                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-5138


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

EDNA GORHAM BEY, a/k/a Ghyllian Bell, a/k/a Edna Gorham,
a/k/a Edna Rosser-El, a/k/a Jateyah Ali, a/k/a Edna Bey,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Roger W. Titus, District Judge.
(8:06-cr-00260-RWT-1)


Argued:   March 23, 2010                  Decided:   April 14, 2010


Before DUNCAN and DAVIS, Circuit Judges, and Joseph R. GOODWIN,
Chief United States District Judge for the Southern District of
West Virginia, sitting by designation.


Affirmed by unpublished opinion.    Chief District Judge Goodwin
wrote the opinion, in which Judge Duncan and Judge Davis joined.


ARGUED: Michael Alan Wein, Greenbelt, Maryland, for Appellant.
Mara B. Zusman, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.    ON BRIEF: Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GOODWIN, Chief District Judge:

     Edna      Gorham     Bey    was    convicted   on   fifteen     counts   in    the

District of Maryland for her role in a fraud scheme.                       On appeal,

Gorham Bey maintains that her convictions should be reversed and

that she is entitled to a new trial because of alleged errors by

the district court.             As explained below, we reject Gorham Bey’s

challenges and affirm.



                                           I.

        In 2001 and 2002, Gorham Bey and her husband, David Rosser-

El, conspired to, and did, engage in an extensive fraud scheme.

Their    scheme      involved     purchasing       legitimate     money    orders    at

various post offices, digitally copying the money orders, and

then printing and negotiating the copies at banks and elsewhere.

Through their counterfeit enterprise, Gorham Bey and Rosser-El

obtained approximately $400,000.

     On       June   7,   2006,     a    federal    grand    jury    in    Greenbelt,

Maryland, indicted Gorham Bey and Rosser-El on fifteen counts.

The indictment charged one conspiracy count, in violation of 18

U.S.C.    §    371   (“Count      One”);    five    counts   of     bank   fraud,   in

violation of 18 U.S.C. § 1344 (“Counts Two through Six”); seven

counts of uttering counterfeit money orders, in violation of 18

U.S.C. § 500 (“Counts Seven through Thirteen”); one count of

possessing false identification documents, in violation of 18

                                            2
U.S.C.   §§       1028(a)(3)      and    (c)(3)       (“Count      Fourteen”);       and   one

count of possessing an implement for making false identification

documents, in violation of 18 U.S.C. § 1028(a)(5) and (c)(3)

(“Count Fifteen”).               Other than the conspiracy charge in Count

One, all of the charges against Gorham Bey were based on her

role as an aider and abettor.

       The grand jury issued a superseding indictment on June 11,

2007, asserting the same counts against Gorham Bey and Rosser-

El.      On       July   30,     2007,    the       grand   jury    returned     a    second

superseding indictment.                 The second superseding indictment was

identical to the first superseding indictment, except that it

named Gorham Bey only.             Rosser-El entered a guilty plea the next

day.

       Gorham Bey pled not guilty, and her trial started on August

21, 2007.          Nine days later, a jury returned a guilty verdict

against Gorham Bey on all counts.

       The district court sentenced Gorham Bey to concurrent terms

of 60 months’ imprisonment for each of Counts One and Seven

through Thirteen, and 96 months’ imprisonment for each of Counts

Two    through       Six,      Fourteen,    and       Fifteen.        Gorham     Bey       also

received      a    total    of    five   years’       supervised      release,       and    the

court ordered Gorham Bey to pay $225,141.00 restitution and a

special assessment of $1500.               Gorham Bey timely appealed.



                                                3
      We    possess     subject   matter       jurisdiction    pursuant      to   18

U.S.C. § 3742 and 28 U.S.C. § 1291.



                                        II.

      On appeal, Gorham Bey argues that her convictions must be

reversed and that she is entitled to a new trial for three

reasons.       First, she asserts that the district court erred in

preventing her from presenting to the jury evidence that Rosser-

El    abused     her.        Second,     she     contends     that    the      court

impermissibly denied her request for a continuance.                   And, third,

Gorham     Bey   maintains    that     the    court   erroneously     refused     to

instruct the jury on the definition of “reasonable doubt.”                        We

address each contention in turn.

