1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-18-1996

United States v. Sriyuth

Precedential or Non-Precedential:

Docket 95-7598

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Recommended Citation

"United States v. Sriyuth" (1996). 1996 Decisions. Paper 54.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/54
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 

 No. 95-7598 

 ___________ 

 UNITED STATES OF AMERICA 

 vs. 

 NOPPORN SRIYUTH, a/k/a Thi 

 Nopporn Sriyuth, 

 Appellant 

 ___________ 

 

 Appeal from the United States District Court 

 for the Middle District of Pennsylvania 

 (D.C. Crim. No. 94-cr-00066) 

 ___________ 

 

 Argued 

 June 5, 1996 

 Before: BECKER and MANSMANN, Circuit Judges, 

 and SCHWARZER, District Judge.* 

 (Filed October 18, 1996) 

 ___________ 

David M. Barasch 

United States Attorney 

John C. Gurganus, Jr., Esquire (ARGUED) 

Office of United States Attorney 

309 Federal Building 

Scranton, Pennsylvania 18501 

 COUNSEL FOR APPELLEE 

* Honorable William W Schwarzer of the United States 

District Court for the Northern District of California, sitting 

by designation. 
James V. Wade, Esquire 

Federal Public Defender 

Middle District of Pennsylvania 

100 Chestnut Street 

Suite 306 

Harrisburg, PA 17101 

Melinda C. Ghilardi, Esquire (ARGUED) 

Office of Federal Public Defender 

116 North Washington Avenue 

Kane Professional Building 

Suite 2C 

Scranton, PA 18503 

 COUNSEL FOR APPELLANT 

 ___________ 

 OPINION OF THE COURT 

 __________ 

MANSMANN, Circuit Judge. 

 Nopporn Sriyuth appeals his conviction of kidnapping 

and use of a firearm in relation to the kidnapping in violation 

of 18 U.S.C. §§ 1201(a)(1) and 924(c), respectively. We are 

asked to decide, inter alia, whether the district court erred in 

failing to exclude evidence, under Federal Rules of Evidence 

404(b) and 403, that the purpose or motive for the kidnapping was 

for companionship or sexual assault of the victim. 

 We find that the sexual assault evidence was probative 

of motive as well as the victim's nonconsent to the interstate 

transportation and, therefore, was admissible under rule 404(b). 

Moreover, given the facts here, the probative value of the sexual 

assault evidence outweighed the risk of undue prejudice. 

Accordingly, we will affirm. 

 I. 

 At the root of the criminal conduct which occurred here 

lies the Laotian custom of arranged marriages. Nopporn Sriyuth, 

also known as "Thi", is a naturalized citizen of the United 

States having immigrated to this country from Thailand in 1985. 

The victim, Chindavone Phongsavath, whose nickname is "Von," has 

resided with her family in Detroit since 1985. Sriyuth met Von 

at her brother-in-law's house while he was in Detroit temporarily 

on business in 1990, and they became friends. 

 After Sriyuth left Detroit, Von and other members of 

her family kept in contact with him either by phone or letter. 

Von was not romantically involved with Sriyuth during this time. 

Von's mother and sister, however, contacted his mother to discuss 

an arranged marriage between Von and Sriyuth. Von expressed to 

Sriyuth as well as to her family her objection to such an 

arrangement. 
 In November 1993, Sriyuth came to Detroit to stay with 

Von's sister Kethkeo and her husband. Von, however, was 

romantically involved with Nala Chanta at that time. Von's 

family still felt that Sriyuth was the perfect husband for Von. 

They therefore encouraged Sriyuth to take Von away for awhile so 

she would forget about her boyfriend. Immediately prior to the 

kidnap in April 1994, Sriyuth obtained a nine millimeter Taurus 

handgun from a friend of Von's family. 

 At approximately 4:30 p.m. on April 5, 1994, Von was 

visiting her boyfriend Nala Chanta in the bedroom of his 

residence. Without knocking and with gun in hand, Sriyuth 

entered Chanta's residence where he encountered two of Chanta's 

roommates playing a video game. Sriyuth inquired as to Von's 

whereabouts and the roommates informed him that she was upstairs. 

