                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          NOVEMBER 3, 2005
                             No. 05-10925                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 04-20597-CR-JAL

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                  versus

SHANTAYA B. FOSTER,

                                                        Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (November 3, 2005)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Shantaya B. Foster appeals her convictions for knowingly and intentionally

importing 100 grams or more of heroin into the United States, 21 U.S.C. § 952(a),

and knowingly and intentionally possessing 100 grams or more of heroin with

intent to distribute, 21 U.S.C. § 841(a)(1). Foster raises three arguments on appeal:

(1) the district court erroneously excluded evidence supporting an affirmative

defense of duress, (2) the district court abused its discretion in its response to a

question from the jury, and (3) the evidence was insufficient to support her

convictions. We conclude that, because there was insufficient evidence of duress,

the district court did not err in either excluding Foster’s proffered evidence or in

responding to the question of the jury. We also conclude that there was sufficient

evidence to support Foster’s conviction. Although we affirm Foster’s conviction,

we remand to the district court for the limited purpose of correcting a clerical error

in the judgment.

                                 I. BACKGROUND

      On August 2, 2004, Foster and Sherri Monique Noble returned from a trip to

Jamaica and passed through customs at Miami International Airport. Customs

agents selected Foster and Noble for investigation, separated them, and began to

question them. Foster first denied possession of any drugs but after further

questioning admitted that she had taped to her body and swallowed pellets of




                                            2
heroin. Noble confessed to importing heroin in the same manner. The customs

agents seized 207 grams of heroin from Foster and 255.8 grams from Noble.

      Foster and Noble were indicted on four charges: (1) conspiracy to import

100 grams or more of heroin into the United States, (2) knowingly or intentionally

importing 100 grams or more of heroin into the United States, (3) conspiracy to

possess 100 grams or more of heroin with the intent to distribute it, and (4)

knowingly or intentionally possessing 100 grams or more of heroin with the intent

to distribute it. Noble pleaded guilty to the second count of the indictment, and the

other charges were dropped. Foster proceeded to trial on all four charges.

      Foster proffered evidence in support of a defense of duress. Foster proposed

to testify that Noble had invited her to vacation in Jamaica and that she had no idea

that the purpose of the trip was to smuggle heroin. She averred that on the

morning of their departure, two Jamaican men entered their hotel room, and one

encouraged Foster to “swallow [heroin] pellets until she gagged” and then to

“tape[] the pellets to her body.” Foster argued that these circumstances led her to

believe she would not be able to return home unless she transported the drugs and

that the situation caused her to fear for her life. The government moved in limine

to exclude evidence of duress because the proffered evidence did not satisfy the

elements of the affirmative defense. The district court granted the motion on the




                                          3
ground that the danger to Foster was not immediate and Foster had a reasonable

opportunity to avoid committing the illegal act.

      During its deliberations, the jury submitted a note that contained two

questions to the district court: “Was the defendant, Shantaya B. Foster, in fear for

her life when she made the decision to swallow and tape the drugs to her body?

Was she able to give us this information?” After hearing arguments from Foster

and the government, the district court responded with the following statement:

             Members of the jury,
             The issues raised in your questions are not relevant to your
      determination of this case.
             You have received all the evidence that you are to consider and
      apply in deciding this case.
             You should rely upon your individual and collective
      recollections of the evidence and follow the Court’s instructions on
      the law.

      The jury convicted Foster on counts two and four of the indictment and

acquitted her on counts one and three. Foster moved for a judgment of acquittal

notwithstanding the verdict and, alternatively, a new trial. The district court denied

both motions. Foster was sentenced to 63 months of imprisonment for each count

of the conviction to run concurrently.

                          II. STANDARD OF REVIEW

      We review de novo the decision of a district court to preclude the defendant

from asserting a defense of duress. See United States v. Bailey, 444 U.S. 394, 412-

13, 100 S. Ct. 624, 635-36 (1980). To determine whether the evidence is sufficient


                                          4
to support the affirmative defense, we view the evidence in the light most favorable

to the defendant. United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995). We

review the response of the district court to a jury question for abuse of discretion.

United States v. Delgado, 56 F.3d 1357 (11th Cir. 1995). We review de novo the

denial of a motion for post-verdict judgment of acquittal based on insufficiency of

the evidence and view the evidence in the light most favorable to the government

to determine whether “a reasonably-minded jury could accept the relevant evidence

as adequate and sufficient to support the conclusion of the defendant’s guilt

beyond a reasonable doubt.” United States v. Braithwaite, 709 F.2d 1450, 1457

(11th Cir. 1983); see also United States v. Abbell, 271 F.3d 1286, 1291 n.2 (11th

Cir. 2001).

                                  III. DISCUSSION

      Foster raises three arguments on appeal. First, she argues that the district

court erroneously precluded the affirmative defense of duress. Second, Foster

contends that the district court abused its discretion in its response to the jury’s

question. Third, she argues that the evidence was insufficient to support her

convictions. We address each argument in turn.

