Gabaldon first challenges his conviction by arguing that the evidence did not show Dale was held against her will, citing her voluntary entry into Gabaldon's car. According to Gabaldon, Dale's confinement in his vehicle once she had been beaten unconscious was not "against her will," since at that point she was no longer capable of formulating or expressing a will.

In an ordinary kidnapping case where the victim is able and willing to testify as to his or her consent at trial, testimony that "he or she was transported involuntarily is ... normally sufficient to support a jury finding that the victim was in fact transported involuntarily." United States v. Hernandez-Orozco, 151 F.3d 866, 869 (8th Cir. 1998). Where, by contrast, the victim's testimony is not available at trial but the evidence introduced indicates that the accused feloniously interfered with the victim's ability to form or express a desire to leave, the jury could rationally conclude that the victim was being held involuntarily.

The evidence presented below indicated that Dale was beaten into unconsciousness while sitting in the back of Gabaldon's car. It would have been entirely reasonable on this basis alone for the jury to have concluded that Dale would have withdrawn any previous consent to stay.⁽²⁾ Here, in any case, the prosecution produced additional evidence that Dale resisted her assailants and shouted for them to stop beating her before she was rendered unconscious. We conclude that the evidence at trial was sufficient to support the jury's conclusion that Dale was confined in Gabaldon's car against her will.

1. Whether Gabaldon held Dale for a "benefit"

Gabaldon next claims that the evidence was insufficient for the jury to have concluded beyond a reasonable doubt that he held Dale for any benefit. Our cases interpreting the statutory requirement that the victim be held "for ransom or reward or otherwise," however, have repeatedly observed that the statute demands only that the holding of the kidnap victim fulfill some "purpose desired by the captor." De Herrera v. United States, 339 F.2d 587, 588 (10th Cir. 1964); Sarracino, 131 F.3d at 947. See also Walker, 137 F.3d at 1220 (finding the accused's holding of his victim in order to have the opportunity to convince her to remain in a relationship with him to be a sufficient "benefit"); Diane M. Allen, Annotation, Requirement, Under Federal Kidnapping Act (18 U.S.C. § 1201(a)), that Person be Held "for ransom or reward or otherwise", 71 A.L.R. Fed. 687, 690-92 (2004) (summarizing rule that statutory language "or otherwise" can be satisfied by showing the victim was held for any purpose or benefit to the accused).

In Sarracino, the victim of a prior battery was induced to get into a car with the promise that he would be taken to the hospital, only to have his former assailant take control of the vehicle, drive the victim to a remote area, and kill him. On these facts, similar to the case now before us, we found the very lax benefit requirement was met where the victim's assailants "benefited, in terms of seclusion and a higher chance of secrecy, by moving [the victim] to the lonely mountain where they continued to beat him and then left him to die." 131 F.3d at 947. Given the evidence presented in that case, we held that a reasonable jury could infer that the defendants "wished to dispose of [the victim] in a location where a body was unlikely to be detected." Id.

The same principles are squarely applicable here. The government introduced evidence at trial that Gabaldon decided not to leave Dale where he and Begay first took her out of the car out of fear that Dale would be found too quickly. Keeping Dale in the car also gave Gabaldon the opportunity not only to kill her, thereby eliminating the possibility that she would identify him as one of her assailants in the initial beating, but also to try to eliminate evidence tying him to the battery and subsequent murder by having Begay burn Dale's fingers to destroy any of Gabaldon's DNA that might have been deposited there. We find, therefore, that there was sufficient evidence from which a reasonable jury could conclude that Gabaldon benefitted from transporting Dale in his vehicle, both because it provided greater secrecy in disposing of her, and because it gave him a chance to destroy evidence that would incriminate him.

1. Whether Gabaldon's confinement of Dale was merely incidental to her murder

Gabaldon also argues that the evidence at trial failed to show that Dale's confinement was anything more than a merely incidental part of her murder. He bases his argument on the Third Circuit's decision in Government of the Virgin Islands v. Berry, where the court overturned a conviction under the Virgin Islands' territorial kidnapping statute on the grounds that the victim's confinement had been purely incidental to his robbery and therefore did not amount to an independent confinement that could justify a kidnapping conviction. 604 F.2d 221, 228 (3d Cir. 1979).

The Berry court based its analysis on state courts' interpretation of state kidnapping statutes, under which the crime of kidnapping was not said to have occurred if the seizure or asportation of the victim was "merely incidental to the commission of other substantive crimes." Id. at 227 (quotation omitted). The concern motivating both the Berry court and the state courts on which it relied was that a too-literal application of the kidnapping statute would permit overzealous prosecutors to charge those suspected of relatively minor crimes involving some degree of restraint or asportation with the much more serious crime of kidnapping. Id. at 226-27. In order to avoid this difficulty, the Third Circuit adopted a four-factor test for distinguishing crimes for which kidnapping charges are justified from those where they are not, listing the factors as:

(1) the duration of detention or asportation;

(2) whether the detention or asportation occurred during the commission of a separate offense;

(3) whether the detention or asportation which occurred is inherent in the separate offense; and

(4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.

Id. at 227.