Sriyuth proceeded upstairs in search of Von and, upon finding her 

in Chanta's bedroom, demanded that Von leave with him, grabbed 

her by the arm, and pulled her out of the room and down the 

stairs. When he reached the bottom of the stairs, Sriyuth looked 

back at Chanta at the top of the stairs, with his gun pointed at 

him, and said, "I told you not to fuck with me." Sriyuth then 

left Chanta's house with Von. 

 Once outside, Von pleaded with Sriyuth to let her drive 

home as she did not trust him. Sriyuth, however, forced her into 

the driver's side of his car and told her he was taking her home. 

When Von refused to move over into the passenger seat, Sriyuth 

responded, "Move over! Do you want to die?" As they drove off, 

Von told Sriyuth to take her home; Sriyuth instead drove off in a 

different direction. Von continued to ask Sriyuth to drive her 

home. At one point while Sriyuth was still driving in Michigan, 

Von tried to get out of the car in order to force Sriyuth to 

stop. Sriyuth had to pull into a gas station and Von ran out of 

the car crying and holding the gun. Sriyuth ran after her and 

placed her in a bear hug. He then apologized and told Von that 

he was going to take her home and asked her to get back in the 

car. Sriyuth escorted Von back to the car. Von testified that 

at this point, she believed that Sriyuth was going to take her 

home. 

 Sriyuth, however, did not drive towards Von's 

residence, but told her he was driving to work and that she could 

take the car and drive home. Again, Von believed that Sriyuth 

was telling her the truth. Shortly thereafter, Von realized they 

were headed south on the freeway towards Ohio, not in the 

direction of Sriyuth's place of employment. She protested, again 

demanding that Sriyuth take her home. Von reached over at one 

point and grabbed the steering wheel, causing the car to swerve. 

Sriyuth told her to stop and remarked, "You want to die, you know 

we can both die together. I'm not afraid to die." Eventually, 

Von realized they had crossed into Ohio when they entered the 

Ohio Turnpike. 

 When Sriyuth stopped to get gas at a gas station in 

Ohio, Von ran from the car and into the bathroom. After using 

the facilities, Von remained in the restroom for approximately 

ten to fifteen minutes. Eventually, Sriyuth came into the 

women's restroom looking for her. He was trying to talk to her 
when an employee of the gas station came in and asked him to 

leave. Sriyuth complied and shortly thereafter, the employee 

returned to the restroom with the keys to Sriyuth's car and a 

message from him--that Von could drive. Von took the keys with 

the understanding that she would be allowed to drive home. After 

Von stepped outside, however, Sriyuth grabbed the keys from her 

and carried her back to the car. Although Von considered telling 

the employee in the restroom what was going on or asking her to 

call the police, Von decided against it because she still 

believed at that point she would be allowed to go home and 

because Sriyuth was a friend of the family. 

 Sriyuth continued to drive east through Ohio, while Von 

kept demanding to go home to Detroit. At times Von became very 

angry and pounded on the dashboard and door to try to get Sriyuth 

to stop the car. Sriyuth, however, ignored her requests. After 

he had been driving awhile, Sriyuth pulled off to the side of the 

road to rest. Sriyuth made several sexual advances towards Von, 

such as kissing her, forcing her to kiss him back, and trying to 

remove her pants, all of which Von vigorously rejected. In a 

final attempt to thwart Sriyuth's advances, Von ran from the car, 

only to be caught and returned to the car by Sriyuth. 

 The next morning, now April 6, 1994, Sriyuth arrived in 

Scranton, Pennsylvania, where he encountered an old acquaintance. 

After some discussion, Sriyuth and his friend Lem drove 

separately to the house of a mutual friend located at 615 Court 

Street in Scranton. After arriving at the Court Street location, 

Sriyuth and Lem went into the house while Von remained in the 

car. Five to ten minutes later, the owner of the house, Laksana 

Sphabmixay came out to the car and asked Von to come in and get 

something to eat, apparently unaware of how Von came to be with 

Sriyuth in Scranton. Von finally agreed and went inside the 

house. 

 For the most part, Von remained in the living room on 

the sofa, except to use the bathroom on one occasion. Later that 

morning, Von asked Sriyuth to give her the keys to the car so she 

could go to the store to purchase some contact lens solution. 

