United States v. Johnson ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4329
DUANE YEMY JOHNSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4337
ALANI OLUSEGUN ARAWOLE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4348
EMANUEL IZUCHUKWU IBEZIM,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-97-283-L)
Argued: March 4, 1999
Decided: July 27, 1999
Before HAMILTON and TRAXLER, Circuit Judges,
and LEE, United States District Judge
for the Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: James Joseph Nolan, Jr., PIERSON, PIERSON &
NOLAN, Baltimore, Maryland, for Appellant Johnson; Joan Cather-
ine Fraser, LAW OFFICE OF JOAN C. FRASER, Baltimore, Mary-
land, for Appellant Arawole; Gerald Chester Ruter, Baltimore,
Maryland, for Appellant Ibezim. John Francis Purcell, Jr., OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney,
Angela R. White, Assistant United States Attorney, Baltimore, Mary-
land, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Following a jury trial, Duane Yemy Johnson (Johnson), Emanuel
Izuchukwu Ibezim (Ibezim), and Alani Olusegun Arawole (Arawole)
were convicted of conspiracy to possess heroin with the intent to dis-
tribute and to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1)
and 846. In addition, Johnson and Ibezim were convicted of posses-
sion of heroin with the intent to distribute and aiding and abetting the
same in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Ara-
wole was also convicted of possession of heroin with the intent to dis-
2
tribute in violation of 21 U.S.C. § 841(a)(1). On appeal, Johnson,
Ibezim, and Arawole raise numerous challenges to their convictions.
For the reasons set forth below, we affirm.
I
Paul Atueyi (Atueyi), a Nigerian, came to the United States in June
1977. In 1989, he began to import heroin. Atueyi was arrested in May
1992 and eventually pled guilty to importation of heroin in June 1992.
Thereafter, while he was incarcerated awaiting sentencing, Atueyi
cooperated with the government by testifying in three criminal trials.
In April 1996, he was sentenced to forty-eight months' imprisonment,
and, at that time, he was released for time served.
Following his release in April 1996, Atueyi moved from New York
to Baltimore, Maryland, and took a job with Barrett Services Employ-
ment Agency (Barrett Services). In October 1996, Atueyi met John-
son and Ibezim, two fellow Nigerians, at Barrett Services, where
Johnson and Ibezim also worked.
In November 1996, Atueyi resumed his activities in the heroin
importation business. Also in November 1996, Johnson and Ibezim
went to work for Atueyi as drug couriers. Around Thanksgiving 1996,
Atueyi and Johnson drove from Baltimore to New York City and
acquired heroin. The day after Atueyi and Johnson returned to Balti-
more, Johnson introduced Atueyi to Arawole at a store in Washing-
ton, D.C. Johnson referred to Arawole as his "D.C. connection." At
the meeting, Atueyi discussed the prospect of selling heroin to Ara-
wole, but no deals were arranged because Arawole was unwilling to
pay $12,000 per hundred grams of heroin.
In December 1996, Atueyi met "Stanley," a Drug Enforcement
Administration (DEA) special agent, who was working in an under-
cover capacity and represented himself as a "big time drug dealer that
had access to huge quantities of drugs." Over time, Atueyi told Stan-
ley "everything about [himself]," including that he had sent Johnson
and Ibezim to Detroit, Michigan, and that he had heroin contacts in
Detroit, New York City, and Chicago, Illinois, and a potential heroin
contact in Washington, D.C.
3
In January 1997, Johnson and Ibezim traveled to New York to pick
up heroin from a drug courier. After acquiring the heroin, Johnson
and Ibezim traveled with the heroin to Detroit, where they sold the
heroin to a drug dealer for an unknown sum of money. After the deal
was consummated, Johnson and Ibezim returned to Baltimore and
gave the proceeds of the sale to Atueyi.
In March 1997, Atueyi arranged a similar transaction for Johnson
and Ibezim to complete. This time, while they were attempting to
return to Baltimore from Detroit, Johnson and Ibezim were stopped
by police in Detroit. The police seized approximately $83,000 in cash
from Johnson and Ibezim, but neither Johnson nor Ibezim was
arrested.
Following the March 1997 seizure, Johnson told Atueyi that he did
not wish to participate in Atueyi's heroin business any longer unless
he received 100 grams of heroin for each trip. When Atueyi told
Johnson this was not possible, Johnson ceased making trips on behalf
of Atueyi, but did remain in contact with Atueyi. Unlike Johnson,
Ibezim made three additional trips on behalf of Atueyi following the
March 1997 seizure, one in May 1997, the other in June 1997, and
the other in either late June or early July 1997.
On July 9, 1997, Atueyi was arrested by Stanley and immediately
agreed to cooperate with the government. Between July 10 and July
16, 1997, Atueyi participated in six calls which were recorded. In the
first call, July 10, 1997, Atueyi called Ibezim. During this call, Atueyi
told Ibezim that Stanley was going to provide him (Atueyi) with three
kilograms of heroin and that he (Atueyi) would like to sell one kilo-
gram to Arawole, provided Johnson would contact Arawole. Atueyi
asked Ibezim to tell Johnson to contact Arawole, and Ibezim agreed.
