
USCA1 Opinion

	




          July 18, 1996         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1123                                    UNITED STATES,                                      Appellee,                                          v.                             MOJISOLA A. BIODUN ADEKOYA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Robert M. Greenspan, for appellant.            ___________________            Paula J.  DeGiacomo, Assistant United  States Attorney, with  whom            ___________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                 ____________________                      Per  Curiam.   Defendant-appellant  Mojisola Biodun                      ___________            Adekoya,  a Nigerian woman  traveling from Nigeria  by way of            Switzerland  to  the United  States,  was  arrested at  Logan            Airport  in  Boston  on  October  10,  1993  after  a customs            inspection of  her baggage revealed two  kilograms of heroin.            Following  a  three-day  jury  trial, she  was  convicted  of            importation  and   possession  of   heroin  with   intent  to            distribute, in violation of 21 U.S.C.    952(a) and 841(a)(1)            and  18 U.S.C.     2.   Adekoya  challenges her  convictions,            claiming   the   district   court   inadequately   questioned            prospective jurors about possible race- and nationality-based            bias,  denied  her  the  right   to  be  present  during  the            questioning  of   certain  jurors,   and  failed   to  define            "reasonable doubt" in the instructions  to the jury.  Finding            that the court did not commit reversible error, we affirm.                      Adekoya argues that the district court  should have            included  among  the  questions   it  asked  the  venire  the            following question proposed by  defense counsel:  whether any            prospective  juror  had  "any   fixed  opinions,  biases   or            prejudices about Black people which would affect your ability            to render a  fair and  impartial verdict in  this case  based            solely  on the  law  and evidence  in  this case?"    Defense            counsel suggested  this question  in writing along  with more            than  twenty others  on  the day  trial commenced,  but never            thereafter requested that  the court ask  it, even after  the                                         -2-                                          2            court had questioned the jurors more generally about possible            bias.1    Nor  did  the  defendant  raise  the  argument  she            advances  now,  that,  had  her  race-specific  question been            asked, other  questions might have followed  which would have            allowed her to probe bias stemming from the fact that she was            a Nigerian national  -- a  fact that, rather  than her  race,            forms the  basis for  her argument on  appeal.    Such  bias,            defendant  says,  could  have  stemmed  from  panel  members'            awareness of  a few court  opinions, unrelated to  this case,            which refer to  Nigeria as  a drug source  country.   Because            defendant  did  not properly  preserve  an  objection to  the            district court's questioning, we review for plain error only.            See United States v. Olano, 507 U.S. 725, 732 (1993).            ___ _____________    _____                      Generally,   a   trial   court   has   considerable            discretion  in conducting voir dire and  "need not pursue any            specific line of questioning  . . . provided it  is probative            on the issue of  impartiality."  United States v.  Brown, 938                                             _____________     _____            F.2d  1482,  1485  (1st Cir.),  cert.  denied,  502  U.S. 992                                            _____________            (1991); see also Fed.R.Crim.P. 24(a) (a court conducting voir                    ________                                            ____________________            1.   The district court asked the venire in open court:                      Are any of  you sensible of  any bias or  prejudice                      whatsoever with respect  to this case?   When I say                      are you sensible of it I mean are you aware of any,                      do you know of any?  Do you know of  any reason why                      you  do not stand indifferent in this case?  When I                      say stand indifferent, I'm trying to search out any                      feelings  about these people  or me, because you've                      met us, feelings about the criminal justice system,                      feelings about these particular charges.                                         -3-                                          3            dire  shall  permit  the   defendant  or  the  attorneys  "to            supplement  the examination  by  such further  inquiry as  it                                                                   ______            deems proper or shall itself submit to the prospective jurors            ____________            such additional  questions by the parties  or their attorneys            as it  deems proper[]") (emphasis supplied); Rosales-Lopez v.            ___________________                          _____________            United States, 451 U.S. 182, 189 (1981) (plurality)  (as voir            _____________            dire  examinations   "rely  largely   on  .  .   .  immediate            perceptions,   federal  judges   have  been   accorded  ample            discretion  in  determining  how  best to  conduct  the  voir                                                                     ____            dire[]").            ____                      When the circumstances  of the trial  indicate that            racial  or  ethnic  prejudice   is  likely,  however,  it  is            advisable for the court to question jurors on such bias.  See                                                                      ___            Brown,  938 F.2d at 1485  (citing Ristaino v.  Ross, 424 U.S.            _____                             ________     ____            589, 597  n.9 (1976)).   