                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-3905
                                     ____________

                           UNITED STATES OF AMERICA

                                           v.

                            AKOUAVI KPADE AFOLABI,
                              a/k/a GLORIA LAWSON,
                                    a/k/a SISTER,
                                    a/k/a SELINA,

                                                     Appellant.
                                    _____________

                      Appeal from the United States District Court
                             for the District of New Jersey
                          (D.C. Criminal No. 2:07-cr-00785)
                       District Judge: Honorable Jose L. Linares
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 13, 2012

              Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge
                         and JONES, II,* District Judge.

                           (Opinion Filed: January 4, 2013 )
                                   ____________

                              OPINION OF THE COURT
                                   ____________


      *
        The Honorable C. Darnell Jones, II, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
Jones, II, District Judge.

           Akouavi Kpade Afolabi (also known as “Gloria Lawson,” “Sister” or “Selina”)

(“Afolabi”) was convicted in the district court on 22 counts relating to her participation in

visa fraud and human trafficking.1 Afolabi contends that the district court erred in

admitting certain evidence under Federal Rule of Evidence 404(b) and in denying her

motion for a judgment of acquittal. She requests that this Court vacate the judgment of

conviction on the forced labor and trafficking counts and remand for re-sentencing on the

remaining convictions; alternatively, Afolabi requests a remand for a new trial on all

counts.2 For the reasons set forth below, we decline, and thus we affirm the judgment.

                                               I.       Background

           As we write solely for the parties, we recite only those facts necessary to our

decision.

           From October 2002 through September 2007, Afolabi (a citizen of the West

African nation of Togo), her former husband and her son brought more than 20 West

African girls, aged 10 to 19, from poor villages in Togo and Ghana into the United States

on fraudulently obtained visas, under the pretense that the girls would go to school or



1
  On October 14, 2009, a jury convicted Afolabi of one count of conspiracy to commit visa fraud, in violation of 18
U.S.C. § 371; five counts of visa fraud, in violation of 18 U.S.C. §1546(a); four counts of smuggling illegal aliens,
in violation of 8 U.S.C. § 1324(a)(2)(B)(ii); one count of conspiracy to commit forced labor, trafficking with respect
to forced labor, and document servitude, in violation 18 U.S.C. § 371; five counts of forced labor, in violation of 18
U.S.C. § 1589; five counts of trafficking with respect to forced labor, in violation of 18 U.S.C. § 1590; and one
count of conspiracy to harbor aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). On September 23, 2010,
Afolabi was sentenced to 324 months‟ imprisonment and three years‟ supervised release.
2
    The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
                                                           2
learn a trade.3 (Government‟s Supplemental Appendix (“SA”) 71, 202, 562, 621.)

Instead, the girls worked in hair-braiding salons for up to 16 hours a day, six or seven

days a week, and turned over all their earnings to the Defendants. (SA78, 80-82, 232-39,

248-56, 360, 372-77, 567, 635-41, 1243-48.)

        At Afolabi‟s trial, the Government introduced evidence that the girls were

physically, psychologically and sexually abused in both Africa and the United States.

Afolabi and her co-conspirators beat the girls, sometimes at length and with extreme

violence, to ensure their compliance. (Appellant‟s Appendix (“A”) 87-88, 153, 155-56;

SA56, 88, 258, 284, 365, 372, 379, 570, 575-76, 600-01, 618, 621, 1248.) Afolabi‟s

former husband forced at least three of the girls to have sex with him and transported

another girl, who was under the age of 18, from New Jersey to North Carolina in order to

have sex with her. (SA 382, 385-86, 668.) When the girls tried to tell Afolabi about

these sexual assaults, Afolabi either refused to listen to them or blamed them for the

assaults. (SA321, 577.)