                                         A.

      First, Gorham Bey asserts that the district court erred in

preventing her from presenting evidence that she was abused by

Rosser-El, and that this ruling impermissibly prevented her from

making two arguments to the jury.               First, Gorham Bey wanted to

present evidence of abuse to support a duress defense.                      Second,

she   wanted     to     present   evidence       of   abuse   to     support      her

contention that she did not know the money orders that she and

Rosser-El had negotiated were fraudulent.

      “As a general proposition a defendant is entitled to an

instruction as to any recognized defense for which there exists

                                         4
evidence sufficient for a reasonable jury to find in his favor.”

Mathews v. United States, 485 U.S. 58, 63 (1988).                       “A district

court's refusal to instruct the jury on such a defense presents

a question of law that we review de novo.”                       United States v.

Ricks, 573 F.3d 198, 200 (4th Cir. 2009).

       We will first address Gorham Bey’s assertion that she was

improperly denied the opportunity to present a duress defense.

Then we will discuss her contention that the court prevented her

from   presenting     evidence    that       supported     her    claim    that       she

lacked the requisite mens rea to commit these offenses.

                                      1.

                                      a.

       On   Monday,   August   21,   2007,     the   day     Gorham     Bey’s   trial

started, the district court heard argument on several pretrial

motions, one of which was a motion in limine by the prosecution.

That    motion   sought   to     prevent      Gorham     Bey     from   introducing

evidence that would support a duress defense.

       After hearing the prosecution’s argument in support of its

motion, the court asked Gorham Bey, “Tell me exactly what you[r]

proffer would be [—] the evidence that you would offer to this

jury that you believe would entitle you to an instruction on

duress or coercion.”           J.A. 196.        “[W]hat we would proffer,”

defense     counsel   explained,     “is      that     Mr.     Rosser-El    .     .    .

regularly used . . . very controlling tactics with Ms. Bey; was

                                         5
verbally abusive at times; physically abusive of her; and there

was occasion when he would — he was physically abusive of her.”

Id. at 199.      “[T]he motivation in the abuse was to get her to

continue to engage in this activity.”                 Id.     Defense counsel

explained that Rosser-El had accompanied Gorham Bey on several

occasions to the post offices where she purchased legitimate

money orders as well as to the banks where she negotiated the

fraudulent money orders.           Counsel further stated that there had

been times that the couple’s twelve-year-old daughter would be

with Rosser-El when Gorham Bey was purchasing the money orders,

and   that   Gorham    Bey   was   concerned   that     Rosser-El    might    harm

their    daughter     if     Gorham   Bey   did   not    do   what    Rosser-El

instructed.

      Additionally, even if the court precluded Gorham Bey from

“present[ing] evidence on the duress defense or argu[ing] in

opening statements or closing argument about a duress defense,”

defense counsel requested that the court “allow [the defense]

nonetheless to introduce evidence regarding abuse.”                   J.A. 202-

03.     Counsel expressed that such evidence was also relevant to

the separate issue of “knowledge and good faith.”              Id. at 203.

      The    court    granted   the   prosecution’s      motion.     The     court

explained that Gorham Bey had proffered insufficient evidence to

support a duress defense.          But, if Gorham Bey could “develop the

evidence,” the court was willing to reconsider its ruling.                   J.A.

                                        6
204.     Therefore,    the   court   “preclude[ed]   any   reference   to

[duress] as a defense in the opening statement.”         Id.

                                     b.

       Duress is a justification defense.         As the Supreme Court

has explained,

       [l]ike the defense of necessity, the defense of duress
       does not negate a defendant’s criminal state of mind
       when the applicable offense requires a defendant to
       have acted knowingly or willfully; instead, it allows
       the defendant to avoid liability because coercive
       conditions or necessity negates a conclusion of guilt
       even though the necessary mens rea was present.

Dixon v. United States, 548 U.S. 1, 7 (2006) (internal quotation

marks and ellipses omitted).

