Appeal from the United States District Court for the Middle District of Pennsylvania
(D.C. Crim. No. 94-cr-00066)
Before: BECKER and MANSMANN, Circuit Judges, and SCHWARZER, District Judge. *fn*
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 non-consent 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.
At the root of the criminal conduct which occurred here lies the Laotian custom of arranged marriages. *fn1 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. *fn2
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. *fn3 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. *fn4 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 ...