                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-18-1996

United States v. Sriyuth
Precedential or Non-Precedential:

Docket 95-7598




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                               No. 95-7598
                               ___________

         UNITED STATES OF AMERICA

                         vs.

         NOPPORN SRIYUTH, a/k/a Thi

                         Nopporn Sriyuth,

                                   Appellant
                               ___________

          Appeal from the United States District Court
             for the Middle District of Pennsylvania
                   (D.C. Crim. No. 94-cr-00066)
                           ___________

                              Argued
                           June 5, 1996
          Before: BECKER and MANSMANN, Circuit Judges,
                 and SCHWARZER, District Judge.*

                     (Filed October 18, 1996)
                           ___________

David M. Barasch
United States Attorney
John C. Gurganus, Jr., Esquire (ARGUED)
Office of United States Attorney
309 Federal Building
Scranton, Pennsylvania 18501

  COUNSEL FOR APPELLEE




*        Honorable William W Schwarzer of the United States
District Court for the Northern District of California, sitting
by designation.
James V. Wade, Esquire
Federal Public Defender
Middle District of Pennsylvania
100 Chestnut Street
Suite 306
Harrisburg, PA 17101

Melinda C. Ghilardi, Esquire (ARGUED)
Office of Federal Public Defender
116 North Washington Avenue
Kane Professional Building
Suite 2C
Scranton, PA 18503

  COUNSEL FOR APPELLANT


                             ___________

                          OPINION OF THE COURT
                               __________

MANSMANN, Circuit Judge.
         Nopporn Sriyuth appeals his conviction of kidnapping
and use of a firearm in relation to the kidnapping in violation
of 18 U.S.C. §§ 1201(a)(1) and 924(c), respectively. We are
asked to decide, inter alia, whether the district court erred in
failing to exclude evidence, under Federal Rules of Evidence
404(b) and 403, that the purpose or motive for the kidnapping was
for companionship or sexual assault of the victim.
         We find that the sexual assault evidence was probative
of motive as well as the victim's nonconsent to the interstate
transportation and, therefore, was admissible under rule 404(b).
Moreover, given the facts here, the probative value of the sexual
assault evidence outweighed the risk of undue prejudice.
Accordingly, we will affirm.

