UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 98-4906
MOHAMMAD ABDULLAH, a/k/a
Mahmood Abdulla,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-98-261-WMN)

Argued: April 7, 2000

Decided: May 26, 2000

Before WILKINS and TRAXLER, Circuit Judges, and
William L. OSTEEN, United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed in part and reversed in part by unpublished per curiam opin-
ion.

_________________________________________________________________

COUNSEL

ARGUED: Paul Victor Jorgensen, Middletown, Maryland, for
Appellant. Robert Reeves Harding, Assistant United States Attorney,
Baltimore, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia,
United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Mohammad Abdullah appeals his convictions and sentence for pos-
session with the intent to distribute heroin, see 21 U.S.C.A.
§ 841(a)(1) (West 1999), and for importation of heroin, see 21
U.S.C.A. § 952(a) (West 1999), alleging numerous errors. For the rea-
sons that follow, we reverse the conviction for importation and affirm
the conviction for possession with the intent to distribute. Addition-
ally, we reject Abdullah's contention that the district court mistakenly
believed that it lacked the authority to depart downward from the
applicable sentencing guideline range.

I.

In June 1998, the United States Customs Service in Baltimore,
Maryland received information from the Drug Enforcement Adminis-
tration that heroin would be smuggled into the United States aboard
the Pakistani cargo ship Malakand. Customs Service Special Agent
Dennis Bass contacted a Pakistani cooperator, Afsar Bahadur, and
instructed him to board the Malakand after it docked and attempt to
determine whether any of the crew members were attempting to sell
heroin. If so, Bahadur was instructed to bring that individual to Bass,
who would pose as a potential customer.

After boarding the Malakand, Bahadur met Abdullah, who was the
chief steward of the Malakand, and another seaman. Bahadur offered
them a ride, and, after dropping the other seaman at a bus station,
Bahadur and Abdullah drove around together. The Government and
Abdullah give different versions of the facts relating to the interaction
between Abdullah and Bahadur.

According to the Government, Abdullah kept changing his mind
about where he wanted to be dropped off. As Bahadur and Abdullah

                     2
were driving around, their conversation turned to drugs. Abdullah
asked Bahadur if he knew anyone who wanted to buy heroin. Bahadur
said he did know of someone and Abdullah told him that he had two
kilograms of heroin hidden in two pairs of sandals on the ship.
Bahadur drove to meet Bass, whom Bahadur introduced to Abdullah
as his business partner, and while Abdullah made a telephone call,
Bahadur relayed to Bass what had transpired. Bahadur and Abdullah
arranged to meet later that evening. Abdullah was to bring one kilo-
gram of heroin and Bahadur was to bring $85,000 supplied by Bass.
Because Bass did not have the authority to obtain that amount of cash
on short notice, he instructed Bahadur to meet with Abdullah and
attempt to purchase the heroin on credit. When the two men met, Ab-
dullah was wearing one of the pairs of sandals that contained heroin.
When Abdullah refused to sell the heroin on credit, Bahadur, at Bass'
further instruction, arranged for Abdullah and Bass to meet. When
that meeting took place, Bass tested a sample of the heroin and gave
a prearranged signal, at which point waiting officers arrested Abdul-
lah.

According to his trial testimony, Abdullah accepted a ride with
Bahadur because he needed to find a telephone to call his wife.
Bahadur took Abdullah to meet Bass, who allowed Abdullah to use
his cellular telephone. Bahadur then drove Abdullah back to the
Malakand, stopping at a restaurant for sandwiches. On the drive back
to the ship, Bahadur told Abdullah that Bass was his business partner
and wanted to buy heroin. Abdullah denied any knowledge of drugs.
Bahadur accompanied Abdullah onto the ship. Although Abdullah
knew nothing about heroin, he had seen two pairs of sandals outside
the storage area of the ship earlier that day, and Abdullah offered
these to Bahadur, since Bahadur had bought a meal for him. Bahadur
talked Abdullah into putting them on and accompanying him to his
automobile. Bahadur insisted that he wanted to pay Abdullah for the
sandals and that Bass had money. The two men drove together to find
Bass. During the drive, Bahadur revealed to Abdullah that the sandals
contained heroin. Abdullah tried to discourage Bahadur from involv-
ing him in an apparent drug transaction. Bahadur and Abdullah met
Bass, who opened the sandals to remove the heroin, and the police
converged on the men.