The federal Constitution  requires a            specific  inquiry into  racial  bias when  racial issues  are            "'inextricably  bound up with  the conduct of  the trial'" or            "substantial indications  of  the  likelihood  of  racial  or            ethnic prejudice affecting the jurors" are present.  Rosales-                                                                 ________            Lopez, 451  U.S. at  189-190 (quoting Ristaino,  424 U.S.  at            _____                                 ________            596).  Apart from constitutional considerations, an appellate            court, in the exercise of its supervisory authority over  the            federal courts, should find reversible error if a lower court            does not  acquiesce in a  defendant's request for  a specific            inquiry  into   racial  bias  and  there   is  a  "reasonable                                         -4-                                          4            possibility  that  racial  or  ethnic  prejudice  might  have            influenced the jury."  Id. at 191.                                   ___                      After examining  the record, we  discern no  error,            let alone plain error, in the district court's failure to ask            the  question submitted by counsel or to frame a question sua            sponte  going   to  Nigerian  nationality.     To  prove  the            importation charge, the government had to show that defendant            traveled  to the  United  States from  Nigeria; her  Nigerian            passport  and airline ticket  were accordingly  introduced as            evidence.  The bulk  of the government's case,  however, came            from U.S. Customs and Immigration employees, who testified to            the  suspicious circumstances  (independent of  her passport)            that led to their  further inspection of her luggage;  from a            forensic  chemist with  the Drug  Enforcement Administration,            who  testified  to  the   nature  of  the  seized  controlled            substance and the  chain of  custody; and from  a person  who            lived at  the Chelsea, Massachusetts  address that  defendant            named  as her  relative's home  and her own  destination, who            testified  that  she did  not know  the defendant.   Adekoya,            testifying  in her  own  defense (in  English), made  several            references  to Nigeria,2 but also stated that she had been in                                            ____________________            2.   For example,  she stated that  her roundtrip ticket  had            been purchased by  a relative  in Nigeria; she  had made  the            trip  to prepare with family  for her engagement  to a fiance            who  remained  in  the  Washington  D.C.  area  for  lack  of            traveling  papers; her  family  had packed  her bags  for the            return  trip to the United  States; and she  had required new            luggage for the return  trip because her bags were  lost when                                         -5-                                          5            the United States since  1980 (except for a few  trips home),            and most recently lived  in Maryland and worked as  a nursing            assistant and  homemaker.   Her defense was  essentially that            she  did  not pack  her  own bags,  that  her anxiety  at the            airport was due to medications and coffee, and that there was            some  doubt as to whether the  authorities had mishandled the            substance that tested positive for heroin.                       Nothing causes this case to fall within the limited            category  of cases  in  which a  specific inquiry  concerning            racial bias is constitutionally  required.  See, e.g., Brown,                                                        _________  _____            938 F.2d at  1485 (unlike cases involving a  racially charged            defense  or  jury deliberations  that  are  unique or  highly            subjective,  no   specific  inquiry  into  racial   bias  was            constitutionally  required  where   defendant  charged   with            altering  notes was  a  young black  male and  all government            witnesses  and  jurors were  white).    The circumstances  at            trial,  including  the  evidence  pertaining  to  defendant's            nationality, do not  indicate "a reasonable  possibility that            racial or  ethnic prejudice might have  influenced the jury."            Rosales-Lopez, 451 U.S.  at 191.  While some  references were            _____________            made to defendant's  home country and culture,  more would be            needed to  create a  "reasonable possibility" on  these facts                                            ____________________            she  arrived  in  Nigeria  and  encountered  turmoil  at  the            airport.    Adekoya  also  attempted to  correct  a  possible            inconsistency in  her statements about whom  she was visiting            in Chelsea by saying that in Nigeria, a "cousin" is sometimes            called a "sister."                                         -6-                                          6            that the jury was influenced by prejudice.  See, e.g., id. at                                                        _________  ___            192-194 (interracial crime satisfies  "reasonable possibility            standard," but racial or ethnic difference between  defendant            and key government witness did not); United States v.  Kyles,                                                 _____________     _____            40  F.3d 519, 525 (2d Cir. 1994) (though cases of interracial            violence  generally require  a specific  inquiry into  racial            bias, circumstances  of armed  robbery "did  not rise to  the            level of violence that would likely ignite a jury's potential            prejudices[]"), cert.  denied, 115 S. Ct. 1419 (1995).  There                            _____________            is nothing to support  defendant's contention that the jurors            were  likely to  be  aware of  cases  that have  referred  to            Nigeria  as  a drug  source country.    See United  States v.                                                    ___ ______________            Okoronkwo,  46 F.3d  426, 434  (5th Cir.)  (rejecting similar            _________            assertion that local public  bias against Nigerians warranted            a specific inquiry into nationality-based bias where Nigerian            defendants were charged with conspiracy to commit tax fraud),            cert.  denied,  116 S.  Ct.  107 (1995)  and 116  S.  Ct. 958            _____________                            ___            (1996).    The  prosecution  did  not  highlight  defendant's            national origin, referring to  it no more than  in connection            with the  charge  of  importation.    Nor  was  the  evidence            presented by either  side the type that  created a reasonable            possibility that race-  or nationality-based prejudice  might                                         -7-                                          7            have influenced the  jury.3  A  more specific inquiry  during            voir dire was not required.                      Defendant also  asserts that her  rights under  the            Fifth and  Sixth Amendment  and under Fed.R.Crim.P.  434 were            violated when she  was allegedly not permitted  to be present            at  sidebar   for  the  court's  individual   questioning  of            prospective jurors.   The sidebar was held after the district            judge posed several questions to the venire in open court and            stated that  any  juror answering  a  question  affirmatively            should  line up  to meet  with him.   The court  also invited            counsel  to the  bench.   Defense  counsel then  asked, "Your            Honor,  do you  want the  defendant present?",  to which  the            court  responded, "I don't think it's necessary.  It's all on            the record."   At no point  did the defendant or  her counsel            tell  the  court  that   the  defendant  actually  wanted  to            participate  at sidebar or object  to the procedure the judge            announced in  open  court that  he would  follow.   Defendant                                            ____________________            3.   Cf. United States v.  Alzanki, 54 F.3d 994, 1007 &  n.14                 ___ _____________     _______            (1st  Cir.  1995) (noting  approvingly  the district  court's            careful inquiry into ethnic- or nationality-based bias during            jury impanelment in an  involuntary servitude case where jury            heard  evidence of repressive  Kuwaiti customs  and practices            toward  domestic  workers),  cert.  denied, 116  S.  Ct.  909                                         _____________            (1996).            4.   Rule 43 provides:                      (a)  Presence  Required.   The  defendant  shall be                      present  at the  arraignment,  at the  time of  the                      plea,  at every  stage of  the trial  including the                      impaneling  of  the  jury  and the  return  of  the                      verdict, and at the imposition of sentence,  except                      as otherwise provided by this rule.                                         -8-                                          8            remained in the courtroom throughout the questioning, but was            apparently unable to see  or hear the jurors at  the sidebar.            Following   the  questioning,5   removals   for  cause,   and            peremptory   strikes,  only   two  venire  members   who  had            approached the bench  became actual  jurors.  At  the end  of            jury selection,  in response to the  court's inquiry, defense            counsel stated, "The panel is acceptable to the defense, Your            Honor."                      Because  defendant's  claim   may  be  resolved  on            statutory  grounds, we  need  not discuss  her constitutional            arguments.6     Federal  Rule  of  Criminal  Procedure  43(a)            provides that  a defendant's  presence is required  "at every            stage of the trial including the impaneling of the jury . . .            ."    Assuming a  sidebar conference  during  voir dire  is a            "stage of  the proceeding"  at which defendant's  presence is            required,  cf. United  States v.  Gagnon, 470  U.S.  522, 527                       ___ ______________     ______            (1985) (assuming  arguendo that defendants had  a right under            Rule  43 to  be present  at court's  conference with  a juror            about his continuing impartiality),  a strong argument can be                                            ____________________            5.    The questions  centered  around  whether a  prospective            juror  was inclined  to favor  or disfavor  testimony by  law            enforcement  officers and whether she or he could be fair and            impartial.            6.   Defendant's right under  Rule 43 to be present  at trial            proceedings  is broader than  the constitutional right alone.            See United  States v. Gagnon,  470 U.S. 522,  526-527 (1985);            ___ ______________    ______            United States v. Gordon,  829 F.2d 119, 123 (D.C.  Cir. 1987)            _____________    ______            (citing circuit cases).                                         -9-                                          9            made that she waived her right to be present,  though we need            not  decide  the  issue,  see  infra.    The  district  court                                      ___  _____            announced  in open  court, in  defendant's presence,  that it            would question individually  the venire members  who answered            "yes"  to any  of  the general  questions.   In  response  to            counsel's query  whether the  court "want[ed]"  the defendant            present, the court said it did not think defendant's presence            was necessary, but in no way indicated  hostility to allowing            the  defendant to be  present if  she had  so requested.   No            objection or express request  for defendant to be  present at            sidebar followed.  See  id. at 528 (absence of  objection to,                               ___  ___            or  request to  be present  at, a  conference that  the court            announced  it  would  hold  with  a  juror,  and  which   one            defendant's  counsel  attended,  constituted  waiver  of  any            personal right  to presence under  Rule 43);  but see  United                                                          _______  ______            States  v. Gordon,  829 F.2d  119, 126  n.8 (D.C.  