United States v. Sriyuth

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

10-18-1996

United States v. Sriyuth

Precedential or Non-Precedential:

Docket 95-7598

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 95-7598

___________

UNITED STATES OF AMERICA

vs.

NOPPORN SRIYUTH, a/k/a Thi

Nopporn Sriyuth,

Appellant

___________

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Crim. No. 94-cr-00066)

___________

Argued

June 5, 1996

Before: BECKER and MANSMANN, Circuit Judges,

and SCHWARZER, District Judge.*

(Filed October 18, 1996)

___________

David M. Barasch

United States Attorney

John C. Gurganus, Jr., Esquire (ARGUED)

Office of United States Attorney

309 Federal Building

Scranton, Pennsylvania 18501

COUNSEL FOR APPELLEE

* Honorable William W Schwarzer of the United States

District Court for the Northern District of California, sitting

by designation.

James V. Wade, Esquire

Federal Public Defender

Middle District of Pennsylvania

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Melinda C. Ghilardi, Esquire (ARGUED)

Office of Federal Public Defender

116 North Washington Avenue

Kane Professional Building

Suite 2C

Scranton, PA 18503

COUNSEL FOR APPELLANT

___________

OPINION OF THE COURT

__________

MANSMANN, Circuit Judge.

Nopporn Sriyuth appeals his conviction of kidnapping

and use of a firearm in relation to the kidnapping in violation

of 18 U.S.C. §§ 1201(a)(1) and 924(c), respectively. We are

asked to decide, inter alia, whether the district court erred in

failing to exclude evidence, under Federal Rules of Evidence

404(b) and 403, that the purpose or motive for the kidnapping was

for companionship or sexual assault of the victim.

We find that the sexual assault evidence was probative

of motive as well as the victim's nonconsent to the interstate

transportation and, therefore, was admissible under rule 404(b).

Moreover, given the facts here, the probative value of the sexual

assault evidence outweighed the risk of undue prejudice.

Accordingly, we will affirm.

I.

At the root of the criminal conduct which occurred here

lies the Laotian custom of arranged marriages. Nopporn Sriyuth,

also known as "Thi", is a naturalized citizen of the United

States having immigrated to this country from Thailand in 1985.

The victim, Chindavone Phongsavath, whose nickname is "Von," has

resided with her family in Detroit since 1985. Sriyuth met Von

at her brother-in-law's house while he was in Detroit temporarily

on business in 1990, and they became friends.

After Sriyuth left Detroit, Von and other members of

her family kept in contact with him either by phone or letter.

Von was not romantically involved with Sriyuth during this time.

Von's mother and sister, however, contacted his mother to discuss

an arranged marriage between Von and Sriyuth. Von expressed to

Sriyuth as well as to her family her objection to such an

arrangement.

In November 1993, Sriyuth came to Detroit to stay with

Von's sister Kethkeo and her husband. Von, however, was

romantically involved with Nala Chanta at that time. Von's

family still felt that Sriyuth was the perfect husband for Von.

They therefore encouraged Sriyuth to take Von away for awhile so

she would forget about her boyfriend. Immediately prior to the

kidnap in April 1994, Sriyuth obtained a nine millimeter Taurus

handgun from a friend of Von's family.

At approximately 4:30 p.m. on April 5, 1994, Von was

visiting her boyfriend Nala Chanta in the bedroom of his

residence. Without knocking and with gun in hand, Sriyuth

entered Chanta's residence where he encountered two of Chanta's

roommates playing a video game. Sriyuth inquired as to Von's

whereabouts and the roommates informed him that she was upstairs.

Sriyuth proceeded upstairs in search of Von and, upon finding her

in Chanta's bedroom, demanded that Von leave with him, grabbed

her by the arm, and pulled her out of the room and down the

stairs. When he reached the bottom of the stairs, Sriyuth looked

back at Chanta at the top of the stairs, with his gun pointed at

him, and said, "I told you not to fuck with me." Sriyuth then

left Chanta's house with Von.