       A criminal defendant seeking to assert a duress defense

faces a high bar.     To establish a duress defense:

       The defendant must produce evidence which would allow
       the factfinder to conclude that [she]:

           (1)   was under unlawful and present threat
           of death or serious bodily injury;
           (2) did not recklessly place [herself] in a
           situation where [she] would be forced to
           engage in criminal conduct;
           (3) had no reasonable legal alternative (to
           both the criminal act and the avoidance of
           the threatened harm); and
           (4)   a direct causal relationship between
           the criminal action and the avoidance of the
           threatened harm.

Ricks,   573   F.3d   at   202   (internal   quotation   marks   omitted).

Indeed, only once have we recognized that a defendant satisfied




                                     7
this   stringent      standard      and    was    entitled     to    a    justification

instruction.

       In   Ricks,    the    defendant,      James       Ricks,     was   convicted       of

being a felon in possession of a firearm, in contravention of 18

U.S.C. § 922(g)(1).              Ricks, a felon, had shared an apartment

with his partner, Clarence Blue.                 One evening, Blue returned to

the apartment after having been gone for several days and was

“acting erratically.”            Ricks, 573 F.3d at 199.              After observing

that Blue had a gun in his hand, Ricks ran up to Blue, held him

to the wall, and knocked the gun out of his hand.                            Ricks then

recovered the weapon, ejected the ammunition clip, and threw the

pistol      and   clip      in   different       directions.          Blue      fled    the

apartment.        Ricks retrieved the pistol and clip and placed them

in different parts of the apartment.                    Blue later returned to the

apartment, accompanied by two police officers.                            The officers

asked Ricks whether there was a gun in the house, and Ricks

acknowledged        that    there   was.        After    he   admitted     to    a     prior

felony conviction, the officers arrested Ricks.

       At Ricks’s trial, the district court denied his request to

instruct the jury on a justification defense, because the court

believed that such a defense was not recognized in this circuit.

On appeal, Ricks argued that the defense was recognized, and

that he was entitled to have a justification instruction given

to   the    jury.      We    agreed   with      Ricks,    explaining       that      “[f]or

                                            8
purposes of determining the propriety of a jury instruction on

justification,     we    need    only   see       whether      there    is   sufficient

evidence for a jury to conclude that the defendant’s actions

were reasonable.”        Ricks, 573 F.3d at 204.                  Concluding that a

reasonable factfinder could have found that Ricks’s possession

of the firearm was justified, we reversed his conviction.

      Unlike Ricks, however, Gorham Bey has failed to show that a

reasonable    juror     could    have   found       that    she   was    justified   in

committing any of the charged offenses.                    Gorham Bey’s proffer to

the district court was limited.                 Her lawyer offered that Rosser-

El employed “very controlling tactics,” comprised of physical

and verbal abuse, as well as general statements regarding Gorham

Bey’s fears of suffering “serious bodily injury” by Rosser-El’s

hand.     J.A. 199.      This fails to show either “a direct causal

relationship between the criminal action and the avoidance of

the   threatened   harm,”       or   that       Gorham   Bey    had    no    “reasonable

legal alternative” to her criminal acts.                   Ricks, 573 F.3d at 202

(internal quotation marks omitted).                 As such, the court properly

denied Gorham Bey’s request to present evidence on that defense

to the jury.

                                        2.

        Next, Gorham Bey argues that the district court erred in

preventing her from arguing that Rosser-El’s abuse caused her to

lack “knowledge about the counterfeit nature of the money orders

                                            9
at the time they were illegally used.”           Br. of Appellant 40.

Evidence of abuse, according to Gorham Bey, would have revealed

to the jury “why she would just act without knowledge or act

without asking the true nature of the transaction.”          J.A. 567.

                                   a.

