United States v. Nopporn Sriyuth, A/K/A Thi Nopporn Sriyuth , 98 F.3d 739 ( 1996 )

98 F.3d 739

UNITED STATES of America
v.
Nopporn SRIYUTH, a/k/a Thi Nopporn Sriyuth, Appellant.

No. 95-7598.

United States Court of Appeals,
Third Circuit.

Argued June 5, 1996.
Decided Oct. 18, 1996.

David M. Barasch, United States Attorney, John C. Gurganus, Jr. (argued), Office of United States Attorney, Scranton, PA, for appellee.

James V. Wade, Federal Public Defender, Middle District of Pennsylvania, Harrisburg, PA, Melinda C. Ghilardi (argued), Office of Federal Public Defender, Scranton, PA, for appellant.

Before: BECKER and MANSMANN, Circuit Judges, and SCHWARZER, District Judge.*

OPINION OF THE COURT

MANSMANN, Circuit Judge.

1

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.

2

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.

3

At the root of the criminal conduct which occurred here lies the Laotian custom of arranged marriages.1 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.

4

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.

5

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.2

6

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.

7

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.3 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.

8

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.

9

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.

10

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.

11

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.

12

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.4 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.

13

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.

14

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.5 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.

15

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.

16

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.6 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.7

17

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.8 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.

18

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

II.

19

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.9

20

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, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988) (citing Huddleston v. United States, 485 U.S. 681, 687, 108 S.Ct. 1496, 1500, 99 L.Ed.2d 771 (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, 108 S.Ct. at 1500-01; 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, 108 S.Ct. at 1499.

21

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).

22

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:

23

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, when:

24

(1) the person is willfully transported in interstate or foreign commerce;

25

...

26

shall be punished by imprisonment for any term of years or for life.

27

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."

28

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, 90 S.Ct. 956, 25 L.Ed.2d 123 (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 1403.10

29

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.11 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, 98 S.Ct. 191, 54 L.Ed.2d 136 (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, 90 S.Ct. 1709, 26 L.Ed.2d 73 (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, 108 S.Ct. 108, 98 L.Ed.2d 67 (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)).

30

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, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (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:

31

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, 89 S.Ct. 146, 21 L.Ed.2d 132 (1968).

32

...

33

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.)

34

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 motive12 in kidnapping her, but also that she did not consent to go with him.13

35

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.14

36

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.15 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:

37

... 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.)

38

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.

39

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.

40

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.16

III.

41

Sriyuth's other allegations of error need not detain us long as they lack legal merit.

A.

42

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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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.

43

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, 287, 111 S.Ct. 1246, 1252, 113 L.Ed.2d 302 (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, 110 S.Ct. 1321, 108 L.Ed.2d 497 (1990) (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (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.

44

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, --- U.S. ----, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995) (citing Oregon v. Bradshaw, 462 U.S. 1039, 1046, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405 (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, 106 S.Ct. at 1141) (citations omitted).

45

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.

46

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.

47

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 Sanguiliano were also present when the waiver of rights form was read and executed, and they corroborated Agent Seidel's account of what transpired.

48

To the contrary, Sriyuth testified that he immediately requested an attorney,17 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.

49

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.18 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.

50

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.

51

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, 511 U.S. 1076, 114 S.Ct. 1660, 128 L.Ed.2d 377 (1994) (quoting United States v. Pungitore, 910 F.2d 1084, 1129 (3d Cir.1990), cert. denied, 500 U.S. 915, 111 S.Ct. 2009, 114 L.Ed.2d 98, 114 L.Ed.2d 98 (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.

52

The last two issues concern the district court's instructions to the jury. The first objection involves the following charge:

53

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.

54

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.

55

The final objection involves the supplemental jury instruction given in response to a note received from the jury.19 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.20 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.

56

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.21 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, 111 S.Ct. 788, 112 L.Ed.2d 851 (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).22

57

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.

IV.

58

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.

*

Honorable William W Schwarzer of the United States District Court for the Northern District of California, sitting by designation

1

Under Laotian custom, the terms of an arranged marriage require that the man's parents pay the woman's parents an agreed upon sum of money, usually accompanied by gold. Here the victim's parents asked for $7,000.00 and five carat gold. At the time of her abduction and rape, neither the money nor the gold had been paid to her parents

2

The nine millimeter Taurus belonged to Duangtavanh Sakhone, the boyfriend of Von's sister Vila

3

Von testified that she did not know how she ended up with the gun, but that she had it when she ran from the car. When asked if she thought of using it on Sriyuth, she replied, "No," and explained that Sriyuth knew she would not shoot him because she did not know how to use it and she was afraid of guns