Once outside, Von pleaded with Sriyuth to let her drive

home as she did not trust him. Sriyuth, however, forced her into

the driver's side of his car and told her he was taking her home.

When Von refused to move over into the passenger seat, Sriyuth

responded, "Move over! Do you want to die?" As they drove off,

Von told Sriyuth to take her home; Sriyuth instead drove off in a

different direction. Von continued to ask Sriyuth to drive her

home. At one point while Sriyuth was still driving in Michigan,

Von tried to get out of the car in order to force Sriyuth to

stop. Sriyuth had to pull into a gas station and Von ran out of

the car crying and holding the gun. Sriyuth ran after her and

placed her in a bear hug. He then apologized and told Von that

he was going to take her home and asked her to get back in the

car. Sriyuth escorted Von back to the car. Von testified that

at this point, she believed that Sriyuth was going to take her

home.

Sriyuth, however, did not drive towards Von's

residence, but told her he was driving to work and that she could

take the car and drive home. Again, Von believed that Sriyuth

was telling her the truth. Shortly thereafter, Von realized they

were headed south on the freeway towards Ohio, not in the

direction of Sriyuth's place of employment. She protested, again

demanding that Sriyuth take her home. Von reached over at one

point and grabbed the steering wheel, causing the car to swerve.

Sriyuth told her to stop and remarked, "You want to die, you know

we can both die together. I'm not afraid to die." Eventually,

Von realized they had crossed into Ohio when they entered the

Ohio Turnpike.

When Sriyuth stopped to get gas at a gas station in

Ohio, Von ran from the car and into the bathroom. After using

the facilities, Von remained in the restroom for approximately

ten to fifteen minutes. Eventually, Sriyuth came into the

women's restroom looking for her. He was trying to talk to her

when an employee of the gas station came in and asked him to

leave. Sriyuth complied and shortly thereafter, the employee

returned to the restroom with the keys to Sriyuth's car and a

message from him--that Von could drive. Von took the keys with

the understanding that she would be allowed to drive home. After

Von stepped outside, however, Sriyuth grabbed the keys from her

and carried her back to the car. Although Von considered telling

the employee in the restroom what was going on or asking her to

call the police, Von decided against it because she still

believed at that point she would be allowed to go home and

because Sriyuth was a friend of the family.

Sriyuth continued to drive east through Ohio, while Von

kept demanding to go home to Detroit. At times Von became very

angry and pounded on the dashboard and door to try to get Sriyuth

to stop the car. Sriyuth, however, ignored her requests. After

he had been driving awhile, Sriyuth pulled off to the side of the

road to rest. Sriyuth made several sexual advances towards Von,

such as kissing her, forcing her to kiss him back, and trying to

remove her pants, all of which Von vigorously rejected. In a

final attempt to thwart Sriyuth's advances, Von ran from the car,

only to be caught and returned to the car by Sriyuth.

The next morning, now April 6, 1994, Sriyuth arrived in

Scranton, Pennsylvania, where he encountered an old acquaintance.

After some discussion, Sriyuth and his friend Lem drove

separately to the house of a mutual friend located at 615 Court

Street in Scranton. After arriving at the Court Street location,

Sriyuth and Lem went into the house while Von remained in the

car. Five to ten minutes later, the owner of the house, Laksana

Sphabmixay came out to the car and asked Von to come in and get

something to eat, apparently unaware of how Von came to be with

Sriyuth in Scranton. Von finally agreed and went inside the

house.

For the most part, Von remained in the living room on

the sofa, except to use the bathroom on one occasion. Later that

morning, Von asked Sriyuth to give her the keys to the car so she

could go to the store to purchase some contact lens solution.

Sriyuth refused to give her the keys but later drove her to the

pharmacy. Around 2:30 p.m., the owners of the house left to go

to work. Sometime in the late afternoon, Sriyuth, accompanied by

Laksana's brother, went to two Western Union offices in an

attempt to obtain the cash that he thought had been wired to him

by Von's sister, Kethkeo. While they were gone, Von telephoned

Chanta and her sister, Vila. She gave them the address and phone

number of the house in Scranton. Tearfully, she told Vila that

Sriyuth had made sexual advances to her. Vila told her she would

come and get her, but Von told her to wait because Sriyuth told

her he was going to take her home tomorrow.