The Berry test has not been widely adopted by other Circuits, a fact that may be a natural result of the fact that most federal kidnapping cases involve § 1201(a)(1), which criminalizes the interstate transportation of an abducted person. See United States v. Jones, 808 F.2d 561, 565-66 (7th Cir. 1986) (rejecting as "wholly irrelevant" the argument that an interstate kidnapping was merely incidental to the interstate transportation of a woman for an "immoral purpose" in violation of the Mann Act, on the grounds that kidnapping and Mann Act offenses were "distinct and separately punishable"); United States v. Lowe, 145 F.3d 45, 52 (1st Cir. 1998) (same). An abduction or seizure that involves enough distance traveled and time elapsed in order for the captor and the victim to cross state lines will generally constitute a bona fide kidnapping. Where, as here, the statute requires only that a seizure or restraint take place within the special territorial jurisdiction of the United States, the difficulty highlighted by the Berry court is more likely to arise.

The Eleventh Circuit recognized this problem in United States v. Howard, where it confronted a case in which defendants challenged their convictions for attempting unlawfully to detain a DEA agent in violation of § 1201(a)(5), on the grounds that the attempted seizure was merely incidental to their crime of attempted robbery. 918 F.2d 1529, 1534 (11th Cir. 1990). Adopting the Berry test, the Eleventh Circuit invalidated the attempted kidnapping convictions, finding the evidence insufficient for a reasonable jury to have concluded beyond reasonable doubt that defendants planned to detain their victim for longer than necessary to rob him or that their limited detention of the DEA agent exceeded what would have been inherently necessary for a successful robbery. Id. at 1536-37. See also United States v. Etsitty, 130 F.3d 420, 428-29 (9th Cir. 1997) (Kleinfeld, J., concurring) (arguing that § 1201(a)(2) requires a seized or confined person to be held for an appreciable period, beyond what would be required for an assailant simply to attempt a sexual assault).

Our Circuit has yet to take a position either adopting or rejecting the Berry test.⁽³⁾ Although we find much in the Berry test to commend its use in a § 1201(a)(2) situation, we do not need to decide in this case whether formally to adopt the Berry test. Here, the evidence clearly established kidnapping as a separate crime even if we were to adopt the Berry test. Cf. United States v. Peden, 961 F.2d 517, 522-23 (5th Cir. 1992) (recognizing the problems the Berry test was meant to address, but declining to adopt or reject that test where its test requirements would have been met on the facts of the case). Gabaldon concedes that he held Dale longer than would have been minimally necessary for her to be murdered as he acknowledged in his appellate brief that they drove around with Dale while "deciding what to do with her." What is more, the jury was presented with ample evidence to support a conclusion that Gabaldon decided to continue transporting the unconscious and battered Dale in his car, not just because he wanted to kill her, but because he wanted to avoid arrest and prosecution on battery charges.

The evidence presented at trial was sufficient for a reasonable jury to have concluded beyond a reasonable doubt that Gabaldon held Dale against her will for a purpose or benefit he desired, and that her confinement was not merely an inconsequential and inherent side-effect of her murder. We therefore reject Gabaldon's sufficiency of evidence claims.

We find that the evidence presented at trial was sufficient to convict Gabaldon under the federal kidnapping statute. We also find the district court's decision to exclude the defense expert's proffered testimony was a legitimate exercise of its discretion. Gabaldon's kidnapping conviction is therefore AFFIRMED.

^*.Honorable Joe Heaton, District Court Judge, United States District Court for the Western District of Oklahoma, sitting by designation.

^1.Our opinion in Walker also listed a requirement that the acts constituting kidnapping be done "knowingly and willfully." 137 F.3d at 1220. This requirement, however, is unique to the statutory language criminalizing interstate transportation of a kidnapped person. 18 U.S.C. § 1201(a)(1). We subsequently held in United States v. Jackson that, while the insertion of the word "willfully" in § 1201(a)(1) "may require specific intent" on the part of the accused, that term's absence in other subsections of the statute indicated that other types of kidnapping covered by the statute remained general intent crimes. 248 F.3d 1028, 1031-32 (10th Cir. 2001). Accord United States v. Sneezer, 983 F.2d 920, 922-23 (9th Cir. 1992) (holding that the kidnapping crime defined in § 1202(a)(2) is a general intent crime).

^2.Cf. United States v. Applewhaite, 195 F.3d 679 (3d Cir. 1999). Applewhaite involved a sufficiency of the evidence challenge to a conviction under the Virgin Islands kidnapping statute, which, like the federal statute, requires a kidnap victim to be held against his will. The victim in that case was the target of a murder conspiracy, which began with him being clubbed into unconsciousness from behind and loaded into a van. The Third Circuit held that the jury was justified in concluding that the driver of the van did not intend to take his unconscious victim to the local hospital, and that the victim was therefore confined against his will. Id. at 691.

^3.The issue was raised in Sarracino as part of the defendant's argument that he did not abduct his victim for any "ransom or reward or otherwise." We held that the evidence was sufficient for the jury to conclude that Sarracino derived an independent benefit from detaining and moving his victim to a deserted locale, without addressing the claim that the victim's transportation was incidental to his murder. 131 F.3d at 947. And, in United States v. Cassidy, we rejected an overbreadth and vagueness challenge to a conviction under § 1201(a)(2) for a federal prison inmate who held two prison guards captive for ten hours in the course of a failed escape attempt. 571 F.2d 534, 537 (10th Cir. 1978). Although the defendant had seized his guards in order to advance his escape efforts, their ten hours' detention left little room for any claim that the seizure was merely an incidental part of the crime of attempted escape.

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