Sriyuth refused to give her the keys but later drove her to the 

pharmacy. Around 2:30 p.m., the owners of the house left to go 

to work. Sometime in the late afternoon, Sriyuth, accompanied by 

Laksana's brother, went to two Western Union offices in an 

attempt to obtain the cash that he thought had been wired to him 

by Von's sister, Kethkeo. While they were gone, Von telephoned 

Chanta and her sister, Vila. She gave them the address and phone 

number of the house in Scranton. Tearfully, she told Vila that 

Sriyuth had made sexual advances to her. Vila told her she would 

come and get her, but Von told her to wait because Sriyuth told 

her he was going to take her home tomorrow. 

 At some point after Sriyuth returned, Von went upstairs 

to use the bathroom. Sriyuth went upstairs to see what was 

taking Von so long. She told him she just wanted to be alone for 

awhile. He said he was going to play some pool with his friend. 

Von told him to go, but she was going to stay. She went back 

into the bathroom and when she emerged ten to fifteen minutes 

later, Sriyuth was there waiting for her. He blocked her access 
to the stairs so she ended up in the bedroom. She sat down on 

the floor and wrapped her arms around her legs. Sriyuth picked 

her up and placed her on the bed. Shortly thereafter, Sriyuth 

became sexually aggressive with Von, ripping her body suit to 

remove it. She attempted to fight off Sriyuth's advances by 

biting, scratching, and pushing him, and by telling him to stop. 

Sriyuth ultimately raped her. Afterwards, Sriyuth told Von to go 

to sleep and if she tried to move, he would start attacking her 

again. 

 Before Sriyuth woke the next morning, Von slipped out 

of bed and went into the bathroom to take a bath. Dressed in her 

jeans and tee-shirt, Von quietly walked downstairs and exited the 

house. She walked as fast as she could until she came to a house 

with a light on. Von knocked on the door and when two elderly 

women answered, she asked them if she could use their phone to 

call the police. She told them that she had been kidnapped and 

raped. The women allowed Von to call the police from their 

house. The police arrived a short while later; one of the 

officers interviewed Von for approximately one hour and then took 

her to a hospital for a rape examination. From the hospital, 

Von was taken to police headquarters in Scranton, where she was 

interviewed by Special Agent Seidel of the Federal Bureau of 

Investigation. 

 Based on the information Von gave to the police 

officer, officers were dispatched to apprehend Sriyuth. The 

officers found Sriyuth in the upstairs bedroom still asleep. He 

was taken into custody and transported to police headquarters. 

The vehicle driven by Sriyuth from Detroit to Scranton was 

impounded by the Scranton Police. After obtaining Von's 

statement, the police officers were able to obtain a search 

warrant for the impounded vehicle; the search revealed a nine 

millimeter handgun in the glove compartment. 

 Later that day, Agent Seidel interviewed Sriyuth at the 

Scranton Police Headquarters in the presence of Officer Victor 

Sanguiliano and Detective Captain Ted Maus. Prior to any 

questioning, Agent Seidel read Sriyuth his constitutional rights 

which he waived. Sriyuth then proceeded to give a statement to 

Agent Seidel that essentially mirrors the testimony of Von and 

the other witnesses. Prior to trial, Sriyuth filed a motion to 

suppress this statement. After a hearing on August 1, 1994, the 

district court ruled at the Pre-Trial Conference that the 

defendant intelligently, knowingly, and voluntarily waived his 

Miranda rights and accordingly denied the motion. 

 Immediately prior to the commencement of trial, Sriyuth 

filed a Motion in Limine seeking to preclude the government from 

introducing any evidence that the purpose or motive for the 

alleged kidnapping was for a sexual assault. The district court 

denied his motion orally at the Pre-Trial Conference on January 

30, 1995 without stating a basis for its ruling. The jury trial 

began the next day and, at the end of the government's case, 

defense counsel moved for Judgment of Acquittal pursuant to Rule 

29 of the Federal Rules of Criminal Procedure. The district 

court denied the motion. Thereafter, Sriyuth was found guilty on 

both charges. Following the jury's verdict, defense counsel 
renewed her motion for judgment of acquittal, as well as filed a 

motion for a new trial, both of which were denied by the district 

court in a Memorandum and Order dated September 14, 1995. This 

appeal followed. 

 We have jurisdiction pursuant to 28 U.S.C. § 1291. 

 

 II. 