At some point after Sriyuth returned, Von went upstairs

to use the bathroom. Sriyuth went upstairs to see what was

taking Von so long. She told him she just wanted to be alone for

awhile. He said he was going to play some pool with his friend.

Von told him to go, but she was going to stay. She went back

into the bathroom and when she emerged ten to fifteen minutes

later, Sriyuth was there waiting for her. He blocked her access

to the stairs so she ended up in the bedroom. She sat down on

the floor and wrapped her arms around her legs. Sriyuth picked

her up and placed her on the bed. Shortly thereafter, Sriyuth

became sexually aggressive with Von, ripping her body suit to

remove it. She attempted to fight off Sriyuth's advances by

biting, scratching, and pushing him, and by telling him to stop.

Sriyuth ultimately raped her. Afterwards, Sriyuth told Von to go

to sleep and if she tried to move, he would start attacking her

again.

Before Sriyuth woke the next morning, Von slipped out

of bed and went into the bathroom to take a bath. Dressed in her

jeans and tee-shirt, Von quietly walked downstairs and exited the

house. She walked as fast as she could until she came to a house

with a light on. Von knocked on the door and when two elderly

women answered, she asked them if she could use their phone to

call the police. She told them that she had been kidnapped and

raped. The women allowed Von to call the police from their

house. The police arrived a short while later; one of the

officers interviewed Von for approximately one hour and then took

her to a hospital for a rape examination. From the hospital,

Von was taken to police headquarters in Scranton, where she was

interviewed by Special Agent Seidel of the Federal Bureau of

Investigation.

Based on the information Von gave to the police

officer, officers were dispatched to apprehend Sriyuth. The

officers found Sriyuth in the upstairs bedroom still asleep. He

was taken into custody and transported to police headquarters.

The vehicle driven by Sriyuth from Detroit to Scranton was

impounded by the Scranton Police. After obtaining Von's

statement, the police officers were able to obtain a search

warrant for the impounded vehicle; the search revealed a nine

millimeter handgun in the glove compartment.

Later that day, Agent Seidel interviewed Sriyuth at the

Scranton Police Headquarters in the presence of Officer Victor

Sanguiliano and Detective Captain Ted Maus. Prior to any

questioning, Agent Seidel read Sriyuth his constitutional rights

which he waived. Sriyuth then proceeded to give a statement to

Agent Seidel that essentially mirrors the testimony of Von and

the other witnesses. Prior to trial, Sriyuth filed a motion to

suppress this statement. After a hearing on August 1, 1994, the

district court ruled at the Pre-Trial Conference that the

defendant intelligently, knowingly, and voluntarily waived his

Miranda rights and accordingly denied the motion.

Immediately prior to the commencement of trial, Sriyuth

filed a Motion in Limine seeking to preclude the government from

introducing any evidence that the purpose or motive for the

alleged kidnapping was for a sexual assault. The district court

denied his motion orally at the Pre-Trial Conference on January

30, 1995 without stating a basis for its ruling. The jury trial

began the next day and, at the end of the government's case,

defense counsel moved for Judgment of Acquittal pursuant to Rule

29 of the Federal Rules of Criminal Procedure. The district

court denied the motion. Thereafter, Sriyuth was found guilty on

both charges. Following the jury's verdict, defense counsel

renewed her motion for judgment of acquittal, as well as filed a

motion for a new trial, both of which were denied by the district

court in a Memorandum and Order dated September 14, 1995. This

appeal followed.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

First and foremost, Sriyuth contends that the district

court erred in failing to preclude the government from

introducing any evidence at trial that the purpose or motive for

the alleged kidnapping was for gaining Von's companionship and

for a sexual assault. Initially, he argues that because motive

is not an element of the offense of kidnapping, the sexual

assault evidence is not relevant under Federal Rule of Evidence

401. Alternatively, Sriyuth claims that none of the exceptions

to Rule 404(b) of the Federal Rules of Evidence, which precludes

the admission of evidence of other crimes, wrongs or acts to

prove a person's character, applies here. Finally, Sriyuth

contends that the probative value of this evidence does not

outweigh the harmful consequences which would result from its

admission and thus should have been excluded under Rule 403 of

the Federal Rules of Evidence.

