UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4619

MING YOU,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4620

YU FENG LIN,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Deborah K. Chasanow, District Judge.
(CR-95-436-DKC, CR-95-435-DKC)

Submitted: April 30, 1997

Decided: May 22, 1997

Before MURNAGHAN and HAMILTON, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Warren E. Gorman, Chevy Chase, Maryland; James K. Bredar, Fed-
eral Public Defender, Denise C. Barrett, Assistant Federal Public
Defender, Baltimore, Maryland, for Appellants. Lynne A. Battaglia,
United States Attorney, Maury S. Epner, Assistant United States
Attorney, John V. Geise, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ming You appeals his conviction by a jury of one count of aiding
and abetting an interstate kidnapping for ransom in violation of 18
U.S.C. 1201(a)(1)(1994). Co-defendant Yu Feng Lin, also convicted
by the jury in a joint trial, appeals his convictions of one count of aid-
ing and abetting an interstate kidnapping for ransom and one count of
conspiracy to kidnap for ransom in violation of 18 U.S.C. § 120(c)
(1994). We affirm.

You first contends that the district court erred in excluding the
expert testimony of defense witness Dr. Stuart Grassian. Our review
of the record discloses that the trial court did not abuse its discretion
in deciding to exclude Dr. Grassian's testimony. United States v.
Powers, 59 F.3d 1460, 1471 (4th Cir. 1995), cert. denied, 116 S. Ct.
784 (1996). The record supports the district judge's finding that Gras-
sian's testimony concerning how traumatic events influence percep-
tion and memory would essentially challenge the victim's credibility
and therefore invade the exclusive purview of the jury. See United
States v. Dorsey, 45 F.3d 809, 815 (4th Cir.), cert. denied, 115 S. Ct.
2631 (1995). Accordingly, we find no error in the court's ruling.

                     2
Next, both You and Lin contend that the evidence was insufficient
to support their convictions. To support a conviction, "the evidence,
when viewed in the light most favorable to the government, must be
sufficient for a rational trier of fact to have found the essential ele-
ments of the crime beyond a reasonable doubt." United States v.
Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). Circumstantial as well as
direct evidence is considered, and the government is given the benefit
of all reasonable inferences from the facts proven to those sought to
be established. United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982).

To sustain a conviction under the federal interstate kidnapping stat-
ute, the government must satisfy four essential elements: "(1) the
transportation in interstate commerce; (2) of an unconsenting person
who is; (3) held for ransom, reward or otherwise, and (4) the acts
were committed knowingly and willingly." United States v. Osborne,
68 F.3d 94, 100 (5th Cir. 1995). Moreover, to support a conviction for
aiding and abetting, the prosecution must show, inter alia, that the
accused "`in some sort associate[d] himself with the venture, that he
participate[d] in it as in something that he wishe[d] to bring about,
that he [sought] by his action to make it[succeed].'" United States v.
Jones, 592 F.2d 1038, 1041 (9th Cir. 1979) (quoting Nye & Nissen v.
United States, 336 U.S. 613, 619 (1949)).

You contends that the prosecution presented insufficient evidence
at trial to support his conviction for aiding and abetting a kidnapping
for ransom because it failed to show that You knew Lau was being
held for ransom or that You shared in the intent to hold Lau for ran-
som. See United States v. Winestead, 708 F.2d 925, 927 (4th Cir.
1983) (citations omitted). This contention is meritless, however,
because while there is no direct evidence that You knew of or shared
in the ransom, circumstantial evidence does indeed support the jury's
verdict.*
_________________________________________________________________
*We note that our decision in United States v. Childress, 26 F.3d 498
(4th Cir. 1994), casts doubt on whether the prosecution was required to
prove the motivation of the kidnapping as an element of the offense. Id.
at 502-03, n.3. We need not address that issue here, however, as the evi-
dence was sufficient to support the jury's finding, as it was so instructed,
that Defendants knew the kidnapping was for ransom and even shared in
its proceeds.

                    3
The evidence showed that You is the brother-in-law of Lin Zhong,
the apparent mastermind of the kidnapping. Co-defendant Lin, who
accepted the ransom in New York, was found to have the telephone
number of You's place of employment in his possession. Shortly
before Lau was released, You had been in New York, where he
returned after her release. You then went to Atlantic City with Zhong.
Most significantly, the evidence disclosed that Lau identified You as
one of three men who came down from New York and were present
when the gunman unlocked her handcuffs in the apartment. You was
among the four that forced her into a car and You drove her to the
point of release. Lau identified You as the one who threatened her
when she begged to be released. These facts amply support the jury's
finding that You knew about the ransom and shared the others' intent
to collect the ransom in exchange for Lau's release.

Lin also challenges the sufficiency of the evidence to support his
convictions on both counts. This challenge is without merit. Lau's
husband, Tin Yin Cheung, identified Lin at trial as the individual who
directed him to deliver the ransom downstairs at a restaurant in New
York, in accordance with instructions given by the kidnappers over
the telephone. FBI agents identified Lin as the individual who left the
restaurant with a distinctive white grocery bag with red lettering, like
the bag containing the ransom, approximately one minute after
Cheung had left the restaurant. Shortly after Lin left the restaurant
with the bag, Lau was released in Virginia.

In addition, evidence showed that forty-five minutes after a kidnap-
per spoke on the telephone with Cheung, the same phone was used
to make a call to Lin's apartment in New York. One day after the ran-
som was delivered, Lin made cash payment of almost $5000 to rein-
state an insurance policy. In light of this evidence, Lin's contention
that there was insufficient evidence to sustain his convictions is with-
out merit.