                                I.
         At the root of the criminal conduct which occurred here
lies the Laotian custom of arranged marriages. Nopporn Sriyuth,
also known as "Thi", is a naturalized citizen of the United
States having immigrated to this country from Thailand in 1985.
The victim, Chindavone Phongsavath, whose nickname is "Von," has
resided with her family in Detroit since 1985. Sriyuth met Von
at her brother-in-law's house while he was in Detroit temporarily
on business in 1990, and they became friends.
         After Sriyuth left Detroit, Von and other members of
her family kept in contact with him either by phone or letter.
Von was not romantically involved with Sriyuth during this time.
Von's mother and sister, however, contacted his mother to discuss
an arranged marriage between Von and Sriyuth. Von expressed to
Sriyuth as well as to her family her objection to such an
arrangement.
         In November 1993, Sriyuth came to Detroit to stay with
Von's sister Kethkeo and her husband. Von, however, was
romantically involved with Nala Chanta at that time. Von's
family still felt that Sriyuth was the perfect husband for Von.
They therefore encouraged Sriyuth to take Von away for awhile so
she would forget about her boyfriend. Immediately prior to the
kidnap in April 1994, Sriyuth obtained a nine millimeter Taurus
handgun from a friend of Von's family.
         At approximately 4:30 p.m. on April 5, 1994, Von was
visiting her boyfriend Nala Chanta in the bedroom of his
residence. Without knocking and with gun in hand, Sriyuth
entered Chanta's residence where he encountered two of Chanta's
roommates playing a video game. Sriyuth inquired as to Von's
whereabouts and the roommates informed him that she was upstairs.
Sriyuth proceeded upstairs in search of Von and, upon finding her
in Chanta's bedroom, demanded that Von leave with him, grabbed
her by the arm, and pulled her out of the room and down the
stairs. When he reached the bottom of the stairs, Sriyuth looked
back at Chanta at the top of the stairs, with his gun pointed at
him, and said, "I told you not to fuck with me." Sriyuth then
left Chanta's house with Von.
         Once outside, Von pleaded with Sriyuth to let her drive
home as she did not trust him. Sriyuth, however, forced her into
the driver's side of his car and told her he was taking her home.
When Von refused to move over into the passenger seat, Sriyuth
responded, "Move over! Do you want to die?" As they drove off,
Von told Sriyuth to take her home; Sriyuth instead drove off in a
different direction. Von continued to ask Sriyuth to drive her
home. At one point while Sriyuth was still driving in Michigan,
Von tried to get out of the car in order to force Sriyuth to
stop. Sriyuth had to pull into a gas station and Von ran out of
the car crying and holding the gun. Sriyuth ran after her and
placed her in a bear hug. He then apologized and told Von that
he was going to take her home and asked her to get back in the
car. Sriyuth escorted Von back to the car. Von testified that
at this point, she believed that Sriyuth was going to take her
home.
         Sriyuth, however, did not drive towards Von's
residence, but told her he was driving to work and that she could
take the car and drive home. Again, Von believed that Sriyuth
was telling her the truth. Shortly thereafter, Von realized they
were headed south on the freeway towards Ohio, not in the
direction of Sriyuth's place of employment. She protested, again
demanding that Sriyuth take her home. Von reached over at one
point and grabbed the steering wheel, causing the car to swerve.
Sriyuth told her to stop and remarked, "You want to die, you know
we can both die together. I'm not afraid to die."    Eventually,
Von realized they had crossed into Ohio when they entered the
Ohio Turnpike.
         When Sriyuth stopped to get gas at a gas station in
Ohio, Von ran from the car and into the bathroom. After using
the facilities, Von remained in the restroom for approximately
ten to fifteen minutes. Eventually, Sriyuth came into the
women's restroom looking for her. He was trying to talk to her
when an employee of the gas station came in and asked him to
leave. Sriyuth complied and shortly thereafter, the employee
returned to the restroom with the keys to Sriyuth's car and a
message from him--that Von could drive. Von took the keys with
the understanding that she would be allowed to drive home. After
Von stepped outside, however, Sriyuth grabbed the keys from her
and carried her back to the car. Although Von considered telling
the employee in the restroom what was going on or asking her to
call the police, Von decided against it because she still
believed at that point she would be allowed to go home and
because Sriyuth was a friend of the family.
         Sriyuth continued to drive east through Ohio, while Von
kept demanding to go home to Detroit. At times Von became very
angry and pounded on the dashboard and door to try to get Sriyuth
to stop the car. Sriyuth, however, ignored her requests. After
he had been driving awhile, Sriyuth pulled off to the side of the
road to rest. Sriyuth made several sexual advances towards Von,
such as kissing her, forcing her to kiss him back, and trying to
remove her pants, all of which Von vigorously rejected. In a
final attempt to thwart Sriyuth's advances, Von ran from the car,
only to be caught and returned to the car by Sriyuth.
         The next morning, now April 6, 1994, Sriyuth arrived in
Scranton, Pennsylvania, where he encountered an old acquaintance.
After some discussion, Sriyuth and his friend Lem drove
separately to the house of a mutual friend located at 615 Court
Street in Scranton. After arriving at the Court Street location,
Sriyuth and Lem went into the house while Von remained in the
car. Five to ten minutes later, the owner of the house, Laksana
Sphabmixay came out to the car and asked Von to come in and get
something to eat, apparently unaware of how Von came to be with
Sriyuth in Scranton. Von finally agreed and went inside the
house.
         For the most part, Von remained in the living room on
the sofa, except to use the bathroom on one occasion. Later that
morning, Von asked Sriyuth to give her the keys to the car so she
could go to the store to purchase some contact lens solution.
Sriyuth refused to give her the keys but later drove her to the
pharmacy. Around 2:30 p.m., the owners of the house left to go
to work. Sometime in the late afternoon, Sriyuth, accompanied by
Laksana's brother, went to two Western Union offices in an
attempt to obtain the cash that he thought had been wired to him
by Von's sister, Kethkeo.   While they were gone, Von telephoned
Chanta and her sister, Vila. She gave them the address and phone
number of the house in Scranton. Tearfully, she told Vila that
Sriyuth had made sexual advances to her. Vila told her she would
come and get her, but Von told her to wait because Sriyuth told
her he was going to take her home tomorrow.
         At some point after Sriyuth returned, Von went upstairs
to use the bathroom. Sriyuth went upstairs to see what was
taking Von so long. She told him she just wanted to be alone for
awhile. He said he was going to play some pool with his friend.
Von told him to go, but she was going to stay. She went back
into the bathroom and when she emerged ten to fifteen minutes
later, Sriyuth was there waiting for her. He blocked her access
to the stairs so she ended up in the bedroom. She sat down on
the floor and wrapped her arms around her legs. Sriyuth picked
her up and placed her on the bed. Shortly thereafter, Sriyuth
became sexually aggressive with Von, ripping her body suit to
remove it. She attempted to fight off Sriyuth's advances by
biting, scratching, and pushing him, and by telling him to stop.
Sriyuth ultimately raped her. Afterwards, Sriyuth told Von to go
to sleep and if she tried to move, he would start attacking her
again.
         Before Sriyuth woke the next morning, Von slipped out
of bed and went into the bathroom to take a bath. Dressed in her
jeans and tee-shirt, Von quietly walked downstairs and exited the
house. She walked as fast as she could until she came to a house
with a light on. Von knocked on the door and when two elderly
women answered, she asked them if she could use their phone to
call the police. She told them that she had been kidnapped and
raped. The women allowed Von to call the police from their
house. The police arrived a short while later; one of the
officers interviewed Von for approximately one hour and then took
her to a hospital for a rape examination. From the hospital,
Von was taken to police headquarters in Scranton, where she was
interviewed by Special Agent Seidel of the Federal Bureau of
Investigation.
         Based on the information Von gave to the police
officer, officers were dispatched to apprehend Sriyuth. The
officers found Sriyuth in the upstairs bedroom still asleep. He
was taken into custody and transported to police headquarters.
The vehicle driven by Sriyuth from Detroit to Scranton was
impounded by the Scranton Police. After obtaining Von's
statement, the police officers were able to obtain a search
warrant for the impounded vehicle; the search revealed a nine
millimeter handgun in the glove compartment.
         Later that day, Agent Seidel interviewed Sriyuth at the
Scranton Police Headquarters in the presence of Officer Victor
Sanguiliano and Detective Captain Ted Maus. Prior to any
questioning, Agent Seidel read Sriyuth his constitutional rights
which he waived. Sriyuth then proceeded to give a statement to
Agent Seidel that essentially mirrors the testimony of Von and
the other witnesses. Prior to trial, Sriyuth filed a motion to
suppress this statement. After a hearing on August 1, 1994, the
district court ruled at the Pre-Trial Conference that the
defendant intelligently, knowingly, and voluntarily waived his
Miranda rights and accordingly denied the motion.
         Immediately prior to the commencement of trial, Sriyuth
filed a Motion in Limine seeking to preclude the government from
introducing any evidence that the purpose or motive for the
alleged kidnapping was for a sexual assault. The district court
denied his motion orally at the Pre-Trial Conference on January
30, 1995 without stating a basis for its ruling. The jury trial
began the next day and, at the end of the government's case,
defense counsel moved for Judgment of Acquittal pursuant to Rule
29 of the Federal Rules of Criminal Procedure. The district
court denied the motion. Thereafter, Sriyuth was found guilty on
both charges. Following the jury's verdict, defense counsel
renewed her motion for judgment of acquittal, as well as filed a
motion for a new trial, both of which were denied by the district
court in a Memorandum and Order dated September 14, 1995.   This
appeal followed.
         We have jurisdiction pursuant to 28 U.S.C. § 1291.