Rule 401 defines relevant evidence as "evidence having

any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence." Fed. R.

Evid. 401. Relevant evidence will be admissible unless the rules

of evidence provide to the contrary. United States v. Scarfo,

850 F.2d 1015, 1019 (3d Cir.), cert. denied, 488 U.S. 910 (1988)

(citing Huddleston v. United States, 485 U.S. 681, 687 (1988));

see also Fed. R. Evid. 402. Rule 404(b), although viewed as a

rule of inclusion rather than exclusion, provides for the

exclusion of relevant evidence in certain situations.

Huddleston, 485 U.S. at 688-89; Scarfo, 850 F.2d at 1019.

Specifically, Rule 404(b) precludes the admission of evidence of

other crimes, wrongs or acts to prove a person's character;

however, such evidence may be admissible to show "motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident." Thus, "[t]he threshold inquiry

a court must make before admitting similar acts evidence under

Rule 404(b) is whether that evidence is probative of a material

issue other than character." Huddleston, 485 U.S. at 686.

Once it has been determined that the other crimes

evidence is admissible under Rule 404(b), the balancing test of

Rule 403 must also be met. Accordingly, relevant other crimes

evidence may be excluded if the probative value of the evidence

is substantially outweighed by the danger of undue prejudice.

Scarfo, 850 F.2d at 1019 (citation omitted).

In order to gauge whether the sexual assault evidence

is relevant we must first look to the plain language of the

kidnapping statute, 18 U.S.C. § 1201(a). Section 1201(a) states

in pertinent part:

Whoever unlawfully seizes, confines,

inveigles, decoys, kidnaps, abducts, or

carries away and holds for ransom or reward

or otherwise any person, when:

(1) the person is willfully transported

in interstate or foreign commerce;

. . .

shall be punished by imprisonment for any

term of years or for life.

18 U.S.C. § 1201(a)(1) (emphasis added). The focus of our

inquiry centers initially on the statutory language that the

victim be held "for ransom, reward or otherwise."

After examining the legislative history of the 1936

amendment to section 1201 and pertinent Supreme Court cases, the

court of appeals in Gawne v. United States, 409 F.2d 1399, 1402-

03 (9th Cir. 1969), cert. denied, 397 U.S. 943 (1970), concluded

that "obviously `otherwise' comprehends any purpose at all."

(citation omitted). Because "otherwise" was intended to mean

"any other reason," the court held that defendants' purpose for

the kidnapping was not an element of the offense. Id. at 1403.

The government maintains that because "purpose" is an

element of kidnapping and, in order to sustain its burden of

proof as to this element it was required to present evidence of

the sexual assault, purpose was therefore relevant to prove the

offense of kidnapping. In support of this argument, the

government cites a number of cases which hold generally that

evidence of "some purpose" was sufficient to satisfy the federal

kidnapping statute. See United States v. Eagle Thunder, 893 F.2d

950, 953 (8th Cir. 1990); (evidence of sexual assault sufficient

to show "some purpose of his own"); United States v. McBryar, 553

F.2d 433 (5th Cir.), cert. denied, 434 U.S. 862 (1977) (evidence

of sexual gratification sufficient to meet "or otherwise"

requirement); United States v. Lutz, 420 F.2d 414, 416 (3d Cir.),

cert. denied, 398 U.S. 911 (1970) (evidence of rape sufficient to

satisfy "or otherwise" element). In United States v. McCabe, 812

F.2d 1060, 1062 (8th Cir.) cert. denied, 484 U.S. 832 (1987), the

court of appeals stated that "`Congress by the phrase "or

otherwise" intended to include any object of a kidnaping which

the perpetrator might consider of sufficient benefit to himself

to induce him to undertake it.'" (quoting United States v.

