USCA1 Opinion
July 18, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1123
UNITED STATES,
Appellee,
v.
MOJISOLA A. BIODUN ADEKOYA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Robert M. Greenspan, for appellant.
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Paula J. DeGiacomo, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for appellee.
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Per Curiam. Defendant-appellant Mojisola Biodun
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Adekoya, a Nigerian woman traveling from Nigeria by way of
Switzerland to the United States, was arrested at Logan
Airport in Boston on October 10, 1993 after a customs
inspection of her baggage revealed two kilograms of heroin.
Following a three-day jury trial, she was convicted of
importation and possession of heroin with intent to
distribute, in violation of 21 U.S.C. 952(a) and 841(a)(1)
and 18 U.S.C. 2. Adekoya challenges her convictions,
claiming the district court inadequately questioned
prospective jurors about possible race- and nationality-based
bias, denied her the right to be present during the
questioning of certain jurors, and failed to define
"reasonable doubt" in the instructions to the jury. Finding
that the court did not commit reversible error, we affirm.
Adekoya argues that the district court should have
included among the questions it asked the venire the
following question proposed by defense counsel: whether any
prospective juror had "any fixed opinions, biases or
prejudices about Black people which would affect your ability
to render a fair and impartial verdict in this case based
solely on the law and evidence in this case?" Defense
counsel suggested this question in writing along with more
than twenty others on the day trial commenced, but never
thereafter requested that the court ask it, even after the
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court had questioned the jurors more generally about possible
bias.1 Nor did the defendant raise the argument she
advances now, that, had her race-specific question been
asked, other questions might have followed which would have
allowed her to probe bias stemming from the fact that she was
a Nigerian national -- a fact that, rather than her race,
forms the basis for her argument on appeal. Such bias,
defendant says, could have stemmed from panel members'
awareness of a few court opinions, unrelated to this case,
which refer to Nigeria as a drug source country. Because
defendant did not properly preserve an objection to the
district court's questioning, we review for plain error only.
See United States v. Olano, 507 U.S. 725, 732 (1993).
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Generally, a trial court has considerable
discretion in conducting voir dire and "need not pursue any
specific line of questioning . . . provided it is probative
on the issue of impartiality." United States v. Brown, 938
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F.2d 1482, 1485 (1st Cir.), cert. denied, 502 U.S. 992
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(1991); see also Fed.R.Crim.P. 24(a) (a court conducting voir
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1. The district court asked the venire in open court:
Are any of you sensible of any bias or prejudice
whatsoever with respect to this case? When I say
are you sensible of it I mean are you aware of any,
do you know of any? Do you know of any reason why
you do not stand indifferent in this case? When I
say stand indifferent, I'm trying to search out any
feelings about these people or me, because you've
met us, feelings about the criminal justice system,
feelings about these particular charges.
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dire shall permit the defendant or the attorneys "to
supplement the examination by such further inquiry as it
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deems proper or shall itself submit to the prospective jurors
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such additional questions by the parties or their attorneys
as it deems proper[]") (emphasis supplied); Rosales-Lopez v.
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United States, 451 U.S. 182, 189 (1981) (plurality) (as voir
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dire examinations "rely largely on . . . immediate
perceptions, federal judges have been accorded ample
discretion in determining how best to conduct the voir
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dire[]").
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When the circumstances of the trial indicate that
racial or ethnic prejudice is likely, however, it is
advisable for the court to question jurors on such bias. See
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Brown, 938 F.2d at 1485 (citing Ristaino v. Ross, 424 U.S.
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589, 597 n.9 (1976)). The federal Constitution requires a
specific inquiry into racial bias when racial issues are
"'inextricably bound up with the conduct of the trial'" or
"substantial indications of the likelihood of racial or
ethnic prejudice affecting the jurors" are present. Rosales-
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Lopez, 451 U.S. at 189-190 (quoting Ristaino, 424 U.S. at
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596). Apart from constitutional considerations, an appellate
court, in the exercise of its supervisory authority over the
federal courts, should find reversible error if a lower court
does not acquiesce in a defendant's request for a specific
inquiry into racial bias and there is a "reasonable
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possibility that racial or ethnic prejudice might have
influenced the jury." Id. at 191.