                               II.
         First and foremost, Sriyuth contends that the district
court erred in failing to preclude the government from
introducing any evidence at trial that the purpose or motive for
the alleged kidnapping was for gaining Von's companionship and
for a sexual assault. Initially, he argues that because motive
is not an element of the offense of kidnapping, the sexual
assault evidence is not relevant under Federal Rule of Evidence
401. Alternatively, Sriyuth claims that none of the exceptions
to Rule 404(b) of the Federal Rules of Evidence, which precludes
the admission of evidence of other crimes, wrongs or acts to
prove a person's character, applies here. Finally, Sriyuth
contends that the probative value of this evidence does not
outweigh the harmful consequences which would result from its
admission and thus should have been excluded under Rule 403 of
the Federal Rules of Evidence.
         Rule 401 defines relevant evidence as "evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." Fed. R.
Evid. 401. Relevant evidence will be admissible unless the rules
of evidence provide to the contrary. United States v. Scarfo,
850 F.2d 1015, 1019 (3d Cir.), cert. denied, 488 U.S. 910 (1988)
(citing Huddleston v. United States, 485 U.S. 681, 687 (1988));
see also Fed. R. Evid. 402. Rule 404(b), although viewed as a
rule of inclusion rather than exclusion, provides for the
exclusion of relevant evidence in certain situations.
Huddleston, 485 U.S. at 688-89; Scarfo, 850 F.2d at 1019.
Specifically, Rule 404(b) precludes the admission of evidence of
other crimes, wrongs or acts to prove a person's character;
however, such evidence may be admissible to show "motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." Thus, "[t]he threshold inquiry
a court must make before admitting similar acts evidence under
Rule 404(b) is whether that evidence is probative of a material
issue other than character." Huddleston, 485 U.S. at 686.
         Once it has been determined that the other crimes
evidence is admissible under Rule 404(b), the balancing test of
Rule 403 must also be met. Accordingly, relevant other crimes
evidence may be excluded if the probative value of the evidence
is substantially outweighed by the danger of undue prejudice.
Scarfo, 850 F.2d at 1019 (citation omitted).
         In order to gauge whether the sexual assault evidence
is relevant we must first look to the plain language of the
kidnapping statute, 18 U.S.C. § 1201(a). Section 1201(a) states
in pertinent part:
         Whoever unlawfully seizes, confines,
         inveigles, decoys, kidnaps, abducts, or
         carries away and holds for ransom or reward
         or otherwise any person, when:

              (1) the person is willfully transported
         in interstate or foreign commerce;

         . . .

         shall be punished by imprisonment for any
         term of years or for life.

18 U.S.C. § 1201(a)(1) (emphasis added). The focus of our
inquiry centers initially on the statutory language that the
victim be held "for ransom, reward or otherwise."
         After examining the legislative history of the 1936
amendment to section 1201 and pertinent Supreme Court cases, the
court of appeals in Gawne v. United States, 409 F.2d 1399, 1402-
03 (9th Cir. 1969), cert. denied, 397 U.S. 943 (1970), concluded
that "obviously `otherwise' comprehends any purpose at all."
(citation omitted). Because "otherwise" was intended to mean
"any other reason," the court held that defendants' purpose for
the kidnapping was not an element of the offense. Id. at 1403.
         The government maintains that because "purpose" is an
element of kidnapping and, in order to sustain its burden of
proof as to this element it was required to present evidence of
the sexual assault, purpose was therefore relevant to prove the
offense of kidnapping. In support of this argument, the
government cites a number of cases which hold generally that
evidence of "some purpose" was sufficient to satisfy the federal
kidnapping statute. See United States v. Eagle Thunder, 893 F.2d
950, 953 (8th Cir. 1990); (evidence of sexual assault sufficient
to show "some purpose of his own"); United States v. McBryar, 553
F.2d 433 (5th Cir.), cert. denied, 434 U.S. 862 (1977) (evidence
of sexual gratification sufficient to meet "or otherwise"
requirement); United States v. Lutz, 420 F.2d 414, 416 (3d Cir.),
cert. denied, 398 U.S. 911 (1970) (evidence of rape sufficient to
satisfy "or otherwise" element). In United States v. McCabe, 812
F.2d 1060, 1062 (8th Cir.) cert. denied, 484 U.S. 832 (1987), the
court of appeals stated that "`Congress by the phrase "or
otherwise" intended to include any object of a kidnaping which
the perpetrator might consider of sufficient benefit to himself
to induce him to undertake it.'" (quoting United States v.
Wolford, 444 F.2d 876, 881 (D.C. Cir. 1971)).
         The district court agreed with the government and held
that the rape was admissible to show motive, citing among other
cases United States v. Bradshaw, 690 F.2d 704, 708 (9th Cir.
1982), cert. denied, 463 U.S. 1210 (1983). Bradshaw argued that
evidence of his sexual activity with the victim should have been
excluded as irrelevant under Rule 404(b) or, if relevant, was
unduly prejudicial pursuant to Rule 403. We find the language of
the court of appeals particularly instructive:

         Evidence of drug use and sexual relations
         with a nine-year-old boy was obviously
         prejudicial to the defendant. But it was
         also relevant to show Bradshaw's dominion
         over [the victim]. The contention that the
         victim consented to the trip, and, therefore,
         that he was not kidnapped, made the evidence
         of sex and drug activity occurring after the
         kidnapping admissible. See Holden v. United
         States, 388 F.2d 240, 242 (1st Cir.), cert.
         denied, 393 U.S. 864 (1968).

         . . .

         Motive is evidence of the commission of any
         crime. This Court has previously held
         evidence of sexual relations admissible
         because of its relevance to motive in a
         kidnapping case. See United States v.
         Gibson, 625 F.2d 887 (9th Cir. 1980). It was
         pointed out in Gibson that while there may be
         no substantial issue of motive under section
         1201(a), "the subsequent conduct does tend to
         present a picture, the whole of which
         indicates guilt. . . . The picture of a
         kidnapping is not complete unless all of the
         relationships of the defendant to the victim,
         from the beginning of the illegal detention
         to the end of it, are shown." Id. at 888.
         (footnote omitted.)

690 F.2d at 708-09.   As in Bradshaw, the evidence of Sriyuth's
sexual assault of Von is relevant to show not only his motive
in kidnapping her, but also that she did not consent to go with
him.
         With respect to Sriyuth's Rule 404(b) argument, we
conclude that it must fail for two reasons. First, the evidence
is probative of a material issue other than his character--motive
and the victim's consent--and thus falls within the permissible
uses of other crimes evidence. In addition, "[w]hen the evidence
of another crime is necessary to establish an element of the
offense being tried, there is no `other crime.'" United States
v. Blyden, 964 F.2d 1375, 1378 (3d Cir. 1992). Here the rape
evidence was probative of the victim's lack of consent to the
kidnapping and, therefore, was an element of section 1201(a).
This evidence also explains why Von suddenly decided to report
the kidnapping to the police; without it, her actions in this
case make no sense. The government had no other means available
to it to prove this element. As a result, we conclude the rape
evidence was highly probative of a material element of
kidnapping.
         Our analysis does not end here, however, as relevant
evidence will be admissible so long as its probative value
substantially outweighs the danger of unfair prejudice. Fed.
R. Evid. 403; Scarfo, 850 F.2d at 1019. In applying this test,
we must assess the "genuine need for the challenged evidence and
balance that necessity against the risk that the information will
influence the jury to convict on improper grounds." Id. (citing
United States v. Cook, 538 F.2d 1000, 1003 (3d Cir. 1976); United
States v. Driggs, 823 F.2d 52, 54 n. 2 (3d Cir. 1987)). In Cook,
we recited several factors to be considered in the balancing
process:
         . . . we must balance the actual need for
         that evidence in view of the contested issues
         and the other evidence available to the
         prosecution, and the strength of the evidence
         in proving the issue, against the danger that
         the jury will be inflamed by the evidence to
         decide that because the accused was the
         perpetrator of the other crimes, he probably
         committed the crime for which he is on trial
         as well. . . . The treasured principles
         underlying the rule against admitting
         evidence of other crimes should be relaxed
         only when such evidence is genuinely needed
         and would be genuinely relevant. (footnote
         omitted.)