Wolford, 444 F.2d 876, 881 (D.C. Cir. 1971)).

The district court agreed with the government and held

that the rape was admissible to show motive, citing among other

cases United States v. Bradshaw, 690 F.2d 704, 708 (9th Cir.

1982), cert. denied, 463 U.S. 1210 (1983). Bradshaw argued that

evidence of his sexual activity with the victim should have been

excluded as irrelevant under Rule 404(b) or, if relevant, was

unduly prejudicial pursuant to Rule 403. We find the language of

the court of appeals particularly instructive:

Evidence of drug use and sexual relations

with a nine-year-old boy was obviously

prejudicial to the defendant. But it was

also relevant to show Bradshaw's dominion

over [the victim]. The contention that the

victim consented to the trip, and, therefore,

that he was not kidnapped, made the evidence

of sex and drug activity occurring after the

kidnapping admissible. See Holden v. United

States, 388 F.2d 240, 242 (1st Cir.), cert.

denied, 393 U.S. 864 (1968).

. . .

Motive is evidence of the commission of any

crime. This Court has previously held

evidence of sexual relations admissible

because of its relevance to motive in a

kidnapping case. See United States v.

Gibson, 625 F.2d 887 (9th Cir. 1980). It was

pointed out in Gibson that while there may be

no substantial issue of motive under section

1201(a), "the subsequent conduct does tend to

present a picture, the whole of which

indicates guilt. . . . The picture of a

kidnapping is not complete unless all of the

relationships of the defendant to the victim,

from the beginning of the illegal detention

to the end of it, are shown." Id. at 888.

(footnote omitted.)

690 F.2d at 708-09. As in Bradshaw, the evidence of Sriyuth's

sexual assault of Von is relevant to show not only his motive

in kidnapping her, but also that she did not consent to go with

him.

With respect to Sriyuth's Rule 404(b) argument, we

conclude that it must fail for two reasons. First, the evidence

is probative of a material issue other than his character--motive

and the victim's consent--and thus falls within the permissible

uses of other crimes evidence. In addition, "[w]hen the evidence

of another crime is necessary to establish an element of the

offense being tried, there is no `other crime.'" United States

v. Blyden, 964 F.2d 1375, 1378 (3d Cir. 1992). Here the rape

evidence was probative of the victim's lack of consent to the

kidnapping and, therefore, was an element of section 1201(a).

This evidence also explains why Von suddenly decided to report

the kidnapping to the police; without it, her actions in this

case make no sense. The government had no other means available

to it to prove this element. As a result, we conclude the rape

evidence was highly probative of a material element of

kidnapping.

Our analysis does not end here, however, as relevant

evidence will be admissible so long as its probative value

substantially outweighs the danger of unfair prejudice. Fed.

R. Evid. 403; Scarfo, 850 F.2d at 1019. In applying this test,

we must assess the "genuine need for the challenged evidence and

balance that necessity against the risk that the information will

influence the jury to convict on improper grounds." Id. (citing

United States v. Cook, 538 F.2d 1000, 1003 (3d Cir. 1976); United

States v. Driggs, 823 F.2d 52, 54 n. 2 (3d Cir. 1987)). In Cook,

we recited several factors to be considered in the balancing

process:

. . . we must balance the actual need for

that evidence in view of the contested issues

and the other evidence available to the

prosecution, and the strength of the evidence

in proving the issue, against the danger that

the jury will be inflamed by the evidence to

decide that because the accused was the

perpetrator of the other crimes, he probably

committed the crime for which he is on trial

as well. . . . The treasured principles

underlying the rule against admitting

evidence of other crimes should be relaxed

only when such evidence is genuinely needed

and would be genuinely relevant. (footnote

omitted.)

