. Bailey suffered a massive, permanent and life-
threatening injury to her total body function of a kind and degree not
contemplated by the guidelines. See U.S.S.G. § 5K2.2 (Physical
Injury).
(2) The intentional and brutish conduct on the part of the defen-
dant, including depriving her of medical attention for a period of days
20
and confining her in an automobile trunk is the type of extreme con-
duct that warrants an increased sentence pursuant to U.S.S.G. § 5K2.8
(Extreme Conduct) and § 5K2.2 (Physical Injury).
(3) The guidelines do not adequately take into account the mas-
sive economic losses to the victim and defendant's inability to com-
pensate her. See U.S.S.G. § 5K2.5 (Property Damage or Loss).
(4) Less significantly, restraint of the victim by binding her
ankles after inflicting upon her massive incapacitating injuries, war-
rants departure under U.S.S.G. § 5K2.4 (Abduction or Unlawful
Restraint).
(5) Finally, "but somewhat more attenuated" than the foregoing
factors, the injuries and suffering of the victim were perpetrated or
aggravated through the use of an automobile when the defendant was
under a lifetime suspension of his driving privileges due to prior driv-
ing offenses involving alcohol.9
The district court found that these circumstances required sentenc-
ing the defendant to the maximum sentence allowed for each count:
life imprisonment for the kidnapping conviction, and a concurrent 20
year sentence for the interstate domestic violence conviction.
The first objection Bailey makes to his sentencing is that the extent
of departure made by the district court was unreasonable. Whether or
not any such departure was unreasonable, we think is measured by the
standard of abuse of discretion, and we are of opinion that the district
court did not abuse its discretion in the extent of departure in this
case. See Koon, 64 U.S.L.W. at 4517. Absent torture or something
similar, more serious injuries than those suffered by Mrs. Bailey are
hard to imagine.
_________________________________________________________________
9 This would be an unmentioned factor under Koon, 64 U.S.L.W. at
4516. We need not consider it, for the departure should be affirmed in
consideration of the other factors mentioned just above. We are per-
suaded the district court would have imposed the sentence absent the fac-
tor involving using the automobile on a revoked permit. United States v.
Kochekian, 977 F.2d 905, 906 (4th Cir. 1992).
21
Bailey then objects to each ground of departure used by the district
court, sections 5K2.2, 5K2.4, 5K2.5 and 5K2.8. As to each of those
grounds, he objects that certain of the facts depended on by the dis-
trict court are clearly erroneous: Mrs. Bailey spending several days in
the closed trunk of the car,10 and Mrs. Bailey being exposed to
exhaust fumes or suffering oxygen deprivation under 5K2.2; and Mrs.
Bailey's ankles being tied under 5K2.4. It suffices to say that we are
of opinion that those fact findings are supported by the record and are
not clearly erroneous. So far as Bailey depends on the same claim of
clearly erroneous fact finding for his objection to the grounds under
5K2.8, it is also not well taken for the same reason.
Bailey objects to the consideration of § 5K2.2, Physical Injury, as
a ground for upward departure because § 2A4.1(b)(2) of the guide-
lines under kidnapping provides for a four- level increase if the victim
sustained permanent or life- threatening bodily injury. The district
judge utilized this four- level increase. That, however, does not obvi-
ate the use of § 5K2.2, physical injury, which provides, in pertinent
part:
The extent of the increase ordinarily should depend on the
extent of the injury, the degree to which it may prove per-
manent, and the extent to which the injury was intended or
knowingly risked. When the victim suffers a major, perma-
nent disability and when such an injury was intentionally
inflicted, a substantial departure may be appropriate.
The facts in this case show without a doubt that Mrs. Bailey suffered
a major, permanent disability. She is now comatose and may well
remain that way, not to mention numerous other permanent disabili-
ties. The district court found:
The magnitude of Mrs. Bailey's injuries were exacerbated
by the defendant's intentional, knowledgeable, brutish con-
duct in transporting her for a six- day period in a closed
trunk of a moving automobile without providing her ade-
_________________________________________________________________
10 The district court, at the sentencing hearing, modified the phrase
"over the next six days" to "for an undetermined time." This correction
should apply throughout.
22
quate care, medical care when she was subject to extreme
oxygen deprivation and to exhaust fumes. . .
We also note that in finding that more than minimal planning
attended this crime, the district court found that the defendant "could
have sought medical care to alleviate her condition immediately and
locally, but he chose not to." We are of opinion that these findings are
not clearly erroneous and support the district court's use of § 5K2.2
as a ground of departure.