        In order to demonstrate the involuntary nature of the girls‟ servitude in the United

States, the Government also produced evidence that Afolabi and her co-conspirators
3
  Afolabi‟s former husband, Lassissi Afolabi, pled guilty to two forced labor and conspiracy counts, as well as
transportation of a minor with intent to engage in criminal sexual activity. United States v. Afolabi, Crim. No. 07-
785 (JLL) (D.N.J. Aug. 26, 2009) (Dkt. No. 120). He was sentenced on July 22, 2010 to 292 months‟
imprisonment; his sentence was affirmed by this Circuit on December 16, 2011. United States v. Afolabi, 455 F.
App‟x 184, 187 (3d Cir. 2011). Son Dereck Hounakey pled guilty to a forced labor conspiracy count and was
sentenced to 55 months‟ imprisonment; another relative, Bernard Hounakey, pled guilty to two conspiracy and visa
fraud counts and was sentenced to time served. Neither Hounakey appealed. See United States v. Hounakey, Crim.
No. 08-529 (JLL) (D.N.J. Mar. 13, 2009) (Dkt. No. 21); United States v. Hounakey, Crim. No. 07-785 (JLL) (D.N.J.
June 28, 2010) (Dkt. No. 195). Co-defendant Geoffry Kouevi‟s case was severed, and he was convicted at trial of
two conspiracy and visa fraud counts; he was sentenced to 26 months‟ imprisonment. United States v. Kouevi,
Crim. No. 07-785 (JLL) (D.N.J. Aug. 18, 2010) (Dkt. No. 208). His conviction and sentence were recently
affirmed. United States v. Kouevi, Civ. No. 10-3529, 2012 WL 5235260, at *11-12 (3d Cir. Oct. 24, 2012).
                                                         3
isolated the girls from their families, exploited their youth and lack of knowledge of

English, and induced deep fear and shame at the prospect of being returned to Africa in

disgrace. (SA83-84, 87-88, 247, 256, 261, 278, 671-72.) Afolabi and her co-conspirators

confiscated the girls‟ passports and other identification to prevent their independent

travel. (A132, SA268, 371, 380-81.) On the extremely rare occasions that the girls were

permitted to speak to their families in Africa, they were pressed into lying about their

whereabouts; one girl was forced to tell her parents she was succeeding in school (which

she was in fact not allowed to attend), and another that she was living in Germany.

(SA371, 569.) The girls testified at trial that they were unable to leave Afolabi‟s control

because they feared her, did not know anyone else, possessed no documentation, and

believed Afolabi would “do something to harm” their families. (SA278, 381, 674, 679.)

Indeed, one girl testified that Afolabi‟s treatment prompted her to contemplate suicide.

(SA286.)

              A. Admission of Contested Evidence

       The Government sought to introduce evidence that, while in Togo, Afolabi beat

the girls and demonstrated voodoo practices in order to threaten and intimidate them.

Although these acts had occurred prior to the indictment period, the Government

contended that they continued to have a coercive effect on the girls even after they had

arrived in the United States. Over Afolabi‟s objections, the district court admitted such

evidence as both intrinsic to the forced labor and trafficking charges and pursuant to

Federal Rule of Evidence 404(b). The district court judge reasoned that under Rule
                                             4
404(b), the Togo evidence was probative of a scheme or plan to lead the victims to

believe that “serious harm would result to them if they attempted to disobey the

defendant.” (A2.) He determined that the temporal discrepancy between the Togo acts

and the United States acts—up to two years—was not enough to defeat the Togo acts‟

admissibility. (A2.) The judge noted that:

       even though the Government may have additional evidence of this conduct
       [the scheme or plan to intimidate the girls into labor] that they may
       introduce during the trial, it is not the type of situation where one would
       say, well, the evidence is so prejudicial, that in light of all of the other
       favorable evidence that the Government already has anyway, we should err
       on the side of not admitting the evidence.
              I think under the circumstances of this case, the evidence is
       admissible. I think cases that have dealt with this issue and similar cases
       that have dealt with the issue of voodoo rituals, et cetera, like the other case
       we discussed earlier, have admitted the evidence.

(A2-3.)