Cook, 538 F.2d at 1003 (quoting United States v. Goodwin, 492

F.2d 1141, 1150 (5th Cir. 1974)). We noted that a significant

danger of undue prejudice will be found to exist where there are

"substantial possibilities . . . that a jury will harbor strong

adverse sensitivity" to the challenged evidence. Id. at 1004.

In order to overcome this significant risk of unfair prejudice,

the government must prove necessity. Id.

Although Sriyuth contends that "[i]t was likely that

the rape evidence contributed to the jury's verdict," we are

convinced that this evidence was genuinely needed and relevant to

proving the kidnapping. In our view, the rape evidence is

strongly probative because it counters two central arguments

advanced by Sriyuth. First it rebuts Sriyuth's claim that he

transported Von to Pennsylvania with her consent to further the

arranged marriage. Evidence that a rape occurred during the

kidnapping, even after the predicate elements had been met, made

the government's account more likely than without this evidence.

Second, the rape evidence refutes Sriyuth's argument that Von's

delay in notifying the police showed that she went with Sriyuth

willingly. In any event, the risk of unfair prejudice was

minimized by the district court's instruction to the jury on the

limited use of the sexual assault evidence. As in Driggs, we

believe this is a case where the "jury could be expected to

compartmentalize the evidence and consider it for its proper

purposes." 823 F.2d at 54.

Accordingly, we find that the sexual assault evidence

was relevant and that its probative value substantially

outweighed the danger of unfair prejudice to Sriyuth. The

district court properly allowed the government to present

evidence of the motive for the kidnapping.

III.

Sriyuth's other allegations of error need not detain us

long as they lack legal merit.

A.

Sriyuth challenges the district court's order denying

the suppression of his statement to Agent Seidel. His objection

is two-fold: his statement was not made knowingly or

intelligently as required by Miranda v. Arizona, 384 U.S. 436

(1966), and his statement was involuntary, having been obtained

through the exertion of promises or improper influence by Agent

Seidel. We find no merit in either argument.

Our review of the district court's finding that Sriyuth

voluntarily, knowingly and intelligently waived his right to

counsel is subject to plenary review, but we are required to

accept its factual findings unless they are clearly erroneous.

United States v. Swint, 15 F.3d 286, 288 (3d Cir. 1994) (citing

Arizona v. Fulminante, 499 U.S. 279, 317 (1991)). In determining

whether the waiver was voluntary, knowing and intelligent under

Miranda, we are required to make a two-pronged inquiry. We must

first ask whether the waiver was voluntary "`in" the sense that

it was the product of a free and deliberate choice rather than

intimidation, coercion or deception.'" United States v.

Velasquez, 885 F.2d 1076, 1084 (3d Cir. 1989), cert. denied, 494

U.S. 1017 (1990) (quoting Moran v. Burbine, 475 U.S. 412, 421

(1986) (citation omitted)). Second, we must inquire whether the

waiver was "`made with a full awareness both of the nature of the

right being abandoned and the consequences of the decision to

abandon it.'" Id.

This inquiry requires us to consider the totality of

the circumstances surrounding the interrogation, which includes

examining the events that occurred and the background,

experience, and conduct of the defendant. Alston v. Redman, 34

F.3d 1237, 1253 (3d Cir. 1994), cert. denied, 115 S. Ct. 1122

(1995) (citing Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983)

(additional citations omitted)). Miranda rights will be deemed

waived only where the totality of the circumstances "`reveal[s]

both an uncoerced choice and the requisite level of

comprehension.'" Id. (quoting Moran, 475 U.S. at 421) (citations

omitted).

At the suppression hearing, Agent Seidel testified that

he was "absolutely certain" that Sriyuth understood him. Agent

Seidel stated that, in turn, he did not have any trouble

understanding Sriyuth, who spoke English. Indeed, Seidel did not

have any concerns whatsoever that there might have been

difficulties with communication. Agent Seidel testified that he

explained briefly what the victim said occurred and asked Sriyuth

if he wanted to talk to him about it. According to Agent Seidel,

Sriyuth indicated that he did want to talk to him, at which point

Sriyuth was taken to Detective Maus' office where the waiver of

rights form was read and explained to him.

