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. e du/thir dc ir c uit_1996/54UNITED 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 Co urt for the Middle District of Pennsylvani a (D.C. Crim. No. 94-cr-00066)

___________

Argued June 5, 1996 Before: BECKER and MANSMANN, Circuit Jud ges, 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 Unite d States
District Court for the Northern District of Califor nia, 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 c ourt 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 w as 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 preju dice. Accordingly, we will affirm.

I.
At the root of the criminal conduct which occurred here lies the Laotian custom of arranged marriages. Nop porn Sriyuth, also known as "Thi", is a naturalized citizen of th e United States having immigrated to this country from Thail and in 1985. The victim, Chindavone Phongsavath, whose nickname is "Von," has resided with her family in Detroit since 1985. Sri yuth met Von
at her brother-in-law's house while he was in Detro it 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 duri ng this time. Von's mother and sister, however, contacted his mot her to discuss an arranged marriage between Von and Sriyuth. Von expressed to Sriyuth as well as to her family her objection to s uch 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 husb and 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 milli meter Taurus handgun from a friend of Von's family. At approximately 4:30 p.m. on April 5, 199 4, Von was visiting her boyfriend Nala Chanta in the bedroom o f 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 a s to Von's
whereabouts and the roommates informed him that she was upstairs. Sriyuth proceeded upstairs in search of Von and, up on finding her in Chanta's bedroom, demanded that Von leave with h im, 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 g un pointed at him, and said, "I told you not to fuck with me." S riyuth 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, f orced her into
the driver's side of his car and told her he was ta king her home. When Von refused to move over into the passenger se at, Sriyuth responded, "Move over! Do you want to die?" As th ey 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 S riyuth to stop. Sriyuth had to pull into a gas station and V on ran out of the car crying and holding the gun. Sriyuth ran af ter her and placed her in a bear hug. He then apologized and t old 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 te stified that at this point, she believed that Sriyuth was going to take her

home. Sriyuth, however, did not drive towards Vo n's residence, but told her he was driving to work and that she could take the car and drive home. Again, Von believed t hat 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 pr otested, again demanding that Sriyuth take her home. Von reached over at one point and grabbed the steering wheel, causing the c ar 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 e ntered the Ohio Turnpike. When Sriyuth stopped to get gas at a gas s tation in Ohio, Von ran from the car and into the bathroom. After using the facilities, Von remained in the restroom for ap proximately ten to fifteen minutes. Eventually, Sriyuth came i nto the women's restroom looking for her. He was trying to talk to herwhen an employee of the gas station came in and ask ed him to

leave. Sriyuth complied and shortly thereafter, th e employee returned to the restroom with the keys to Sriyuth's car and a message from him--that Von could drive. Von took t he keys with the understanding that she would be allowed to driv e home. After Von stepped outside, however, Sriyuth grabbed the k eys from her and carried her back to the car. Although Von cons idered telling the employee in the restroom what was going on or a sking her to call the police, Von decided against it because she still believed at that point she would be allowed to go h ome and because Sriyuth was a friend of the family. Sriyuth continued to drive east through Oh io, 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 req uests. After he had been driving awhile, Sriyuth pulled off to t he 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 rejec ted. In a final attempt to thwart Sriyuth's advances, Von ran from the car, only to be caught and returned to the car by Sriyut h. The next morning, now April 6, 1994, Sriyu th arrived in Scranton, Pennsylvania, where he encountered an old acquaintance. After some discussion, Sriyuth and his friend Lem d rove separately to the house of a mutual friend located at 615 Court Street in Scranton. After arriving at the Court St reet location, Sriyuth and Lem went into the house while Von remai ned in the car. Five to ten minutes later, the owner of the h ouse, Laksana Sphabmixay came out to the car and asked Von to com e in and get something to eat, apparently unaware of how Von cam e to be with Sriyuth in Scranton. Von finally agreed and went i nside the

house. For the most part, Von remained in the liv ing room on the sofa, except to use the bathroom on one occasio n. 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 drov e her to the pharmacy. Around 2:30 p.m., the owners of the hous e left to go to work. Sometime in the late afternoon, Sriyuth, accompanied by Laksana's brother, went to two Western Union office s in an attempt to obtain the cash that he thought had been wired to him by Von's sister, Kethkeo. While they were gone, V on telephoned Chanta and her sister, Vila. She gave them the add ress and phone number of the house in Scranton. Tearfully, she to ld 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 t o be alone for awhile. He said he was going to play some pool wit h 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 fifte en minutes later, Sriyuth was there waiting for her. He block ed her accessto the stairs so she ended up in the bedroom. She sat down on

the floor and wrapped her arms around her legs. Sr iyuth picked her up and placed her on the bed. Shortly thereaft er, Sriyuth became sexually aggressive with Von, ripping her bo dy suit to remove it. She attempted to fight off Sriyuth's ad vances 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 a ttacking 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 c ame 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 the ir phone to call the police. She told them that she had been k idnapped and raped. The women allowed Von to call the police fr om 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, w here she was interviewed by Special Agent Seidel of the Federal Bureau of Investigation. Based on the information Von gave to the p olice officer, officers were dispatched to apprehend Sriy uth. The officers found Sriyuth in the upstairs bedroom stil l asleep. He was taken into custody and transported to police he adquarters. The vehicle driven by Sriyuth from Detroit to Scran ton 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 revea led a nine millimeter handgun in the glove compartment. Later that day, Agent Seidel interviewed S riyuth at the Scranton Police Headquarters in the presence of Off icer Victor Sanguiliano and Detective Captain Ted Maus. Prior to any questioning, Agent Seidel read Sriyuth his constitu tional 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 th at the defendant intelligently, knowingly, and voluntarily waived his Miranda rights and accordingly denied the motion. Immediately prior to the commencement of t rial, Sriyuth filed a Motion in Limine seeking to preclude the go vernment from introducing any evidence that the purpose or motive for the alleged kidnapping was for a sexual assault. The d istrict court denied his motion orally at the Pre-Trial Conferenc e on January 30, 1995 without stating a basis for its ruling. T he jury trial began the next day and, at the end of the governmen t's case, defense counsel moved for Judgment of Acquittal pur suant to Rule
29 of the Federal Rules of Criminal Procedure. The district court denied the motion. Thereafter, Sriyuth was f ound guilty on both charges. Following the jury's verdict, defens e counselrenewed her motion for judgment of acquittal, as we ll as filed a

motion for a new trial, both of which were denied b y 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 f rom introducing any evidence at trial that the purpose or motive for the alleged kidnapping was for gaining Von's compan ionship and for a sexual assault. Initially, he argues that be cause 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 th e exceptions to Rule 404(b) of the Federal Rules of Evidence, wh ich precludes the admission of evidence of other crimes, wrongs o r 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 resul t from its
admission and thus should have been excluded under Rule 403 of
the Federal Rules of Evidence.
Rule 401 defines relevant evidence as "evi dence 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 un less 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 f or the
exclusion of relevant evidence in certain situation s. Huddleston, 485 U.S. at 688-89; Scarfo, 850 F.2d at 1019. Specifically, Rule 404(b) precludes the admission o f evidence of other crimes, wrongs or acts to prove a person's ch aracter; however, such evidence may be admissible to show "m otive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Thus, "[t]he thre shold inquiry a court must make before admitting similar acts evi dence under Rule 404(b) is whether that evidence is probative o f 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 balan cing test of Rule 403 must also be met. Accordingly, relevant o ther 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 assau lt evidence is relevant we must first look to the plain languag e of the kidnapping statute, 18 U.S.C. § 1201(a). Section 1 201(a) states in pertinent part: Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, orcarries away and holds for ransom or rewar d

or otherwise any person, when:

(1) the person is willfully transport ed 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 Cou rt cases, the court of appeals in Gawne v. United States, 409 F.2 d 1399, 1402- 03 (9th Cir. 1969), cert. denied, 397 U.S. 943 (197 0), concluded that "obviously `otherwise' comprehends any purpose at all." (citation omitted). Because "otherwise" was intend ed 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 "pur pose" 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 gener ally that evidence of "some purpose" was sufficient to satisf y the federal kidnapping statute. See United States v. Eagle Thu nder, 893 F.2d 950, 953 (8th Cir. 1990); (evidence of sexual assau lt sufficient to show "some purpose of his own"); United States v . McBryar, 553 F.2d 433 (5th Cir.), cert. denied, 434 U.S. 862 (19 77) (evidence of sexual gratification sufficient to meet "or othe rwise" 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. 8 32 (1987), the court of appeals stated that "`Congress by the phra se "or otherwise" intended to include any object of a kidn aping which the perpetrator might consider of sufficient benefi t to himself to induce him to undertake it.'" (quoting United S tates v. Wolford, 444 F.2d 876, 881 (D.C. Cir. 1971)). The district court agreed with the governm ent 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). Bradsha w argued that evidence of his sexual activity with the victim sho uld have been excluded as irrelevant under Rule 404(b) or, if rel evant, was unduly prejudicial pursuant to Rule 403. We find t he language of the court of appeals particularly instructive:

Evidence of drug use and sexual relations with a nine-year-old boy was obviouslyprejudicial to the defendant. But it was

also relevant to show Bradshaw's dominion over [the victim]. The contention that th e victim consented to the trip, and, therefo re, that he was not kidnapped, made the eviden ce of sex and drug activity occurring after t he kidnapping admissible. See Holden v. Unit ed States, 388 F.2d 240, 242 (1st Cir.), cert

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

. . .

Motive is evidence of the commission of an y 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 secti on 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 t he relationships of the defendant to the vict im, from the beginning of the illegal detentio n 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 consen t to go with
him. With respect to Sriyuth's Rule 404(b) argu ment, we conclude that it must fail for two reasons. First, the evidence is probative of a material issue other than his cha racter--motive
and the victim's consent--and thus falls within the permissible uses of other crimes evidence. In addition, "[w]he n the evidence of another crime is necessary to establish an eleme nt of the offense being tried, there is no `other crime.'" U nited States v. Blyden, 964 F.2d 1375, 1378 (3d Cir. 1992). Her e the rape evidence was probative of the victim's lack of cons ent to the kidnapping and, therefore, was an element of sectio n 1201(a). This evidence also explains why Von suddenly decide d to report the kidnapping to the police; without it, her actio ns in this case make no sense. The government had no other me ans available to it to prove this element. As a result, we concl ude the rape evidence was highly probative of a material element of kidnapping. Our analysis does not end here, however, a s relevant evidence will be admissible so long as its probativ e value substantially outweighs the danger of unfair prejud ice. Fed. R. Evid. 403; Scarfo, 850 F.2d at 1019. In applyin g this test, we must assess the "genuine need for the challenged evidence andbalance that necessity against the risk that the in formation 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. 198 7)). 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 iss ues and the other evidence available to the prosecution, and the strength of the evide nce in proving the issue, against the danger t hat the jury will be inflamed by the evidence to
decide that because the accused was the perpetrator of the other crimes, he probab ly
committed the crime for which he is on tri al as well. . . . The treasured principles underlying the rule against admitting
evidence of other crimes should be relaxed only when such evidence is genuinely neede d and would be genuinely relevant. (footnot e omitted.)

Cook, 538 F.2d at 1003 (quoting United States v. Go odwin, 492 F.2d 1141, 1150 (5th Cir. 1974)). We noted that a significant danger of undue prejudice will be found to exist wh ere there are "substantial possibilities . . . that a jury will h arbor strong adverse sensitivity" to the challenged evidence. I d. at 1004. In order to overcome this significant risk of unfai r prejudice, the government must prove necessity. Id. Although Sriyuth contends that "[i]t was l ikely that the rape evidence contributed to the jury's verdict ," we are convinced that this evidence was genuinely needed a nd relevant to proving the kidnapping. In our view, the rape evid ence is strongly probative because it counters two central arguments advanced by Sriyuth. First it rebuts Sriyuth's cla im that he transported Von to Pennsylvania with her consent to further the arranged marriage. Evidence that a rape occurred d uring the kidnapping, even after the predicate elements had b een met, made the government's account more likely than without t his evidence. Second, the rape evidence refutes Sriyuth's argumen t that Von's delay in notifying the police showed that she went with Sriyuth willingly. In any event, the risk of unfair prejud ice was minimized by the district court's instruction to th e jury on the
limited use of the sexual assault evidence. As in Driggs, we believe this is a case where the "jury could be exp ected to compartmentalize the evidence and consider it for i ts proper purposes." 823 F.2d at 54. Accordingly, we find that the sexual assau lt evidence was relevant and that its probative value substanti ally outweighed the danger of unfair prejudice to Sriyut h. The district court properly allowed the government to p resent 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 or der 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, 38 4 U.S. 436 (1966), and his statement was involuntary, having b een obtained through the exertion of promises or improper influe nce 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 re quired to accept its factual findings unless they are clearly erroneous. United States v. Swint, 15 F.3d 286, 288 (3d Cir. 1 994) (citing Arizona v. Fulminante, 499 U.S. 279, 317 (1991)). In determining whether the waiver was voluntary, knowing and intel ligent under Miranda, we are required to make a two-pronged inqu iry. We must first ask whether the waiver was voluntary "`in" th e sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception.'" United Stat es 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 inquir e whether the waiver was "`made with a full awareness both of the nature of the right being abandoned and the consequences of the d ecision to
abandon it.'" Id. This inquiry requires us to consider the t otality of the circumstances surrounding the interrogation, wh ich includes examining the events that occurred and the backgrou nd, 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, 1 046 (1983) (additional citations omitted)). Miranda rights wi ll 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 4 21) (citations omitted). At the suppression hearing, Agent Seidel t estified that he was "absolutely certain" that Sriyuth understood him. Agent Seidel stated that, in turn, he did not have any tr ouble understanding Sriyuth, who spoke English. Indeed, Seidel did not have any concerns whatsoever that there might have been difficulties with communication. Agent Seidel test ified 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 t he waiver of rights form was read and explained to him. Agent Seidel was certain that Sriyuth unde rstood 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 s tated that hewanted to tell the agent his story, and then, befor e the hearing,

he wished to speak to an attorney. At no point dur ing 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 no t make any promises to coerce Sriyuth into talking without a l awyer either before or after Sriyuth signed the waiver of rights form. After the interview was over, Agent Seidel told Sriyuth h e 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 an d Officer Sangiuliano were also present when the waiver of ri ghts form was read and executed, and they corroborated Agent Seid el's account of what transpired. To the contrary, Sriyuth testified that he immediately requested an attorney, and that before he signed th e waiver form, Agent Seidel promised him that he would put i n a good word for him with the judge if he cooperated. Sriyuth f urther 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 a greed to the interview because he thought that if he got an atto rney that day, he would just have to pay a fine and he would be re leased. Sriyuth also contested the substance of his stateme nt to Agent Seidel as contained in the FBI 302 Report. In part icular, Sriyuth denied admitting to Agent Seidel that he ki dnapped and raped Von. According to Agent Seidel, at the time of the interview the defendant did not appear to be under the influe nce of alcohol or drugs, nor did he appear to be mentally or physi cally disabled in any way. At the suppression hearing, Sriyuth te stified that he was twenty-three years old, had been in this cou ntry for nine years, and had attended high school in the United S tates for five years. Since quitting school, Sriyuth managed a fa st food restaurant and worked in construction; at the time he was arrested he was working for a grinding company. Sr iyuth also
testified that he was not familiar with the crimina l justice system. He did, however, state that he knew he was entitled to a lawyer upon arrest from watching movies and the tel evision show, "The People's Court." Sriyuth was not handcuffed d uring the interview, which lasted approximately one hour. The district court found that Sriyuth's te stimony at the suppression hearing was not believable. By cre diting Agent Seidel's testimony, the district court in effect ad opted the agent's version of the facts--that Sriyuth understo od his rights, based on the number of years he has lived in the Un ited States, his education and work experience; that Sriyuth did not request an attorney for the interview; and that Agent Seide l did not promise Sriyuth that he would put in a good word fo r 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 delibe rately, and was not coerced into relinquishing them. Moreover, his owntestimony confirms that he understood the nature of the right