       Accordingly, a victim named Vida testified that Afolabi beat her with a branch and

a cane on three different instances in Togo, after Afolabi accused Vida of taking too long

to bring a refrigerator repairman to Afolabi‟s house, having inappropriate relations with

a village man, and not preparing Afolabi‟s shower to the desired heat level. (A87-88.)

Vida also stated that she witnessed Afolabi beat another girl named Rose because Rose

had taken Vida to visit a friend, against Afolabi‟s prohibition. (A88.)

       Vida further testified about a “little room” in Afolabi‟s Togo house furnished with

“handmade stuff” that Vida called “vedzu”—voodoo—which Vida understood to be “like

a god” that could be used by its followers “to scare you…to make you crazy…to kill you

                                              5
with it.” (A98.) Vida described a pot in the room used for sacrificing chickens. (A98-

99.) She also testified that Afolabi introduced her to a man named Pele, who tried to feed

her “nut kola” and water. Pele told Vida that the nut kola would bind her to Afolabi in

the United States; if Vida did not want to stay with Afolabi and tried to leave, she was

“going to go crazy.” (A99.)

       However, when questioned on direct examination as to what she had believed

would happen to her if she refused to work for Afolabi once she arrived in the United

States, Vida responded only that she feared Afolabi would become angry and send her

back to Togo. (A103.) Even when pressed, Vida did not testify as to any other fears of

corporal or voodoo punishment. (A132.)

       A second victim witness, Sroda, also testified to Afolabi‟s entering the “little

room” in her Togo home and talking to herself, which Sroda understood to be part of

Afolabi‟s voodoo practices:

               To me, voodoo is the worst thing, the worst thing to worship because
       it is just—I don‟t like it. The thought of voodoo, it just breaks me down,
       and I don‟t know how someone would want to worship a voodoo instead of
       God, and I have seen lots of things happen through voodoo to other people,
       and it is not a good thing. There are so many things that could happen with
       voodoo.
               …[P]eople can use voodoo to make people physically or emotionally
       paralyzed. Mostly they can make them blind and stop hearing and get
       talking problem [sic]. They can use voodoo to stop somebody from talking,
       and the common one is killing.
               …Because from what I know of voodoo, voodoo doesn‟t bring you
       any good thing or anything good from my point of view, so that is, it is
       better just to go with God. That is how I perceive it.


                                             6
(A130.) Sroda went on to describe voodoo rituals she had seen that included animal

sacrifices, and voodoo-induced blindness and paralysis she had heard about from family

members, but testified that she did not witness any such sacrifices or other voodoo

practices in Afolabi‟s house. (A130, 134.)

      The third victim to testify, Ameyo, confirmed Afolabi‟s Togo beatings of Vida

and another girl, Doveni. (A142.) Ameyo also discussed the existence of Afolabi‟s

“room for voodoo” in Togo, with “little voodoo dolls,” but she did not witness any

particular acts within the room. (A142.) Once in the United States, Ameyo did refuse to

follow Afolabi‟s order to relocate from Afolabi‟s then-husband‟s house; when pressed at

trial as to whether she was afraid of “voodoo magic” being practiced against her as

punishment, Ameyo replied, “I don‟t know.” (A146.)

      The fourth victim, Ahoefa, testified that she saw Afolabi hit Vida and another girl,

Ajnele, and saw “something like a statute [sic] and like a stone” in Afolabi‟s “voodoo”

room. (A153.) Ahoefa also testified that Afolabi took her to a voodoo priest, who killed

a chicken and goat and spread the animals‟ blood “on the voodoos.” (A154.)

