PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ADAOBI STELLA UDEOZOR, a/k/a No. 06-4467
Adaobi Stella Obioha, a/k/a Stella
Udeozor, a/k/a Adaobi Stella
Obiaha,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Peter J. Messitte, District Judge.
(8:03-cr-00470-PJM)
Argued: December 7, 2007
Decided: February 1, 2008
Before WILKINSON and SHEDD, Circuit Judges,
and John Preston BAILEY, United States District Judge
for the Northern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Shedd and Judge Bailey joined.
COUNSEL
ARGUED: Victoria Toensing, DIGENOVA & TOENSING, L.L.P.,
Washington, D.C., for Appellant. Dirk Christian Phillips, UNITED
2 UNITED STATES v. UDEOZOR
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Brady Toensing, Joseph E. diGenova,
DIGENOVA & TOENSING, L.L.P., Washington, D.C., for Appel-
lant. Wan J. Kim, Assistant Attorney General, Jessica Dunsay Silver,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
OPINION
WILKINSON, Circuit Judge:
We are asked to review the rulings of the district court in the trial
and sentencing of Dr. Adaobi Stella Udeozor for conspiracy to hold
another in involuntary servitude and for harboring a juvenile alien.
Dr. Udeozor makes numerous claims regarding her conviction and
sentence. Her three principal claims are as follows: one, the district
court abused its discretion by admitting evidence of sexual abuse of
the victim by Dr. Udeozor’s former husband and co-conspirator; two,
the district court improperly admitted recorded telephone conversa-
tions between Dr. Udeozor’s co-conspirator and the victim; and three,
the district court abused its discretion by including a special findings
form on the second page of the general verdict form used to determine
Dr. Udeozor’s guilt or innocence. We find that these claims lack
merit, and we affirm the defendant’s conviction and sentence.
I.
On November 18, 2004, a jury convicted Dr. Udeozor on two
counts. First, the jury convicted her of violating 18 U.S.C. § 371
(2000), which criminalizes conspiracy "to commit any offense against
the United States," here, specifically, the knowing and willful holding
of another in a condition of involuntary servitude. See 18 U.S.C.
§ 1584 (2000). Second, the jury convicted Dr. Udeozor of violating
8 U.S.C. § 1324(a)(1)(A)(iii) and (B)(i), which criminalize the har-
boring of an alien "for the purpose of commercial advantage or pri-
vate financial gain."
The facts underlying Dr. Udeozor’s convictions are as follows. In
1996, Dr. Udeozor’s husband, George Udeozor ("Mr. Udeozor"),
UNITED STATES v. UDEOZOR 3
induced a fourteen-year-old girl ("the victim") to leave her home
country of Nigeria and to enter the United States. Mr. Udeozor prom-
ised the victim and her family that she could attend school in the
United States, and that he would send payment to the victim’s parents
for her help in caring for the Udeozors’ children. In October 1996,
Mr. Udeozor brought the girl into the United States using his eldest
daughter’s passport.
The victim lived with the Udeozors from October 1996 until Octo-
ber 2001. During that time, the Udeozors required her to care for their
children, to clean their house, and to cook for them. The victim testi-
fied at trial that she was also required to work in Dr. Udeozor’s medi-
cal office, where she performed multiple tasks, including answering
the phones, preparing patient charts, verifying patients’ insurance
information, and cleaning out medical examination rooms. The victim
received no compensation for her work. The victim’s father testified
that he received only "[o]ne piece of cloth and a bag of rice." The
Udeozors never enrolled the victim in any school.
During this time, the Udeozors subjected the victim to repeated
physical, emotional, and sexual abuse. In particular, at trial, the victim
testified that Dr. Udeozor hit her with an "open hand, and sometimes
her fist, and then sometimes she would use her shoe." She also testi-
fied that Dr. Udeozor threw things at her, and that Dr. Udeozor
"would twist and pull [her] ear." During one particular beating, the
Udeozors forced the young girl to kneel and raise her hands above her
head, after which Dr. Udeozor beat her in her sides with a flexible
wooden cane, and Mr. Udeozor struck her in the hand with the metal
part of a belt. After the beating, Dr. Udeozor forced the victim to con-
tinue kneeling for an additional forty-five minutes. This beating left
the victim with marks on her sides and breathing difficulties. During
another beating, Dr. Udeozor struck the victim with a shoe, causing
her wrist to be dislocated. The victim never received any medical
attention after any of these beatings.
