United States v. Biodun Adekoya

USCA1 Opinion









July 18, 1996 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 95-1123

UNITED STATES,

Appellee,

v.

MOJISOLA A. BIODUN ADEKOYA,

Defendant, Appellant.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge, ___________

Campbell, Senior Circuit Judge, ____________________

and Lynch, Circuit Judge. _____________


____________________

Robert M. Greenspan, for appellant. ___________________
Paula J. DeGiacomo, Assistant United States Attorney, with whom ___________________
Donald K. Stern, United States Attorney, was on brief for appellee. _______________

____________________


____________________



















Per Curiam. Defendant-appellant Mojisola Biodun ___________

Adekoya, a Nigerian woman traveling from Nigeria by way of

Switzerland to the United States, was arrested at Logan

Airport in Boston on October 10, 1993 after a customs

inspection of her baggage revealed two kilograms of heroin.

Following a three-day jury trial, she was convicted of

importation and possession of heroin with intent to

distribute, in violation of 21 U.S.C. 952(a) and 841(a)(1)

and 18 U.S.C. 2. Adekoya challenges her convictions,

claiming the district court inadequately questioned

prospective jurors about possible race- and nationality-based

bias, denied her the right to be present during the

questioning of certain jurors, and failed to define

"reasonable doubt" in the instructions to the jury. Finding

that the court did not commit reversible error, we affirm.

Adekoya argues that the district court should have

included among the questions it asked the venire the

following question proposed by defense counsel: whether any

prospective juror had "any fixed opinions, biases or

prejudices about Black people which would affect your ability

to render a fair and impartial verdict in this case based

solely on the law and evidence in this case?" Defense

counsel suggested this question in writing along with more

than twenty others on the day trial commenced, but never

thereafter requested that the court ask it, even after the



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court had questioned the jurors more generally about possible

bias.1 Nor did the defendant raise the argument she

advances now, that, had her race-specific question been

asked, other questions might have followed which would have

allowed her to probe bias stemming from the fact that she was

a Nigerian national -- a fact that, rather than her race,

forms the basis for her argument on appeal. Such bias,

defendant says, could have stemmed from panel members'

awareness of a few court opinions, unrelated to this case,

which refer to Nigeria as a drug source country. Because

defendant did not properly preserve an objection to the

district court's questioning, we review for plain error only.

See United States v. Olano, 507 U.S. 725, 732 (1993). ___ _____________ _____

Generally, a trial court has considerable

discretion in conducting voir dire and "need not pursue any

specific line of questioning . . . provided it is probative

on the issue of impartiality." United States v. Brown, 938 _____________ _____

F.2d 1482, 1485 (1st Cir.), cert. denied, 502 U.S. 992 _____________

(1991); see also Fed.R.Crim.P. 24(a) (a court conducting voir ________

____________________

1. The district court asked the venire in open court:
Are any of you sensible of any bias or prejudice
whatsoever with respect to this case? When I say
are you sensible of it I mean are you aware of any,
do you know of any? Do you know of any reason why
you do not stand indifferent in this case? When I
say stand indifferent, I'm trying to search out any
feelings about these people or me, because you've
met us, feelings about the criminal justice system,
feelings about these particular charges.


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dire shall permit the defendant or the attorneys "to

supplement the examination by such further inquiry as it ______

deems proper or shall itself submit to the prospective jurors ____________

such additional questions by the parties or their attorneys

as it deems proper[]") (emphasis supplied); Rosales-Lopez v. ___________________ _____________