You and Lin next maintain the district court did not adequately
instruct the jury that it was required to find that they knew the kidnap-
ping was for ransom. We review the trial court's decision concerning
whether to give an instruction and as to the instruction's content for
abuse of discretion. United States v. Burgos, 55 F.3d 933, 935 (4th

                     4
Cir. 1995) (citing United States v. Russell, 971 F.2d 1098, 1107 (4th
Cir. 1992)).

At trial, defense counsel requested a jury instruction which specifi-
cally stated that the Government had to prove that Defendants had
specific knowledge that the kidnapping involved ransom. The record
reveals that the district court subsequently modified the instructions
in response to this concern, making it clear that the kidnapping had
to be for ransom and carefully laying out the specific mental state that
the Government was required to prove beyond a reasonable doubt.
Accordingly, we also reject this contention.

You next contends that the Government's use, in its final rebuttal
argument, of his counsel's opening statement was inappropriate
because the statement did not qualify as a clear and unambiguous
admission of fact. We have held that "clear and unambiguous admis-
sion[s] of fact made by a party's attorney in an opening statement in
a civil or criminal case [are] binding upon the party." United States
v. Blood, 806 F.2d 1218, 1221 (4th Cir. 1986).

We find You's contention to be meritless because there is no indi-
cation that the trial judge abused her discretion in permitting the Gov-
ernment to treat the relevant statements as admissions. Id. Before
ruling on the Government's request, the judge carefully considered
the opening remarks and noted that counsel made many concessions
and assertions of fact. Moreover, You's contention that the Govern-
ment misled the court concerning how he would use the opening
statement is without merit. The Government used the statement as
proffered and argued appropriately in rebuttal to issues raised by the
defense.

Lin asserts that the trial court should have granted his motion for
a mistrial because of an accidental reference by an FBI agent to an
arrest photograph of Lin that was used in a photo array. Our review
reveals that the trial judge did not abuse her discretion in denying the
motion for a mistrial. See United States v. Kennedy, 32 F.3d 876, 885
(4th Cir. 1994), cert. denied sub nom. Ingram v. United States, 115
S. Ct. (1995).

The record demonstrates that a few minutes after the accidental ref-
erence, the same witness identified several items recovered from Lin

                    5
incident to his arrest, referring to the arrest in his testimony without
objection. Moreover, the remark about the photograph was immedi-
ately stricken from the record without Government objection. Accord-
ingly, we find this challenge is also without merit.

Lin next contends that certain questions and remarks by the prose-
cutor deprived him of a fair trial. We find this contention meritless
because the records show the questions at issue were objected to at
trial and never answered by the witness. Moreover, the prosecutor's
subsequent comment merely indicated that he would pursue a differ-
ent line of questioning. As there is no indication that Lin suffered any
prejudice whatsoever, we find this contention without merit.

Lin also maintains that the testimony of the security officer of a
cellular telephone company constituted improper expert testimony.
We review the trial court's ruling to admit the testimony for abuse of
discretion. United States v. Boyd, 53 F.3d 631, 636 (4th Cir.), cert.
denied, 116 S. Ct. 322 (1995). We are satisfied that no abuse of dis-
cretion occurred here because the security officer merely discussed
how cellular telephones may be cloned and did not offer an expert
opinion or conclusion. Moreover, prior witness testimony had already
established that the account in question had been compromised. We
therefore reject this contention.

Lin claims that the court should have granted him a reduction of
his base offense level pursuant to U.S. Sentencing Guidelines Manual
§ 3B1.2 because his role in the kidnapping was minor or minimal.
This court has held that the defendant bears the burden of showing
that he is entitled to a reduction in his base offense level. United
States v. Campbell, 935 F.2d 39, 46 (4th Cir. 1991); United States v.
Sharp, 927 F.2d 170, 176 (4th Cir. 1991); United States v. Urrego-
Linares, 879 F.2d 1234, 1239 (4th Cir. 1989). The district court's fac-
tual determination concerning Lin's role in the offense should only be
reversed if it was clearly erroneous. Campbell , 935 F.2d at 46; Sharp,
927 F.2d at 175-76; United States v. Daughtrey , 874 F.2d 213, 219
(4th Cir. 1989).

Lin's claim lacks merit because Lin failed to show he was entitled
to such a reduction and the evidence amply supported the court's
decision. The court noted that while Lin's role involved collecting the

                    6
ransom from Cheung, there was also evidence of phone calls to Lin
ahead of time which appeared, by the evidence, to involve discussions
about how the ransom was to be delivered. The judge also observed
that Lin was very familiar with the restaurant where the ransom was
delivered and worked upstairs.

The judge further noted that evidence of a $5000 payment by Lin
to an insurance company the day after the ransom was delivered
showed he benefitted financially from the offense. Additionally, the
judge thought it very significant that Lin was so trusted by the ring-
leader that he was permitted to receive the ransom payment. (J.A.
548-49). In light of these findings, the district court's refusal to grant
a downward adjustment was not clearly erroneous.

Finally, Lin maintains that the district court should have granted
him a downward departure because of his nationality and because he
cannot speak English. A court's refusal to grant a downward depar-
ture is not subject to appellate review unless the court refused to
depart based upon the erroneous belief that it did not have authority
to do so. United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990).
As that exception does not apply here, this final contention is without
merit. See also U.S. Sentencing Guidelines Manual § 5H1.10
(national origin is not relevant to determination of sentence).

Accordingly, we affirm You's conviction and Lin's convictions
and sentences. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

                     7
