UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4562
RAMONA BRANT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Williams, Senior District Judge, sitting by designation.
(CR-93-124-MU)
Submitted: July 27, 1999
Decided: August 26, 1999
Before MICHAEL, MOTZ, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Kenneth Hall Epple, Jr., Charlotte, North Carolina, for Appellant.
Mark T. Calloway, United States Attorney, Gretchen C.F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Ramona Brant of conspiracy to possess with
intent to distribute and to distribute cocaine. The district court sen-
tenced Brant to life imprisonment, and Brant appealed her conviction
and sentence. We affirmed her conviction but, finding that the district
court had erred in failing to permit evidence of duress at sentencing,
remanded for a resentencing hearing. On remand, the district court
held a hearing, determined that neither duress nor coercion impacted
on Brant's decision to join and participate in the conspiracy, and re-
sentenced Brant to life imprisonment. Brant appeals, alleging that the
district court improperly conducted the re-sentencing hearing. We
affirm.
On re-sentencing, Brant sought a downward departure under U.S.
Sentencing Guidelines Manual § 5K2.12 (1994), asserting that her
actions were the result of duress and coercion arising from her abu-
sive relationship with her boyfriend and co-defendant Donald Ray
Barber. At the hearing, Brant presented the testimony of Dr. Mary
Ann Dutton, an expert in the field of clinical psychology. During
defense counsel's examination of Dutton, the court sustained several
Government objections to Dutton's testimony, which Brant argues
was error.
This court reviews a district court's evidentiary rulings for abuse
of discretion and will not find error in the ruling unless the district
court acted arbitrarily or irrationally. See United States v. Ham, 998
F.2d 1247, 1252 (4th Cir. 1993). Further, even assuming that an abuse
of discretion occurred, the erroneous exclusion of expert testimony is
subject to harmless error analysis. See United States v. Barsanti, 943
F.2d 428, 433-34 (4th Cir. 1991).
First, Brant takes exception to the district court refusing to allow
the expert to testify regarding the definition of duress. However, the
district court was required to apply the legal definition of duress
within the context of USSG § 5K2.12, not the medical or psychologi-
cal definition. Dutton, an expert in clinical psychology, was not quali-
fied to testify as to legal conclusions.
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Second, Brant asserts that the district court erred in preventing Dut-
ton from testifying as to whether the factors articulated in § 5K2.12
were present in Brant's case.* Again, counsel was seeking to elicit a
legal conclusion, this time as to the ultimate issue in the case. See
Fed. R. Evid. 704(b) (expert witnesses may not state an opinion as to
whether the defendant did or did not have a particular mental state,
when that state is an element of the proffered affirmative defense).
Further, Dutton testified extensively as to the history of violence in
the Brant/Barber relationship and described her conclusions as to how
Barber was able to control Brant. Moreover, other defense witnesses
also testified about the abusive relationship, and Brant specifically
testified as to the consequences she feared if she did not acquiesce to
Barber. Because evidence of Brant's fear of reprisals from Barber was
considered by the court, any limitation of the expert's testimony was
harmless.
Third, Brant asserts that Dutton should have been permitted to tes-
tify regarding the alleged duress surrounding Brant's withdrawal of
her plea agreement. Again, Brant testified about her thought processes
and the events surrounding the withdrawal of the plea. Because the
evidence was before the court, any error in regard to the expert cover-
ing this same ground was harmless.
Brant next contends that the district court erred in denying her
motion to re-open the question of drug quantity to explore the effect,
if any, of duress and coercion on this finding. The district court
denied the motion finding that the issue was outside the scope of the
mandate. The mandate rule requires that the district court not reopen
issues decided by the appeals court or not raised on appeal unless
there is (1) a change in controlling legal authority or (2) a blatant
error in the prior decision which will result in serious injustice if
uncorrected. See United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993).
Brant did not challenge the drug quantity on appeal, and she does
not allege a change in the law or a blatant error in our original deci-
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*Section 5K2.12 provides that coercion will ordinarily be sufficiently
serious to warrant departure when it involves a threat of physical injury,
substantial damage to property, or similar injury resulting from the
unlawful action of a third party or from a natural emergency.
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sion. The mandate specifically directed consideration of § 5K2.12 and
contained no direction to revisit drug quantity or relevant conduct.
Thus, the district court was barred from re-examining these issues.
Further, because the district court found that the abusive relationship
between Brant and Barber did not impact on the underlying crime,
any error in excluding a re-inquiry into drug quantity was harmless.
Finally, Brant asserts that the district court judge should be
recused. Because the district court did not err on re-sentencing, there
is no need to remand the case. Thus, Brant's request for another judge
on remand is moot.
We therefore affirm Brant's sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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