United States v. Forbes ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4353
MARICEL FORBES,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-98-189)
Submitted: November 30, 2000
Decided: January 8, 2001
Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
George B. Currin, Robert H. Hale, Jr., Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Kenneth F. Whitted, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. FORBES
OPINION
PER CURIAM:
Maricel Forbes appeals her convictions and sentence for conspiracy
to import cocaine in violation of 21 U.S.C. §§ 952 & 963 (1994) and
conspiracy to distribute and possess with intent to distribute cocaine
in violation of 21 U.S.C. § 846 (1994). Finding no reversible error,
we affirm.
Forbes raises four issues on appeal: (1) whether sufficient evidence
supported her convictions; (2) whether the district court erred in not
providing the jury with a unanimity instruction and a special verdict
form; (3) whether the district court erred in instructing the jury
regarding Forbes’ coercion or duress defense; and (4) whether the dis-
trict court erred in denying Forbes’ request for a reduction of her
offense level pursuant to U.S. Sentencing Guidelines Manual
("USSG") § 3B1.2 (1998).
A reviewing court must uphold a jury’s verdict if the evidence,
when viewed in the light most favorable to the government, is suffi-
cient for a rational trier of fact to have found the essential elements
of the crime beyond a reasonable doubt. Glasser v. United States, 315
U.S. 60, 80 (1942). We have reviewed the record and are satisfied that
substantial evidence supports Forbes’ convictions.
We also find that the district court did not err by not providing the
jury with a unanimity instruction and a special verdict form. Because
Forbes asserts separate and distinct legal defenses as to each mailing
of cocaine, she contends that the district court erred in not instructing
the jury to either: (1) unanimously find beyond a reasonable doubt
that she knowingly, and with knowledge that the package contained
a controlled substance, agreed or conspired to mail the first package
containing cocaine; or (2) unanimously find beyond a reasonable
doubt that she, knowingly, and without coercion or duress, agreed or
conspired to mail the second package of cocaine. Because Forbes did
not request a special verdict form and did not object to the jury
instructions used at trial on this ground, we review for plain error. See
United States v. Olano, 507 U.S. 725, 731-32 (1993).
UNITED STATES v. FORBES 3
A general unanimity instruction is usually sufficient to support a
conviction. United States v. Davis, 154 F.3d 772, 783 (8th Cir. 1998),
cert. denied, 525 U.S. 1161 (1999); United States v. Russell, 134 F.3d
171, 176 (3d Cir. 1998). Because of the nature of a conspiracy charge,
when the jury agrees that the defendant agreed to commit a crime, "all
jurors do not have to agree about which offense the defendant person-
ally intended to commit." United States v. Narviz-Guerra, 148 F.3d
530, 534-35 (5th Cir.) (quoting United States v. Dillman, 15 F.3d 384,
391-92 (5th Cir. 1994)), cert. denied, 525 U.S. 1046 (1998); see also
United States v. Kim, 196 F.3d 1079, 1083 (9th Cir. 1999). We there-
fore find that Forbes has failed to demonstrate plain error.
We also find that the district court’s jury instruction on duress was
not erroneous as a matter of law. Forbes raises two main objections
to the jury instruction used at trial. She first claims that the court erred
by requiring her to demonstrate that she had not recklessly or negli-
gently placed herself in a situation where she would be forced to com-
mit a crime. Because Forbes did not specifically raise this objection
before the district court, we review for plain error. See Olano, 507
U.S. at 731-32. Although this Court in United States v. Crittendon,
883 F.2d 326 (4th Cir. 1989), upheld an instruction that used only a
standard of recklessness, at least four other circuits have upheld the
inclusion of a negligence standard. See United States v. Jankowski,
194 F.3d 878, 882-83 (8th Cir. 1999); United States v. Wyly, 193 F.3d
289, 301 (5th Cir. 1999); United States v. Riffe, 28 F.3d 565, 569 (6th
Cir. 1994); United States v. Blanco, 754 F.2d 940, 943 (11th Cir.
1985). Accordingly, we cannot conclude that the district court com-
mitted plain error in this regard.
Forbes also claims that the district court abused its discretion in
requiring her to prove duress by a preponderance of the evidence.
Based on the reasoning of our sister circuits, we find this claim is
without merit. See, e.g., United States v. Deleveaux, 205 F.3d 1292,
1298-99 (11th Cir.), cert. denied, 120 S. Ct. 2724 (2000); United
States v. Willis, 38 F.3d 170, 179 (5th Cir. 1994); United States v.
Meraz-Solomon, 3 F.3d 298, 300 (9th Cir. 1993).
Finally, Forbes contends that she was entitled to a reduction in sen-
tence because she was a minimal or minor participant in the criminal
activity. See USSG § 3B1.2. Based on our review of the record, how-
4 UNITED STATES v. FORBES
ever, we find that Forbes’ conduct clearly negates her claim that she
was merely a minimal or minor participant.
Accordingly, we affirm her convictions and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED