United States v. Shantaya B. Foster , 153 F. App'x 674 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 3, 2005
No. 05-10925 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20597-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHANTAYA B. FOSTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 3, 2005)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Shantaya B. Foster appeals her convictions for knowingly and intentionally
importing 100 grams or more of heroin into the United States, 21 U.S.C. § 952(a),
and knowingly and intentionally possessing 100 grams or more of heroin with
intent to distribute, 21 U.S.C. § 841(a)(1). Foster raises three arguments on appeal:
(1) the district court erroneously excluded evidence supporting an affirmative
defense of duress, (2) the district court abused its discretion in its response to a
question from the jury, and (3) the evidence was insufficient to support her
convictions. We conclude that, because there was insufficient evidence of duress,
the district court did not err in either excluding Foster’s proffered evidence or in
responding to the question of the jury. We also conclude that there was sufficient
evidence to support Foster’s conviction. Although we affirm Foster’s conviction,
we remand to the district court for the limited purpose of correcting a clerical error
in the judgment.
I. BACKGROUND
On August 2, 2004, Foster and Sherri Monique Noble returned from a trip to
Jamaica and passed through customs at Miami International Airport. Customs
agents selected Foster and Noble for investigation, separated them, and began to
question them. Foster first denied possession of any drugs but after further
questioning admitted that she had taped to her body and swallowed pellets of
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heroin. Noble confessed to importing heroin in the same manner. The customs
agents seized 207 grams of heroin from Foster and 255.8 grams from Noble.
Foster and Noble were indicted on four charges: (1) conspiracy to import
100 grams or more of heroin into the United States, (2) knowingly or intentionally
importing 100 grams or more of heroin into the United States, (3) conspiracy to
possess 100 grams or more of heroin with the intent to distribute it, and (4)
knowingly or intentionally possessing 100 grams or more of heroin with the intent
to distribute it. Noble pleaded guilty to the second count of the indictment, and the
other charges were dropped. Foster proceeded to trial on all four charges.
Foster proffered evidence in support of a defense of duress. Foster proposed
to testify that Noble had invited her to vacation in Jamaica and that she had no idea
that the purpose of the trip was to smuggle heroin. She averred that on the
morning of their departure, two Jamaican men entered their hotel room, and one
encouraged Foster to “swallow [heroin] pellets until she gagged” and then to
“tape[] the pellets to her body.” Foster argued that these circumstances led her to
believe she would not be able to return home unless she transported the drugs and
that the situation caused her to fear for her life. The government moved in limine
to exclude evidence of duress because the proffered evidence did not satisfy the
elements of the affirmative defense. The district court granted the motion on the
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ground that the danger to Foster was not immediate and Foster had a reasonable
opportunity to avoid committing the illegal act.
During its deliberations, the jury submitted a note that contained two
questions to the district court: “Was the defendant, Shantaya B. Foster, in fear for
her life when she made the decision to swallow and tape the drugs to her body?
Was she able to give us this information?” After hearing arguments from Foster
and the government, the district court responded with the following statement:
Members of the jury,
The issues raised in your questions are not relevant to your
determination of this case.
You have received all the evidence that you are to consider and
apply in deciding this case.
You should rely upon your individual and collective
recollections of the evidence and follow the Court’s instructions on
the law.
The jury convicted Foster on counts two and four of the indictment and
acquitted her on counts one and three. Foster moved for a judgment of acquittal
notwithstanding the verdict and, alternatively, a new trial. The district court denied
both motions. Foster was sentenced to 63 months of imprisonment for each count
of the conviction to run concurrently.
II. STANDARD OF REVIEW
We review de novo the decision of a district court to preclude the defendant
from asserting a defense of duress. See United States v. Bailey, 444 U.S. 394, 412-
13, 100 S. Ct. 624, 635-36 (1980). To determine whether the evidence is sufficient
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to support the affirmative defense, we view the evidence in the light most favorable
to the defendant. United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995). We
review the response of the district court to a jury question for abuse of discretion.
United States v. Delgado, 56 F.3d 1357 (11th Cir. 1995). We review de novo the
denial of a motion for post-verdict judgment of acquittal based on insufficiency of
the evidence and view the evidence in the light most favorable to the government
to determine whether “a reasonably-minded jury could accept the relevant evidence
as adequate and sufficient to support the conclusion of the defendant’s guilt
beyond a reasonable doubt.” United States v. Braithwaite, 709 F.2d 1450, 1457
(11th Cir. 1983); see also United States v. Abbell, 271 F.3d 1286, 1291 n.2 (11th
Cir. 2001).
III. DISCUSSION
Foster raises three arguments on appeal. First, she argues that the district
court erroneously precluded the affirmative defense of duress. Second, Foster
contends that the district court abused its discretion in its response to the jury’s
question. Third, she argues that the evidence was insufficient to support her
convictions. We address each argument in turn.
