United States Border Patrol Agent Dennis Johnson timely appeals his convictions for sexual assault and kidnapping. We affirm, holding that the district court: (1) did not abuse its discretion in answering a question from the jury during its deliberations; (2) did not abuse its discretion in admitting testimony of prior consistent statements under Federal Rule of Evidence 801(d)(1)(B); (3) properly rejected a Sixth Amendment claim that the government had acted in bad faith in deporting aliens who might have been material witnesses; and (4) properly refused to dismiss the kidnapping charge as unsupported by the evidence.
I. Background
Blanca Amaya-Flores, a citizen of El Salvador, testified that she entered the United States illegally on September 28, 2000, with a group of five men. They crossed the border on foot at an unspecified location near Douglas, Arizona, and then obtained a car. After driving for about thirty minutes, they were stopped by the United States Border Patrol in Tombstone, Arizona. Agent Sandi Gol-dhamer, Agent-in-Training Daniel McClafferty, and defendant Johnson, the acting supervisor that night, were involved in the stop.
Agent Goldhamer questioned members of the group. She had Agent-in-Training McClafferty fill out an 1-620 (“towing sheet”) form for the group’s car, and she filled out an 1-826 form for Amaya-Flores. An 1-826 form records an alien’s name and biographical information, as well as the date and location of apprehension. Agent Goldhamer then gave the completed forms to Johnson. Amaya-Flores’s 1-826 form was later retrieved from among Johnson’s possessions. Johnson took Amaya-Flores aside and questioned her out of the hearing of the others. After questioning her, Johnson instructed Amaya-Flores to get in the back of his patrol car.
The others in Amaya-Flores’s group were placed in Border Patrol SUVs and taken to a border patrol checkpoint at Douglas. Amaya-Flores remained in Johnson’s car. Agent Goldhamer testified that it was “unusual” for her to have re *991 mained in Johnson’s car. She further testified that if she had realized that Amaya-Flores was in Johnson’s car, she would have made room for her in one of the SUVs.
According to established Border Patrol procedures, Johnson was required to call in a “10-97” to announce that he was a male agent transporting a female. Johnson made no 10-97 call. He drove to a Circle K gas station and bought a cup of coffee and then drove to the Douglas checkpoint. When he arrived, there was a bus holding about twenty-five people whom the Border Patrol were preparing for voluntary return to Mexico. Johnson testified that he told other Border Patrol agents at the checkpoint to load the bus and “get the one from my vehicle and take them all down to the [Douglas ] station.” However, Amaya-Flores was never loaded onto the bus. She testified that she sat in the car at the checkpoint for somewhere between an hour and an hour and a half.
Johnson drove away from the Douglas checkpoint with Amaya-Flores still in the car. He testified that she tapped on the plexiglass divider and asked him to release her, and then, when he refused, that she offered to perform oral sex in return for her release. Amaya-Flores testified that she did not speak to Johnson during the car ride. Johnson drove to an isolated spot in the desert near Tombstone, not far from where he had apprehended Amaya-Flores. At trial, Amaya-Flores and Johnson offered conflicting stories of what next occurred.
Amaya-Flores testified that after Johnson stopped the car, he opened her door and told her to take off her clothes. When she was naked except for her socks, Johnson told her to get out of the car. Johnson then handcuffed Amaya-Flores’s hands behind her back and told her to get onto her knees. Amaya-Flores testified that he told her that he would leave her in the desert if she did not perform oral sex. She testified that she was crying and that Johnson physically forced her to perform oral sex by pulling her hah- and moving her head back and forth. She further testified that Johnson ejaculated in her mouth, and that she spit out the semen onto her legs. When she got dressed, some of the semen was transferred to the inside of her pants. A later DNA test identified the semen as that of Johnson.
Johnson testified that the oral sex was consensual. He testified that Amaya-Flores removed her clothes, but he maintained that he did not ask her to do so. He stated that he handcuffed her hands behind her back, and that he did so because he “didn’t trust her.” Johnson testified that he is 6'1" and weighs 220 pounds, and he estimated that Amaya-Flores is 5'5" and weighs 120 pounds. Johnson agreed that Amaya-Flores knelt naked in the desert to perform the oral sex, but testified that she did so voluntarily. He testified that she made “a sound that might have been a cry,” but he specifically denied that he pulled Amaya-Flores’s hair or held her head.