United States, 451 U.S. 182, 189 (1981) (plurality) (as voir _____________

dire examinations "rely largely on . . . immediate

perceptions, federal judges have been accorded ample

discretion in determining how best to conduct the voir ____

dire[]"). ____

When the circumstances of the trial indicate that

racial or ethnic prejudice is likely, however, it is

advisable for the court to question jurors on such bias. See ___

Brown, 938 F.2d at 1485 (citing Ristaino v. Ross, 424 U.S. _____ ________ ____

589, 597 n.9 (1976)). The federal Constitution requires a

specific inquiry into racial bias when racial issues are

"'inextricably bound up with the conduct of the trial'" or

"substantial indications of the likelihood of racial or

ethnic prejudice affecting the jurors" are present. Rosales- ________

Lopez, 451 U.S. at 189-190 (quoting Ristaino, 424 U.S. at _____ ________

596). Apart from constitutional considerations, an appellate

court, in the exercise of its supervisory authority over the

federal courts, should find reversible error if a lower court

does not acquiesce in a defendant's request for a specific

inquiry into racial bias and there is a "reasonable



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possibility that racial or ethnic prejudice might have

influenced the jury." Id. at 191. ___

After examining the record, we discern no error,

let alone plain error, in the district court's failure to ask

the question submitted by counsel or to frame a question sua

sponte going to Nigerian nationality. To prove the

importation charge, the government had to show that defendant

traveled to the United States from Nigeria; her Nigerian

passport and airline ticket were accordingly introduced as

evidence. The bulk of the government's case, however, came

from U.S. Customs and Immigration employees, who testified to

the suspicious circumstances (independent of her passport)

that led to their further inspection of her luggage; from a

forensic chemist with the Drug Enforcement Administration,

who testified to the nature of the seized controlled

substance and the chain of custody; and from a person who

lived at the Chelsea, Massachusetts address that defendant

named as her relative's home and her own destination, who

testified that she did not know the defendant. Adekoya,

testifying in her own defense (in English), made several

references to Nigeria,2 but also stated that she had been in

____________________

2. For example, she stated that her roundtrip ticket had
been purchased by a relative in Nigeria; she had made the
trip to prepare with family for her engagement to a fiance
who remained in the Washington D.C. area for lack of
traveling papers; her family had packed her bags for the
return trip to the United States; and she had required new
luggage for the return trip because her bags were lost when

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the United States since 1980 (except for a few trips home),

and most recently lived in Maryland and worked as a nursing

assistant and homemaker. Her defense was essentially that

she did not pack her own bags, that her anxiety at the

airport was due to medications and coffee, and that there was

some doubt as to whether the authorities had mishandled the

substance that tested positive for heroin.

Nothing causes this case to fall within the limited

category of cases in which a specific inquiry concerning

racial bias is constitutionally required. See, e.g., Brown, _________ _____

938 F.2d at 1485 (unlike cases involving a racially charged

defense or jury deliberations that are unique or highly

subjective, no specific inquiry into racial bias was

constitutionally required where defendant charged with

altering notes was a young black male and all government

witnesses and jurors were white). The circumstances at

trial, including the evidence pertaining to defendant's

nationality, do not indicate "a reasonable possibility that

racial or ethnic prejudice might have influenced the jury."

Rosales-Lopez, 451 U.S. at 191. While some references were _____________

made to defendant's home country and culture, more would be

needed to create a "reasonable possibility" on these facts

____________________

she arrived in Nigeria and encountered turmoil at the
airport. Adekoya also attempted to correct a possible
inconsistency in her statements about whom she was visiting
in Chelsea by saying that in Nigeria, a "cousin" is sometimes
called a "sister."

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that the jury was influenced by prejudice. See, e.g., id. at _________ ___