                   3
At trial, defense counsel mentioned during opening argument that
the Government had "trapped" Abdullah. After the presentation of all
of the evidence, defense counsel requested an entrapment instruction.
The district court refused to give the instruction and, instead, gave an
"anti-entrapment" instruction.1

Before the jury retired for deliberation, the district court instructed
it on the meaning of "importation" as follows:"`Importation' for the
purposes of this statute, has the ordinary meaning of bringing drugs
into the country from outside the country. The drugs need not pass
through customs or pass by the customs authorities in entering the
United States in order to come within the purview of the statute." J.A.
424. During its deliberations, the jury sent a note to the judge posing
the following questions: "With Importation to the U.S. is the Ship a
_________________________________________________________________
1 The "anti-entrapment" instruction given by the district court was as
follows:

             There was mention in defense counsel's opening statement
            that the evidence would indicate that the defendant was trapped
            in a scheme involving others. In order to avoid any confusion
            with what is often referred to as a defense of "entrapment," let
            me explain to you briefly what the notion of entrapment is.
            While the law permits government agents to trap an unwary
            criminally minded person, the law does not permit the govern-
            ment agents to entrap an unwary innocent. That means a defen-
            dant may not be convicted of a crime if it was the government
            who gave the defendant the idea to commit the crime, it was the
            government who also persuaded him to commit the crime, and
            if he was not ready and willing to commit the crime before the
            government officials or agents spoke with him.

             On the other hand, if the defendant was ready and willing to
            violate the law, and the government merely presented him with
            an opportunity to do so, that would not constitute entrapment.

             After reviewing the evidence presented at trial, I have con-
            cluded that no defense of entrapment has been raised. You,
            therefore, should ignore any suggestion or concept that may have
            been raised in your mind that entrapment might be an issue. The
            question of the guilt or innocence of the defendant does not turn
            on issues of entrapment.

J.A. 416.

                      4
foreign country? And, does Importation to the U.S. begin From the
Home Country to the U.S. port or From the Foreign Country's Ship
to the U.S. port?" Id. at 444. After conferring with counsel, the court
gave the following supplemental instruction:

           In response to your question about importation, you will
          find a simple definition of importation on page 26 of my
          instructions.

           You need not determine that the drugs were brought into
          this country from another specified country but only that
          they were brought into this country by the defendant from
          some place outside of this country or that the defendant
          aided or abetted another in bringing the drugs into this coun-
          try from a place outside of this country.

Id. at 445.2 The jury convicted Abdullah of both counts.

At a subsequent sentencing hearing, the district court overruled Ab-
dullah's objections to the presentence report.3 After finding that the
_________________________________________________________________
2 The district court rejected the following request made by defense
counsel:

          [M]y proposal would be that we just elaborate on the instruction
          Your Honor has already drafted by adding one or more para-
          graphs to it.... Perhaps we can have a third paragraph indicating
          that the ship, if their reference is to the ship being docked at the
          Port of Baltimore or within the territorial waters of the United
          States, then a ship is not a foreign country, and that, I believe,
          would answer the first inquiry that the jury is addressing.

           The second inquiry would be that importation begins from any
          place outside the territorial limits of the United States into the
          territorial limits of the United States. With respect to the territo-
          rial limits of the United States in the waters surrounding the
          United States, the jurisdiction and the territorial limits of the
          United States extend 12 miles into the ocean.

J.A. at 392-93.
3 Defense counsel objected to a two-level enhancement for obstruction
of justice, see U.S. Sentencing Guidelines Manual § 3C1.1 (1998), and
argued for an adjustment of the base offense level for acceptance of
responsibility, see id. § 3E1.1.

                     5
guideline range was 151-188 months and receiving recommendations
from the Government and defense counsel regarding the appropriate
sentence, the district court provided Abdullah with an opportunity to
address the court. During his allocution, Abdullah begged for mercy,
pleading, inter alia, that he was old, that he was in poor health, and
that he had young children with no one to look after them. Abdullah
asked the court to sentence him to five years; additionally, he begged
the court to send him home. During Abdullah's allocution, the district
court stated, inter alia, "I do not have the authority to impose any sen-
tence less than the 151 months that is required by the sentencing
guidelines," id. at 462, and "I do not have any authority to do any-
thing other than impose a sentence between 151 months or 188
months," id. at 463. The court sentenced Abdullah to 151 months
imprisonment.

Abdullah now appeals, maintaining that the district court erred in
refusing to give an entrapment instruction and in giving the "anti-
entrapment" instruction; that the supplemental instruction to the jury
regarding importation was inadequate and mandates reversal; and that
the court mistakenly believed that it did not have the authority to
depart downward based on Abdullah's statements during allocution.
We address these arguments seriatim.