Rather than take Amaya-Flores back to the Douglas station where he was assigned, Johnson drove her to the border crossing at Naco, Arizona, about twenty-five miles west of Douglas. He testified that he let her out of the car about two blocks from the border crossing and told her which way to go. The Mexican border official detected that Amaya-Flores had an El Salvadoran accent and called the United States Border Patrol. Amaya-Flores testified that she told the Mexican official, “I didn’t want to go back to the people from Immigration because I felt a great fear with them.”
Agent Daniel Testa testified that he received the call from the Mexican official at *992 Naco to get a “kickback” at approximately 4:00 a.m. Agent Testa transported Amaya-Flores back to the Border Patrol office in Naco and entered her into the IDENT/ENFORCE system in order to see “who caught her the first time, how long ago.” There was no record of Ama-ya-Flores in the system. At about 6:00 a.m., Agent Jose Proenca, a native Spanish speaker, spoke with Amaya-Flores. She described the events of the evening to him, including the oral sex with Johnson, consistently with her trial testimony recounted above. A day later, Agent Ricky Maul-din showed Agent Goldhamer a picture of Amaya-Flores. She recognized Amaya-Flores immediately, recalled filling out her 1-826 form, and stated that she had seen Johnson talking with her.
Agent Maudlin and Cochise County Investigator Vince Madrid interviewed Johnson on October 2nd, three days after Ama-ya-Flores was “kicked back” from Naco. According to a transcript of the interview introduced into evidence, Johnson at first said that Amaya-Flores had been placed on the bus with the other voluntary returnees. Investigator Madrid warned Johnson that he was “catching” him in “a couple of things.” Johnson then changed his story and admitted that he had driven with Amaya-Flores to the Circle K for coffee and then to the Douglas checkpoint, and that he had dropped her off at the Naco border crossing. After Agent Mauldin told Johnson that there was “physical evidence,” Johnson changed his story again and finally admitted that Amaya-Flores had performed oral sex on him, but insisted that it was at her instigation, stating, “I allowed her to convince me to do something I shouldn’t have.”
Johnson was charged with sexual assault and kidnapping in violation of Arizona Revised Statutes §§ 13-1406(A) and 13-1304(A)(3). As a federal officer, he removed the action to federal district court pursuant to 28 U.S.C. § 1442(a)(1). The trial was therefore conducted pursuant to federal procedural rules and Arizona substantive criminal law.
See Arizona v. Manypenny,
Johnson timely appealed. We affirm the district court in all respects.
II. Discussion
A. Response to Jury Question
During deliberations, the jury sent out a written question asking, “Is someone in custody of a law enforcement officer able to give consent under the law?” The court asked counsel to suggest answers. Defense counsel responded, “[J]udge, it’s a simple answer[. T]he answer is yes.... I think it should be answered and then direct them to the jury instructions.” Government counsel responded, “Just rely on the evidence presented and the instructions you gave them.” The court then said to counsel:
What I propose to do is say you’re to rely on the instructions and evidence you already have. If I tell them yes, you get more complicated and more questions.
I’m going to say, “Please consider the instructions you’ve gotten so far” and see if they come up with any more questions. If they do, we may address it differently, but we’ll see if they have any more questions.
The court wrote at the bottom of the paper on which the question was written, “Please consider all the evidence and the instruc *993 tions you have been- given,” followed by his initials. The paper, containing both the question and the court’s answer, was then given to the jury. After further deliberation, the jury returned a guilty verdict on both counts.
At trial, Johnson had requested the following jury instructions:
In order to prove lack of consent, the State must prove beyond a reasonable doubt that Blanca Amaya-Flores was coerced by the immediate use or threatened use of force against her person or property.
Restrain means to restrict a person’s movements without consent, without legal authority, and in a manner which interferes substantially with a person’s liberty, by either moving such person from one place to another or by confining such person. Restraint is without consent if it is accomplished by physical force, intimidation or deception.
With respect to “restrain” and “restraint” (the second requested paragraph), the court gave precisely the instruction requested by Johnson. Arizona law does not define consent, but rather gives examples of non-consent.
See
Ariz.Rev.Stat. § 13-1401;
State v. Witwer,
The State must prove beyond a reasonable doubt that the Defendant knew that his conduct was without the consent of Blanca Amaya-Flores.
The crime of sexual assault requires proof that the defendant intentionally or knowingly had oral sexual contact with another person without the other per-
son’s consent by causing her to place his penis in her mouth.
