UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4460

ANGELA BETH MORTON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-96-131)

Submitted: July 7, 1998

Decided: July 22, 1998

Before NIEMEYER, LUTTIG, and WILLIAMS,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James M. Cagle, Charleston, West Virginia, for Appellant. Rebecca

A. Betts, United States Attorney, Stephen W. Haynie, Assistant

United States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Angela Beth Morton appeals from her conviction for aiding and

abetting the possession with intent to distribute cocaine base (crack).

On appeal, she argues that the evidence was insufficient to support

her conviction and that the district court erred by refusing to instruct

the jury regarding duress. For the reasons that follow, we affirm.

Morton alleges that there was insufficient evidence of possession.

We disagree. The facts reveal that Morton, a nurse employed by a

West Virginia correctional institution, agreed to supply crack cocaine

to an inmate in exchange for Valium. The inmate, who was cooperating with the authorities, gave Morton's phone number to an undercover officer who contacted Morton. In two subsequent telephone

conversations on August 6 and 7, 1996, the officer and Morton negotiated the terms of a drug deal in which Morton would receive a certain amount of Valium in exchange for delivering some crack cocaine

to the prison. Morton traveled to the arranged delivery site with her

husband driving their vehicle. While Morton and her husband

remained seated in the vehicle, the undercover officer spoke with

them for approximately five minutes and then showed and gave the

Valium and crack to Morton. Minutes later when the officers identified themselves, the drugs were found in between the front seats.

Reviewing the evidence in the light most favorable to the prosecution

as we are required, we find the element of possession is supported by

substantial evidence and thus the jury's verdict must be sustained. See

Glasser v. United States, 315 U.S. 60, 80 (1942).

Next, Morton claims that the district court erred in refusing her

requested jury instruction on the defense of duress. The refusal to give

a proffered instruction is reviewed for an abuse of discretion. See

United States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992). Duress

is an affirmative defense and presents a question of law as to whether

the proffered evidence makes out the defense. See United States v.

Sarno, 24 F.3d 618, 621 (4th Cir. 1994). In order to establish a claim

of duress, the defendant must show that: (1) she acted under an

immediate threat of serious bodily injury; (2) she had a wellgrounded belief that the threat would be carried out; and (3) she had

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no reasonable opportunity to avoid violating the law and the threatened harm. See United States v. King, 879 F.2d 137, 138-39 (4th Cir.

1989). A defendant has the burden of establishing sufficient evidence

of the defense to warrant its submission of the claim to the jury. See

id.

Morton argues that the inmate involved coerced her into delivering

drugs. She testified at trial that he threatened her and her family,

grabbed her by the hair and tried to sexually assault her during two

encounters on August 6, 1996, at the penitentiary's infirmary. We

find no error by the district court. First, Morton's interactions with the

inmate occurred on August 6 two days prior to the drug delivery on

August 8. Morton did not go to work on August 7 or August 8. Further, taped conversations between Morton and the undercover officer

reveal that she picked the time and place for the delivery and declined

the officer's offer to complete the transaction on August 7, because

she had scheduled a tattoo appointment. We find Morton had time to

avoid any coercion or duress the inmate may have created,* see id.,

and therefore the trial court did not err in refusing to instruct the jury

on the defense of duress. See Sarno, 24 F.3d at 621.

Finally, the district court did issue instructions to the jury on battered woman's syndrome and entrapment, with regard to the conduct

of Morton's husband and the undercover officer involved. To the

extent Morton raises the issue, we find that she has failed to establish

that the actions of her husband or the police amounted to duress.

Accordingly, we affirm. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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*After being arrested, Morton admitted that she wanted the Valium

badly enough to smuggle crack cocaine into the penitentiary, as

requested by the inmate.

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