 First and foremost, Sriyuth contends that the district 

court erred in failing to preclude the government from 

introducing any evidence at trial that the purpose or motive for 

the alleged kidnapping was for gaining Von's companionship and 

for a sexual assault. Initially, he argues that because motive 

is not an element of the offense of kidnapping, the sexual 

assault evidence is not relevant under Federal Rule of Evidence 

401. Alternatively, Sriyuth claims that none of the exceptions 

to Rule 404(b) of the Federal Rules of Evidence, which precludes 

the admission of evidence of other crimes, wrongs or acts to 

prove a person's character, applies here. Finally, Sriyuth 

contends that the probative value of this evidence does not 

outweigh the harmful consequences which would result from its 

admission and thus should have been excluded under Rule 403 of 

the Federal Rules of Evidence. 

 Rule 401 defines relevant evidence as "evidence having 

any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or 

less probable than it would be without the evidence." Fed. R. 

Evid. 401. Relevant evidence will be admissible unless the rules 

of evidence provide to the contrary. United States v. Scarfo, 

850 F.2d 1015, 1019 (3d Cir.), cert. denied, 488 U.S. 910 (1988) 

(citing Huddleston v. United States, 485 U.S. 681, 687 (1988)); 

see also Fed. R. Evid. 402. Rule 404(b), although viewed as a 

rule of inclusion rather than exclusion, provides for the 

exclusion of relevant evidence in certain situations. 

Huddleston, 485 U.S. at 688-89; Scarfo, 850 F.2d at 1019. 

Specifically, Rule 404(b) precludes the admission of evidence of 

other crimes, wrongs or acts to prove a person's character; 

however, such evidence may be admissible to show "motive, 

opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident." Thus, "[t]he threshold inquiry 

a court must make before admitting similar acts evidence under 

Rule 404(b) is whether that evidence is probative of a material 

issue other than character." Huddleston, 485 U.S. at 686. 

 Once it has been determined that the other crimes 

evidence is admissible under Rule 404(b), the balancing test of 

Rule 403 must also be met. Accordingly, relevant other crimes 

evidence may be excluded if the probative value of the evidence 

is substantially outweighed by the danger of undue prejudice. 

Scarfo, 850 F.2d at 1019 (citation omitted). 

 In order to gauge whether the sexual assault evidence 

is relevant we must first look to the plain language of the 

kidnapping statute, 18 U.S.C. § 1201(a). Section 1201(a) states 

in pertinent part: 

 Whoever unlawfully seizes, confines, 

 inveigles, decoys, kidnaps, abducts, or 
 carries away and holds for ransom or reward 

 or otherwise any person, when: 

 

 (1) the person is willfully transported 

 in interstate or foreign commerce; 

 . . . 

 shall be punished by imprisonment for any 

 term of years or for life. 

18 U.S.C. § 1201(a)(1) (emphasis added). The focus of our 

inquiry centers initially on the statutory language that the 

victim be held "for ransom, reward or otherwise." 

 After examining the legislative history of the 1936 

amendment to section 1201 and pertinent Supreme Court cases, the 

court of appeals in Gawne v. United States, 409 F.2d 1399, 1402- 

03 (9th Cir. 1969), cert. denied, 397 U.S. 943 (1970), concluded 

that "obviously `otherwise' comprehends any purpose at all." 

(citation omitted). Because "otherwise" was intended to mean 

"any other reason," the court held that defendants' purpose for 

the kidnapping was not an element of the offense. Id. at 1403. 

 The government maintains that because "purpose" is an 

element of kidnapping and, in order to sustain its burden of 

proof as to this element it was required to present evidence of 

the sexual assault, purpose was therefore relevant to prove the 

offense of kidnapping. In support of this argument, the 

government cites a number of cases which hold generally that 

evidence of "some purpose" was sufficient to satisfy the federal 

kidnapping statute. See United States v. Eagle Thunder, 893 F.2d 

950, 953 (8th Cir. 1990); (evidence of sexual assault sufficient 

to show "some purpose of his own"); United States v. McBryar, 553 

F.2d 433 (5th Cir.), cert. denied, 434 U.S. 862 (1977) (evidence 

of sexual gratification sufficient to meet "or otherwise" 

requirement); United States v. Lutz, 420 F.2d 414, 416 (3d Cir.), 

cert. denied, 398 U.S. 911 (1970) (evidence of rape sufficient to 

satisfy "or otherwise" element). In United States v. McCabe, 812 

F.2d 1060, 1062 (8th Cir.) cert. denied, 484 U.S. 832 (1987), the 

court of appeals stated that "`Congress by the phrase "or 

otherwise" intended to include any object of a kidnaping which 

the perpetrator might consider of sufficient benefit to himself 

to induce him to undertake it.'" (quoting United States v. 