Without consent includes the following-situations:
1. The victim was coerced by the immediate or threatened use of force against a person or property; and
2. Without consent also includes when the victim expresses non-consent verbally.
Although he had asked for a different instruction on lack of consent, Johnson did not object to the instruction as it was given. Johnson argues, however, that by giving the jury a non-exclusive list of examples of what “without consent” includes, the instructions left open the possibility that “without consent” might also include any purported consent given by someone in the custody of a law enforcement officer. That is, the instructions left open the possibility that anything done by a law en-foreemént officer to a person in custody is necessarily done “without consent.” Because that possibility was left open, Johnson argues that once the jury asked whether someone in custody of a law enforcement officer is “able to give consent under the law” the district court was required to answer “yes.”
Johnson argues that the district court erred in failing to give his requested response to the jury’s question. We review the district court’s response to a jury question for abuse of discretion.
United States v. Romero-Avila,
At the outset, we observe that the district court’s instructions accurately stated Arizona law. Therefore, this is not a case where the trial court erred by giving a supplementary jury instruction that was “simply wrong.”
Bollenbach v. United States,
Moreover, a trial judge, as “governor of the trial,”
Quercia v. United States,
Therefore, while it is certainly true that “[w]hen a jury makes explicit its difficulties” by, for example, asking a question, the trial court “should clear [the jury’s difficulties] away with concrete accuracy,”
Bollenbach,
We are aware that the trial court faces a difficult task in attempting to respond to a jury’s communication. A trial judge is often reluctant to respond to questions in language similar to that used by the jury, particularly where inquiries are phrased as hypothetical cases or as questions requiring a categorical yes or no answer. Questions or illustrations from the jury may be phrased so that a simple affirmative or negative response might favor one party’s position, place undue weight on certain evidence, or indicate that the trial judge believes certain facts to be true when such matters should properly be determined by the jury. Because the jury may not enlist the court as its partner in the factfind-ing process, the trial judge must proceed circumspectly in responding to inquiries from the jury. The court may properly attempt to avoid intrusion on the jury’s deliberations by framing responses in terms of supplemental instructions rather than following precisely the form of question asked by the jury.
In this case, Johnson’s counsel requested a “categorical yes ... answer” to the jury’s question regarding consent.
Walker,
While the district court’s response in this case was clearly not the only course available, the court acted within its discretion by simply referring the jury to the instructions they had already been given.
See United States v. McCall,
We do not regard our conclusion that the district court acted within its discretion as conflicting with our decision in
Powell v. United States,
In
Powell,
a federal criminal defendant was charged with “transporting a girl” from Texas to Arizona “for purposes of prostitution.”
*996 We reversed, holding that the court might have misunderstood the jury’s question, and that, by reading only a part of the original instructions, the court might have misled the jury:
The meaning of the jury’s inquiry was uncertain.... [I]t would seem just as likely that the jury meant to ask whether the defendant would be guilty of the offense charged if the wrongful intent were first conceived after the couple arrived at their destination. ... Thus, the court’s response may have led to the application of a standard which was wholly improper.
Id. Unlike in Powell, where the court responded by reading only a part — possibly the wrong part — of the original instructions, the court in this case directed the jury back to the totality of the instructions it had been given. We do not believe that the most appropriate response is always to refer the jury to the totality of the instructions. Indeed, in many cases, it will be by far the better course to direct the jury’s attention to the particular instruction that bears on the question. In Powell, however, the district court may have misunderstood the jury’s question and therefore responded too narrowly. Far from conflicting with our decision in this case, Powell supports it, for our analysis in Powell strongly suggests that the district court there would not have erred if it had simply directed the jury’s attention to the totality of the instructions.
In Weeks, a state court jury was properly instructed at the penalty phase of a capital trial. The instruction read, in pertinent part:
If you find from the evidence that the Commonwealth has proved, beyond a reasonable doubt, either of the two alternatives, and as to that alternative, you are unanimous, then you may fix the punishment of the defendant at death, or if you believe from all the evidence that the death penalty is not justified, then you shall fix the imprisonment of the defendant at imprisonment for life, or imprisonment for life with a fine not to exceed $100,000.
If we believe that Lonnie Weeks, Jr. is guilty of at least 1 of the alternatives, then is it our duty as a jury to issue the death penalty? Or must we decide even though he is guilty of one of the alternatives whether or not to issue the death penalty, or one of the life sentences? What is the Rule? Please clarify?
Id. (emphasis in original).
The trial judge stated to counsel, “I don’t believe I can answer the question any clearer than the instruction....”