The Udeozors also emotionally abused the victim. The Udeozors
threatened to send the victim back to Nigeria, and they told her that
the government would deport her if she left the house because she did
not have "papers." Finally, between 1997 and 1999, Mr. Udeozor
forced the victim — on numerous occasions — to engage in sexual
4 UNITED STATES v. UDEOZOR
intercourse with him, conduct which the government characterized in
its argument at trial as "rape." The victim testified that Mr. Udeozor
threatened to and did sexually assault her more frequently and more
forcefully if his children misbehaved or suffered harm while in her
care. Mr. Udeozor also warned the victim that if she spoke to anyone
about the sexual assaults, he would tell her parents that she had
become a prostitute.
While the Udeozors were at work and their children were at school,
the victim — who taught herself to use the computer — conducted
research on immigration and made contacts with non-profit groups
about her situation. One of the victim’s contacts suggested that she
write a letter to Dr. Udeozor about her plight, which she did. The vic-
tim gave the letter to Dr. Udeozor on October 30, 2001, and a con-
frontation ensued. The victim subsequently called the police and ran
to a neighbor’s house. Once the police arrived, the victim left the
Udeozors’ home.
After the jury convicted Dr. Udeozor, on April 18, 2006, the dis-
trict court sentenced her to 87 months’ imprisonment and ordered her
to pay the victim $110,249.60 in restitution.
Dr. Udeozor raises various claims on appeal. She contends that the
district court abused its discretion by admitting evidence of sexual
abuse by Mr. Udeozor. She argues that the district court improperly
admitted recorded telephone conversations between Mr. Udeozor and
the victim. She further contends that the district court abused its dis-
cretion and tainted the jury verdict by including a special findings
form on the second page of the verdict form used to determine her
guilt or innocence. We address these claims in turn.
II.
Dr. Udeozor first contends that the district court abused its discre-
tion by admitting evidence that her former husband and co-
conspirator Mr. Udeozor had engaged in sexual intercourse with the
victim. Dr. Udeozor argues that this evidence should have been
excluded under Fed. R. Evid. 403 because "its probative value [was]
substantially outweighed by the danger of unfair prejudice." We
define undue prejudice as "a genuine risk that the emotions of the jury
UNITED STATES v. UDEOZOR 5
will be excited to irrational behavior, and that this risk is dispropor-
tionate to the probative value of the offered evidence." United States
v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993) (internal quotations
omitted). According to Dr. Udeozor, she was not aware of her hus-
band’s conduct, and that his conduct did not further the conspiracy
with which she was charged. Thus, Dr. Udeozor argues, the govern-
ment infected her entire trial with inflammatory evidence of rape that
was committed not by her, but by her husband.
It is not an easy thing to overturn a Rule 403 ruling on appeal. Rule
403 is a rule of inclusion, "generally favor[ing] admissibility . . . ."
United States v. Wells, 163 F.3d 889, 896 (4th Cir. 1998). District
judges enjoy wide discretion to determine what evidence is admissi-
ble under the Rule. See United States v. Love, 134 F.3d 595, 603 (4th
Cir. 1998). We "review a district court’s admission of evidence over
a Rule 403 objection under a broadly deferential standard." Id. (inter-
nal quotations omitted). Indeed, "[a] district court’s decision to admit
evidence over a Rule 403 objection will not be overturned except
under the most extraordinary circumstances, where that discretion has
been plainly abused." United States v. Williams, 445 F.3d 724, 732
(4th Cir. 2006) (internal quotations omitted). This deference is well
warranted: "[T]rial judges are much closer to the pulse of a trial than
[appellate judges] can ever be and broad discretion is necessarily
accorded them . . . ." United States v. Tindle, 808 F.2d 319, 327 n.6
(4th Cir. 1986) (internal quotations omitted). Thus, when reviewing
a trial court’s decision to admit evidence under Rule 403, "we must
look at the evidence in a light most favorable to its proponent, maxi-
mizing its probative value and minimizing its prejudicial effect."
