UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 95-5311

BOYSIE MAHABIR,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-93-22-L)

Argued: April 11, 1997

Decided: June 4, 1997

Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Samuel Aaron Abady, ABADY, LUTTATI, KAISER,
SAURBORN & MAIR, P.C., New York, New York, for Appellant.
John Francis Purcell, Jr., Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Michael B. Lumer, Henry L.
Saurborn, ABADY, LUTTATI, KAISER, SAURBORN & MAIR,
P.C., New York, New York, for Appellant. Lynne A. Battaglia,
United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Boysie Mahabir appeals his convictions for conspiracy to possess
cocaine with the intent to distribute and to distribute cocaine, see 21
U.S.C. §§ 841(a)(1) and 846, and possession of cocaine with the
intent to distribute, and aiding and abetting the same, see 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. Mahabir also challenges his sentence.
We affirm.

I

In late December 1992, in Mahabir's presence, Rayford Knight, the
owner of a trucking company located in Brooklyn, New York,
instructed Cary Grace, a truck driver employed by Mahabir, to drive
a tractor-trailer from Brooklyn, New York to Los Angeles, California
to pick up a number of Christmas presents. On his westbound trip, the
trailer Grace was pulling was seized by police in Van Horn, Texas
because it was stolen. Thereafter, Knight instructed Grace to drive the
tractor to Houston to pick up some packages and return them to New
York. On January 8, 1993, five boxes, unmarked and wrapped in
brown paper with tape, were loaded into the tractor.

At 2:48 a.m. on January 11, as he was returning to New York,
Grace was stopped for running a red light in La Plata, Maryland by
Officer Kevin Barrows of the Charles County Police Department. Fol-
lowing the stop, Barrows asked Grace for his driver's license and the
tractor's registration. A check of Grace's New York driver's license
revealed that it was suspended on October 25, 1992. The tractor's reg-
istration revealed that the tractor was registered to Boysie Trucking,
Inc., 32 Van Houten Avenue, Jersey City, New Jersey. The address
on the registration was the same address as Mahabir's residence.

Barrows arrested Grace for driving with a suspended out-of-state

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license and placed Grace in his patrol car. Barrows then decided to
search the tractor. Upon entering the tractor, Barrows discovered the
five boxes directly behind the driver's seat in the sleeper compartment.1
During his subsequent search of the boxes, Barrows discovered 199
kilograms of cocaine.

Later that morning, the Charles County Police Department notified
the Drug Enforcement Administration (DEA) of the cocaine seizure.
A short time later, Grace agreed to cooperate with the DEA in its
investigation. The essence of the DEA's investigative plan was to
have Grace call his conspirators in New York and tell them that he
had been admitted to Physician's Memorial Hospital in La Plata with
chest pains, with the expectation that his conspirators would travel to
Maryland to retrieve the cocaine. Meanwhile, the tractor was placed
in the parking lot of the hospital and put under surveillance.

The phone number provided by Grace for the controlled calls was
that of Cherokee Enterprises, the trucking company Knight owned in
Brooklyn, New York. Mahabir often used Knight's office to book
loads, write up trip logs and general office paperwork. At 3:30 p.m.
on January 11, Grace called Knight and told him that he had devel-
oped chest pains and stopped at a hospital in La Plata, Maryland.
Grace gave Knight the number of the "hospital," which was actually
the number of a DEA undercover phone.

At 5:00 p.m., Mahabir called the number of the DEA undercover
phone and asked for directions to the hospital and to speak to Grace.
Mahabir was given directions to the hospital and informed that Grace
did not have a phone in his room, but that a message could be deliv-
ered to his room. Mahabir left a message for Grace that it was "very
important" that he "call the office." (J.A. 1232).

At 5:30 p.m., Grace called Knight's office. Knight told Grace that
Mahabir was on his "way down there to get it." Id. at 1233. Knight
added: "[T]his way he can get it out of there, you know what I mean?"
Id.
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1 The sleeper compartment was separated from the driver's compart-
ment by a curtain, which apparently was open at the time of the search.