             B. Limiting Instruction and Motion for Judgment of Acquittal

      Following Vida‟s testimony on direct examination, the district court judge issued a

limiting instruction to the jury—an instruction that Afolabi agreed was proper:

              Remember at the beginning of the trial, I said to you that from time
      to time evidence would come in for a limited purpose, and I would explain
      it to you, and you could only consider that evidence for a limited purpose.
              Some of the testimony that you heard here today pertained to other
      acts or wrongs or crimes that were committed in Togo. You remember
                                             7
         there was some evidence or testimony from the witness about some
         religious rituals that occurred there or some punishment that may have
         occurred there.
                Now, normally other wrongs or acts or evidence of other crimes are
         generally not admissible to prove the character of the defendant, or in order
         to show that the defendant had some propensity to commit a crime. Just
         because she did something wrong in the past doesn‟t make you [sic] guilty
         of something today. Except that other wrongs or acts evidence is
         admissible for your consideration with regard to some particular issues such
         as intent, a plan or a scheme, or knowledge or the absence of a mistake or
         accident in the commission of a crime.
                In this particular case, that evidence was introduced for those
         purposes, so you can consider what other acts or wrongs that may have
         happened in Togo with regard to making the decision as to whether the
         defendant was involved in some scheme or plan or intent and for the issues
         of the absence of mistake or accident with regard to the charges of forced
         labor.

(A105; SA89 (Afolabi‟s agreement to instruction).)

         Following the presentation of the Government‟s case, Afolabi moved for a

judgment of acquittal, which was denied. While not specifically mentioning the evidence

of corporal punishment and of voodoo practices in Togo, the district court judge made the

following statement with regard to the charges of forced labor and trafficking in forced

labor:

                Looking at the totality of the evidence that came in in this case and
         the circumstances, although certainly one can argue that things were, as
         [Afolabi‟s counsel] claims they were, a reasonable jury could just as easily
         find that as part of the scheme, the girls saw punishment that was meted out
         to those who disregarded the rules, that they were present when rituals were
         done, wherein they were threatened with harm, if they didn‟t abide by the
         wishes of the defendant and her husband I guess.

(A25.)



                                              8
       On appeal, Afolabi now argues that the admission of the evidence relating to

corporal punishment and voodoo rituals in Togo, even with the limiting instruction,

represented an abuse of the district court‟s discretion. Afolabi maintains that none of the

girls testified that she was intimidated in the United States by her experiences in Togo,

and that the contested evidence substantially harmed Afolabi‟s defense. In addition,

Afolabi contends that without the Togo evidence, the Government failed to establish the

girls‟ fear such as to satisfy the necessary element of the forced labor and trafficking

charges.

                                    II.   Standards of Review

       We generally review a district court‟s evidentiary rulings for abuse of discretion.

United States v. Green, 617 F.3d 233, 239 (3d Cir. 2010). “An abuse of discretion occurs

only where the district court‟s decision is „arbitrary, fanciful, or clearly unreasonable‟—

in short, where „no reasonable person would adopt the district court‟s view.‟” Id.

(quoting United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)). However, to the

extent that the district court‟s rulings were “„based on a legal interpretation of the Federal

Rules of Evidence, we exercise plenary review.‟” Id. (quoting Complaint of

Consolidation Coal Co., 123 F.3d 126, 131 (3d Cir. 1997)). “This includes plenary

review „of whether evidence falls within the scope of Rule 404(b).‟” Id. (quoting United

States v. Cruz, 326 F.3d 392, 394 (3d Cir. 2003)).

       We exercise plenary review over a district court‟s determination that there was

sufficient evidence to support the jury‟s verdict. United States v. Bornman, 559 F.3d
                                              9
150, 152 (3d Cir. 2009). In considering whether there was sufficient evidence, we must

view the evidence in the light most favorable to the Government, and “must affirm the

conviction[] if a rational trier of fact could have found defendant guilty beyond a

reasonable doubt.” United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995). We

reverse only when there is “„no evidence, regardless of how it is weighted, from which

the jury could find guilt beyond a reasonable doubt.‟” United States v. Mussare, 405

F.3d 161, 166 (3d Cir. 2005) (quoting United States v. Anderson, 108 F.3d 478, 481 (3d

Cir. 1997)).

