United States v. Morton ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4460
ANGELA BETH MORTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-96-131)
Submitted: July 7, 1998
Decided: July 22, 1998
Before NIEMEYER, LUTTIG, and WILLIAMS,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James M. Cagle, Charleston, West Virginia, for Appellant. Rebecca
A. Betts, United States Attorney, Stephen W. Haynie, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Angela Beth Morton appeals from her conviction for aiding and
abetting the possession with intent to distribute cocaine base (crack).
On appeal, she argues that the evidence was insufficient to support
her conviction and that the district court erred by refusing to instruct
the jury regarding duress. For the reasons that follow, we affirm.
Morton alleges that there was insufficient evidence of possession.
We disagree. The facts reveal that Morton, a nurse employed by a
West Virginia correctional institution, agreed to supply crack cocaine
to an inmate in exchange for Valium. The inmate, who was cooperat-
ing with the authorities, gave Morton's phone number to an under-
cover officer who contacted Morton. In two subsequent telephone
conversations on August 6 and 7, 1996, the officer and Morton nego-
tiated the terms of a drug deal in which Morton would receive a cer-
tain amount of Valium in exchange for delivering some crack cocaine
to the prison. Morton traveled to the arranged delivery site with her
husband driving their vehicle. While Morton and her husband
remained seated in the vehicle, the undercover officer spoke with
them for approximately five minutes and then showed and gave the
Valium and crack to Morton. Minutes later when the officers identi-
fied themselves, the drugs were found in between the front seats.
Reviewing the evidence in the light most favorable to the prosecution
as we are required, we find the element of possession is supported by
substantial evidence and thus the jury's verdict must be sustained. See
Glasser v. United States, 315 U.S. 60, 80 (1942).
Next, Morton claims that the district court erred in refusing her
requested jury instruction on the defense of duress. The refusal to give
a proffered instruction is reviewed for an abuse of discretion. See
United States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992). Duress
is an affirmative defense and presents a question of law as to whether
the proffered evidence makes out the defense. See United States v.
Sarno, 24 F.3d 618, 621 (4th Cir. 1994). In order to establish a claim
of duress, the defendant must show that: (1) she acted under an
immediate threat of serious bodily injury; (2) she had a well-
grounded belief that the threat would be carried out; and (3) she had
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no reasonable opportunity to avoid violating the law and the threat-
ened harm. See United States v. King, 879 F.2d 137, 138-39 (4th Cir.
1989). A defendant has the burden of establishing sufficient evidence
of the defense to warrant its submission of the claim to the jury. See
id.Morton argues that the inmate involved coerced her into delivering
drugs. She testified at trial that he threatened her and her family,
grabbed her by the hair and tried to sexually assault her during two
encounters on August 6, 1996, at the penitentiary's infirmary. We
find no error by the district court. First, Morton's interactions with the
inmate occurred on August 6 two days prior to the drug delivery on
August 8. Morton did not go to work on August 7 or August 8. Fur-
ther, taped conversations between Morton and the undercover officer
reveal that she picked the time and place for the delivery and declined
the officer's offer to complete the transaction on August 7, because
she had scheduled a tattoo appointment. We find Morton had time to
avoid any coercion or duress the inmate may have created,* see id.,and therefore the trial court did not err in refusing to instruct the jury
on the defense of duress. See Sarno, 24 F.3d at 621.
Finally, the district court did issue instructions to the jury on bat-
tered woman's syndrome and entrapment, with regard to the conduct
of Morton's husband and the undercover officer involved. To the
extent Morton raises the issue, we find that she has failed to establish
that the actions of her husband or the police amounted to duress.
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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*After being arrested, Morton admitted that she wanted the Valium
badly enough to smuggle crack cocaine into the penitentiary, as
requested by the inmate.
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