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Mahabir traveled to La Plata that evening in a pickup truck with
Anthony Johnson, an individual who performed odd jobs for Knight
and, on occasion, Mahabir. At approximately 12:40 a.m. on January
12, Mahabir and Johnson arrived at the hospital. Mahabir instructed
Johnson to circle the tractor and park near the entrance of the hospital,
which Johnson did.

A short time later, at Mahabir's direction, Johnson walked to the
tractor to see if the boxes were still in the truck. As Johnson
approached the tractor, Mahabir maintained a concealed vantage point
at the rear of a nearby Dash-In to observe Johnson. Johnson briefly
entered the tractor, saw the boxes and went back to Mahabir and
informed him that the boxes were still in the truck. Following this
conversation, Mahabir directed Johnson to unload the boxes. When
Johnson asked for Mahabir's assistance, he refused.

Johnson went to the pickup truck and proceeded to drive it to the
parked tractor. Johnson then started removing the boxes from the trac-
tor. As Johnson was removing the boxes from the tractor, he was
arrested. Shortly thereafter, Mahabir was arrested as he was walking
in a direction away from the Dash-In and the hospital.

On January 19, 1993, a federal grand jury sitting in the District of
Maryland returned a two-count indictment charging Mahabir and
Knight with conspiracy to possess cocaine with the intent to distribute
and to distribute cocaine, see 21 U.S.C.§§ 841(a)(1) and 846, and
possession of cocaine with the intent to distribute, and aiding and
abetting the same, see 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Fol-
lowing a jury trial, Mahabir was convicted on both counts. The dis-
trict court sentenced Mahabir to 188 months' imprisonment. Mahabir
noted a timely appeal.

II

Mahabir argues that the district court erred when it concluded that
Barrows' search of the five boxes was lawfully conducted incident to
Grace's arrest.2 This argument has no merit.
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2 The government apparently concedes that Mahabir had standing to
contest the validity of the search by virtue of his ownership interest in
the tractor. Also of note, Mahabir does not challenge the validity of
Grace's arrest.

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In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court
created a bright-line rule that incident to a lawful arrest of an occu-
pant of an automobile a police officer may conduct a contemporane-
ous search of the passenger compartment of the automobile and any
containers therein. Id. at 460-61. The applicability of this exception
to the Fourth Amendment's warrant requirement does not turn on the
defendant's presence in the passenger compartment or actual ability
to grab items therein. See, e.g., United States v. Moorehead, 57 F.3d
875, 877-78 (9th Cir. 1995) (Belton search conducted while defendant
was seated in patrol car).

Applying Belton and its progeny to the facts of this case leads to
the conclusion that the district court correctly denied Mahabir's
motion to suppress. Grace's arrest was lawful, thereby permitting a
search of the passenger compartment incident to that arrest. The
cocaine was discovered in the passenger compartment during that
search;3 therefore, the cocaine was not the product of an unlawful
search and was properly admitted at trial. See Belton, 453 U.S. at 460-
61.

Mahabir contends that, under Belton, Barrows was not entitled to
open the boxes because they were wrapped in brown paper and taped.
However, the Court in Belton rejected this argument in favor of a
bright-line rule permitting the search of all containers in the passenger
compartment. In Belton, the Court stated that "the police may . . .
examine the contents of any containers found within the passenger
compartment." Id. at 460; see also United States v. McCraw, 920 F.2d
224, 228 (4th Cir. 1990) ("Incident to an automobile occupant's law-
ful arrest, police may search the passenger compartment of the vehi-
cle and examine the contents of any containers found within the
passenger compartment."). Indeed, the boxes at issue here fall within
the Court's definition of "container" set forth in Belton:

            "Container" here denotes any object capable of holding
            another object. It thus includes closed or open glove com-
            partments, consoles, or other receptacles located anywhere
_________________________________________________________________
3 Mahabir does not dispute that the sleeper compartment of the tractor
is part of the passenger compartment of the tractor.