Wolford, 444 F.2d 876, 881 (D.C. Cir. 1971)). 

 The district court agreed with the government and held 

that the rape was admissible to show motive, citing among other 

cases United States v. Bradshaw, 690 F.2d 704, 708 (9th Cir. 

1982), cert. denied, 463 U.S. 1210 (1983). Bradshaw argued that 

evidence of his sexual activity with the victim should have been 

excluded as irrelevant under Rule 404(b) or, if relevant, was 

unduly prejudicial pursuant to Rule 403. We find the language of 

the court of appeals particularly instructive: 

 Evidence of drug use and sexual relations 

 with a nine-year-old boy was obviously 
 prejudicial to the defendant. But it was 

 also relevant to show Bradshaw's dominion 

 over [the victim]. The contention that the 

 victim consented to the trip, and, therefore, 

 that he was not kidnapped, made the evidence 

 of sex and drug activity occurring after the 

 kidnapping admissible. See Holden v. United 

 States, 388 F.2d 240, 242 (1st Cir.), cert. 

 denied, 393 U.S. 864 (1968). 

 . . . 

 Motive is evidence of the commission of any 

 crime. This Court has previously held 

 evidence of sexual relations admissible 

 because of its relevance to motive in a 

 kidnapping case. See United States v. 

 Gibson, 625 F.2d 887 (9th Cir. 1980). It was 

 pointed out in Gibson that while there may be 

 no substantial issue of motive under section 

 1201(a), "the subsequent conduct does tend to 

 present a picture, the whole of which 

 indicates guilt. . . . The picture of a 

 kidnapping is not complete unless all of the 

 relationships of the defendant to the victim, 

 from the beginning of the illegal detention 

 to the end of it, are shown." Id. at 888. 

 (footnote omitted.) 

690 F.2d at 708-09. As in Bradshaw, the evidence of Sriyuth's 

sexual assault of Von is relevant to show not only his motive 

in kidnapping her, but also that she did not consent to go with 

him. 

 With respect to Sriyuth's Rule 404(b) argument, we 

conclude that it must fail for two reasons. First, the evidence 

is probative of a material issue other than his character--motive 

and the victim's consent--and thus falls within the permissible 

uses of other crimes evidence. In addition, "[w]hen the evidence 

of another crime is necessary to establish an element of the 

offense being tried, there is no `other crime.'" United States 

v. Blyden, 964 F.2d 1375, 1378 (3d Cir. 1992). Here the rape 

evidence was probative of the victim's lack of consent to the 

kidnapping and, therefore, was an element of section 1201(a). 

This evidence also explains why Von suddenly decided to report 

the kidnapping to the police; without it, her actions in this 

case make no sense. The government had no other means available 

to it to prove this element. As a result, we conclude the rape 

evidence was highly probative of a material element of 

kidnapping. 

 Our analysis does not end here, however, as relevant 

evidence will be admissible so long as its probative value 

substantially outweighs the danger of unfair prejudice. Fed. 

R. Evid. 403; Scarfo, 850 F.2d at 1019. In applying this test, 

we must assess the "genuine need for the challenged evidence and 
balance that necessity against the risk that the information will 

influence the jury to convict on improper grounds." Id. (citing 

United States v. Cook, 538 F.2d 1000, 1003 (3d Cir. 1976); United 

States v. Driggs, 823 F.2d 52, 54 n. 2 (3d Cir. 1987)). In Cook, 

we recited several factors to be considered in the balancing 

process: 

 . . . we must balance the actual need for 

 that evidence in view of the contested issues 

 and the other evidence available to the 

 prosecution, and the strength of the evidence 

 in proving the issue, against the danger that 

 the jury will be inflamed by the evidence to 

 decide that because the accused was the 

 perpetrator of the other crimes, he probably 

 committed the crime for which he is on trial 

 as well. . . . The treasured principles 

 underlying the rule against admitting 

 evidence of other crimes should be relaxed

 only when such evidence is genuinely needed 

 and would be genuinely relevant. (footnote 

 omitted.) 