                                  A. Duress Defense

      Foster argues that the district court erroneously precluded her from asserting

the affirmative defense of duress. We disagree. A defendant is entitled to have the



                                            5
district court instruct the jury on a defense theory “only if that theory has an

evidentiary foundation and the requested instruction presents a cognizable legal

defense.” United States v. Fernandez, 837 F.2d 1031, 1035 (11th Cir. 1988).

Because duress is an affirmative defense, the defendant bears the initial burden to

offer evidence of each of the elements of the defense. See United States v. Bailey,

444 U.S. 394, 412-13, 100 S. Ct. 624, 635-36 (1980). Foster failed to satisfy her

burden.

      To establish a defense of duress, “a defendant must show that he acted under

an immediate threat of death or serious bodily injury, that he had a well-grounded

fear that the threat would be carried out, and that he had no reasonable opportunity

to escape or inform the police.” United States v. Wattleton, 296 F.3d 1184, 1196

n.20 (11th Cir. 2002). The immediacy requirement is “a rigorous one[,] and it is

clear that fear of future bodily harm . . . will not suffice.” United States v. Sixty

Acres, 930 F.2d 857, 861-62 (11th Cir. 1991). Further, “the apprehension of

immediate danger must continue the whole time the crime is committed.” Id.

      Viewing the evidence in the light most favorable to Foster, we conclude that

Foster failed to satisfy her burden of production, and as a result of that failure, she

was not entitled to present evidence in support of a defense of duress. The crimes

of importation of heroin and possession of heroin with intent to sell are

“continuous crimes,” see United States v. Martinez, 763 F.2d 1297, 1303 (11th Cir.



                                            6
1985), and Foster failed to show that the “apprehension of immediate danger” was

present at all times from the moment she took possession of the drugs to the

moment she was arrested. Foster failed to take advantage of several opportunities

to notify the authorities of the drugs, and she even denied that she carried any

drugs when she was first questioned by the customs agents. The district court did

not err in concluding that Foster was not entitled to present the affirmative defense

of duress.

                           B. Response to Jury Question

      Foster next argues that the district court abused its discretion in its response

to the jury’s question. She argues that the district court “invaded the province of

the jury” when it stated that whether Foster was “in fear for her life when she made

the decision to swallow and tape the drugs to her body” was “not relevant.” Foster

contends this response told the jury that her testimony “was not credible.” We

disagree.

      The response of the district court to the jury was a correct statement of the

law. Because Foster failed to satisfy the elements of the affirmative defense of

duress, she was not entitled to a jury instruction on that defense. See United States

v. Bailey, 444 U.S. 394, 412-13, 100 S. Ct. 624, 635-36 (1980); United States v.

Quinn, 123 F.3d 1415, 1423 (11th Cir. 1997). The district court correctly informed

the jury of the elements of each of the crimes with which Foster was charged and



                                           7
reminded the jury to “follow the Court’s instructions on the law.” We conclude

that the district court did not abuse its discretion in its response to the question

from the jury.

                        C. Motion for Acquittal or New Trial

      Foster argues last that the district court erroneously denied her motion for

acquittal notwithstanding the verdict or, alternatively, a new trial. Foster contends

that the evidence was insufficient to support a guilty verdict for either conviction.

We disagree.

      To prove importation of heroin, the government must establish that the

defendant knowingly or intentionally imported a controlled substance into the

United States. 21 U.S.C. § 952(a); United States v. Rodriguez, 588 F.2d 1003,

1010 (5th Cir. 1979). Foster was arrested with 35 pellets of heroin taped to her

body and 5 pellets of heroin in her digestive tract. She admitted during her

testimony that she knew the pellets were filled with drugs. A reasonable jury could

have concluded that Foster knowingly imported a controlled substance into the

United States.

      To prove possession of heroin with intent to distribute, the government must

establish that the defendant “knowingly possessed” and “intended to distribute”

heroin. 21 U.S.C. § 841(a)(1); United States v. Lopez-Ramirez, 68 F.3d 438, 440

(11th Cir. 1995). The government met its burden as to knowing possession for the



                                            8
same reasons it sufficiently proved knowing importation of a controlled substance.

As for the remaining element, the jury could have reasonably inferred her intent to

distribute the heroin from the large quantity of heroin found on Foster. See, e.g.,

United States v. Thomas, 676 F.2d 531, 538 (11th Cir. 1982).

                                 IV. CONCLUSION

      Because the district court did not err in precluding Foster from asserting the

affirmative defense of duress and did not abuse its discretion in responding to the

jury question, and because the evidence was sufficient to support Foster’s

convictions, we affirm the convictions.

      We notice that there is a clerical error in the judgment. The judgment states

that Foster was convicted on count two of the indictment for “importation of at

least 100 grams of heroin” in violation of “21 U.S.C. [section] 963.” The crime of

“importation of at least 100 grams of heroin” actually is codified at 21 U.S.C.

section 952(a). The correct section was stated in the indictment. We remand to the

district court with directions to correct the clerical error contained in Foster’s

judgment.

      AFFIRMED in part, REMANDED in part.




                                            9