Ibezim informed Atueyi that, based on what Johnson had told him
earlier, Johnson's participation would require that Johnson be given
one hundred grams of heroin as a commission.
On July 14, 1997, Atueyi called Ibezim again. During this call,
Ibezim told Atueyi that Johnson had contacted Arawole, that Johnson
said he would always bring "stuff, if stuff is available," that Johnson
would direct Atueyi to Arawole, and that Johnson's participation
would require that he be given one hundred grams of heroin as a com-
4
mission. Atueyi told Ibezim that he would inform Stanley that Ibezim
would pick up some heroin from him (Stanley), and Ibezim replied,
"Anytime, I'm ready certainly." Atueyi also told Ibezim to tell John-
son to contact Arawole, and Ibezim responded that he would.
On July 15, 1997, Atueyi called Ibezim two more times. In the first
call, Ibezim told Atueyi that he spoke with Johnson, and Johnson said
he was "ready" if Atueyi was "ready." Thereafter, Atueyi told Ibezim
to tell Johnson to call Arawole and find out if"something [was] possi-
ble, right away." In the second call, Atueyi asked Ibezim if Johnson
had called, and Ibezim responded in the negative. Atueyi asked
Ibezim to go to Johnson's office and ask Johnson to call him at his
cellular phone number. Atueyi explained to Ibezim that, if Johnson
could arrange a meeting with Arawole in the morning, Stanley could
"travel."
Ibezim then went to Johnson's office, and Johnson called Atueyi.
In the ensuing conversation, Johnson indicated that he wanted to con-
summate a deal with Arawole, but before doing that, he first wanted
to "talk" with Atueyi about a subject he could not talk about on the
phone.
On July 16, 1997, Atueyi called Ibezim and told him that he was
leaving for Detroit. Atueyi also told Ibezim to tell Johnson that Stan-
ley wanted to sell one kilogram of heroin to Arawole and that John-
son's commission for the sale would be one hundred grams of heroin.
Atueyi told Ibezim to tell Johnson that he (Johnson) should set up a
transaction with Arawole, explaining to Ibezim that he was "on [his]
knees, . . . kneeling down for [Johnson],[Johnson] should please do
this thing for [him]."1
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1 Of note, Atueyi's conversation with Ibezim on July 16, 1997 was in
Ibo, a Nigerian dialect. The quoted language is the English translation of
that conversation. According to Atueyi's uncontradicted testimony at
trial, his statement to Ibezim that he was "on[his] knees, . . . kneeling
down for [Johnson], [Johnson] should please do this thing for [him]" was
a Nigerian figure of speech, which while importing seriousness, did not
mean "begging" as we would commonly understand that word. Also of
note, there is no evidence in the record that Atueyi's statement to Ibezim
was conveyed to Johnson.
5
Thereafter, Atueyi handed the phone over to Stanley so that he
could talk to Ibezim. In his conversation with Ibezim, Stanley asked
Ibezim if the three of them (Johnson, Ibezim, and Stanley) could meet
that evening, and Ibezim responded in the affirmative. Stanley gave
Ibezim his pager number for the purpose of contacting him.
That evening, Johnson and Ibezim met with Stanley to discuss the
details of a potential sale of heroin to Arawole. During the meeting,
Johnson agreed to arrange a meeting with Arawole, but was uncertain
whether Arawole would allow Stanley to attend the meeting. Later
that evening, Johnson paged Stanley, and Stanley returned the page
by placing a call to Johnson. During their conversation, Johnson told
Stanley that he had spoken with Arawole and that Arawole said he
was ready to meet Stanley the following day.
On July 17, 1997, Johnson and Ibezim led Stanley to a parking lot
in Washington, D.C., to meet Arawole. At the meeting, in the pres-
ence of Johnson and Ibezim, Arawole informed Stanley that he could
only accept Stanley's heroin on the front2 and that if Stanley wanted
to consummate a deal on those terms he should contact Johnson. Ara-
wole provided Stanley his business card and asked Johnson to put his
(Johnson's) home address and phone number on the back of the busi-
ness card, which Johnson did.
After Arawole left the meeting, Johnson, Ibezim, and Stanley dis-
cussed Johnson and Ibezim's commission on each kilogram of heroin
Stanley furnished to Arawole. It was agreed that Johnson would
receive 100 grams of heroin, and Ibezim fifty, for each kilogram of
heroin Stanley furnished to Arawole. Johnson and Ibezim then asked
Stanley not to discuss this arrangement with Atueyi out of fear that
Atueyi would cut them out of future deals.
Following the meeting, Stanley informed Johnson and Ibezim that
he would contact them when he got "the heroin ready." Thereafter,
Stanley avoided contacting Johnson or Ibezim until July 24, 1997,
even though Johnson and Ibezim paged Stanley on numerous occa-
sions. During this time, Stanley was going through the DEA's admin-
_________________________________________________________________
2 "Fronting" is the practice of supplying narcotics on credit.