Cook, 538 F.2d at 1003 (quoting United States v. Goodwin, 492
F.2d 1141, 1150 (5th Cir. 1974)). We noted that a significant
danger of undue prejudice will be found to exist where there are
"substantial possibilities . . . that a jury will harbor strong
adverse sensitivity" to the challenged evidence. Id. at 1004.
In order to overcome this significant risk of unfair prejudice,
the government must prove necessity. Id.
         Although Sriyuth contends that "[i]t was likely that
the rape evidence contributed to the jury's verdict," we are
convinced that this evidence was genuinely needed and relevant to
proving the kidnapping. In our view, the rape evidence is
strongly probative because it counters two central arguments
advanced by Sriyuth. First it rebuts Sriyuth's claim that he
transported Von to Pennsylvania with her consent to further the
arranged marriage. Evidence that a rape occurred during the
kidnapping, even after the predicate elements had been met, made
the government's account more likely than without this evidence.
Second, the rape evidence refutes Sriyuth's argument that Von's
delay in notifying the police showed that she went with Sriyuth
willingly. In any event, the risk of unfair prejudice was
minimized by the district court's instruction to the jury on the
limited use of the sexual assault evidence. As in Driggs, we
believe this is a case where the "jury could be expected to
compartmentalize the evidence and consider it for its proper
purposes." 823 F.2d at 54.
         Accordingly, we find that the sexual assault evidence
was relevant and that its probative value substantially
outweighed the danger of unfair prejudice to Sriyuth. The
district court properly allowed the government to present
evidence of the motive for the kidnapping.