Cook, 538 F.2d at 1003 (quoting United States v. Goodwin, 492 

F.2d 1141, 1150 (5th Cir. 1974)). We noted that a significant 

danger of undue prejudice will be found to exist where there are 

"substantial possibilities . . . that a jury will harbor strong 

adverse sensitivity" to the challenged evidence. Id. at 1004. 

In order to overcome this significant risk of unfair prejudice, 

the government must prove necessity. Id. 

 Although Sriyuth contends that "[i]t was likely that 

the rape evidence contributed to the jury's verdict," we are 

convinced that this evidence was genuinely needed and relevant to 

proving the kidnapping. In our view, the rape evidence is 

strongly probative because it counters two central arguments 

advanced by Sriyuth. First it rebuts Sriyuth's claim that he 

transported Von to Pennsylvania with her consent to further the 

arranged marriage. Evidence that a rape occurred during the 

kidnapping, even after the predicate elements had been met, made 

the government's account more likely than without this evidence. 

Second, the rape evidence refutes Sriyuth's argument that Von's 

delay in notifying the police showed that she went with Sriyuth 

willingly. In any event, the risk of unfair prejudice was 

minimized by the district court's instruction to the jury on the 

limited use of the sexual assault evidence. As in Driggs, we 

believe this is a case where the "jury could be expected to 

compartmentalize the evidence and consider it for its proper 

purposes." 823 F.2d at 54. 

 Accordingly, we find that the sexual assault evidence 

was relevant and that its probative value substantially 

outweighed the danger of unfair prejudice to Sriyuth. The 

district court properly allowed the government to present 

evidence of the motive for the kidnapping. 

 III. 
 Sriyuth's other allegations of error need not detain us 

long as they lack legal merit. 

 A. 

 Sriyuth challenges the district court's order denying 

the suppression of his statement to Agent Seidel. His objection 

is two-fold: his statement was not made knowingly or 

intelligently as required by Miranda v. Arizona, 384 U.S. 436 

(1966), and his statement was involuntary, having been obtained 

through the exertion of promises or improper influence by Agent 

Seidel. We find no merit in either argument. 

 Our review of the district court's finding that Sriyuth 

voluntarily, knowingly and intelligently waived his right to 

counsel is subject to plenary review, but we are required to 

accept its factual findings unless they are clearly erroneous. 

United States v. Swint, 15 F.3d 286, 288 (3d Cir. 1994) (citing 

Arizona v. Fulminante, 499 U.S. 279, 317 (1991)). In determining 

whether the waiver was voluntary, knowing and intelligent under 

Miranda, we are required to make a two-pronged inquiry. We must 

first ask whether the waiver was voluntary "`in" the sense that 

it was the product of a free and deliberate choice rather than 

intimidation, coercion or deception.'" United States v. 

Velasquez, 885 F.2d 1076, 1084 (3d Cir. 1989), cert. denied, 494 

U.S. 1017 (1990) (quoting Moran v. Burbine, 475 U.S. 412, 421 

(1986) (citation omitted)). Second, we must inquire whether the 

waiver was "`made with a full awareness both of the nature of the 

right being abandoned and the consequences of the decision to 

abandon it.'" Id. 

 This inquiry requires us to consider the totality of 

the circumstances surrounding the interrogation, which includes 

examining the events that occurred and the background, 

experience, and conduct of the defendant. Alston v. Redman, 34 

F.3d 1237, 1253 (3d Cir. 1994), cert. denied, 115 S. Ct. 1122 

(1995) (citing Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983) 

(additional citations omitted)). Miranda rights will be deemed 

waived only where the totality of the circumstances "`reveal[s] 

both an uncoerced choice and the requisite level of

comprehension.'" Id. (quoting Moran, 475 U.S. at 421) (citations 

omitted). 

 At the suppression hearing, Agent Seidel testified that 

he was "absolutely certain" that Sriyuth understood him. Agent 

Seidel stated that, in turn, he did not have any trouble 

understanding Sriyuth, who spoke English. Indeed, Seidel did not 

have any concerns whatsoever that there might have been 

difficulties with communication. Agent Seidel testified that he 

explained briefly what the victim said occurred and asked Sriyuth 

if he wanted to talk to him about it. According to Agent Seidel, 

Sriyuth indicated that he did want to talk to him, at which point 

Sriyuth was taken to Detective Maus' office where the waiver of 

rights form was read and explained to him. 