United States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990).
Judged against these standards, the district court did not abuse its
discretion in admitting the evidence of Mr. Udeozor’s sexual abuse
of the victim. This is because the probative value of the evidence of
sexual abuse is not, as Dr. Udeozor contends, "substantially out-
weighed" by any unfairly prejudicial effect. While we have stated that
"no evidence could be more inflammatory or more prejudicial than
allegations of child molestation," the Rule 403 inquiry requires us to
weigh its probative value against the danger of harm. Ham, 998 F.3d
at 1252. Here, evidence of sexual abuse — even though committed
6 UNITED STATES v. UDEOZOR
by Mr. Udeozor and not Dr. Udeozor — was probative of the conspir-
acy to impress the victim into involuntary servitude.1
Specifically, to make its case against Dr. Udeozor, the government
had to establish, as set forth in the instructions given the jury, that Dr.
Udeozor was part of a conspiracy to "compel" the victim "to work
against her will, for the benefit of another person or persons, by the
use of force, the threat of force, or the threat of legal coercion." Mr.
Udeozor’s sexual abuse of the victim was one of the forms of force
used to keep the minor victim in the condition of involuntary servi-
tude. Therefore, it was part and parcel of a conspiracy — involving
nearly four years of physical, psychological, and sexual abuse — to
exercise complete control over the young girl in the Udeozors’ house-
hold.
In fact, this court has already held that abuse by a defendant’s co-
conspirator can constitute a means of furthering a conspiracy to obtain
free labor from a victim. In United States v. Bonetti, we held that one
spouse’s physical abuse of an illegally harbored alien was "committed
in furtherance" of the couple’s conspiracy to obtain free labor,
because such abuse intimidated the victim "from asserting her right
to payment or resisting [the couple’s] demands that she work." 277
F.3d 441, 447 (4th Cir. 2002). There, as here, the jury was entitled to
hear about the full scope of the conspiracy. Thus, it was not an abuse
of discretion for the trial judge to allow the jury to hear evidence that
sexual abuse was used to make the victim believe she had no choice
but to comply with the Udeozors’ demands.
1
Dr. Udeozor relies heavily on this court’s decision in United States v.
Ham, in which we held that the probative value of evidence that the
defendants’ religious sect engaged in child molestation was so out-
weighed by its prejudicial effect that it should have been excluded. 998
F.2d at 1253-54. Ham, however, is distinguishable from this case. In
Ham, the inflammatory evidence had very little probative value: It was
relevant only as indirect proof of motive for murder, and it merely would
have made the motive "slightly more likely." Id. at 1253. Here, Mr.
Udeozor’s sexual brutality was a vital component of the Udeozors’ cam-
paign of abuse to keep the victim within their control, and thus is both
directly relevant to and intertwined with the charged offense of conspir-
acy.
UNITED STATES v. UDEOZOR 7
Accordingly, the district court did not exceed the boundaries of
permissible judgment in regarding the evidence of sexual brutality as
a matter of weight rather than admissibility. The jury had a choice
whether and to what extent to credit the evidence of sexual abuse, and
insofar as Dr. Udeozor believed the jury should discount the evidence
of Mr. Udeozor’s sexual conduct, she could have argued as much. In
fact, the government ran its own risks in introducing the evidence. Its
strategy could quickly backfire if the jury were to conclude the gov-
ernment was attempting to pin on Dr. Udeozor actions in which she
played no part and of which she was totally unaware. It was wholly
open to Dr. Udeozor to attack the evidence on just this ground, by
arguing, as she does here, that she had no knowledge of, much less
involvement in, Mr. Udeozor’s sexual abuse of the victim.2
As the district court pointed out, Dr. Udeozor could also have
argued that her husband’s sexual conduct had nothing to do with the
conspiracy at all. But given that the evidence of Mr. Udeozor’s acts
was not so removed from Dr. Udeozor’s wrongdoing and not so
removed from the count of conspiracy, it was not an abuse of discre-
tion for the district court to conclude that the evidence was not so
prejudicial as to be inadmissible under Rule 403.