192-194 (interracial crime satisfies "reasonable possibility

standard," but racial or ethnic difference between defendant

and key government witness did not); United States v. Kyles, _____________ _____

40 F.3d 519, 525 (2d Cir. 1994) (though cases of interracial

violence generally require a specific inquiry into racial

bias, circumstances of armed robbery "did not rise to the

level of violence that would likely ignite a jury's potential

prejudices[]"), cert. denied, 115 S. Ct. 1419 (1995). There _____________

is nothing to support defendant's contention that the jurors

were likely to be aware of cases that have referred to

Nigeria as a drug source country. See United States v. ___ ______________

Okoronkwo, 46 F.3d 426, 434 (5th Cir.) (rejecting similar _________

assertion that local public bias against Nigerians warranted

a specific inquiry into nationality-based bias where Nigerian

defendants were charged with conspiracy to commit tax fraud),

cert. denied, 116 S. Ct. 107 (1995) and 116 S. Ct. 958 _____________ ___

(1996). The prosecution did not highlight defendant's

national origin, referring to it no more than in connection

with the charge of importation. Nor was the evidence

presented by either side the type that created a reasonable

possibility that race- or nationality-based prejudice might









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have influenced the jury.3 A more specific inquiry during

voir dire was not required.

Defendant also asserts that her rights under the

Fifth and Sixth Amendment and under Fed.R.Crim.P. 434 were

violated when she was allegedly not permitted to be present

at sidebar for the court's individual questioning of

prospective jurors. The sidebar was held after the district

judge posed several questions to the venire in open court and

stated that any juror answering a question affirmatively

should line up to meet with him. The court also invited

counsel to the bench. Defense counsel then asked, "Your

Honor, do you want the defendant present?", to which the

court responded, "I don't think it's necessary. It's all on

the record." At no point did the defendant or her counsel

tell the court that the defendant actually wanted to

participate at sidebar or object to the procedure the judge

announced in open court that he would follow. Defendant

____________________

3. Cf. United States v. Alzanki, 54 F.3d 994, 1007 & n.14 ___ _____________ _______
(1st Cir. 1995) (noting approvingly the district court's
careful inquiry into ethnic- or nationality-based bias during
jury impanelment in an involuntary servitude case where jury
heard evidence of repressive Kuwaiti customs and practices
toward domestic workers), cert. denied, 116 S. Ct. 909 _____________
(1996).

4. Rule 43 provides:
(a) Presence Required. The defendant shall be
present at the arraignment, at the time of the
plea, at every stage of the trial including the
impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except
as otherwise provided by this rule.

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remained in the courtroom throughout the questioning, but was

apparently unable to see or hear the jurors at the sidebar.

Following the questioning,5 removals for cause, and

peremptory strikes, only two venire members who had

approached the bench became actual jurors. At the end of

jury selection, in response to the court's inquiry, defense

counsel stated, "The panel is acceptable to the defense, Your

Honor."

Because defendant's claim may be resolved on

statutory grounds, we need not discuss her constitutional

arguments.6 Federal Rule of Criminal Procedure 43(a)

provides that a defendant's presence is required "at every

stage of the trial including the impaneling of the jury . . .

." Assuming a sidebar conference during voir dire is a

"stage of the proceeding" at which defendant's presence is

required, cf. United States v. Gagnon, 470 U.S. 522, 527 ___ ______________ ______

(1985) (assuming arguendo that defendants had a right under

Rule 43 to be present at court's conference with a juror

about his continuing impartiality), a strong argument can be


____________________

5. The questions centered around whether a prospective
juror was inclined to favor or disfavor testimony by law
enforcement officers and whether she or he could be fair and
impartial.

6. Defendant's right under Rule 43 to be present at trial
proceedings is broader than the constitutional right alone.
See United States v. Gagnon, 470 U.S. 522, 526-527 (1985); ___ ______________ ______
United States v. Gordon, 829 F.2d 119, 123 (D.C. Cir. 1987) _____________ ______
(citing circuit cases).

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made that she waived her right to be present, though we need

not decide the issue, see infra. The district court ___ _____

announced in open court, in defendant's presence, that it

would question individually the venire members who answered

"yes" to any of the general questions. In response to

counsel's query whether the court "want[ed]" the defendant

present, the court said it did not think defendant's presence

was necessary, but in no way indicated hostility to allowing

the defendant to be present if she had so requested. No

objection or express request for defendant to be present at

sidebar followed. See id. at 528 (absence of objection to, ___ ___

or request to be present at, a conference that the court

announced it would hold with a juror, and which one

defendant's counsel attended, constituted waiver of any

personal right to presence under Rule 43); but see United _______ ______

States v. Gordon, 829 F.2d 119, 126 n.8 (D.C. Cir. 1987) ______ ______

(distinguishing Gagnon and requiring on-the-record personal ______

waiver where right to be present concerns the jury

impanelment stage and is grounded in both the Fifth Amendment

and Rule 43).