                               III.
         Sriyuth's other allegations of error need not detain us
long as they lack legal merit.

                                A.
         Sriyuth challenges the district court's order denying
the suppression of his statement to Agent Seidel. His objection
is two-fold: his statement was not made knowingly or
intelligently as required by Miranda v. Arizona, 384 U.S. 436
(1966), and his statement was involuntary, having been obtained
through the exertion of promises or improper influence by Agent
Seidel. We find no merit in either argument.
         Our review of the district court's finding that Sriyuth
voluntarily, knowingly and intelligently waived his right to
counsel is subject to plenary review, but we are required to
accept its factual findings unless they are clearly erroneous.
United States v. Swint, 15 F.3d 286, 288 (3d Cir. 1994) (citing
Arizona v. Fulminante, 499 U.S. 279, 317 (1991)). In determining
whether the waiver was voluntary, knowing and intelligent under
Miranda, we are required to make a two-pronged inquiry. We must
first ask whether the waiver was voluntary "`in" the sense that
it was the product of a free and deliberate choice rather than
intimidation, coercion or deception.'" United States v.
Velasquez, 885 F.2d 1076, 1084 (3d Cir. 1989), cert. denied, 494
U.S. 1017 (1990) (quoting Moran v. Burbine, 475 U.S. 412, 421
(1986) (citation omitted)). Second, we must inquire whether the
waiver was "`made with a full awareness both of the nature of the
right being abandoned and the consequences of the decision to
abandon it.'" Id.
         This inquiry requires us to consider the totality of
the circumstances surrounding the interrogation, which includes
examining the events that occurred and the background,
experience, and conduct of the defendant. Alston v. Redman, 34
F.3d 1237, 1253 (3d Cir. 1994), cert. denied, 115 S. Ct. 1122
(1995) (citing Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983)
(additional citations omitted)). Miranda rights will be deemed
waived only where the totality of the circumstances "`reveal[s]
both an uncoerced choice and the requisite level of
comprehension.'" Id. (quoting Moran, 475 U.S. at 421) (citations
omitted).
         At the suppression hearing, Agent Seidel testified that
he was "absolutely certain" that Sriyuth understood him. Agent
Seidel stated that, in turn, he did not have any trouble
understanding Sriyuth, who spoke English. Indeed, Seidel did not
have any concerns whatsoever that there might have been
difficulties with communication. Agent Seidel testified that he
explained briefly what the victim said occurred and asked Sriyuth
if he wanted to talk to him about it. According to Agent Seidel,
Sriyuth indicated that he did want to talk to him, at which point
Sriyuth was taken to Detective Maus' office where the waiver of
rights form was read and explained to him.
         Agent Seidel was certain that Sriyuth understood his
rights and that he did not wish to have an attorney present for
the interview. In response to Agent Seidel telling him that he
could have an attorney present, Sriyuth allegedly stated that he
wanted to tell the agent his story, and then, before the hearing,
he wished to speak to an attorney. At no point during the
interview did the defendant indicate that he wished to stop or
that he wanted an attorney present.
         Agent Seidel also testified that he did not make any
promises to coerce Sriyuth into talking without a lawyer either
before or after Sriyuth signed the waiver of rights form. After
the interview was over, Agent Seidel told Sriyuth he thought he
had done the right thing by telling the truth and, at some point
down the road, Seidel would go to bat for him since he had
cooperated with the authorities. Detective Maus and Officer
Sangiuliano were also present when the waiver of rights form was
read and executed, and they corroborated Agent Seidel's account
of what transpired.
         To the contrary, Sriyuth testified that he immediately
requested an attorney, and that before he signed the waiver
form, Agent Seidel promised him that he would put in a good word
for him with the judge if he cooperated. Sriyuth further stated
that he understood his rights as they were read to him. When
asked specifically if he understood what "anything you say can be
used against you in court" meant, he replied, "Yes, but I didn't
really pay attention to that." He stated that he agreed to the
interview because he thought that if he got an attorney that day,
he would just have to pay a fine and he would be released.
Sriyuth also contested the substance of his statement to Agent
Seidel as contained in the FBI 302 Report. In particular,
Sriyuth denied admitting to Agent Seidel that he kidnapped and
raped Von.
         According to Agent Seidel, at the time of the interview
the defendant did not appear to be under the influence of alcohol
or drugs, nor did he appear to be mentally or physically disabled
in any way. At the suppression hearing, Sriyuth testified that
he was twenty-three years old, had been in this country for nine
years, and had attended high school in the United States for five
years. Since quitting school, Sriyuth managed a fast food
restaurant and worked in construction; at the time he was
arrested he was working for a grinding company. Sriyuth also
testified that he was not familiar with the criminal justice
system. He did, however, state that he knew he was entitled to a
lawyer upon arrest from watching movies and the television show,
"The People's Court." Sriyuth was not handcuffed during the
interview, which lasted approximately one hour.
         The district court found that Sriyuth's testimony at
the suppression hearing was not believable. By crediting Agent
Seidel's testimony, the district court in effect adopted the
agent's version of the facts--that Sriyuth understood his rights,
based on the number of years he has lived in the United States,
his education and work experience; that Sriyuth did not request
an attorney for the interview; and that Agent Seidel did not
promise Sriyuth that he would put in a good word for him to
coerce him into waiving his rights. These findings are not
clearly erroneous. The record supports the denial of the motion
because Sriyuth waived his rights freely and deliberately, and
was not coerced into relinquishing them. Moreover, his own
testimony confirms that he understood the nature of the right
being abandoned and the consequences of such abandonment. We
hold, therefore, that the district court did not err in
concluding that Sriyuth voluntarily, knowingly, and intelligently
waived his right to counsel. Accordingly, the district court
properly denied the motion to suppress.

                                B.
         Sriyuth also contends that there was insufficient
evidence for the jury to find that he held the victim against her
will at the time he transported her across state lines.
Challenges to the sufficiency of the evidence are reviewed "to
determine `whether, viewing the evidence in a light most
favorable to the government, there was substantial evidence upon
which a reasonable jury could have based its verdict.'" United
States v. Console, 13 F.3d 641, 652 (3d Cir. 1993), cert. denied,
114 S. Ct. 1660 (1994) (quoting United States v. Pungitore, 910
F.2d 1084, 1129 (3d Cir. 1990), cert. denied, 500 U.S. 915
(1991)). We find no merit in this argument. It is clear from
our review of the evidence that the government presented
substantial evidence from which the jury could believe the victim
did not consent to be transported across state lines.