Moreover, to rule this evidence inadmissible outright would create
problems of its own. Sexual coercion and subordination have been
among the worst indicia of involuntary servitude. To reverse the trial
court’s admission of such evidence here would draw us closer to an
inadvisable rule of per se inadmissibility with respect to a badge and
incident of servitude which is distressingly common, not just histori-
2
Whether and to what extent Dr. Udeozor had knowledge of Mr. Udeo-
zor’s acts of sexual abuse is a matter of some dispute. While Dr. Udeozor
claims that she was completely unaware of her husband’s conduct, the
government contests the point. The government cites the testimony of
Dr. Udeozor’s former driver, who stated that "one day [Dr. Udeozor]
said in the car that she suspected [that Mr. Udeozor was having sex with
the victim]." In any event, whether Dr. Udeozor was aware of the sexual
abuse is not dispositive, because "[a] conspirator need not have had
actual knowledge of the co-conspirators or of the details of the conspir-
acy" for a conviction of conspiracy to be sustained. United States v. Mor-
sley, 64 F.3d 907, 919 (4th Cir. 1995).
8 UNITED STATES v. UDEOZOR
cally, but for young women who find themselves in coercive circum-
stances today. The Udeozors’ scheme involved an allegedly noxious
brew of physical, psychological, and sexual coercion of its minor vic-
tim, and the trial court did not exceed its discretion in viewing the
challenged evidence as relevant to the basic theory of the govern-
ment’s conspiracy count.
III.
Dr. Udeozor next contends that two telephone conversations
between the victim and Mr. Udeozor, which the police recorded, were
improperly admitted into evidence. In the challenged conversations,
Mr. Udeozor stated that he had brought the victim into the United
States illegally, but he denied having forcible sexual relations with the
victim. In addition, Mr. Udeozor stated that he was "concerned for
[his] own self," and that he needed to get an attorney. He also asked
the victim what she had told the police so that he could ensure his
story matched hers; whether she had told the police she had been
beaten; and whether the police were looking for him. Mr. Udeozor
told the victim to keep everything they had discussed between the two
of them.
Dr. Udeozor’s challenge to the admission of her former husband’s
statements stems from the fact that Mr. Udeozor was unavailable to
testify at her trial. Around 1998, Mr. Udeozor left his wife and family.
His children testified that the last time they saw him was "around
Christmastime" of 1998. Mr. Udeozor since fled the United States,
and attempts to extradite him have proven unsuccessful. Accordingly,
Dr. Udeozor makes two arguments about Mr. Udeozor’s statements
on the tapes. One, she argues that the two taped telephone conversa-
tions were inadmissible hearsay. Two, she contends that admission of
the two taped telephone conversations violated her Sixth Amendment
right to confront Mr. Udeozor, her absent co-conspirator.
A.
We take up the hearsay argument first. Federal Rule of Evidence
802, the hearsay rule, "is premised on the theory that out-of-court
statements are subject to particular hazards," including dangers of
insincerity, ambiguity, erroneous perception, and faulty memory. Wil-
UNITED STATES v. UDEOZOR 9
liamson v. United States, 512 U.S. 594, 598 (1994). The Federal
Rules of Evidence, however, except certain kinds of out-of-court
statements — statements which are less susceptible to the dangers of
hearsay — from the general rule that hearsay is inadmissible. Id. Rule
804(b)(3) makes one such exception for statements made against the
declarant’s interest: statements which, when they were made, "so far
tended to subject the declarant to . . . criminal liability . . . that a rea-
sonable person in the declarant’s position would not have made the
statement[s] unless believing [them] to be true." Fed. R. Evid.