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After examining the record, we discern no error,
let alone plain error, in the district court's failure to ask
the question submitted by counsel or to frame a question sua
sponte going to Nigerian nationality. To prove the
importation charge, the government had to show that defendant
traveled to the United States from Nigeria; her Nigerian
passport and airline ticket were accordingly introduced as
evidence. The bulk of the government's case, however, came
from U.S. Customs and Immigration employees, who testified to
the suspicious circumstances (independent of her passport)
that led to their further inspection of her luggage; from a
forensic chemist with the Drug Enforcement Administration,
who testified to the nature of the seized controlled
substance and the chain of custody; and from a person who
lived at the Chelsea, Massachusetts address that defendant
named as her relative's home and her own destination, who
testified that she did not know the defendant. Adekoya,
testifying in her own defense (in English), made several
references to Nigeria,2 but also stated that she had been in
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2. For example, she stated that her roundtrip ticket had
been purchased by a relative in Nigeria; she had made the
trip to prepare with family for her engagement to a fiance
who remained in the Washington D.C. area for lack of
traveling papers; her family had packed her bags for the
return trip to the United States; and she had required new
luggage for the return trip because her bags were lost when
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the United States since 1980 (except for a few trips home),
and most recently lived in Maryland and worked as a nursing
assistant and homemaker. Her defense was essentially that
she did not pack her own bags, that her anxiety at the
airport was due to medications and coffee, and that there was
some doubt as to whether the authorities had mishandled the
substance that tested positive for heroin.
Nothing causes this case to fall within the limited
category of cases in which a specific inquiry concerning
racial bias is constitutionally required. See, e.g., Brown,
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938 F.2d at 1485 (unlike cases involving a racially charged
defense or jury deliberations that are unique or highly
subjective, no specific inquiry into racial bias was
constitutionally required where defendant charged with
altering notes was a young black male and all government
witnesses and jurors were white). The circumstances at
trial, including the evidence pertaining to defendant's
nationality, do not indicate "a reasonable possibility that
racial or ethnic prejudice might have influenced the jury."
Rosales-Lopez, 451 U.S. at 191. While some references were
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made to defendant's home country and culture, more would be
needed to create a "reasonable possibility" on these facts
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she arrived in Nigeria and encountered turmoil at the
airport. Adekoya also attempted to correct a possible
inconsistency in her statements about whom she was visiting
in Chelsea by saying that in Nigeria, a "cousin" is sometimes
called a "sister."
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that the jury was influenced by prejudice. See, e.g., id. at
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192-194 (interracial crime satisfies "reasonable possibility
standard," but racial or ethnic difference between defendant
and key government witness did not); United States v. Kyles,
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40 F.3d 519, 525 (2d Cir. 1994) (though cases of interracial
violence generally require a specific inquiry into racial
bias, circumstances of armed robbery "did not rise to the
level of violence that would likely ignite a jury's potential
prejudices[]"), cert. denied, 115 S. Ct. 1419 (1995). There
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is nothing to support defendant's contention that the jurors
were likely to be aware of cases that have referred to
Nigeria as a drug source country. See United States v.
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Okoronkwo, 46 F.3d 426, 434 (5th Cir.) (rejecting similar
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assertion that local public bias against Nigerians warranted
a specific inquiry into nationality-based bias where Nigerian
defendants were charged with conspiracy to commit tax fraud),
cert. denied, 116 S. Ct. 107 (1995) and 116 S. Ct. 958
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(1996). The prosecution did not highlight defendant's
national origin, referring to it no more than in connection
with the charge of importation. Nor was the evidence
presented by either side the type that created a reasonable
possibility that race- or nationality-based prejudice might
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have influenced the jury.3 A more specific inquiry during
voir dire was not required.
Defendant also asserts that her rights under the
Fifth and Sixth Amendment and under Fed.R.Crim.P. 434 were
violated when she was allegedly not permitted to be present
at sidebar for the court's individual questioning of
prospective jurors. The sidebar was held after the district
judge posed several questions to the venire in open court and
stated that any juror answering a question affirmatively
should line up to meet with him. The court also invited
counsel to the bench. Defense counsel then asked, "Your
Honor, do you want the defendant present?", to which the
court responded, "I don't think it's necessary. It's all on
the record." At no point did the defendant or her counsel
tell the court that the defendant actually wanted to
participate at sidebar or object to the procedure the judge
announced in open court that he would follow. Defendant
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3. Cf. United States v. Alzanki, 54 F.3d 994, 1007 & n.14
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(1st Cir. 1995) (noting approvingly the district court's
careful inquiry into ethnic- or nationality-based bias during
jury impanelment in an involuntary servitude case where jury
heard evidence of repressive Kuwaiti customs and practices
toward domestic workers), cert. denied, 116 S. Ct. 909
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(1996).
4. Rule 43 provides:
(a) Presence Required. The defendant shall be
present at the arraignment, at the time of the
plea, at every stage of the trial including the
impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except
as otherwise provided by this rule.
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remained in the courtroom throughout the questioning, but was
apparently unable to see or hear the jurors at the sidebar.
Following the questioning,5 removals for cause, and
peremptory strikes, only two venire members who had
approached the bench became actual jurors. At the end of
jury selection, in response to the court's inquiry, defense
counsel stated, "The panel is acceptable to the defense, Your
Honor."
Because defendant's claim may be resolved on
statutory grounds, we need not discuss her constitutional
arguments.6 Federal Rule of Criminal Procedure 43(a)
provides that a defendant's presence is required "at every
stage of the trial including the impaneling of the jury . . .