6
istrative channels to obtain one kilogram of heroin, which he obtained
on July 24, 1997.
On July 24, 1997, Stanley called Arawole and, after indicating he
was having difficulty contacting Johnson, told Arawole that he
wanted to meet him the following day. Stanley asked Arawole how
many kilograms of heroin he was interested in, to which Arawole
responded "ten." After Stanley indicated that he had one kilogram of
heroin, Arawole agreed to meet with Stanley the following day,
although the exact time and location of the meeting was not set;
instead, Arawole asked Stanley to call him and tell him where to
meet.
On the same day, Stanley spoke with Johnson and Ibezim to see if
they could meet the following day to consummate a deal with Ara-
wole. During this conversation, Stanley indicated that he had spoken
with Arawole and that Arawole indicated he would be ready to con-
summate a deal. Johnson and Ibezim agreed to meet with Stanley
prior to their intended meeting with Arawole.
On July 25, 1997, Johnson and Ibezim met Stanley in Baltimore.
At the meeting, Stanley proposed to give Johnson and Ibezim a pack-
age containing three kilograms of heroin3 to be delivered to Arawole,
explaining that, because he was not sure how long it would take Ara-
wole to consummate the deal and whether Arawole would be home,
he preferred not to attend the meeting. Thereafter, Ibezim asked Stan-
ley if they should call Arawole to see if he wanted Johnson and
Ibezim to pick up the package. Stanley then asked Johnson if he
wanted to call Arawole, and Johnson responded in the affirmative.
Johnson then attempted to call Arawole, but was unable to reach
him. Johnson indicated at that point that he and Ibezim would take the
package to Arawole and that Stanley did not have to go if he did not
want to go. Johnson then stated that, because they were in the same
spot for a lengthy period of time, he wanted to accept the package at
a different location. Stanley and Johnson each drove their vehicles a
short distance before returning to the original location of their meet-
_________________________________________________________________
3 The package contained one kilogram of authentic heroin and two kilo-
grams of sham substance.
7
ing. At that point, Johnson and Ibezim walked over to Stanley's vehi-
cle, and Stanley handed Ibezim the package containing heroin, which
Ibezim accepted. Johnson and Ibezim were then arrested.
Later in the evening, Stanley called Arawole to arrange a meeting.
Arawole, unaware of the arrest of Johnson and Ibezim, met Stanley
in a parking lot in Prince George's County, Maryland. During this
meeting, Arawole agreed to give Stanley the title to one of his vehi-
cles and approximately $3,000 as a show of good faith for the large
amount of heroin Stanley was providing to him on the front. Arawole
left the meeting and returned a short time later with the title and the
money. Arawole gave the title and the money to Stanley and accepted
the package containing heroin that was seized after Johnson and
Ibezim were arrested. Arawole was then arrested.
On August 5, 1997, Johnson, Ibezim, and Arawole were indicted
by a federal grand jury sitting in the District of Maryland on three
counts. Count One charged Johnson, Ibezim, and Arawole with con-
spiracy to possess heroin with the intent to distribute and to distribute
heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Two
charged Johnson and Ibezim with possession of heroin with the intent
to distribute and aiding and abetting the same in violation of 18
U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Count Three charged Arawole
with possession of heroin with the intent to distribute in violation of
21 U.S.C. § 841(a)(1). Following a jury trial, Johnson and Ibezim
were convicted on Counts One and Two, and Arawole was convicted
on Counts One and Three. The district court sentenced Arawole to
151 months' imprisonment, and Johnson and Ibezim each received a
sentence of imprisonment of 121 months. Johnson, Ibezim, and Ara-
wole each noted a timely appeal.
II
Prior to trial and throughout the proceedings, Arawole requested
that his case be severed from Johnson and Ibezim's case. These
requests were denied by the district court. Arawole argues that the
district court abused its discretion in refusing to sever his case from
Johnson and Ibezim's case. Specifically, Arawole contends that he
suffered prejudice because the evidence against him was minimal
when compared to the case developed by the government against
8
Johnson and Ibezim, and because the majority of the prejudicial testi-
mony did not apply to him, especially the evidence concerning the
March 1997 seizure, which the district court admitted under Federal
Rule of Evidence 404(b).
Rule 8(b) of the Federal Rules of Criminal Procedure provides that
"[t]wo or more defendants may be charged in the same indictment or
information if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting an
offense or offenses." In such cases, the federal system prefers joint tri-
als because they promote efficiency and "serve the interests of justice
by avoiding the scandal and inequity of inconsistent verdicts." Zafiro
v. United States, 506 U.S. 534, 537 (1993) (citation and internal
quotes omitted). We adhere to the general rule that defendants
charged in the same conspiracy should be tried together. See United
States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995).