804(b)(3).
The district court overruled Dr. Udeozor’s hearsay objection on
this ground, but she contends that the recorded statements made by
her husband were not entirely inculpatory, and thus do not fall within
the exception set forth in Rule 804(b)(3). Specifically, in his state-
ments to the victim recorded on these tapes, Mr. Udeozor suggested
that their sexual relationship was consensual. Therefore, Dr. Udeozor
argues, Mr. Udeozor’s statements were not inculpatory as to his use
of force against the victim, the purpose for which the government
sought their admission. Rule 804(b)(3), however, is not so circum-
scribed. Whether Mr. Udeozor’s statements were "self-inculpatory or
not can only be determined by viewing [the statements] in context."
Williamson, 512 U.S. at 603.
Viewed in context, many statements, even those that do not amount
to an admission of a crime or an element of a crime, constitute state-
ments "against penal interest" for purposes of Rule 804(b)(3). For
example, "statements that are on their face neutral," "statements that
give the police significant details about [a] crime," and statements that
a reasonable person in the declarant’s position would realize implicate
him in a conspiracy, all may be self-inculpatory for purposes of Rule
804(b)(3). Id.
Viewing Mr. Udeozor’s statements in context demonstrates that
they were "sufficiently against [Mr. Udoeozor’s] penal interest that a
reasonable person in [his] position would not have made the state-
ment[s] unless believing [them] to be true." Id. at 603-04. Mr. Udeo-
zor made multiple statements that were against his penal interest, and
not just as to force. Mr. Udeozor admitted to smuggling the victim
into the United States illegally. He admitted to hitting the victim, and
10 UNITED STATES v. UDEOZOR
he asked her whether she had told the police she had been beaten. He
repeatedly asked the victim whether the police were looking for him,
and he demanded that she tell him everything that she had told the
police. And although Mr. Udeozor denied having forcible intercourse
with the victim, he clearly admitted to engaging in sexual intercourse
with a minor — an act the district court recognized could be seen as
"an act of intimidation." To say that admission of such acts is in some
sense "exculpatory" belies the nature of the word. The district court
did not abuse its discretion in admitting the taped conversations into
evidence under Rule 804(b)(3).
B.
Dr. Udeozor also argues that the taped conversations between her
husband and the victim were admitted in violation of Dr. Udeozor’s
Sixth Amendment right "to be confronted with the witnesses against
[her]." U.S. Const. amend. VI. The Supreme Court has interpreted the
Confrontation Clause of the Sixth Amendment as barring "admission
of testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had a prior
opportunity for cross-examination." Crawford v. Washington, 541
U.S. 36, 53-54 (2004). As Crawford and later Supreme Court cases
make clear, a statement must be "testimonial" to be excludable under
the Confrontation Clause. See Davis v. Washington, 126 S.Ct. 2266,
2273 (2006). This limitation is grounded in the text and history of the
Sixth Amendment, which "applies to ‘witnesses’ against the accused
— in other words, those who ‘bear testimony.’" Crawford, 541 U.S.
at 51.
While the Supreme Court has yet to spell out a comprehensive def-
inition of the term "testimonial," it has provided guidance as to its
meaning. To begin, in Crawford, the Court set forth three formula-
tions of the "core class of ‘testimonial’ statements": One, "ex parte in-
court testimony or its functional equivalent — that is, material such
as affidavits, custodial examinations, prior testimony that the defen-
dant was unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially"; two,
"extrajudicial statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confes-
sions"; and three, "statements that were made under circumstances
UNITED STATES v. UDEOZOR 11
which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial." Id. at 51-52 (cita-
tions and quotations omitted).
As the Court in Crawford pointed out, these three formulations of
the "core class" of testimonial statements share a "common nucleus."