Agent Seidel was certain that Sriyuth understood his

rights and that he did not wish to have an attorney present for

the interview. In response to Agent Seidel telling him that he

could have an attorney present, Sriyuth allegedly stated that he

wanted to tell the agent his story, and then, before the hearing,

he wished to speak to an attorney. At no point during the

interview did the defendant indicate that he wished to stop or

that he wanted an attorney present.

Agent Seidel also testified that he did not make any

promises to coerce Sriyuth into talking without a lawyer either

before or after Sriyuth signed the waiver of rights form. After

the interview was over, Agent Seidel told Sriyuth he thought he

had done the right thing by telling the truth and, at some point

down the road, Seidel would go to bat for him since he had

cooperated with the authorities. Detective Maus and Officer

Sangiuliano were also present when the waiver of rights form was

read and executed, and they corroborated Agent Seidel's account

of what transpired.

To the contrary, Sriyuth testified that he immediately

requested an attorney, and that before he signed the waiver

form, Agent Seidel promised him that he would put in a good word

for him with the judge if he cooperated. Sriyuth further stated

that he understood his rights as they were read to him. When

asked specifically if he understood what "anything you say can be

used against you in court" meant, he replied, "Yes, but I didn't

really pay attention to that." He stated that he agreed to the

interview because he thought that if he got an attorney that day,

he would just have to pay a fine and he would be released.

Sriyuth also contested the substance of his statement to Agent

Seidel as contained in the FBI 302 Report. In particular,

Sriyuth denied admitting to Agent Seidel that he kidnapped and

raped Von.

According to Agent Seidel, at the time of the interview

the defendant did not appear to be under the influence of alcohol

or drugs, nor did he appear to be mentally or physically disabled

in any way. At the suppression hearing, Sriyuth testified that

he was twenty-three years old, had been in this country for nine

years, and had attended high school in the United States for five

years. Since quitting school, Sriyuth managed a fast food

restaurant and worked in construction; at the time he was

arrested he was working for a grinding company. Sriyuth also

testified that he was not familiar with the criminal justice

system. He did, however, state that he knew he was entitled to a

lawyer upon arrest from watching movies and the television show,

"The People's Court." Sriyuth was not handcuffed during the

interview, which lasted approximately one hour.

The district court found that Sriyuth's testimony at

the suppression hearing was not believable. By crediting Agent

Seidel's testimony, the district court in effect adopted the

agent's version of the facts--that Sriyuth understood his rights,

based on the number of years he has lived in the United States,

his education and work experience; that Sriyuth did not request

an attorney for the interview; and that Agent Seidel did not

promise Sriyuth that he would put in a good word for him to

coerce him into waiving his rights. These findings are not

clearly erroneous. The record supports the denial of the motion

because Sriyuth waived his rights freely and deliberately, and

was not coerced into relinquishing them. Moreover, his own

testimony confirms that he understood the nature of the right

being abandoned and the consequences of such abandonment. We

hold, therefore, that the district court did not err in

concluding that Sriyuth voluntarily, knowingly, and intelligently

waived his right to counsel. Accordingly, the district court

properly denied the motion to suppress.

B.

Sriyuth also contends that there was insufficient

evidence for the jury to find that he held the victim against her

will at the time he transported her across state lines.

Challenges to the sufficiency of the evidence are reviewed "to

determine `whether, viewing the evidence in a light most

favorable to the government, there was substantial evidence upon

which a reasonable jury could have based its verdict.'" United

States v. Console, 13 F.3d 641, 652 (3d Cir. 1993), cert. denied,

114 S. Ct. 1660 (1994) (quoting United States v. Pungitore, 910

F.2d 1084, 1129 (3d Cir. 1990), cert. denied, 500 U.S. 915

(1991)). We find no merit in this argument. It is clear from

our review of the evidence that the government presented

substantial evidence from which the jury could believe the victim

did not consent to be transported across state lines.