Rule 14 of the Federal Rules of Criminal Procedure, however, pro-
vides that joinder, even when appropriate under Rule 8(b), may be so
prejudicial that the defendants should be tried separately. The mere
showing of prejudice is not enough to require severance. See Zafiro,
506 U.S. at 538-39. Rather, the relief, if any, for any potential preju-
dice resulting from a joint trial is left to the district court's sound dis-
cretion. See id. Thus, we review a district court's refusal to grant a
motion for severance for an abuse of discretion. See Reavis, 48 F.3d
at 767. A district court abuses its discretion "only if there [was] a seri-
ous risk that a joint trial would [have] compromise[d] a specific trial
right of one of the defendants, or prevent[ed] the jury from making
a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539.
We find no abuse of discretion in the district court's refusal to
sever Arawole's case from that of the other defendants. First, the evi-
dence against Arawole was strong. See United States v. Hayden, 85
F.3d 153, 160-61 (4th Cir. 1996) (district court did not abuse its dis-
cretion in refusing to grant motion for severance where evidence
against the defendant was strong and the case was not complex). On
July 17, 1997, Johnson and Ibezim led Stanley to a parking lot in
Washington, D.C., to meet Arawole. At the meeting, in the presence
of Johnson and Ibezim, Arawole informed Stanley that he could only
accept Stanley's heroin on the front and that if Stanley wanted to con-
9
summate a deal on those terms he should contact Johnson. After Ara-
wole left the meeting, Johnson, Ibezim, and Stanley discussed
Johnson and Ibezim's commission on each kilogram of heroin Stanley
furnished to Arawole. On July 24, 1997, Arawole agreed to meet with
Stanley the following day. On the same day, Stanley spoke with John-
son and Ibezim. During this conversation, Stanley indicated that he
had spoken with Arawole and that Arawole indicated he would be
ready to consummate a deal. Johnson and Ibezim agreed to meet with
Stanley prior to their intended meeting with Arawole. On July 25,
1997, Johnson and Ibezim met Stanley in Baltimore. At the meeting,
Johnson and Ibezim accepted the package containing heroin for the
purpose of delivering it to Arawole. Later in the evening, Stanley met
Arawole in a parking lot in Prince George's County, Maryland. Dur-
ing this meeting, Arawole agreed to give Stanley the title to one of
his vehicles and approximately $3,000 as a show of good faith for the
large amount of heroin Stanley was providing to him on the front.
Arawole left the meeting and returned a short time later with the title
and the money. Arawole gave the title and the money to Stanley and
accepted the package. This evidence conclusively establishes that
Arawole knowingly and willingly conspired with Johnson and Ibezim
to possess heroin with the intent to distribute and to distribute heroin.
With respect to Arawole's possession of heroin, the government's
evidence conclusively established that Arawole willfully accepted the
package knowing that it contained heroin. Arawole met Stanley in a
parking lot in Prince George's County, Maryland. During this meet-
ing, Arawole accepted the package knowing that it contained heroin.
Second, the case was not so complex that the jury could not sepa-
rate the evidence as to each defendant. See id. at 161. This case
involved a straightforward reverse sting operation involving only five
participants.
Third, the district court gave a cautionary instruction to the jury
that the use of the March 1997 seizure and other acts engaged in by
Johnson and Ibezim not charged in the indictment were "not [to] be
used . . . in any way with regard to Mr. Arawole." This cautionary
instruction eliminated any risk of prejudice to Arawole. See id. at 160("Often, less dramatic measures, such as limiting instructions, act to
cure any risk of prejudice.").
10
In summary, the jury was free to make an individual determination
as to Arawole's guilt. Thus, any alleged "spill-over" effect from the
Rule 404(b) evidence admitted against Johnson and Ibezim did not
prejudice Arawole. Accordingly, the district court did not abuse its
discretion in refusing to sever Arawole's case from that of the other
defendants.
III
Because Atueyi testified pursuant to a favorable plea agreement,
the appellants contend that the government's use of his testimony vio-
lated 18 U.S.C. § 201(c)(2) and, therefore, Atueyi's testimony should
have been suppressed.4 The appellants' contention is without merit.
Appellants never objected to Atueyi's testimony on the basis that
its use violated § 201(c)(2). Therefore, we review this alleged error
under the plain error standard. See Fed. R. Crim. P. 52(b). Among
other things, the plain error standard requires proof that there is an
error that is clear and obvious under existing law. See United States
v. Castner, 50 F.3d 1267, 1277-78 (4th Cir. 1995); see also United
States v. Olano, 507 U.S. 725, 734 (1993).
The Appellants rely upon a panel decision of the Tenth Circuit,
United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), where the
court held that a plea agreement offering a witness leniency in
exchange for testimony violated § 201(c)(2). See id. at 1344-59. The
panel's holding in Singleton was recently rejected by the Tenth Cir-
cuit en banc, see United States v. Singleton, 165 F.3d 1297, 1299-
1302 (10th Cir. 1999) (en banc), and the panel's holding in Singleton
has been rejected by every circuit court to address the issue. See, e.g.,
United States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998); United
States v. Ware, 161 F.3d 414, 418-25 (6th Cir. 1998). Thus, assuming
there was error, it was not plain and obvious under existing law
because no Supreme Court or circuit court opinion stands to support
_________________________________________________________________
4 Section 201(c)(2) provides in relevant part: "[Whoever] directly or
indirectly, gives, offers, or promises anything of value to any person, for
or because of the testimony under oath or affirmation given or to be
given by such person as a witness [in a federal trial shall be fined under
this title or imprisoned for not more than two years, or both]."