Id. at 52. All three of these formulations indicate, twice explicitly,
that the "common nucleus" of the "core class" of testimonial state-
ments is whether a reasonable person in the declarant’s position
would have expected his statements to be used at trial — that is,
whether the declarant would have expected or intended to "bear wit-
ness" against another in a later proceeding. Indeed, this court and
other circuits have recognized that Crawford stands for this principle.
See, e.g., United States v. Jordan, ___ F.3d ___, 2007 WL 4234735,
*8 (4th Cir. Dec. 4, 2007) ("The critical Crawford issue here is
whether [the declarant], at the time she made her statements . . . rea-
sonably believed these statements would be later used at trial.");
United States v. Maher, 454 F.3d 13, 21 (1st Cir. 2006) (same);
United States v. Ellis, 460 F.3d 920, 926 (7th Cir. 2006) (An essential
aspect of a testimonial statement is that the declarant would "reason-
ably expect[ ] the statement to be used prosecutorially"); United
States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005) ("[T]he
‘common nucleus’ present in the formulations which the Court con-
sidered centers on the reasonable expectations of the declarant.");
United States v. Hinton, 423 F.3d 355, 360 (3d Cir. 2005) (same);
United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004) (same).
Two years later, in Davis v. Washington, the Supreme Court
applied Crawford’s teachings to determine whether certain statements
made in response to police interrogations were testimonial. Davis,
126 S.Ct. at 2273-74. Davis’ application of Crawford is entirely con-
sistent with the notion that the "common nucleus" of testimonial state-
ments is the declarant’s expectations. In Davis, the statements barred
by the Confrontation Clause were those written by a victim in an affi-
davit, in a room where she was separated from the defendant, and
given to a police officer for his investigation of an alleged crime of
domestic violence. Those not excluded were statements made by an
individual during a 911 call in a plain attempt to request help. Id. at
2278. The distinction between the two sets of statements in Davis is
consistent with the principle that, for a statement to be testimonial, the
12 UNITED STATES v. UDEOZOR
declarant must have had a reasonable expectation that his statements
would be used prosecutorially: "No ‘witness’ goes into court to pro-
claim an emergency and seek help." Id. at 2277.
C.
Mr. Udeozor’s recorded statements are not "testimonial" for pur-
poses of the Confrontation Clause. This is true for several reasons.
First, Mr. Udeozor’s statements on the tapes do not fall within any of
the explicit examples of testimonial statements set forth in Crawford
or Davis. His statements were made not as part of prior testimony at
a preliminary hearing, before a grand jury, or at a former trial, nor
were they made during a police interrogation. Neither were Mr. Udeo-
zor’s statements, as in Davis, taken by police at the scene of a crime
in the absence of an ongoing emergency.
Second, Mr. Udeozor’s statements are not testimonial because,
objectively viewed, no reasonable person in Mr. Udeozor’s position
would have expected his statements to be used later at trial. Mr.
Udeozor certainly did not expect that his statements would be used
prosecutorially; in fact, he expected just the opposite. As discussed
above, Mr. Udeozor made numerous statements to the victim that
were contrary to his own penal interests, including admissions that he
had hit the victim, had engaged in sexual intercourse with her, and
had smuggled her into the United States illegally. Moreover, he made
the victim promise that she would keep their conversation between
the two of them. These statements would not have been made by a
reasonable person who believed his statements would be used in a
later criminal prosecution.
Dr. Udeozor contends, however, that the statements her husband
made on the tapes were "testimonial" as defined by the Supreme
Court in Davis and therefore excludable because "[t]here can be no
doubt the government taped [Mr. Udeozor’s] conversations for the
purpose of trial evidence." Brief of Appellant at 35. In particular, Dr.
Udeozor argues that the government "used [the victim], in lieu of an
investigator, to ask questions or elicit responses to establish whether
criminal conduct had occurred." The government’s alleged involve-
ment renders Mr. Udeozor’s statements testimonial because, as Dr.
Udeozor argues, the Court in Davis focused not on whether the wit-
UNITED STATES v. UDEOZOR 13
ness expected that his statements would be used prosecutorially, but
whether the government had such an expectation. Reply Brief of
Appellant at 10.