     During   his   opening   statement   to   the   jury,   Gorham   Bey’s

lawyer stated,

     Now, the question that you will be asked to decide
     ultimately in this case will be, did Edna Gorham Bey
     willfully join this criminal enterprise? Did she know
     the counterfeit nature of the money orders, or was she
     fooled?   Ladies and gentlemen, although Edna Gorham
     Bey is married to David Rosser-El, and although she is
     the mother of his daughter, the fact is that in that
     relationship   there    was   a    very   controlling,
     manipulative effort by Mr. Rosser-El to hide certain
     things from her and to make certain things secret; and
     there was also a more sinister side to their
     relationship, because part of that relationship also
     involved Mr. Rosser-El being abusive. He was verbally
     abusive. He was emotionally abusive.

J.A. 270.     At that point, the prosecution objected, and the

court ordered the parties to the bench.              The court had the

following colloquy with defense counsel:

     [Defense counsel]:  I’m not arguing a duress defense.
     I think it’s part and parcel to their relationship. I
     can avoid, you know, going into some areas of the
     relationship.

     THE COURT:    I’m not sure I understand your opening
     statement, but I assume what you’re trying to say is
     she didn’t know.

     [Defense Counsel]:   What I’m going to say is she did
     things blindly and just followed his direction.


                                   10
     THE COURT:    I think you’re going too far with this
     question of manipulation or abuse.

     [Defense Counsel]:    That helps explain why she did
     things blindly or without question.

     THE COURT:    I sustain the government’s objection.

J.A. 271.

     Defense counsel continued his opening statement.       He said

to the jury,

     Ladies and Gentlemen, Edna Gorham Bey blindly followed
     her husband’s wishes and blindly took his direction
     and did what she, as his wife, was supposed to do.
     She purchased the money orders; she cashed money
     orders and made transactions and deposits at banks
     with money orders, and there is going to be no dispute
     really . . . as to what she did. The big question is,
     why she did it and did she know of the sinister nature
     of the scheme that Mr. Rosser-El had masterminded.
     That is going to be the ultimate question in this
     trial for you to answer.

J.A. 271-72.

     Several days later, prior to the fifth day of trial, the

prosecution filed a supplemental motion in limine, seeking “to

preclude any further testimony and argument about Rosser-El’s

alleged abuse, because such evidence bears no relationship to

the issue of intent.”    J.A. 504.    Although the court granted the

motion, it nevertheless explained that while Gorham Bey could

not present evidence of abuse to show duress, she could present

evidence of abuse to negate knowledge.       The court explained to

defense counsel,



                                 11
       [I]f you intend to present testimony that [Gorham Bey]
       was simply unaware and it had been represented to her
       by her husband at all time or Mr. Rosser that [the
       money orders] were genuine, that’s for the jury to
       make that decision. I won’t preclude that. But just
       the fact that [Rosser-El]’s a very persuasive fellow
       isn’t going to constitute admissible testimony.

Id. at 579.      The court continued, “If you want to put this on

the ‘knowledge’ prong as opposed to the ‘intent’ prong, I can’t

stop you from doing that.      It may not be credible with the jury,

but that’s for them to decide, not me.”           Id. at 580.

                                    b.

       Gorham Bey argues that the district court precluded her

from presenting evidence that Rosser-El abused her — evidence

relevant to whether she knew that the money orders she helped

negotiate were fraudulent.         She maintains that the court thus

erred, because, from this evidence, a reasonable juror could

have concluded that Gorham Bey was not a knowing participant in

the offenses charged.

       Gorham   Bey’s   argument   is    simply    inconsistent   with   the

record.    While the district court refused to allow Gorham Bey to

present a duress defense, the court explicitly permitted her to

present to the jury any evidence she believed negated her mens

rea.      We thus reject Gorham Bey’s contention that the court

intruded upon her right to present a lack of knowledge defense.




                                    12
                                          B.

       Second, Gorham Bey argues that the district court violated

her Sixth Amendment rights when it did not grant her request for

a continuance.      We disagree.

                                          1.

       Gorham Bey and Rosser-El were indicted together, and, after

the district court denied a motion to sever by Gorham Bey, it

was evident that they would be tried together.                          On July 31,

2007, however, Rosser-El pled guilty.