11
the appellants' position. Therefore, the appellants are entitled to no
relief on this claim.
IV
Johnson and Ibezim contend that the district court erred in refusing
to instruct the jury on the law of entrapment. We disagree.
A valid entrapment defense contains two elements: (1) government
inducement and (2) lack of predisposition to commit the crime on the
defendant's part. See United States v. Sligh, 142 F.3d 761, 762 (4th
Cir. 1998); United States v. Singh, 54 F.3d 1182, 1189 (4th Cir.
1995). Entrapment is an affirmative defense, and the defendant has
the initial burden to "`produce more than a scintilla of evidence that
the government induced him to commit the charged offense,' . . .
before the burden shifts to the government to prove beyond a reason-
able doubt that the defendant was predisposed to commit the crime."
Sligh, 142 F.3d at 762 (quoting United States v. Daniel, 3 F.3d 775,
778 (4th Cir. 1993)). A defendant is not entitled to an entrapment jury
instruction unless he can meet his initial burden of producing some
evidence of government inducement. See Sligh, 142 F.3d at 762-63.
"`Inducement' is a term of art: it involves elements of governmen-
tal overreaching and conduct sufficiently excessive to implant a crim-
inal design in the mind of an otherwise innocent party. . . .
Solicitation, by contrast, is the provision of an opportunity to commit
a criminal act." Daniel, 3 F.3d at 778. A showing of government
solicitation is insufficient to warrant an entrapment instruction "be-
cause solicitation by itself is not the kind of conduct that would per-
suade an otherwise innocent person to commit a crime, or that would
be so inducive to a reasonably firm person as likely to displace mens
rea." United States v. Osborne, 935 F.2d 32, 38 (4th Cir. 1991) (cita-
tion and internal quotes omitted). We review the district court's
refusal to give an entrapment instruction de novo. See Singh, 54 F.3d
at 1189.
We are convinced that Johnson and Ibezim failed to meet their bur-
den of producing some evidence of inducement. The evidence in the
record demonstrates that the government did not implant a criminal
design in otherwise innocent parties. Both Johnson and Ibezim
12
worked for Atueyi as drug couriers beginning in November 1996, and
Ibezim's participation in Atueyi's heroin business continued unabated
through the time he received the package containing heroin from
Stanley. Although Johnson ceased making trips for Atueyi after the
March 1997 seizure, he did so merely because Atueyi would not give
him 100 grams of heroin per trip.
The circumstances leading up to Johnson and Ibezim's acceptance
of the package demonstrate that there was no inducement in this case.
Between July 10, 1997, and July 16, 1997, Atueyi participated in six
calls which were recorded. In the first call, July 10, 1997, Atueyi cal-
led Ibezim and told Ibezim that Stanley was going to provide him
(Atueyi) with three kilograms of heroin and that he would like to sell
one kilogram to Arawole, provided Johnson would contact Arawole.
Ibezim expressed no reluctance in engaging in such a transaction.
Rather, Ibezim agreed to tell Johnson to contact Arawole.
In the next call, July 14, 1997, Ibezim told Atueyi that Johnson had
contacted Arawole, that Johnson said he would always bring "stuff,
if stuff is available," that Johnson would direct Atueyi to Arawole,
and that Johnson's participation would require that he be given one
hundred grams of heroin as a commission. Atueyi told Ibezim that he
would inform Stanley that Ibezim would pick up some heroin from
him (Stanley), and Ibezim replied, "Anytime, I'm ready certainly."
Atueyi also told Ibezim to tell Johnson to contact Arawole, and
Ibezim responded that he would. At this point, there is no suggestion
of reluctance on the part of Johnson or Ibezim to engage in a heroin
transaction with Arawole.
The following day, July 15, 1997, Atueyi called Ibezim twice. In
the first call, Ibezim told Atueyi that he spoke with Johnson, and
Johnson said he was "ready" if Atueyi was"ready." Thereafter,
Atueyi told Ibezim to tell Johnson to call Arawole and find out if
"something [was] possible, right away." In the second call, Atueyi
asked Ibezim if Johnson had called, and Ibezim responded in the neg-
ative. Atueyi asked Ibezim to go to Johnson's office and ask Johnson
to call him at his cellular phone number. Atueyi explained to Ibezim
that, if Johnson could arrange a meeting with Arawole in the morning,
Stanley could "travel." Again, during these conversations, Ibezim
13
expressed no reluctance to engaging in a heroin transaction with John-
son and Arawole.
Ibezim then went to Johnson's office, and Johnson called Atueyi.