                                C.
         The last two issues concern the district court's
instructions to the jury. The first objection involves the
following charge:
         The crime of kidnapping is complete when the
         defendant willfully transports a person
         against her will, and the person does, in
         fact, cross state lines. The offense of
         kidnapping is complete, then any agreement by
         the person to continue detention by the
         defendant does not absolve the defendant of
         the criminal responsibility.

Sriyuth contends the jury charge incorrectly defined the offense
of kidnapping, and, as a result, the jury failed to consider
whether the victim was a consenting party at the time they
crossed state lines. We have held that if the jury charge
"`fairly and adequately submits the issues in the case to the
jury [without confusing or misleading the jurors]'", then when
viewed as a whole and in the light of the evidence, the court's
instruction will not constitute reversible error. United States
v. Simon, 995 F.2d 1236, 1243 n.11 (3d Cir. 1993) (citations
omitted); see also United States v. Coyle, 63 F.3d 1239, 1245 (3d
Cir. 1995). Here, upon review of all of the instructions, it is
clear that the district court fairly and adequately instructed
the jury on the elements of the offense of kidnapping. In
particular, the court correctly instructed the jury that it must
find beyond a reasonable doubt that the victim was being
transported unwillingly at the time she crossed into Ohio. We
find nothing in this instruction which would have confused or
misled the jury.
         The final objection involves the supplemental jury
instruction given in response to a note received from the jury.
After discussion with counsel outside the presence of the jury,
the district court responded by giving the jury a written copy of
his oral instruction on the elements of kidnapping. Sriyuth
objected to the fact that it was given in writing, but had no
problem with the substance of the supplemental charge if reread
to the jury.
         In Beardshall v. Minuteman Press International, Inc.,
664 F.2d 23, 28 (3d Cir. 1981), we recognized that "the form and
extent of supplemental instructions are within the sound
discretion of the court." There, the trial court submitted a
written statement to the jury outlining the "bare bones" elements
of fraud, instead of the original oral instruction which
amplified the requirements for each element, including the
relevant qualifications and distinctions of each. We disapproved
of the trial court's written instruction in Beardshall because it
did not contain the qualifying instructions or the explanations
of the original oral charge, and thus unduly emphasized the
plaintiffs' theory of the case. Id. We did not preclude the use
of written instructions, however, in the appropriate case,
although we noted that the practice had risks. In order to
"avoid prejudicial emphasis on part of the case," we noted the
trial court should "[remind] the jury of the other aspects of the
original charge and [caution] them that the segment of the charge
which is amplified or explained should be considered in the light
of the other instructions and is not to be given undue weight."
Id. at 29. We are in agreement with the statement of our sister
Court of Appeals for the Fifth Circuit in United States v.
Ehrlich, 902 F.2d 327 (5th Cir. 1990), cert. denied, 498 U.S.
1069 (1991), that where initially the jury is charged orally but
is later given written instructions in response to a request for
supplemental instructions, "there [will be] no error unless,
under the totality of the circumstances, the court's written
response creates an unbalanced charge prejudicial to the
defendant." Id. at 330 (citation omitted).
         Here we cannot say, under the totality of the
circumstances, that the district court's written instruction
created an unbalanced charge prejudicial to Sriyuth. Unlike
Beardshall, the district court submitted the entire jury
instruction as originally given on the elements of kidnapping.
Thus, there was no need to remind the jury of the other aspects
of the original charge. Although we note that the district court
acknowledged the better practice may have been to read the
supplemental instruction to the jury instead of submitting a
written charge, we cannot say the court's choice resulted in
placing undue emphasis on any aspect of the case.

                               VI.
         We find that the district court did not err in allowing
the government to present the sexual assault evidence at trial or
in denying the motion to suppress the defendant's statement to
Agent Seidel. We further hold that the government presented
substantial evidence from which a reasonable jury could conclude
the victim did not consent to be transported across state lines.
Finally, we conclude that the district court acted within its
sound discretion with regard to the challenged jury instructions.
Accordingly, we will affirm the judgment in this criminal case.