       Sixteen days later, on Thursday, August 16, 2007, Gorham

Bey’s    trial   counsel      purportedly       first   learned    that     Rosser-El

might    be    willing   to    testify     on    Gorham    Bey’s    behalf.        The

following      Monday,   August    20,    counsel       decided    that    he   wanted

Rosser-El to testify, and he began discussions with the United

States    Marshal   to   have     Rosser-El       transported      to   Maryland    to

appear.       That same day, the court conducted a pretrial motions

hearing, impaneled a jury, and commenced Gorham Bey’s trial.

       On Thursday, August 23, apparently unable to secure Rosser-

El’s    presence    on   his    own,     Gorham    Bey’s    lawyer      requested    a

continuance and petitioned the court for a writ of habeas corpus

ad testificandum to compel Rosser-El’s presence.                          Recognizing

the complications underscoring Gorham Bey’s request, the court

stated,



                                          13
        It was not until a couple of days into this trial that
        any request was made for this court to issue a writ to
        try to get [Rosser-El] back here.     I am advised by
        [the United States Marshal] that Mr. Rosser is in
        Oklahoma, that the department is obligated to return
        him to Virginia under the arrangements that have been
        made to secure his presence here for his guilty plea;
        that if we were to pull out every stop we could pull
        out to get him here, the earliest that Mr. Rosser
        could be produced in this court may be Wednesday,
        September 5th.

J.A.    560-61.        The   court    explained    further,   “[I]f       I    am   to

accommodate the defense’s request, that means that this case

cannot end this week; it means this jury has to be brought back

next week; and it’s going to be a very, very unhappy jury.                      This

kind of request should have been made a lot earlier.”                         Id. at

561.

       The district court asked defense counsel, “[W]hat do you

proffer [Rosser-El’s] testimony would show?                   I mean, is this

going to be the question of duress and coercion?”                     J.A. 562.

Defense counsel responded, “No, Your Honor.                I think it would be

along    the   lines    .    .   .   of   what   was   represented   in       opening

statement in terms of Ms. Gorham Bey’s lack of knowledge of the

counterfeit nature of the money orders.”               Id. at 563.

       The district court denied Gorham Bey’s continuance request.

The court explained that the case had been set for trial “for

quite some time,” and that “[e]fforts to secure [Rosser-El’s]

testimony should have been made a long time ago.”               J.A. 563-64.



                                          14
                                          2.
     A    district     court’s     refusal       to   grant   a    continuance   is

generally reviewed for an abuse of discretion.                    United States v.

Williams, 445 F.3d 724, 739 (4th Cir. 2006).                      A district court

“abuses its discretion in not halting proceedings to allow the

defendant to secure a witness when the witness appears to be

prepared to give exculpatory testimony and the defendant has

made reasonable efforts to secure the witness’s presence before

trial.”     United States v. Jackson, 757 F.2d 1486, 1492 (4th Cir.

1985).

     Gorham     Bey     contends    that       the     court’s     denial   of   her

continuance    request    violated     the     Confrontation        and   Compulsory

Process Clauses of the Sixth Amendment.                  In pertinent part, the

Sixth    Amendment    provides,     “In    all    criminal       prosecutions,   the

accused shall enjoy the right . . . to be confronted with the

witnesses    against     him   [and]      to   have     compulsory    process    for

obtaining witnesses in his favor.”                U.S. CONST. amend. VI.         The

denial of a continuance may violate the Sixth Amendment, but

only if the denial was “an unreasoning and arbitrary insistence

upon expeditiousness in the face of a justifiable request for

delay.”     Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (internal

quotation marks omitted).

     The     district     court’s      ruling         contravened     neither    the

Confrontation Clause nor the Compulsory Process Clause.                          The


                                          15
Confrontation Clause gives an accused the right to confront a

witness who has testified against her.                 Here, Gorham Bey has not

explained    how   Rosser-El     could         be    classified      as    a   “witness

against” her.      Indeed, she has not identified any testimony by

Rosser-El    whatsoever.        As       such,      Gorham   Bey’s    confrontation

rights were simply not implicated in this case.