                                  III.       Admission of Evidence

       To prove that Afolabi committed, and conspired to commit, forced labor and/or

trafficking with respect thereto, the Government had to establish, inter alia, that Afolabi

knowingly joined the conspiracy to procure, and that she herself procured, the girls‟ labor

by means of “force, threats of force, physical restraint or threats of physical restraint;”

“serious harm or threats of serious harm;” or “any scheme, plan, or pattern intended to

cause [the girls] to believe that, if [they] did not perform such labor or services, [they]

would suffer serious harm or physical restraint.” 18 U.S.C. § 1589; see 18 U.S.C. §§

371, 1590. “Serious harm,” in turn, “refers to a broad array of harms, including both

physical and nonphysical.” H.R. CONF. REP. 106-939, at 101 (2000). Section 1589 is

“intended to be construed with respect to the individual circumstances of victims that are

relevant in determining whether a particular type or certain degree of harm or coercion is


                                              10
sufficient to maintain or obtain a victim‟s labor or services, including the age and

background of the victims.” Id.

       Accordingly, the Government sought to introduce evidence that Afolabi used

voodoo to threaten and intimidate the girls as intrinsic to those charges. Evidence is

intrinsic in two circumstances: (1) if it “directly proves the charged offense;” or (2) if it is

of an “uncharged act, performed contemporaneously with the charged crime” that

“facilitate[s] the commission of the charged crime.” United States v. Green, 617 F.3d

233, 248-49 (3d Cir. 2010). The evidence at issue here, however, does not seem to fall

into either category.

       As to the first circumstance, the evidence does not “directly prove” the charged

offense, as it is not evidence of “an act that is part of a charged offense.” Id. at 248

(quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). The Government

sought to introduce testimony about conduct (corporal punishment and threats) that took

place before Afolabi engaged in the criminal conduct alleged in the indictment, and so

this testimony cannot be testimony about “an act that is part of a charged offense.”       Nor

does the evidence satisfy the second circumstance. Although the evidence may have

facilitated the commission of the crime, it was not “performed contemporaneously with

the charged crime.”

       If not intrinsic to a charge, evidence of other acts or crimes must be considered

under Federal Rule of Evidence 404(b). Green, 617 F.3d at 249. Evidence of uncharged

crimes or wrongs may be admitted under Rule 404(b) if it (1) has “a proper evidentiary
                                              11
purpose;” (2) is “relevant;” (3) satisfies Rule 403;4 and (4) is “accompanied by a limiting

instruction (where requested) about the purpose for which the jury may consider it.”

Green, 617 F.3d at 249 (citing United States v. Butch, 256 F.3d 171, 175 (3d Cir. 2001)).

Here, the district court judge issued a limiting instruction, which Afolabi agreed was

proper, and the Togo evidence satisfied the other requirements as well.

         First, the Government introduced the contested evidence for several proper

purposes, i.e., purposes “„probative of a material issue other than character.‟” Green, 617

F.3d at 250 (quoting Huddleston v. United States, 485 U.S. 681, 686 (1988)). Despite

Afolabi‟s contention that “[n]o girl arrived in this country with any fear of rape because

of an observation in Togo or with a fear of a blindness due to voodoo retaliation,” (App.

Br. at 46), the district court judge reasonably concluded that the Togo evidence served to

illustrate Afolabi‟s plan, scheme, and/or absence of mistake in pressing the victims into

her service. The contested evidence included more than “testimony that voodoo was not

uncommon in Togo” (App. Br. at 47); it suggested that Afolabi intended for her victims

to believe they were “going to go crazy” if they attempted to leave Afolabi‟s control in

the United States.

         Second, along similar lines, the Togo evidence was relevant to the forced labor

charges and Afolabi‟s underlying intimidation of the victims. Even where the victims did

not testify to fear of voodoo as binding them to Afolabi in the United States, such

4
 Rule 403 permits the court to exclude relevant evidence “if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
                                                         12
evidence could be weighed by the jury as to whether the voodoo threats contributed to the

girls‟ inability to leave.