In the ensuing conversation, Johnson indicated that he wanted to con-
summate a deal with Arawole, but before doing that, he first wanted
to "talk" with Atueyi about a subject he could not discuss over the
phone. At this point, Johnson's reluctance to engage in a heroin trans-
action with Arawole and Ibezim is not based on his desire not to
engage in heroin trafficking, but rather on the need to "talk" to Atueyi
about a subject he could not talk about over the phone.
On July 16, 1997, Atueyi told Ibezim to tell Johnson that Stanley
wanted to sell one kilogram of heroin to Arawole and that Johnson's
commission for the sale would be one hundred grams of heroin.
Atueyi told Ibezim to tell Johnson that he (Johnson) should set up a
transaction with Arawole, explaining to Ibezim that he was "on [his]
knees, . . . kneeling down for [Johnson],[Johnson] should please do
this thing for [him]."
Thereafter, Atueyi, who had told Ibezim falsely that he was headed
to Detroit, handed the phone over to Stanley so that he could talk to
Ibezim. In his conversation with Ibezim, Stanley asked Ibezim if the
three of them (Johnson, Ibezim, and Stanley) could meet that evening,
and Ibezim responded in the affirmative. Stanley gave Ibezim his
pager number for the purpose of contacting him. During this conver-
sation, Ibezim expressed no reluctance to engage in a heroin transac-
tion with Johnson and Arawole.
That evening, Johnson and Ibezim met with Stanley to discuss the
details of a potential sale of heroin to Arawole. During the meeting,
Johnson agreed to arrange a meeting with Arawole. Later that eve-
ning, Johnson spoke with Stanley by telephone and told him that he
had spoken with Arawole and that Arawole said he was ready to meet
Stanley the following day. During this meeting, neither Johnson nor
Ibezim expressed any reluctance to engaging in a heroin transaction
with Arawole.
Obviously, at this point, both Johnson and Ibezim were free to ter-
minate their contact with Stanley. Instead, on July 17, 1997, Johnson
14
and Ibezim led Stanley to a parking lot in Washington, D.C., to meet
Arawole. At the meeting, in the presence of Johnson and Ibezim, Ara-
wole informed Stanley that he could only accept Stanley's heroin on
the front and that if Stanley wanted to consummate a deal on those
terms he should contact Johnson. Arawole provided Stanley his busi-
ness card and asked Johnson to put his (Johnson's) home address and
phone number on the back of the business card, which Johnson did.
After Arawole left the meeting, Johnson, Ibezim, and Stanley dis-
cussed Johnson and Ibezim's commission on each kilogram of heroin
Stanley furnished to Arawole. It was agreed that Johnson would
receive 100 grams of heroin, and Ibezim fifty, for each kilogram of
heroin Stanley furnished to Arawole. Johnson and Ibezim then asked
Stanley not to discuss this arrangement with Atueyi out of fear that
Atueyi would cut them out of future deals. Following the meeting,
Stanley informed Johnson and Ibezim that he would contact them
when he got "the heroin ready."
While Stanley was going through the DEA's administrative chan-
nels to acquire the heroin, Johnson and Ibezim expressed no reluc-
tance to engage in a transaction with Arawole. Rather, Johnson and
Ibezim paged Stanley on numerous occasions.
On July 24, 1997, Stanley spoke with Johnson and Ibezim to see
if they could meet the following day to consummate a deal with Ara-
wole. During this conversation, Stanley indicated that he had spoken
with Arawole and that Arawole indicated he would be ready to con-
summate a deal. Without reluctance, Johnson and Ibezim agreed to
meet with Stanley prior to their intended meeting with Arawole.
On July 25, 1997, Johnson and Ibezim met Stanley in Baltimore.
At the meeting, Stanley proposed to give Johnson and Ibezim the
package containing heroin to be delivered to Arawole. Thereafter,
because Stanley did not want to participate in the delivery to Arawole,
Johnson attempted to call Arawole to see if Arawole wanted him
(Johnson) and Ibezim to pick up the package containing heroin; but,
Johnson was unable to reach Arawole. Johnson indicated at that point
that he and Ibezim would take the package containing heroin to Ara-
wole. Johnson then stated that, because they were in the same spot for
a lengthy period of time, he wanted to accept the package at a differ-
ent location. Stanley and Johnson each drove their vehicles a short
15
distance before returning to the original location of their meeting. At
that point, Johnson and Ibezim walked over to Stanley's vehicle, and
Stanley handed Ibezim the package containing heroin, which Ibezim
accepted. During this encounter, Johnson and Ibezim expressed no
reluctance to engage in a heroin transaction with Arawole, although
Johnson expressed a reluctance to take the package under circum-
stances that he perceived would appear suspicious.