4

Sriyuth had telephoned Keo that morning and asked her to wire some money to the Western Union office in Scranton so that he would have enough cash to return to Detroit. Unbeknownst to Sriyuth, Keo had called back while he and Von were at the pharmacy, and left the message with Laksana that she was not wiring the cash via Western Union because it would cost her $100.00; she was sending the cash by express mail instead

5

At trial, the parties stipulated to the results of the rape examination and microscopic analysis, which revealed the presence of sperm

6

At the suppression hearing, Agent Seidel testified that after he was satisfied that Sriyuth understood English, he advised him of his rights and reviewed a written form containing the Miranda rights and a waiver of those rights. Sriyuth executed the waiver of rights, witnessed by Detective Captain Maus. Next to Sriyuth's signature on the waiver form, Agent Seidel noted Sriyuth's wish to speak to an attorney only before any hearing, and not before that. At the Pre-Trial Conference, the district court found that "notwithstanding [Sriyuth's] repetition that he would want counsel later for his hearing, ... at no time did [Sriyuth] clearly assert or request the right to an attorney during his meeting with Agent Seidel."

7

The district court was also asked to suppress Sriyuth's statement as to the location of the gun when he was taken into custody. The district court ordered this statement be suppressed as Sriyuth was not Mirandized before the Scranton police officers questioned him about the gun. The district court did not, however, order the gun itself be suppressed, as a valid search warrant was later obtained based on information independently provided by the victim

8

In response to the defendant's post-verdict motions for judgment of acquittal and for a new trial, the district court in its Memorandum and Order of September 14, 1995 explained in part its basis for denying the motion to exclude the sexual assault evidence. From the record, it appears the district court did not, however, undertake the balancing required under Federal Rule of Evidence 403. For purposes of this appeal, we must therefore assume that the required weighing under Rule 403 was not performed. We take this occasion, once again, to remind the district courts of their obligation to perform this weighing process on the record. Although we are able to perform this balancing here, other cases may require remand to the court for such proceedings or even for a new trial

9

Ordinarily, we review a district court's evidentiary rulings for an abuse of discretion. United States v. Himelwright, 42 F.3d 777, 781 (3d Cir.1994) (citing United States v. Sampson, 980 F.2d 883, 886 (3d Cir.1992)). "Where, however, the district court fails to explain its grounds for denying a Rule 403 objection and its reasons for doing so are not otherwise apparent from the record, there is no way to review its discretion." Id. (citing Sampson, 980 F.2d at 889). In that instance, we may review the record and conduct the obligatory weighing ourselves. Id. (citing Government of the Virgin Islands v. Archibald, 987 F.2d 180, 186 (3d Cir.1993))

Here the district court orally denied Sriyuth's motion in limine on January 30, 1995, which was not recorded by transcription or otherwise. Further, in its Memorandum and Order dated September 14, 1995, the district court, in ruling on Sriyuth's post-verdict motions, indicated that it had adopted the government's position in opposing the motion in limine. The government's response to Sriyuth's motion in limine, however, was not made part of the district court record. We are thus unable to glean the district court's reasons for denying the motion in limine, or whether it did indeed perform the required balancing test under Rule 403. Accordingly, we are required to review the record and perform the obligatory Rule 403 weighing in the first instance.

10

The court of appeals discussed the legislative history and pertinent cases as follows:

As originally enacted, the Federal Kidnaping Act applied only if the kidnaped person was "held for ransom or reward." Act of June 22, 1932, ch. 271, 47 Stat. 326, quoted in Gooch v. United States, 297 U.S. 124, 125, 56 S.Ct. 395, 395-96, 80 L.Ed. 522 (1936). In 1934 the statute was amended to extend its coverage to interstate transportation of kidnaped persons "held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof * * *." (Emphasis added). The report of the Senate Judiciary Committee stated that the purpose of this amendment was to extend the statute's reach "to persons who have been kidnaped and held, not only for reward, but for any other reason." S.Rep. No. 534, 73d Cong., 2d Sess. (1934) (emphasis added)....

In Gooch v. United States, supra, the Supreme Court held that in light of the language and legislative history of the 1934 amendment a purpose to obtain pecuniary benefit was no longer required. In United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964), the Court held that an illegal purpose need not be shown. In light of these cases, the statutory language, and the committee reports, several Courts of Appeals have recognized that the kidnaper's motivation is not an element of the offense. United States v. Martell, 335 F.2d 764, 766 (4th Cir.1964); Hayes v. United States, 296 F.2d 657, 665-667 (8th Cir.1961); Clinton v. United States, 260 F.2d 824, 825 (5th Cir.1958); Brooks v. United States, 199 F.2d 336 (4th Cir.1952) (footnote omitted).

Gawne, 409 F.2d at 1402-03.