     Likewise, Gorham Bey’s rights under the Compulsory Process

Clause were unaffected by the district court’s decision.                             That

Clause guarantees an accused’s right to call witnesses “in his

favor.”     U.S. CONST. amend. VI.         A unique situation is presented,

however, when the sought-after witness is in prison.                           Federal

law authorizes district court judges to compel the presence of

federal prisoners to testify through a writ of habeas corpus ad

testificandum.     28 U.S.C. § 2241(c)(5).              The decision of whether

to issue a writ is one that lies within the discretion of the

district court.     Jackson, 757 F.2d at 1492.

     The     timeliness    of        a    defendant’s        writ         petition     is

significant.    We have held that when

     the defendant fails to petition for [a writ of habeas
     corpus ad testificandum] until after the beginning of
     trial, the trial judge has discretion in ruling on the
     petition comparable to his discretion in ruling on a
     motion for a continuance to secure a witness during
     trial, for the effect and purpose of the petition is
     the same as the motion for continuance. The defendant
     is not entitled to special consideration by the
     fortuity that the witness he seeks to secure is in
     custody.


                                          16
Id.     Simply put, the longer a defendant waits to petition the

court for a writ, the greater the risk her request will be

refused.     This is particularly true when, as here, the defendant

puts off asking for a writ until the trial has already started.

       Several factors should be considered in determining whether

a     district     court   has     abused        its     discretion     in     denying     a

continuance request by a defendant seeking to obtain a witness’s

presence at trial.             Among those factors are “who the witnesses

are, what their testimony will be, that it will be relevant

under the issues in the case and competent, that the witnesses

can probably be obtained if the continuance is granted, and that

due diligence has been used to obtain their attendance for the

trial as set.”          United States v. Clinger, 681 F.2d 221, 223 (4th

Cir. 1982) (internal quotation marks and alterations omitted).

       Gorham      Bey’s    challenge       falls        short   on    the      diligence

inquiry.     Gorham Bey argues, and we agree, that she cannot be

faulted for not petitioning the district court for a writ or

seeking a continuance before Rosser-El pled guilty.                          Before that

time,    Rosser-El       and    Gorham   Bey       were     codefendants        whom     the

district court had ruled would be tried together.

       Gorham Bey is at fault, however, for failing to act after

Rosser-El        pled   guilty.      From         that     point,     Gorham    Bey      had

approximately three weeks before the trial started to seek a

writ or move for a continuance.                        Indeed, the district court

                                            17
conducted an extensive motions hearing on the morning of the

first day of trial.                Rather than seeking a continuance then,

however, Gorham Bey waited until August 23 — four days into the

trial — to ask the court for a continuance.                            Gorham Bey’s trial

counsel failed to diligently seek Rosser-El’s attendance as a

trial witness.               The district court therefore acted within its

discretion in denying the motion to continue.

                                               C.

       Finally, Gorham Bey argues that the district court erred

when    it   did        not     instruct      the     jury      on    the   definition       of

“reasonable doubt” after defense counsel requested that it do

so.     A district court’s refusal to give a party’s requested jury

instruction        is    reviewed       for   an    abuse      of    discretion.        United

States v. Patterson, 150 F.3d 382, 389 (4th Cir. 1998).

       Although some of our sister circuits have held otherwise,

we have “consistently and vigorously condemned the attempts of

trial     courts        to     define    reasonable          doubt,”     unless       such   an

instruction is requested by the jury.                          United States v. Reives,

15 F.3d 42, 45 (4th Cir. 1994).                     And even if the jury requests a

reasonable-doubt instruction, “the final decision of whether to

acquiesce to a jury’s request and define reasonable doubt” is

left    to   the    district       court’s         discretion.         United     States     v.

Walton,      207        F.3d     694,    699       (4th     Cir.      2000)     (en     banc).

Consequently,           Gorham    Bey     asks      us    to    overrule      decisions      by

                                               18
previous panels, something only the en banc court of appeals or

the Supreme Court of the United States may do.           See United

States v. Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987).           We

decline   this   invitation.   Under   controlling   precedent,   the

district court was not required to define “reasonable doubt,”

and we find no error.



                               III.

     For the reasons explained above, we affirm the judgment of

the district court.

                                                            AFFIRMED




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