Id.
He therefore simply referred the jury to the already-given instruction. Defense counsel objected, requesting the judge to instruct the jury specifically that even if they find one or both aggravating circumstances, “they still may impose a life sentence, or a life sentence plus a fine.”
Id.
at 230,
In
Beardslee,
a state court jury was properly instructed at the guilt phase of a capital trial. Near the end of the first day of deliberations, the jury sent out a question asking “whether ‘the first degree murder’ referred to ‘the act as a whole or the defendant’s participation in said act.’ ”
*997 Ladies and Gentlemen, also in addition to your request concerning an instruction, there is and can be no explanation of the instructions. You just have to work them out as they are printed.... You are going to have to consider the instructions as a whole, as one of those instructions will be and did advise you, some of the instructions will apply, some of the instructions will not. All of those instructions have to be considered as a whole. Do the best you can with them.
Id. The jury returned a guilty verdict that afternoon.
We reversed, holding that the judge’s response violated the defendant’s due process right to a fair trial. Id. at 813. We reasoned that the judge’s response was not only a refusal to answer the jury’s question, but tantamount to an instruction to not ask again. Id. (“Given the categorical nature of the admonition that there ‘is and can be no explanation of the instructions,’ we disagree with the district court’s conclusion that ‘the jury was not precluded from asking additional questions if it so desired.’ ”).
As habeas cases arising out of state criminal trials,
Weeks
and
Beardslee
are based on the due process clause of the Constitution. By contrast, the case before us arises out of a federal criminal trial where we exercise supervisory power as well as enforce the due process clause.
Compare Smith v. Phillips,
We find this case comfortably within the boundary drawn by
Weeks
and
Beardslee.
In
Weeks,
the court emphasized not only that the original instruction was proper and that the jury’s attention was directed to the appropriate portion of the instruction, but also that the jury would have felt free to ask again if it had felt the need to do so: “This particular jury demonstrated that it was not too shy to ask questions, suggesting that it would have asked another if it felt the judge’s response unsatisfactory.”
In the case before us, the district court did not direct the jury’s attention to the specific relevant paragraphs of the instruction as in Weeks, but there was no need to do so. The jury’s question clearly arose out of those paragraphs, and they obviously would have understood the judge’s answer as referring to them. In addition, it is relatively clear that the jury in this case was not inhibited from asking further questions. In its answer, the district court said nothing to indicate that it would not answer another, or a renewed, question. That the district court was not incorrect to anticipate the possibility of more jury questions is supported by the court’s pat *998 tern during the trial: At the end of each witness’s testimony, the court had solicited additional questions, in writing, from the jury. After screening them for propriety, the court then asked the jury’s questions before excusing the witness. In these circumstances, we cannot conclude that the jury would have construed the court’s direction that they consult the instructions as, in addition, a direction that they not ask again. In sum, the district court’s response was well within the bounds of the Constitution, and was a permissible exercise of discretion.
B. Statements Claimed to be Hearsay
The government sought to present testimony by Agent Proenca recounting statements Amaya-Flores made to him asserting that she had not consented to the oral sex with Johnson. Johnson objected to this testimony as hearsay. The district court overruled the objection and allowed the testimony. Although neither Johnson nor the district court referred to any particular rule of evidence, it is obvious that the district court relied on Federal Rule of Evidence 801(d)(1)(B), which under certain circumstances defines prior consistent statements as nonhearsay.
We review de novo a district court’s construction of the hearsay rule.
United States v. Gilbert,
Federal Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Agent Proenca’s testimony that Amaya-Flores told him that she had not consented to the oral sex would ordinarily fall within the scope of Rule 801(c) because Amaya-Flores’s out-of-court statement to Agent Proenca was offered for the truth of the matter asserted. Rule 801(d), however, excludes certain statements from the definition of hearsay. Because statements that qualify under Rule 801(d) are defined as nonhearsay, they are admissible as substantive evidence.
Rule 801(d)(1)(B) provides:
A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declar-ant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....
In
Tome v. United States,
the Supreme Court construed narrowly the exception to the hearsay rule embodied in Rule 801(d)(1)(B), holding that “[t]he Rule permits the introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those state
*999
ments were made before the charged recent fabrication or improper influence or motive.”
(1) the declarant must testify at trial and be subject to cross-examination; (2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant’s testimony; (3) the proponent must offer a prior consistent statement that is consistent with the declarant’s challenged in-court testimony; and, (4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose.