Bailey's next objection is to the use of § 5K2.4, Abduction or
Unlawful Restraint. The argument goes that since the crimes of kid-
napping and domestic violence contain the elements of abduction and
unlawful restraint, a departure on account of the same is not autho-
rized. The district court found that the fact that the victim's ankles
were bound while in the trunk of the car was a reason to utilize
§ 5K2.4, although less significant than the extent of her other injuries,
it stated:
[A]fter suffering massive, incapacitating injuries at the
hands of the Defendant [Mrs. Bailey] was further restrained
by the Defendant as evidenced by the scarring by a rope or
other implement used to bind her ankles. Considering the
conditions in the trunk of the car and the victim's injuries,
this additional restraint is particularly egregious and also
sufficient to warrant a departure based on 5K2.4.
The fact finding of the district court in this respect again was not
clearly erroneous and we agree with its legal conclusion.
With regard to basing the departure on the encouraged factors of
5K2.2 (Physical Injury) and 5K2.4 (Unlawful Restraint), Bailey also
objects that these bases are inherent in the underlying offenses. He
asserts that the specific guidelines for kidnaping and interstate domes-
tic violence (by analogy to aggravated assault), include, or suffi-
ciently take into account, those bases for departure. However, the
district court addressed this concern when it considered the aggravat-
ing circumstances.
23
The sentencing court noted, for example, with regard to 5K2.2
(Physical Injury) that the defendant's conduct resulted in "62 perma-
nent and life threatening injuries - - and I would say that in the plural
- - of a kind and degree not contemplated by the example set forth in
the guideline." As to 5K2.4 (Unlawful Restraint), again, for example,
the district court observed that the defendant "further restrained" Mrs.
Bailey by binding her and enclosing her in the trunk, after she had
suffered massive incapacitating injuries, and that this was "particu-
larly egregious."
The Court's recent decision in Koon regarding the use of encour-
aged bases for departure in cases in which the factor has been taken
into account or which is inherent in the offense provides for departure
only if the factor is present to a degree substantially in
excess of that which ordinarily is involved in the offense.
Koon, 64 U.S.L.W. at 4516 (quoting U.S.S.G.§ 5K2.0). At sentenc-
ing on September 1, 1995 the district court did not have the benefit
of Koon, which was decided January 13, 1996, and so did not make
this specific finding. We construe, however, the district court's find-
ing of multiple permanent and life- threatening physical injuries, as
well as its emphasis on the egregious nature of the restraint, to indi-
cate that the court found each factor "present to a degree substantially
in excess of that which ordinarily is involved in the offense" of both
kidnaping or interstate domestic violence, as required by Koon.
Accordingly, Bailey's objection is not well taken.
Bailey's next objection is to a departure under§ 5K2.5, Property
Damage or Loss. Section 5K2.5 provides that if property damage was
not taken into account within the guidelines, the court may increase
the sentence above the guideline range. Bailey argues that the four-
point adjustment for a permanent or life- threatening bodily injury
mentioned in § 2A4.1(b)(2) obviates the use of§ 5K2.5, for, he
argues, in every case involving serious injury there will always be
involved significant medical expenses.
Nowhere in the guidelines is anything mentioned about medical
expenses and we think the district court was correct in referring to
them here. They are obviously massive, amounting at the least to
24
thousands of dollars and, more likely, hundreds of thousands of dol-
lars or even more.
Bailey's last objection to sentencing is the use of§ 5K2.8, Extreme
Conduct. He argues that the facts underlying that finding made by the
district court are clearly erroneous, which we have disposed of above.
That guideline provides for a departure "if the defendant's conduct
was unusually heinous, cruel, brutal, or degrading to the victim . . . ."
It continues, "examples of extreme conduct include torture of a vic-
tim, gratuitous infliction of injury or prolonging of pain or humilia-
tion." The district court found in connection with § 5K2.8, as well as
§ 5K2.2 that Bailey's intentional brutish conduct in transporting Mrs.
Bailey for several days in the closed trunk of a moving automobile
without adequate medical care and exposing her to extreme oxygen
deprivation and exhaust fumes and with no attention to her personal
needs constituted extreme conduct, and we agree. Even in the light
most favorable to Bailey, this was gratuitous infliction of injury and
prolonging of pain and humiliation, not to mention conduct heinous,
cruel, brutal and degrading to the victim.
In sum, the district court found that no offense level lower than
forty- three, calling for life imprisonment, would suffice to punish the
defendant adequately for his conduct and to incapacitate him and pre-
vent him from injuring others in similar circumstances and to deter
others from engaging in similar heinous conduct. We agree.
The judgment of the district court is accordingly
AFFIRMED.
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