C.

The last two issues concern the district court's

instructions to the jury. The first objection involves the

following charge:

The crime of kidnapping is complete when the

defendant willfully transports a person

against her will, and the person does, in

fact, cross state lines. The offense of

kidnapping is complete, then any agreement by

the person to continue detention by the

defendant does not absolve the defendant of

the criminal responsibility.

Sriyuth contends the jury charge incorrectly defined the offense

of kidnapping, and, as a result, the jury failed to consider

whether the victim was a consenting party at the time they

crossed state lines. We have held that if the jury charge

"`fairly and adequately submits the issues in the case to the

jury [without confusing or misleading the jurors]'", then when

viewed as a whole and in the light of the evidence, the court's

instruction will not constitute reversible error. United States

v. Simon, 995 F.2d 1236, 1243 n.11 (3d Cir. 1993) (citations

omitted); see also United States v. Coyle, 63 F.3d 1239, 1245 (3d

Cir. 1995). Here, upon review of all of the instructions, it is

clear that the district court fairly and adequately instructed

the jury on the elements of the offense of kidnapping. In

particular, the court correctly instructed the jury that it must

find beyond a reasonable doubt that the victim was being

transported unwillingly at the time she crossed into Ohio. We

find nothing in this instruction which would have confused or

misled the jury.

The final objection involves the supplemental jury

instruction given in response to a note received from the jury.

After discussion with counsel outside the presence of the jury,

the district court responded by giving the jury a written copy of

his oral instruction on the elements of kidnapping. Sriyuth

objected to the fact that it was given in writing, but had no

problem with the substance of the supplemental charge if reread

to the jury.

In Beardshall v. Minuteman Press International, Inc.,

664 F.2d 23, 28 (3d Cir. 1981), we recognized that "the form and

extent of supplemental instructions are within the sound

discretion of the court." There, the trial court submitted a

written statement to the jury outlining the "bare bones" elements

of fraud, instead of the original oral instruction which

amplified the requirements for each element, including the

relevant qualifications and distinctions of each. We disapproved

of the trial court's written instruction in Beardshall because it

did not contain the qualifying instructions or the explanations

of the original oral charge, and thus unduly emphasized the

plaintiffs' theory of the case. Id. We did not preclude the use

of written instructions, however, in the appropriate case,

although we noted that the practice had risks. In order to

"avoid prejudicial emphasis on part of the case," we noted the

trial court should "[remind] the jury of the other aspects of the

original charge and [caution] them that the segment of the charge

which is amplified or explained should be considered in the light

of the other instructions and is not to be given undue weight."

Id. at 29. We are in agreement with the statement of our sister

Court of Appeals for the Fifth Circuit in United States v.

Ehrlich, 902 F.2d 327 (5th Cir. 1990), cert. denied, 498 U.S.

1069 (1991), that where initially the jury is charged orally but

is later given written instructions in response to a request for

supplemental instructions, "there [will be] no error unless,

under the totality of the circumstances, the court's written

response creates an unbalanced charge prejudicial to the

defendant." Id. at 330 (citation omitted).

Here we cannot say, under the totality of the

circumstances, that the district court's written instruction

created an unbalanced charge prejudicial to Sriyuth. Unlike

Beardshall, the district court submitted the entire jury

instruction as originally given on the elements of kidnapping.

Thus, there was no need to remind the jury of the other aspects

of the original charge. Although we note that the district court

acknowledged the better practice may have been to read the

supplemental instruction to the jury instead of submitting a

written charge, we cannot say the court's choice resulted in

placing undue emphasis on any aspect of the case.

VI.

We find that the district court did not err in allowing

the government to present the sexual assault evidence at trial or

in denying the motion to suppress the defendant's statement to

Agent Seidel. We further hold that the government presented

substantial evidence from which a reasonable jury could conclude

the victim did not consent to be transported across state lines.

Finally, we conclude that the district court acted within its

sound discretion with regard to the challenged jury instructions.

Accordingly, we will affirm the judgment in this criminal case.