 Agent Seidel was certain that Sriyuth understood his 

rights and that he did not wish to have an attorney present for 

the interview. In response to Agent Seidel telling him that he 

could have an attorney present, Sriyuth allegedly stated that he 
wanted to tell the agent his story, and then, before the hearing, 

he wished to speak to an attorney. At no point during the 

interview did the defendant indicate that he wished to stop or 

that he wanted an attorney present. 

 Agent Seidel also testified that he did not make any 

promises to coerce Sriyuth into talking without a lawyer either 

before or after Sriyuth signed the waiver of rights form. After 

the interview was over, Agent Seidel told Sriyuth he thought he 

had done the right thing by telling the truth and, at some point 

down the road, Seidel would go to bat for him since he had 

cooperated with the authorities. Detective Maus and Officer 

Sangiuliano were also present when the waiver of rights form was 

read and executed, and they corroborated Agent Seidel's account 

of what transpired. 

 To the contrary, Sriyuth testified that he immediately 

requested an attorney, and that before he signed the waiver 

form, Agent Seidel promised him that he would put in a good word 

for him with the judge if he cooperated. Sriyuth further stated 

that he understood his rights as they were read to him. When 

asked specifically if he understood what "anything you say can be 

used against you in court" meant, he replied, "Yes, but I didn't 

really pay attention to that." He stated that he agreed to the 

interview because he thought that if he got an attorney that day, 

he would just have to pay a fine and he would be released. 

Sriyuth also contested the substance of his statement to Agent 

Seidel as contained in the FBI 302 Report. In particular, 

Sriyuth denied admitting to Agent Seidel that he kidnapped and 

raped Von. 

 According to Agent Seidel, at the time of the interview 

the defendant did not appear to be under the influence of alcohol 

or drugs, nor did he appear to be mentally or physically disabled 

in any way. At the suppression hearing, Sriyuth testified that 

he was twenty-three years old, had been in this country for nine 

years, and had attended high school in the United States for five 

years. Since quitting school, Sriyuth managed a fast food 

restaurant and worked in construction; at the time he was 

arrested he was working for a grinding company. Sriyuth also 

testified that he was not familiar with the criminal justice 

system. He did, however, state that he knew he was entitled to a 

lawyer upon arrest from watching movies and the television show, 

"The People's Court." Sriyuth was not handcuffed during the 

interview, which lasted approximately one hour. 

 The district court found that Sriyuth's testimony at 

the suppression hearing was not believable. By crediting Agent 

Seidel's testimony, the district court in effect adopted the 

agent's version of the facts--that Sriyuth understood his rights, 

based on the number of years he has lived in the United States, 

his education and work experience; that Sriyuth did not request 

an attorney for the interview; and that Agent Seidel did not 

promise Sriyuth that he would put in a good word for him to 

coerce him into waiving his rights. These findings are not 

clearly erroneous. The record supports the denial of the motion 

because Sriyuth waived his rights freely and deliberately, and 

was not coerced into relinquishing them. Moreover, his own 
testimony confirms that he understood the nature of the right 

being abandoned and the consequences of such abandonment. We 

hold, therefore, that the district court did not err in 

concluding that Sriyuth voluntarily, knowingly, and intelligently 

waived his right to counsel. Accordingly, the district court 

properly denied the motion to suppress. 

 

 B. 

 Sriyuth also contends that there was insufficient 

evidence for the jury to find that he held the victim against her 

will at the time he transported her across state lines. 

Challenges to the sufficiency of the evidence are reviewed "to 

determine `whether, viewing the evidence in a light most 

favorable to the government, there was substantial evidence upon 

which a reasonable jury could have based its verdict.'" United 

States v. Console, 13 F.3d 641, 652 (3d Cir. 1993), cert. denied, 

114 S. Ct. 1660 (1994) (quoting United States v. Pungitore, 910 

F.2d 1084, 1129 (3d Cir. 1990), cert. denied, 500 U.S. 915 

(1991)). We find no merit in this argument. It is clear from 

our review of the evidence that the government presented 

substantial evidence from which the jury could believe the victim 

did not consent to be transported across state lines. 