We need not decide if an effective waiver occurred

since we can see no harm or prejudice to the defendant by her

absence at sidebar when these individual jurors were

questioned. Adekoya heard and observed the initial general

questioning by the court, and her counsel was present



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throughout the sidebar portion. At the latter, the district

court questioned nineteen prospective jurors, excluded five

for cause, and permitted the government and defense counsel

to exercise numerous peremptory challenges. Only two of the

nineteen were selected to be jurors. Adekoya subsequently

heard and observed these two along with other panel members

being questioned in open court concerning their places of

employment and spouses' places of employment. In the absence

of any objection to either the jurors or the process, and

given defense counsel's assurance to the court at the end of

jury selection that the panel was acceptable to the defense,

the district court had no reason to believe that the

defendant was dissatisfied, and indeed nothing that then

occurred indicates she was. We can see no reversible error.

See United States v. Pappas, 639 F.2d 1, 2-3 (1st Cir. 1980) ___ _____________ ______

(district court's exclusion of counsel and court reporter

from individual voir dire, while disfavored, did not

prejudice defendant where her counsel had ample challenges

available and further opportunity to observe and to question

prospective jurors but did not do so), cert. denied, 451 U.S. ____________

913 (1981).7 Moreover, the very substantial evidence

____________________

7. See also United States v. Washington, 705 F.2d 489, 498 ________ _____________ __________
(D.C. Cir. 1983) (exclusion of defendant from individual voir
dire was harmless error under Rule 43 where she was present
in the courtroom the entire time, a limited portion of the
voir dire was conducted at the bench where she was
represented by counsel, she had time to confer with counsel
about jurors' responses at the bench, and substantial

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against the defendant on the drug importation and possession

counts makes it highly unlikely that she was convicted

because the two jurors questioned at sidebar had some

unfavorable characteristic that defendant could have

discerned had she been present at the time. Cf. United ___ ______

States v. Bullard, 37 F.3d 765, 767-768 (1st Cir. 1994) (pro ______ _______

se defendant's absence from court conference inquiring into a

juror's attentiveness was not prejudicial where standby

counsel participated in the conference, evidence against the

defendant was substantial, and nothing indicated that the

juror had missed crucial evidence), cert. denied, 115 S. Ct. ____________

1809 (1995).

Lastly, defendant contends that the court erred in

instructing the jury that the government must prove its case

"beyond a reasonable doubt" without defining or explaining

"reasonable doubt." As defense counsel expressly agreed to

the charge both before and after it was given, we review for

plain error only. Having examined the record, we conclude

that the instruction "adequately apprise[d] the jury of the


____________________

evidence supported a finding of guilt); United States v. _____________
Alessandrello, 637 F.2d 131, 139-143 (3d Cir. 1980), cert. _____________ _____
denied, 451 U.S. 949 (1981); United States v. Dioguardi, 428 ______ _____________ _________
F.2d 1033, 1039-1040 (2d Cir.), cert. denied, 400 U.S. 825 _____________
(1970); cf. Gordon, 829 F.2d at 127-129 (distinguishing the ___ ______
above cases and holding that exclusion of defendant in
custody from entire jury selection process was not harmless
error, where he would have sought to challenge a juror with
personal and family connections to law enforcement, and jury
first saw defendant midway through the first day of trial).

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proper burden of proof." See United States v. Olmstead, 832 ___ _____________ ________

F.2d 642, 646 (1st Cir. 1987), cert. denied, 486 U.S. 1009 ____________

(1988).

Affirmed. _________













































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