A. Duress Defense
Foster argues that the district court erroneously precluded her from asserting
the affirmative defense of duress. We disagree. A defendant is entitled to have the
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district court instruct the jury on a defense theory “only if that theory has an
evidentiary foundation and the requested instruction presents a cognizable legal
defense.” United States v. Fernandez, 837 F.2d 1031, 1035 (11th Cir. 1988).
Because duress is an affirmative defense, the defendant bears the initial burden to
offer evidence of each of the elements of the defense. See United States v. Bailey,
444 U.S. 394, 412-13, 100 S. Ct. 624, 635-36 (1980). Foster failed to satisfy her
burden.
To establish a defense of duress, “a defendant must show that he acted under
an immediate threat of death or serious bodily injury, that he had a well-grounded
fear that the threat would be carried out, and that he had no reasonable opportunity
to escape or inform the police.” United States v. Wattleton, 296 F.3d 1184, 1196
n.20 (11th Cir. 2002). The immediacy requirement is “a rigorous one[,] and it is
clear that fear of future bodily harm . . . will not suffice.” United States v. Sixty
Acres, 930 F.2d 857, 861-62 (11th Cir. 1991). Further, “the apprehension of
immediate danger must continue the whole time the crime is committed.” Id.Viewing the evidence in the light most favorable to Foster, we conclude that
Foster failed to satisfy her burden of production, and as a result of that failure, she
was not entitled to present evidence in support of a defense of duress. The crimes
of importation of heroin and possession of heroin with intent to sell are
“continuous crimes,” see United States v. Martinez, 763 F.2d 1297, 1303 (11th Cir.
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1985), and Foster failed to show that the “apprehension of immediate danger” was
present at all times from the moment she took possession of the drugs to the
moment she was arrested. Foster failed to take advantage of several opportunities
to notify the authorities of the drugs, and she even denied that she carried any
drugs when she was first questioned by the customs agents. The district court did
not err in concluding that Foster was not entitled to present the affirmative defense
of duress.
B. Response to Jury Question
Foster next argues that the district court abused its discretion in its response
to the jury’s question. She argues that the district court “invaded the province of
the jury” when it stated that whether Foster was “in fear for her life when she made
the decision to swallow and tape the drugs to her body” was “not relevant.” Foster
contends this response told the jury that her testimony “was not credible.” We
disagree.
The response of the district court to the jury was a correct statement of the
law. Because Foster failed to satisfy the elements of the affirmative defense of
duress, she was not entitled to a jury instruction on that defense. See United States
v. Bailey, 444 U.S. 394, 412-13, 100 S. Ct. 624, 635-36 (1980); United States v.
Quinn, 123 F.3d 1415, 1423 (11th Cir. 1997). The district court correctly informed
the jury of the elements of each of the crimes with which Foster was charged and
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reminded the jury to “follow the Court’s instructions on the law.” We conclude
that the district court did not abuse its discretion in its response to the question
from the jury.
C. Motion for Acquittal or New Trial
Foster argues last that the district court erroneously denied her motion for
acquittal notwithstanding the verdict or, alternatively, a new trial. Foster contends
that the evidence was insufficient to support a guilty verdict for either conviction.
We disagree.
To prove importation of heroin, the government must establish that the
defendant knowingly or intentionally imported a controlled substance into the
United States. 21 U.S.C. § 952(a); United States v. Rodriguez, 588 F.2d 1003,
1010 (5th Cir. 1979). Foster was arrested with 35 pellets of heroin taped to her
body and 5 pellets of heroin in her digestive tract. She admitted during her
testimony that she knew the pellets were filled with drugs. A reasonable jury could
have concluded that Foster knowingly imported a controlled substance into the
United States.
To prove possession of heroin with intent to distribute, the government must
establish that the defendant “knowingly possessed” and “intended to distribute”
heroin. 21 U.S.C. § 841(a)(1); United States v. Lopez-Ramirez, 68 F.3d 438, 440
(11th Cir. 1995). The government met its burden as to knowing possession for the
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same reasons it sufficiently proved knowing importation of a controlled substance.
As for the remaining element, the jury could have reasonably inferred her intent to
distribute the heroin from the large quantity of heroin found on Foster. See, e.g.,
United States v. Thomas, 676 F.2d 531, 538 (11th Cir. 1982).
IV. CONCLUSION
Because the district court did not err in precluding Foster from asserting the
affirmative defense of duress and did not abuse its discretion in responding to the
jury question, and because the evidence was sufficient to support Foster’s
convictions, we affirm the convictions.
We notice that there is a clerical error in the judgment. The judgment states
that Foster was convicted on count two of the indictment for “importation of at
least 100 grams of heroin” in violation of “21 U.S.C. [section] 963.” The crime of
“importation of at least 100 grams of heroin” actually is codified at 21 U.S.C.
section 952(a). The correct section was stated in the indictment. We remand to the
district court with directions to correct the clerical error contained in Foster’s
judgment.
AFFIRMED in part, REMANDED in part.
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