 C. 

 The last two issues concern the district court's 

instructions to the jury. The first objection involves the 

following charge: 

 The crime of kidnapping is complete when the 

 defendant willfully transports a person 

 against her will, and the person does, in 

 fact, cross state lines. The offense of 

 kidnapping is complete, then any agreement by 

 the person to continue detention by the 

 defendant does not absolve the defendant of 

 the criminal responsibility. 

Sriyuth contends the jury charge incorrectly defined the offense 

of kidnapping, and, as a result, the jury failed to consider 

whether the victim was a consenting party at the time they 

crossed state lines. We have held that if the jury charge 

"`fairly and adequately submits the issues in the case to the 

jury [without confusing or misleading the jurors]'", then when 

viewed as a whole and in the light of the evidence, the court's 

instruction will not constitute reversible error. United States 

v. Simon, 995 F.2d 1236, 1243 n.11 (3d Cir. 1993) (citations 

omitted); see also United States v. Coyle, 63 F.3d 1239, 1245 (3d 

Cir. 1995). Here, upon review of all of the instructions, it is 

clear that the district court fairly and adequately instructed 

the jury on the elements of the offense of kidnapping. In 

particular, the court correctly instructed the jury that it must 

find beyond a reasonable doubt that the victim was being 

transported unwillingly at the time she crossed into Ohio. We 

find nothing in this instruction which would have confused or 

misled the jury. 
 The final objection involves the supplemental jury 

instruction given in response to a note received from the jury. 

After discussion with counsel outside the presence of the jury, 

the district court responded by giving the jury a written copy of 

his oral instruction on the elements of kidnapping. Sriyuth 

objected to the fact that it was given in writing, but had no 

problem with the substance of the supplemental charge if reread 

to the jury. 

 In Beardshall v. Minuteman Press International, Inc., 

664 F.2d 23, 28 (3d Cir. 1981), we recognized that "the form and 

extent of supplemental instructions are within the sound 

discretion of the court." There, the trial court submitted a 

written statement to the jury outlining the "bare bones" elements 

of fraud, instead of the original oral instruction which 

amplified the requirements for each element, including the 

relevant qualifications and distinctions of each. We disapproved 

of the trial court's written instruction in Beardshall because it 

did not contain the qualifying instructions or the explanations 

of the original oral charge, and thus unduly emphasized the 

plaintiffs' theory of the case. Id. We did not preclude the use 

of written instructions, however, in the appropriate case, 

although we noted that the practice had risks. In order to 

"avoid prejudicial emphasis on part of the case," we noted the 

trial court should "[remind] the jury of the other aspects of the 

original charge and [caution] them that the segment of the charge 

which is amplified or explained should be considered in the light 

of the other instructions and is not to be given undue weight." 

Id. at 29. We are in agreement with the statement of our sister 

Court of Appeals for the Fifth Circuit in United States v. 

Ehrlich, 902 F.2d 327 (5th Cir. 1990), cert. denied, 498 U.S. 

1069 (1991), that where initially the jury is charged orally but 

is later given written instructions in response to a request for 

supplemental instructions, "there [will be] no error unless, 

under the totality of the circumstances, the court's written 

response creates an unbalanced charge prejudicial to the 

defendant." Id. at 330 (citation omitted). 

 Here we cannot say, under the totality of the 

circumstances, that the district court's written instruction 

created an unbalanced charge prejudicial to Sriyuth. Unlike 

Beardshall, the district court submitted the entire jury 

instruction as originally given on the elements of kidnapping. 

Thus, there was no need to remind the jury of the other aspects 

of the original charge. Although we note that the district court 

acknowledged the better practice may have been to read the 

supplemental instruction to the jury instead of submitting a 

written charge, we cannot say the court's choice resulted in 

placing undue emphasis on any aspect of the case. 

 VI. 

 We find that the district court did not err in allowing 

the government to present the sexual assault evidence at trial or 

in denying the motion to suppress the defendant's statement to 

Agent Seidel. We further hold that the government presented 

substantial evidence from which a reasonable jury could conclude 
the victim did not consent to be transported across state lines. 

Finally, we conclude that the district court acted within its 

sound discretion with regard to the challenged jury instructions. 

Accordingly, we will affirm the judgment in this criminal case.