         Third, the evidence satisfies Rule 403 because any potential prejudice resulting

from the Togo evidence did not substantially outweigh its probative value. See Fed. R.

Evid. 403. As noted above, the voodoo rituals that Afolabi engaged in had significant

probative value. Afolabi‟s conduct was suggestive of a general scheme or plan to

frighten the girls into staying with her, and the jury could have reasonably concluded that

Afolabi‟s threats made it more difficult for the girls to leave. Although we recognize that

the evidence of voodoo-related rituals could have had a prejudicial effect on the jury, the

District Court carefully considered this issue, and its determination that any potential

prejudice did not substantially outweigh the probative value of the evidence was neither

arbitrary nor irrational. See United States v. Lee, 612 F.3d 170, 184 (3d Cir. 2010).

         Finally, the district court judge provided an appropriate limiting instruction, which

Afolabi herself approved.5 We presume that the jury followed the trial judge‟s

instruction. United States v. Hakim, 344 F.3d 324, 326 (3d Cir. 2003). While this Court

recognizes the potential for prejudice under the circumstances, it notes that the district

court recognized such potential as well, and weighed it carefully. See United States v.

Reme, 738 F.2d 1156, 1164-65 (11th Cir. 1984) (deferring to trial court‟s discretion to


5
 Furthermore, with respect to the Togo acts and their effect on the victims, Afolabi‟s counsel did not request a
hearing with witnesses under oath outside the jury‟s presence. (Appellant‟s Brief (“App. Br.”) at 48.) In fact,
Afolabi‟s counsel acknowledges the “practical problems” raised by such a hearing, in light of the fact that some
victims did not reside within the court‟s district at that time and that the trial took 19 days with a jury in the
courtroom. (Id.)
                                                          13
admit “highly probative” voodoo evidence to establish element of control in

transportation of illegal aliens into United States and noting thorough limiting

instruction).

                                    IV.      Sufficiency of Evidence

       In any event, even if the Togo evidence‟s probative value were substantially

outweighed by its prejudicial effect and thus should have been excluded, its admission

remained ultimately harmless. The contested testimony was but one piece of the

overwhelming evidence of Afolabi‟s coercion of her victims. See United States v. Cross,

308 F.3d 308, 326-27 (3d Cir. 2002) (prejudicial effect of cumulative “other acts”

evidence did not unduly influence ultimate guilty verdict in face of other “overwhelming”

evidence).

       Afolabi argues that without the Togo evidence, the Government failed to prove an

element of its forced labor and trafficking counts. However, even if the district court

judge had disallowed the testimony relating to Afolabi‟s corporal punishment and voodoo

practices in Togo, or the jury had determined that the victims were not actually

intimidated in the United States by Afolabi‟s alleged abuses in Togo, the Government

presented sufficient other evidence of Afolabi‟s intimidation of the victims once they

arrived in the United States to support the jury‟s guilty verdict.

       Five victims testified at trial that despite promises of schooling upon arrival in the

United States, they were forced to work 60 to 100 hours per week for several years and to

hand over all earnings from the hair-braiding salons where they worked. They testified
                                             14
that they did so because Afolabi and her co-conspirators (1) separated them from their

families, any school community, funds, or identifying documents; (2) threatened to

deport them to Africa and to beat them violently; and (3) in fact did assault and beat

them, with various implements. This was enough for a jury to find that the Government

had satisfied its burden, regardless of the Togo evidence. See, e.g., United States v.

Djoumessi, 538 F.3d 547, 552 (6th Cir. 2008) (defendant‟s threats to send victim back to

Cameroon were coercive in light of victim‟s particularly vulnerable status as illegal

alien). Indeed, the district court judge here acknowledged as much in considering the

admission of the Togo evidence, noting that said evidence was not unreasonably

prejudicial upon consideration of the Government‟s other cumulative evidence.

                                    V.     Conclusion

       For these reasons, we affirm.




                                             15