The evidence in this case reveals that Johnson and Ibezim were
provided an opportunity to engage in a heroin transaction with Ara-
wole and responded in a manner consistent with a desire to see that
transaction come to fruition. Ibezim expressed no reluctance. Johnson
expressed some, but his reluctance pertained to his desired commis-
sion and his unwillingness to accept the package under circumstances
that he perceived would appear suspicious. And although Atueyi was
persistent in getting Johnson and Ibezim to arrange a transaction with
Arawole, his actions were in no way "sufficiently excessive to
implant a criminal design in the mind of an otherwise innocent party."
Daniel, 3 F.3d at 778.
Johnson and Ibezim make much of the fact that on July 16, 1997,
Atueyi told Ibezim to tell Johnson that he (Johnson) should set up a
transaction with Arawole, explaining to Ibezim that he was "on [his]
knees, . . . kneeling down for [Johnson],[Johnson] should please do
this thing for [him]." Johnson and Ibezim suggest that Atueyi was
"begging" Johnson and Ibezim and that this begging, coupled with the
other evidence summarized above, warranted an entrapment instruc-
tion. We disagree. At the time Atueyi made this statement to Ibezim,
Johnson and Ibezim had already agreed to engage in a heroin transac-
tion with Arawole, the only remaining details were where and when,
and Johnson's commission. In addition, according to Atueyi's uncon-
tradicted testimony at trial, his statement to Ibezim that he was "on
[his] knees, . . . kneeling down for [Johnson], [Johnson] should please
do this thing for [him]" was a Nigerian figure of speech, which while
importing seriousness, did not mean "begging" as we would com-
monly understand that word. Finally, there is no evidence in the
record demonstrating that Atueyi's statement to Ibezim was conveyed
to Johnson. Thus, Atueyi's statement to Ibezim, when viewed in the
context of when it was made and what Atueyi meant by the statement,
16
played only a marginal role, if any, in getting Johnson and Ibezim to
meet with Stanley.
In summary, the district court correctly refused Johnson and Ibez-
im's request for an entrapment instruction.
V
The appellants argue that the district court was constitutionally
required to give an instruction defining reasonable doubt after the
appellants requested such an instruction. This argument has no merit.
The Supreme Court has held that trial courts are under no constitu-
tional obligation to define reasonable doubt, so long as the trial court
instructs the jury that the prosecutor must prove the defendant's guilt
beyond a reasonable doubt. See Victor v. Nebraska, 511 U.S. 1, 5
(1994). In this case, there was no constitutional violation because the
district court instructed the jury that the government had the burden
of proving each element of its case beyond a reasonable doubt.
In any event, we have cautioned district courts against defining rea-
sonable doubt. See, e.g., United States v. Oriakhi, 57 F.3d 1290, 1300
(4th Cir. 1995). A district court is under no obligation to instruct a
jury on reasonable doubt simply because a party requests that instruc-
tion. See United States v. Reives, 15 F.3d 42, 44 (4th Cir. 1994) ("We
have never found a refusal of a party's request for a clarifying instruc-
tion to be error."). The only exception that we have recognized to the
general rule against defining reasonable doubt is in the context of
responding to a jury's specific request for a definition. See id. at 45-
46. In this case, the district court adhered to our strong policy against
giving a reasonable doubt instruction. Accordingly, the district court
did not err in refusing to define reasonable doubt.
VI
Finally, the appellants argue that the district court erred when it
denied their post-trial motions for a new trial. According to the appel-
lants, their evidence of juror misconduct warranted a new trial. We
disagree.
17
The jury returned a guilty verdict against the appellants on each
count in which they were charged. The unanimity of the verdict was
confirmed through a jury poll in which each juror separately affirmed
that the verdict was that of the particular juror. However, despite her
affirmances during the jury poll, Juror Number Twelve wrote a letter
to the district court wherein she expressed misgivings about the ver-
dict. Juror Number Twelve wrote in relevant part:
I did have doubts and reasonable doubts in this case. I could
not come to a decision as did my fellow jurors did.
I felt that I was pressured to make my decision. I was the
only black juror on the panel. Even though I should have
spoken out earlier, but (sic) I was a little reluctant. I did
agree with the other jurors but I did not want too (sic). I
wanted a not guilty verdict. . . . To be truthful with you I
was hesitate (sic) to speak out being the only black juror. I
didn't want them to think just because the defendants are
black is why I wanted a not guilty verdict. That is not the
case. . . .
I just want you to know that juror 12 . . . did not wanted
(sic) to agree with the other jurors.
They had pointed [to] some evidence that changed my deci-
sion (with hesitation).
But in reality I didn't want to convict them.
I wanted a not guilty verdict. . . .
I've had doubts and I do still have them in this particular
case.
It's probably too late to change anything but I wanted you
to know this from the bottom of my soul.
Each appellant filed a motion for new trial based on, among other
things, the letter written by Juror Number Twelve. According to the
18
appellants, Juror Number Twelve engaged in juror misconduct
because she voted to convict them because they were of African-
American descent in violation of their constitutional rights. The dis-
trict court denied the motions.
We review the denial of a motion for new trial based on alleged
juror misconduct for an abuse of discretion. See United States v.