being abandoned and the consequences of such abando nment. We hold, therefore, that the district court did not er r in concluding that Sriyuth voluntarily, knowingly, and intelligently waived his right to counsel. Accordingly, the dist rict court properly denied the motion to suppress.

B. Sriyuth also contends that there was insuf ficient evidence for the jury to find that he held the vict im against her will at the time he transported her across state li nes. Challenges to the sufficiency of the evidence are r eviewed "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 verdic t.'" United States v. Console, 13 F.3d 641, 652 (3d Cir. 1993), cert. denied, 114 S. Ct. 1660 (1994) (quoting United States v. Pu ngitore, 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 pres ented substantial evidence from which the jury could beli eve the victim did not consent to be transported across state line s.

C.
The last two issues concern the district c ourt's instructions to the jury. The first objection invo lves the following charge: The crime of kidnapping is complete when t he 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 o f the criminal responsibility.

Sriyuth contends the jury charge incorrectly define d the offense of kidnapping, and, as a result, the jury failed to consider whether the victim was a consenting party at the ti me they crossed state lines. We have held that if the jury charge "`fairly and adequately submits the issues in the c ase 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 instru ctions, it is clear that the district court fairly and adequately instructed the jury on the elements of the offense of kidnappi ng. 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 int o Ohio. We find nothing in this instruction which would have c onfused or misled the jury.The final objection involves the supplemen tal jury

instruction given in response to a note received fr om the jury. After discussion with counsel outside the presence of the jury, the district court responded by giving the jury a w ritten 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 char ge if reread to the jury.
In Beardshall v. Minuteman Press Internati onal, 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 s ubmitted a written statement to the jury outlining the "bare b ones" elements of fraud, instead of the original oral instruction which amplified the requirements for each element, includ ing the relevant qualifications and distinctions of each. We disapproved
of the trial court's written instruction in Beardsh all because it did not contain the qualifying instructions or the explanations of the original oral charge, and thus unduly emphas ized the plaintiffs' theory of the case. Id. We did not pr eclude the use of written instructions, however, in the appropriat e case, although we noted that the practice had risks. In order to "avoid prejudicial emphasis on part of the case," w e 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 considere d in the light of the other instructions and is not to be given un due weight." Id. at 29. We are in agreement with the statement of our sister Court of Appeals for the Fifth Circuit in United St ates v. Ehrlich, 902 F.2d 327 (5th Cir. 1990), cert. denied , 498 U.S. 1069 (1991), that where initially the jury is charg ed orally but is later given written instructions in response to a request for supplemental instructions, "there [will be] no erro r unless, under the totality of the circumstances, the court' s written response creates an unbalanced charge prejudicial t o the defendant." Id. at 330 (citation omitted). Here we cannot say, under the totality of the circumstances, that the district court's written in struction 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 o ther aspects of the original charge. Although we note that the district court acknowledged the better practice may have been to r ead the supplemental instruction to the jury instead of sub mitting a written charge, we cannot say the court's choice re sulted in placing undue emphasis on any aspect of the case.

VI.
We find that the district court did not er r in allowing the government to present the sexual assault eviden ce at trial or in denying the motion to suppress the defendant's s tatement to Agent Seidel. We further hold that the government presented substantial evidence from which a reasonable jury c ould concludethe 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 cr iminal case.