As an initial matter, we note that Dr. Udoezor’s position that the
government was using the victim "in lieu of an investigator" is hardly
self-evident. The victim testified that the police did not tell her what
to say during these calls. She also testified that she was free to end
the calls whenever she felt uncomfortable.
But even if, as Dr. Udeozor contends, the victim called Mr. Udeo-
zor at the government’s behest, her argument that the touchstone of
the "testimonial" inquiry is the reasonable expectations of the govern-
ment overlooks the limits of the text of the Confrontation Clause
itself. The Sixth Amendment is not structured as a set of investigatory
restraints upon government. Rather, it confers a set of critical trial and
pre-trial rights. The conferral of any right, however, is bounded by the
text and terms of the grant. Crawford’s conception of the right to con-
front one’s accusers — broad and generous as it is — is not so unteth-
ered from the Sixth Amendment text that it would wholly disable an
opposing party from presenting otherwise admissible, nontestimonial
evidence. The intent of the police officers or investigators is relevant
to the determination of whether a statement is "testimonial" only if it
is first the case that a person in the position of the declarant reason-
ably would have expected that his statements would be used prosecu-
torially. See Ellis, 460 F.3d at 924-926 (holding that to be
"testimonial," it is necessary — but sometimes not sufficient — for
a statement to have been made by a declarant who reasonably
expected "that it would be used for later prosecution").
That the Confrontation Clause’s focus is relentlessly textual is
reflected in the Supreme Court’s decisions in Crawford and Davis. In
both of those opinions, the Supreme Court cites its earlier decision in
Bourjaily v. United States, 483 U.S. 171, 181-84 (1987), for the prop-
osition that "statements made unwittingly to a Government infor-
mant" are "clearly nontestimonial" within the meaning of the
Confrontation Clause. Davis, 126 S.Ct. at 2275. Bourjaily is highly
pertinent here. Because Mr. Udeozor plainly did not think he was giv-
ing any sort of testimony when making his statements to the victim
during the recorded telephone calls, the admission of these two taped
14 UNITED STATES v. UDEOZOR
conversations into evidence did not violate Dr. Udeozor’s rights under
the Confrontation Clause. Under no plain meaning of the term may
the declarant’s statements in this case be called those of a "witness,"
much less a witness bearing testimony. Any other ruling would disre-
gard substantial circuit law and the teachings of the Supreme Court
itself.
IV.
Dr. Udeozor also contends that the district court abused its discre-
tion and tainted the jury’s verdict by following a "slip-shod method"
of submitting special findings as the second portion of the same ver-
dict form used to determine whether Dr. Udeozor was guilty or inno-
cent. Specifically, the first page of the verdict form asked the jury to
determine Dr. Udeozor’s guilt on each of the three charged counts;
the second page asked the jury to answer "yes" or "no" questions
regarding three special findings. For the reasons that follow, we hold
that the district court did not abuse its discretion in giving the jury
both of these forms at the same time.
Dr. Udeozor’s contention that the district court was required to
submit the special findings form to the jury separately from the gen-
eral verdict form is incorrect as a matter of law. We of course
acknowledge that, as a general matter, there has been a "presumption
against special verdicts in criminal cases." United States v. Milton, 52
F.3d 78, 81 (4th Cir. 1995) (internal quotations omitted). However,
whether to use a special verdict form "is a matter of the district
court’s discretion . . . ." United States v. Reed, 147 F.3d 1178, 1181
(9th Cir. 1998).
A special verdict form was justified in this case because, as this
court has recognized, in the "uncertainty" between Blakely v. Wash-
ington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S.
220 (2005), "it was reasonable to assume that enhancements, other
than prior conviction enhancements, had to be pled in the indictment
and the facts supporting those enhancements found by the jury
beyond a reasonable doubt." United States v. Robinson, 213 Fed.
App’x 221, 223 (4th Cir. 2007).