Roach, 164 F.3d 403, 413 (8th Cir. 1998). The district court held that
Federal Rule of Evidence 606(b) prohibited it from considering Juror
Number Twelve's letter in connection with the appellants' allegation
that Juror Number Twelve engaged in juror misconduct because she
voted to convict the appellants because they were of African-
American descent in violation of their constitutional rights.
Rule 606(b) of the Federal Rules of Evidence governs the impeach-
ment of jury verdicts. Rule 606(b) states, in pertinent part:
Upon an inquiry into the validity of a verdict . . ., a juror
may not testify as to any matter or statement occurring dur-
ing the course of the jury's deliberations or to the effect of
anything upon that or any other juror's mind or emotions as
influencing the juror to assent to or dissent from the verdict
. . . or concerning the juror's mental processes in connection
therewith, except that a juror may testify on the question
whether extraneous prejudicial information was improperly
brought to the jury's attention or whether any outside influ-
ence was improperly brought to bear upon any juror. Nor
may a juror's affidavit or evidence of any statement by the
juror concerning a matter about which the juror would be
precluded from testifying be received for these purposes.
In Tanner v. United States, 483 U.S. 107 (1987), after acknowledg-
ing that "[b]y the beginning of this century, if not earlier, the near-
universal and firmly established common-law rule in the United
States flatly prohibited the admission of juror testimony to impeach
a jury verdict," id. at 117, the Court observed that "Federal Rule of
Evidence 606(b) is grounded in the common-law rule against admis-
sion of jury testimony to impeach a verdict and the exception for juror
testimony relating to extraneous influences." Id. at 121. "The purpose
of Rule 606(b) is to promote finality of verdicts, encourage free delib-
19
erations among jurors, and maintain the integrity of the jury as a judi-
cial decision-making body." Wilson v. Vermont Castings, Inc., 170
F.3d 391, 394 (3d Cir. 1999).
Thus, Rule 606(b), which codifies the common law rule against the
use of juror testimony to impeach a verdict, only allows jurors to tes-
tify about "extraneous prejudicial information" or "outside influence
. . . improperly brought to bear upon any juror." Fed. R. Evid. 606(b);
see also Tanner, 483 U.S. at 121 (evidence that jurors slept and con-
sumed drugs and alcohol in the course of trial and deliberations inad-
missible under Rule 606(b) to impeach verdict). Generally,
"extraneous prejudicial information" means information about the
specific case that the jury has acquired outside of the judicial process,
see Hard v. Burlington Northern R.R., 870 F.2d 1454, 1460-62 (9th
Cir. 1989), and an "outside influence" refers to a factor originating
outside of normal courtroom proceedings which influences jury delib-
erations, such as a statement made by a bailiff to the jury or a threat
against a juror, see United States v. Jones, 132 F.3d 232, 245 (5th Cir.
1998). See also United States v. Bassler, 651 F.2d 600, 602 (8th Cir.
1981) ("Extrinsic or extraneous influences include publicity received
and discussed in the jury room, matters considered by the jury but not
admitted into evidence, and communications or other contact between
jurors and outside persons.").
None of the information contained in Juror Number Twelve's letter
relates to information about the specific case that the jury acquired
outside of the judicial process, see Hard, 870 F.2d at 1460-62, or
refers to a factor originating outside of normal courtroom proceedings
which influenced the jury's deliberations, see Jones, 132 F.3d at 245.
Rather, the information contained in Juror Number Twelve's letter, at
best, suggests that she experienced internal coercion when she voted
to convict. Under such circumstances, the district court properly
declined to consider the letter when it ruled on each motion for new
trial filed by the appellants. See Roach, 164 F.3d at 412-13 (court
rejected defendants' argument that they were entitled to new trial
based upon juror misconduct where juror submitted post-trial affidavit
stating that: (1) she had been unwilling to convict the defendants but
that the other jurors had pressured her into changing her vote; (2) one
juror told her the judge would incarcerate her if she failed to do her
civic duty and vote to convict; (3) there were racial overtones in the
20
jury room; (4) she was one of two Native American jurors, and for
a time she was the only holdout against convicting the three Native
American defendants; (5) other jurors made references to her race and
one said "[i]t was ten white people versus one Indian"; and (6) she
was a diabetic, and other jurors told her that she could get something
to eat with them after a verdict was returned); United States v. Brito,
136 F.3d 397, 414 (5th Cir.) (evidence of internal coercion inadmissi-
ble under Rule 606(b)), cert. denied, 119 S. Ct. 159 (1998).5
VII
For the reasons stated herein, the judgments of the district court are
affirmed.
AFFIRMED
_________________________________________________________________
5 To the extent that the appellants assert a McDonough claim, we reject
this argument because the appellants have failed to demonstrate that
Juror Number Twelve failed to answer honestly a material question on
voir dire. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S.
548, 556 (1984). In addition, to the extent that the appellants assert a
general Sixth Amendment claim of juror bias, see id. at 556-57 (Black-
mun, J., concurring), we reject this claim because there is no evidence
of actual or implied bias in this case.
21