Cir. 1987)            ______     ______            (distinguishing Gagnon and  requiring on-the-record  personal                            ______            waiver  where   right  to   be  present  concerns   the  jury            impanelment stage and is grounded in both the Fifth Amendment            and Rule 43).                      We need not decide  if an effective waiver occurred            since we can see no harm or prejudice to the defendant by her            absence   at  sidebar  when   these  individual  jurors  were            questioned.   Adekoya heard and observed  the initial general            questioning  by  the  court,  and  her  counsel  was  present                                         -10-                                          10            throughout the sidebar portion.  At  the latter, the district            court  questioned nineteen prospective  jurors, excluded five            for cause,  and permitted the government  and defense counsel            to exercise numerous peremptory challenges.  Only two of  the            nineteen were  selected to  be jurors.   Adekoya subsequently            heard  and observed these two along  with other panel members            being  questioned in  open court  concerning their  places of            employment and spouses' places of employment.  In the absence            of any objection  to either  the jurors or  the process,  and            given  defense counsel's assurance to the court at the end of            jury  selection that the panel was acceptable to the defense,            the  district  court  had  no  reason  to  believe  that  the            defendant  was dissatisfied,  and  indeed  nothing that  then            occurred  indicates she was.  We can see no reversible error.            See United States v. Pappas, 639 F.2d 1, 2-3 (1st  Cir. 1980)            ___ _____________    ______            (district court's  exclusion  of counsel  and court  reporter            from  individual   voir  dire,  while   disfavored,  did  not            prejudice  defendant where  her counsel had  ample challenges            available and further opportunity  to observe and to question            prospective jurors but did not do so), cert. denied, 451 U.S.                                                   ____________            913  (1981).7    Moreover,   the  very  substantial  evidence                                            ____________________            7.    See also United States v. Washington, 705 F.2d 489, 498                  ________ _____________    __________            (D.C. Cir. 1983) (exclusion of defendant from individual voir            dire was harmless error  under Rule 43 where she  was present            in  the courtroom the entire  time, a limited  portion of the            voir   dire  was  conducted  at  the   bench  where  she  was            represented by counsel,  she had time to confer  with counsel            about  jurors'  responses  at   the  bench,  and  substantial                                         -11-                                          11            against the defendant on  the drug importation and possession            counts  makes  it  highly  unlikely that  she  was  convicted            because  the  two  jurors  questioned  at  sidebar  had  some            unfavorable   characteristic   that   defendant  could   have            discerned  had  she been  present at  the  time.   Cf. United                                                               ___ ______            States  v. Bullard, 37 F.3d 765, 767-768 (1st Cir. 1994) (pro            ______     _______            se defendant's absence from court conference inquiring into a            juror's  attentiveness  was  not  prejudicial  where  standby            counsel participated in the conference, evidence  against the            defendant  was substantial,  and  nothing indicated  that the            juror  had missed crucial evidence), cert. denied, 115 S. Ct.                                                 ____________            1809 (1995).                      Lastly, defendant contends that  the court erred in            instructing the jury that the  government must prove its case            "beyond a reasonable  doubt" without  defining or  explaining            "reasonable doubt."   As defense counsel  expressly agreed to            the charge both before and after it  was given, we review for            plain error  only.  Having  examined the record,  we conclude            that the  instruction "adequately apprise[d] the  jury of the                                            ____________________            evidence  supported a  finding  of guilt);  United States  v.                                                        _____________            Alessandrello, 637  F.2d 131,  139-143 (3d Cir.  1980), cert.            _____________                                           _____            denied, 451 U.S. 949 (1981); United States  v. Dioguardi, 428            ______                       _____________     _________            F.2d 1033, 1039-1040  (2d Cir.), cert.  denied, 400 U.S.  825                                             _____________            (1970); cf.  Gordon, 829 F.2d at  127-129 (distinguishing the                    ___  ______            above  cases  and  holding  that exclusion  of  defendant  in            custody from  entire jury selection process  was not harmless            error, where he would  have sought to challenge a  juror with            personal and family connections  to law enforcement, and jury            first saw defendant midway through the first day of trial).                                          -12-                                          12            proper  burden of proof."  See United States v. Olmstead, 832                                       ___ _____________    ________            F.2d  642, 646 (1st Cir.  1987), cert. denied,  486 U.S. 1009                                             ____________            (1988).                      Affirmed.                      _________                                         -13-                                          13