II.

A.

Abdullah first contends that the district court erred in refusing to
instruct the jury on entrapment. We review de novo the refusal by the
district court to give an entrapment instruction. See United States v.
Phan, 121 F.3d 149, 154 (4th Cir. 1997). In order to establish entitle-
ment to an entrapment instruction, the defendant must present evi-
dence that the Government induced him to commit the crime and that
he had no predisposition to engage in criminal conduct. See id. at 153-
54. Evidence that the Government solicited the crime is not adequate
to show inducement; rather the defendant must produce evidence of
"excessive behavior on the part of the government that could be said
to be so inducive to a reasonably firm person as likely to displace
mens rea." United States v. DeVore, 423 F.2d 1069, 1071-72 (4th Cir.
1970); see United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995)

                     6
(explaining that "inducement consists of opportunity plus something
like excessive pressure or manipulation of a non-criminal motive").

Abdullah argues that Government inducement was shown by evi-
dence that Bahadur spent a substantial amount of time with Abdullah,
bought food for him, and tried to arrange a heroin transaction with
him despite Abdullah's disavowal of any knowledge of heroin. We
conclude that no reasonable jury would find that this evidence demon-
strates the excessive behavior on the part of the Government neces-
sary to entitle Abdullah to an entrapment instruction.

B.

Next, Abdullah contends that the district court erred in giving the
"anti-entrapment" instruction. We review the decision of the district
court regarding whether to give a jury instruction, as well as the con-
tent of an instruction, for abuse of discretion. See United States v.
Abbas, 74 F.3d 506, 513 (4th Cir. 1996). Because defense counsel had
stated in his opening argument that Abdullah was"trapped" by the
Government, and because "entrapment" is not necessarily understood
in its legal sense, the district court determined that an instruction was
necessary to prevent the possibility that the jury would improperly
conclude that Abdullah had been entrapped. This decision by the dis-
trict court was not an abuse of discretion.

Abdullah maintains that the "anti-entrapment" instruction violated
due process because it allowed the jury to convict him without the
requisite proof of intent. Specifically, Abdullah asserts that the
instruction "established a criminal predisposition by Abdullah to per-
form the acts with which he was charged, thus directing a verdict on
the primary element controverted by Abdullah's testimony, that of
intent." Brief for Appellant at 15; see Carella v. California, 491 U.S.
263, 265 (1989) (per curiam) (noting that a jury instruction that
relieves the prosecution of its burden to prove every element of the
offense beyond a reasonable doubt violates due process). We dis-
agree.

The instruction did not by its terms direct the jury to find that Ab-
dullah had the requisite intent. Accordingly, the question becomes
whether there is a reasonable likelihood that the jury applied the

                     7
instruction in an unconstitutional manner. See Kornahrens v. Evatt, 66
F.3d 1350, 1363 (4th Cir. 1995). We conclude that there is no such
likelihood here. The instruction given by the district court simply
informed the jury that entrapment was not an issue in the case; it in
no way directed, or even suggested, a particular finding on the issue
of intent.

III.

Abdullah next contends that the district court erred in refusing to
give his requested supplemental instruction in response to the ques-
tions from the jury regarding importation. We agree that the district
court erred in its response to the questions from the jury and that the
error mandates reversal of Abdullah's conviction on the importation
count.

When reviewing a challenged supplemental instruction, "we
inquire whether the supplemental instruction fairly responded to the
jury's question without creating prejudice." United States v. United
Med. & Surgical Supply Corp., 989 F.2d 1390, 1407 (4th Cir. 1993).
An error in a supplemental instruction mandates reversal "only if the
error is determined to have been prejudicial, based on a review of the
record as a whole." Id. at 1406 (internal quotation marks omitted).

In order to convict Abdullah of the importation offense, the Gov-
ernment was required to prove beyond a reasonable doubt that he
knowingly and willfully "import[ed] into the United States from any
place outside thereof" a controlled substance. 21 U.S.C.A. § 952(a);
see United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984). Of
relevance here, the boundary determining what is"outside" the United
States is 12 miles from the coast. See United States v. Seni, 662 F.2d
277, 286 (4th Cir. 1981). Thus, the Government had to prove more
than that Abdullah brought the heroin from the ship, while it was
docked in Baltimore harbor, into the port. Additionally, the Govern-
ment could not meet its burden by proving only that Abdullah learned
at some point while the ship was already in territorial waters of the
United States that the sandals contained heroin and then decided to
bring the heroin into Baltimore to sell it. Rather, the Government was
required to prove that Abdullah brought the heroin into Baltimore and
either that Abdullah brought the heroin onto the ship from a foreign

                     8
country or that he took control of the heroin while the ship was out-
side the territorial waters of the United States.