." Assuming a sidebar conference during voir dire is a
"stage of the proceeding" at which defendant's presence is
required, cf. United States v. Gagnon, 470 U.S. 522, 527
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(1985) (assuming arguendo that defendants had a right under
Rule 43 to be present at court's conference with a juror
about his continuing impartiality), a strong argument can be
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5. The questions centered around whether a prospective
juror was inclined to favor or disfavor testimony by law
enforcement officers and whether she or he could be fair and
impartial.
6. Defendant's right under Rule 43 to be present at trial
proceedings is broader than the constitutional right alone.
See United States v. Gagnon, 470 U.S. 522, 526-527 (1985);
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United States v. Gordon, 829 F.2d 119, 123 (D.C. Cir. 1987)
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(citing circuit cases).
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made that she waived her right to be present, though we need
not decide the issue, see infra. The district court
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announced in open court, in defendant's presence, that it
would question individually the venire members who answered
"yes" to any of the general questions. In response to
counsel's query whether the court "want[ed]" the defendant
present, the court said it did not think defendant's presence
was necessary, but in no way indicated hostility to allowing
the defendant to be present if she had so requested. No
objection or express request for defendant to be present at
sidebar followed. See id. at 528 (absence of objection to,
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or request to be present at, a conference that the court
announced it would hold with a juror, and which one
defendant's counsel attended, constituted waiver of any
personal right to presence under Rule 43); but see United
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States v. Gordon, 829 F.2d 119, 126 n.8 (D.C. Cir. 1987)
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(distinguishing Gagnon and requiring on-the-record personal
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waiver where right to be present concerns the jury
impanelment stage and is grounded in both the Fifth Amendment
and Rule 43).
We need not decide if an effective waiver occurred
since we can see no harm or prejudice to the defendant by her
absence at sidebar when these individual jurors were
questioned. Adekoya heard and observed the initial general
questioning by the court, and her counsel was present
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throughout the sidebar portion. At the latter, the district
court questioned nineteen prospective jurors, excluded five
for cause, and permitted the government and defense counsel
to exercise numerous peremptory challenges. Only two of the
nineteen were selected to be jurors. Adekoya subsequently
heard and observed these two along with other panel members
being questioned in open court concerning their places of
employment and spouses' places of employment. In the absence
of any objection to either the jurors or the process, and
given defense counsel's assurance to the court at the end of
jury selection that the panel was acceptable to the defense,
the district court had no reason to believe that the
defendant was dissatisfied, and indeed nothing that then
occurred indicates she was. We can see no reversible error.
See United States v. Pappas, 639 F.2d 1, 2-3 (1st Cir. 1980)
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(district court's exclusion of counsel and court reporter
from individual voir dire, while disfavored, did not
prejudice defendant where her counsel had ample challenges
available and further opportunity to observe and to question
prospective jurors but did not do so), cert. denied, 451 U.S.
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913 (1981).7 Moreover, the very substantial evidence
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7. See also United States v. Washington, 705 F.2d 489, 498
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(D.C. Cir. 1983) (exclusion of defendant from individual voir
dire was harmless error under Rule 43 where she was present
in the courtroom the entire time, a limited portion of the
voir dire was conducted at the bench where she was
represented by counsel, she had time to confer with counsel
about jurors' responses at the bench, and substantial
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against the defendant on the drug importation and possession
counts makes it highly unlikely that she was convicted
because the two jurors questioned at sidebar had some
unfavorable characteristic that defendant could have
discerned had she been present at the time. Cf. United
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States v. Bullard, 37 F.3d 765, 767-768 (1st Cir. 1994) (pro
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se defendant's absence from court conference inquiring into a
juror's attentiveness was not prejudicial where standby
counsel participated in the conference, evidence against the
defendant was substantial, and nothing indicated that the
juror had missed crucial evidence), cert. denied, 115 S. Ct.
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1809 (1995).
Lastly, defendant contends that the court erred in
instructing the jury that the government must prove its case
"beyond a reasonable doubt" without defining or explaining
"reasonable doubt." As defense counsel expressly agreed to
the charge both before and after it was given, we review for
plain error only. Having examined the record, we conclude
that the instruction "adequately apprise[d] the jury of the
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evidence supported a finding of guilt); United States v.
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Alessandrello, 637 F.2d 131, 139-143 (3d Cir. 1980), cert.
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denied, 451 U.S. 949 (1981); United States v. Dioguardi, 428
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F.2d 1033, 1039-1040 (2d Cir.), cert. denied, 400 U.S. 825
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(1970); cf. Gordon, 829 F.2d at 127-129 (distinguishing the
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above cases and holding that exclusion of defendant in
custody from entire jury selection process was not harmless
error, where he would have sought to challenge a juror with
personal and family connections to law enforcement, and jury
first saw defendant midway through the first day of trial).
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proper burden of proof." See United States v. Olmstead, 832
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F.2d 642, 646 (1st Cir. 1987), cert. denied, 486 U.S. 1009
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(1988).
Affirmed.
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