United States v. Collicott,
Johnson contends that Amaya-Flores’s statement to Agent Proenca does not meet the fourth requirement of Collicott’s Rule 801(d)(1)(B) framework. Johnson’s defense at trial was that Amaya-Flores had consented to — indeed, had initiated — the oral sex. As part of that defense, he contended that Amaya-Flores fabricated her story because she wanted to stay in the United States for the duration of the investigation and trial. In support of this contention, he pointed, inter alia, to testimony by Agent William King that the government had arranged for Amaya-Flores to stay with family members in Texas as long as she was needed to assist in the prosecution of Johnson, and had arranged a permit for her to work as a housekeeper or house cleaner during that time. This charge of recent fabrication and improper motive on the part of Ama-ya-Flores is sufficient to trigger Rule 801(d)(1)(B).
Agent Proenca’s testimony recounting Amaya-Flores’s consistent statements to him can be admitted under the rule only if her statements were made “prior to the time that the supposed motive to falsify arose.”
Collicott,
There is ample evidence to support the district court’s implicit but clear finding that Amaya-Flores’s motive to falsify arose, if it ever arose, after her statements to Agent Proenca. There is no evidence that, at the time she made those statements, Amaya-Flores had been offered any special treatment, or had been told that she could stay in the United States for a sustained period, as a result of her charges against Johnson. There is some evidence that Amaya-Flores was interested in how long the investigation would take, as the following exchange at the end of her questioning by Investigator Madrid shows:
*1000 Madrid: Okay, then, thank you very much and we will stop here.
Amaya-Flores: I just have one question. Are you going to continue with this?
Madrid: With the investigation?
Amaya-Flores: Yes.
Madrid: Of course we are, we are going to continue with this.
Amaya-Flores: How long, more or less?
Madrid: I don’t know. I couldn’t tell you that because I don’t know.
But this exchange is weak evidence, at best, to show that Amaya-Flores’s statements to Agent Proenca were post-motive. First, the exchange with Investigator Madrid took place a day after Amaya-Flores’s statements to Agent Proenca. Second, the most plausible reading of the exchange is that Amaya-Flores was simply expressing ordinary curiosity about how long the process would take.
We conclude that the district court did not abuse its discretion in admitting Agent Proenca’s testimony based on a finding that Amaya-Flores’s statements to him were made “prior to the time that the supposed motive to falsify arose.”
Collicott,
C. Amaya-Flores’s Companions
The Sixth Amendment guarantees a defendant the right “to have compulsory process for obtaining witnesses in his favor.” U.S. Const, amend. VI. Johnson argues that the government’s failure to detain Amaya-Flores’s companions as witnesses violated this guarantee and thus warranted the dismissal of the charges against him. We review de novo the district court’s denial of Johnson’s motion for dismissal based on the government’s failure to retain witnesses.
United States v. Armenta,
“The mere fact that the Government deports [ ] witnesses is not sufficient to establish a violation of the Compulsory Process Clause of the Sixth Amendment or the Due Process Clause of the Fifth Amendment.”
United States v. Valenzuela-Bernal,
Johnson has not demonstrated bad faith on the part of the government. Under our precedents, in attempting to show bad faith, Johnson could present evidence tending to show either (1) that the government departed from its usual procedures, or (2) that it purposely deported the witnesses to gain an unfair advantage at trial.
See id.
at 695;
cf. California v. Trombetta,
D. The Kidnapping Charge
Under Arizona law, “[a] person commits kidnapping by knowingly restraining another person with the intent to ... [i]nflict ... a sexual offense on the victim.” Ariz.Rev.Stat. § 13-1304. With respect to the kidnapping statute,
“[r]estrain” means to restrict a person’s movements without consent, without legal authority, and in a manner which interferes substantially with such person’s liberty, by either moving such person from one place to another or by confining such person.
Ariz.Rev.Stat. § 13-1301(2). Johnson argues that the kidnapping charge should have been dismissed because he “did not ‘restrain’ Ms. Amaya[-Flores] as the word is defined in § 13-1301(2) because at all relevant times he had ‘legal authority,’ and indeed an absolute duty, to restrain her.” We review de novo the district court’s interpretation of Arizona’s kidnapping statute.
Salve Regina Coll. v. Russell,
The Arizona Supreme Court has explained that the “legal authority” referred to in the kidnapping statute “implies that behavior is sanctioned by law.”
State v. Viramontes,
AFFIRMED.