The questions from the jury indicate that it was unsure about what
it was required to find regarding when Abdullah's involvement with
the heroin began. It appears from the questions that the jury may have
(incorrectly) equated "outside" the United States with a foreign ves-
sel; thus, the jury was questioning whether it needed to trace Abdul-
lah's involvement back merely to the ship (even though it was docked
in American waters), or back to a foreign country. The instruction
proposed by the defense was a correct statement of the law and would
have addressed this confusion by clarifying that the jury needed to
trace Abdullah's involvement to some point outside the territorial lim-
its of the United States.

The supplemental instruction given by the district court, however,
did not fairly respond to the questions posed by the jury. The district
court instructed the jury that it need not determine that Abdullah
imported the heroin from a specified country, but only that Abdullah
must have brought the heroin from outside the United States. While
this instruction was correct, it was insufficient to respond to the ques-
tions posed by the jury because it failed to inform the jury of the
meaning of "outside" the United States. There is no reason to expect
a juror to know when someone traveling by ship has entered the
United States. Because the instruction may well have left the jury
with the false impression that a foreign ship was"outside" the country,4
_________________________________________________________________
4 The Government argues that the jury would not have convicted Ab-
dullah if it believed his story because the jury would know that a ship
docked in Baltimore, regardless of whether it is foreign or domestic, is
not a place outside the United States. We disagree. We do not find it
inconceivable that a jury of lay persons could believe Abdullah's story
but convict on the belief that a Pakistani ship, although docked in a
United States port, is a "foreign country" and thus is outside the United
States. Moreover, the jury could disbelieve Abdullah's story without nec-
essarily accepting the Government's theory of the events. Thus, although
the jury may have disbelieved Abdullah's story, it may have been unable
to conclude beyond a reasonable doubt that Abdullah was responsible for
bringing the heroin onto the ship in Pakistan or some other foreign port.
In that case, it was crucial that the jury determine when Abdullah's
involvement with the heroin began--specifically, whether Abdullah
became involved before the ship came within the territorial waters of the
United States.

                    9
it allowed the jury to convict upon finding that Abdullah brought the
heroin into Baltimore from the ship without finding that Abdullah was
responsible for bringing the heroin into the territorial waters of the
United States. Thus, the supplemental instruction was both inadequate
and prejudicial to Abdullah. See United States v. Nunez, 889 F.2d
1564, 1568-70 (6th Cir. 1989) (holding that supplemental instruction
that failed to clarify important legal issue constituted prejudicial
error). We therefore reverse Abdullah's conviction on the importation
count and remand with instructions for the district court to amend the
judgment accordingly.

IV.

Finally, Abdullah contends that he is entitled to be resentenced
because the district court mistakenly believed that it lacked the
authority to depart downward. If a district court refuses to grant a
departure because of a mistaken belief that it lacks discretion to do
so, we are required to vacate and remand for the district court to con-
sider the exercise of its discretion. See United States v. Brock, 108
F.3d 31, 33-35 (4th Cir. 1997).

Abdullah argues that the statements he made during his allocution
constituted a request for a downward departure on the basis of five
factors: his advanced age; his poor health; his deportable status as an
alien; his family's dependency on him; and his diminished capacity.
We disagree. Abdullah's allocution took place after the district court
had already overruled defense counsel's objections to the presentence
report and determined the appropriate guideline range. Under the cir-
cumstances, Abdullah's allocution must be construed as a plea for
mercy rather than as a request for a downward departure. And, even
if Abdullah was requesting a downward departure, read in its proper
context, the district court was merely responding that since no legiti-
mate basis existed to justify a downward departure, the sentence was
required to be within the previously determined guideline range.

V.

In sum, we hold that the district court erred in its supplemental
instruction to the jury regarding the importation offense and that this
error was prejudicial to Abdullah. We therefore reverse Abdullah's

                    10
conviction on the importation offense. We affirm as to all other alle-
gations of error.5

AFFIRMED IN PART AND REVERSED IN PART
_________________________________________________________________
5 Abdullah also contends that the district court erred in denying his
motion to suppress incriminating statements he made following his
arrest. Having carefully considered this allegation of error, we conclude
that it is without merit.

                    11