11

The grand jury indictment charged that Sriyuth held Von for the purpose of gaining her companionship and for a sexual assault in violation of section 1201(a)(1). Thus, in order to sustain its burden of proof, the government was required to prove the purpose of the kidnapping as set forth in the indictment

12

Because motive is always relevant in a criminal case, even if it is not an element of the crime, we do not reach the issue of whether the kidnapping statute, 18 U.S.C. § 1201, requires proof of motive or purpose

13

Sriyuth contended at trial that Von had plenty of opportunity to escape or notify the authorities, and her failure to do so indicated her consent to go with him

14

The present case is distinguishable from United States v. Cook, 538 F.2d 1000 (3d Cir.1976), which involved a violation of a federal firearms statute in conjunction with a bank robbery. We held in Cook that evidence of the defendant's sodomy conviction was relevant to a collateral issue only and thus of little probative value to the government's case. Id. at 1004. We also noted that the government only needed to prove Cook had a prior felony conviction; the nature of the conviction was not required and was highly prejudicial. Id. Also, the sodomy occurred several years before the bank robbery, unlike here where the rape occurred within twenty-four hours of the kidnapping

15

As noted earlier, we must make this determination in the first instance as the district court record is devoid of any references to a Rule 403 analysis

16

The sexual assault evidence also complies with the four guidelines for admissibility under Rule 404(b) set forth by the Supreme Court in Huddleston: "other crimes evidence must have a proper purpose"; "the proffered evidence must be relevant"; the probative value of the evidence must substantially outweigh the risk for unfair prejudice; and, the trial court must instruct the jury that other crimes evidence may be considered only for the limited purpose for which it was admitted. Scarfo, 850 F.2d at 1019 (citing Huddleston, 485 U.S. at 691-92, 108 S.Ct. at 1502)

17

We note, as the government did at the hearing, that in the motion to suppress, Sriyuth only took issue with whether his request for an attorney before the hearing really meant he wanted an attorney present for the interview as well. At the hearing, Sriyuth testified that he asked for an attorney from the very start, which directly conflicts with the testimony of Agent Seidel and the two police officers

18

Sriyuth attended seventh through eleventh grade in the United States

19

The note from the jury stated: "Did she leave the house against her will? Did she cross the state lines against her will? Which constituted kidnaping? One or both. Can we read agent Seidel's report on Nopporn's confession?"

20

The instruction to the jury read as follows:

To assist, we attach a portion of the court's charge on kidnapping:

In order to sustain its burden of proof for the crime of kidnapping as charged in Count I of the Indictment, the Government must prove the following three essential elements beyond a reasonable doubt:

One: The defendant, Nopporn Sriyuth, knowingly and willfully seized, kidnapped, abducted, or carried away the person named in the Indictment;

Two: The defendant, Nopporn Sriyuth, held the person named in the Indictment for some benefit or reason; and

Three: The person named in the Indictment was thereafter transported in interstate commerce while so seized, kidnapped, or abducted.

The term "kidnapped" means forcibly to hold, detain, or carry away a person against that person's will.

The term "hold for some benefit or reason" means to detain a person for anything that the individual who is holding that person feels is of benefit or has value. Such benefit is not limited to money or any measurable or material item. Here, the Government must prove beyond a reasonable doubt that the defendant held Chindavone Phongsavath for some reason. It is sufficient to satisfy this element if the Government proves that at the time that the defendant held Chindavone Phongsavath, he did so for either purpose or reason charged in the Indictment; (1) for the purpose of gaining her companionship or (2) for a sexual assault.

21

Sriyuth argues that based on the court of appeals decision in United States v. Ronder, 639 F.2d 931, 934 (2d Cir.1981), the district court here was required to recall the jury and charge them orally. The court's decision in Ronder required an oral instruction for all but routine housekeeping matters. Id. It would appear that under Ronder, a district court does not have the discretion to determine how the supplemental instructions will be given. This ruling appears to conflict with the law of our court

In any event, Ronder is factually distinguishable from our situation. In that case, attorneys for both sides were not made aware of the three notes from the jury before the trial judge responded, nor did they agree with the substantive aspects of the supplemental charge, which was given orally. In the supplemental instruction, the trial court gave special attention to one element of the substantive offense. In ordering a new trial, the court of appeals focused on the procedural errors committed by the trial judge in not first discussing the notes with counsel. Id. at 934-95. None of the circumstances in Ronder existed here. Thus, Ronder is inapposite.

22

In Ehrlich, the jury asked for a copy of the court's instruction on the five required elements of embezzlement. The court of appeals found that the supplemental instruction did not create a "prejudicial imbalance in the charge as a whole," in view of the entire oral charge and the specific inquiry of the jury. 902 F.2d at 330