Moreover, while it is better practice to submit the general verdict
and special verdict forms separately, the district judge, both in the for-
UNITED STATES v. UDEOZOR 15
mal jury instructions and in the verdict form, instructed the jury not
to consider the three special findings unless it first found Dr. Udeozor
guilty. This procedure has been recognized as an acceptable one. For
example, in United States v. Hedgepeth, the Third Circuit found that
the requirement that special interrogatories used for sentencing pur-
poses must be submitted after a guilty verdict was satisfied "when
jurors are instructed on a single form to answer the special interroga-
tory only after filling out a verdict of guilty or not guilty." 434 F.3d
609, 613 n.2 (3d Cir. 2006). Although submitting the two forms sepa-
rately would have ensured that the jurors not "look[ ] down the page
at the special findings before rendering a guilty verdict," we "must
assume that the jury understood and followed the court’s instruc-
tions." Id. at 614 n.4 (internal quotations omitted); see also United
States v. Ellis, 121 F.3d 908, 921 (4th Cir. 1997). In light of the dis-
trict court judge’s clear instructions, we also cannot conclude that the
judge abused his discretion in handing the jury two forms together
rather than separately.
Dr. Udeozor makes two additional arguments regarding the special
findings. First, she contends that the district court erred because it did
not instruct the jury to specify the object or objects of the conspiracy
that formed the basis for its finding of guilt. Because Dr. Udeozor did
not request such an instruction at trial, we review this claim for plain
error. See United States v. Smith, 451 F.3d 209, 217 n.4 (4th Cir.
2006). No plain error exists here. The jury found that the government
had established beyond a reasonable doubt at least one object of the
conspiracy, involuntary servitude. As this court and others have rec-
ognized, "a guilty verdict must be sustained if the evidence shows that
the conspiracy furthered any one of the objects alleged." United States
v. Bolden, 325 F.3d 471, 492 (4th Cir. 2003) (citing Griffin v. United
States, 502 U.S. 56 (1991)).
Dr. Udeozor finally contends that the district court erred by includ-
ing in the materials given to the jury during deliberations statements
on the indictment form indicating that the grand jury had already
made the special findings the trial jury was asked to make. We also
review this claim for plain error, since Dr. Udeozor did not move to
redact the challenged language, did not object to the content of the
second superseding indictment in which the language was found, and
did not object to the second superseding indictment being given to the
16 UNITED STATES v. UDEOZOR
jury. Again, there is no plain error here. Dr. Udeozor relies upon this
court’s decision in United States v. Lentz, 383 F.3d 191, 219 (4th Cir.
2004), for her argument that the challenged statements which came
before the jury constituted "prejudicial evidence that was not intro-
duced at trial" such that she is entitled to a new trial. However, the
page containing the statement to which Dr. Udeozor objects was part
of the second superseding indictment, and an indictment is not evi-
dence. See, e.g., Taylor v. Kentucky, 436 U.S. 478 (1978). Therefore,
we find that there is no basis for concluding that the district court
erred with regards to the challenged language.
V.
We have reviewed with care each of Dr. Udeozor’s remaining
claims and conclude they are without merit. In particular, Dr. Udeo-
zor’s sentence of 87 months’ imprisonment, which was at the low end
of the guideline range, was procedurally and substantively reasonable
under the standards set forth in Rita v. United States, 127 S.Ct. 2456
(2007), and Gall v. United States, 128 S.Ct. 586 (2007).
Dr. Udeozor has mounted a spirited challenge in this appeal. She
urges that we "throw the book" at her former husband, but that we
recognize her own innocence. In fact, she goes so far as to argue that
the victim here was more akin to her "adopted daughter," and that she
treated her as such. It is of course possible that the jury might have
seen it that way. We must not ask, however, what the jury might have
seen, but what it did. In the jury’s view, Dr. Udeozor was part of a
conspiracy that substituted for a promised education and compensa-
tion a regime of psychological cruelty and physical coercion that took
some of the best years of a young girl’s life. For that, involuntary ser-
vitude is not too strong a term.
The judgment of the district court is
AFFIRMED.