                     5
          within the passenger compartment, as well as luggage,
          boxes, bags, clothing and the like.

Belton, 453 U.S. at 460 n.4. Because Belton applies to any container
found in the passenger compartment of an automobile, the manner in
which the five boxes were wrapped is irrelevant.

III

Mahabir also contends that the district court's instruction on the
definition of reasonable doubt following the jury's request for a defi-
nition of the term constitutes reversible error. This argument also has
no merit.

In instructing the jury on the definition of reasonable doubt, the
district court stated:

          Ladies and Gentlemen, you have asked for an instruction on
          the term reasonable doubt. And I will give you some clarify-
          ing language, although the term reasonable doubt, and the
          phrase beyond a reasonable doubt, really means what it
          says, and it is, in my view, its own best description.

          If you think that the government has proved guilt beyond a
          reasonable doubt then you should convict. If you think that
          a reasonable doubt exists, as to the defendant's innocence,
          then you should find him not guilty. But having said that I
          will give you some language which may help you under-
          stand this principle. But the problem is that if you try to
          define beyond a reasonable doubt there is always the fear
          that you may make the concept cloudier rather than clearer,
          and I think the phrase itself is clear.

          The government has the burden of proving the defendant
          guilty beyond a reasonable doubt. Some of you may have
          served as jurors in civil cases where you were told that it is
          only necessary to prove that a fact is more likely true than
          not true. In criminal cases the government's proof must be
          more powerful than that, it must be beyond a reasonable

                    6
          doubt. Proof beyond a reasonable doubt is proof that leaves
          you firmly convinced of the defendant's guilt. There are
          very few things in this world that we know with absolute
          certainty, and in criminal cases the law does not require
          proof that overcomes every possible doubt. If, based on your
          consideration of the evidence, you are firmly convinced that
          the defendant is guilty of the crime charged you must find
          him guilty. If, on the other hand, you think there is a real
          possibility that he is not guilty, you must give him the bene-
          fit of the doubt and find him not guilty.

(J.A. 1207-08).

Mahabir challenges the "firmly convinced" language that appears
in the district court's instruction. According to Mahabir, "[t]elling the
jurors who want reasonable doubt defined that they should be `firmly
convinced' of Mahabir's guilt tells them nothing about how to ana-
lyze the evidence to insure Mahabir would not be wrongfully con-
victed." Appellant's Brief at 45.

We have consistently instructed district courts not to define reason-
able doubt. See, e.g., United States v. Reives, 15 F.3d 42, 45 (1994);
United States v. Moss, 756 F.2d 329, 333 (4th Cir. 1985). We have
adopted this approach because "the term reasonable doubt has a `self-
evident meaning comprehensible to the lay juror,' which judicial
efforts to define generally do more to obscure than to illuminate."
United States v. Headspeth, 852 F.2d 753, 755 (4th Cir. 1988) (quot-
ing Murphy v. Holland, 776 F.2d 470, 475 (4th Cir. 1985), vacated
on other grounds, 475 U.S. 1138 (1986)). In Reives, we acknowl-
edged that a number of our circuit decisions suggested that a defini-
tion of reasonable doubt could be given when the jury specifically
requested one, but declined the defendant's "invitation to breathe pre-
cedential life into this long line of dicta." 15 F.3d at 46 & n.3 (collect-
ing cases). We went on to hold that even when the jury requests a
definition of reasonable doubt, the district court should refrain from
giving an instruction. Id. at 46. However, the district court's decision
to give a reasonable doubt instruction is not necessarily reversible
error. In such a case, we must examine whether the instruction "taken
as a whole . . . correctly convey[s] the concept of reasonable doubt

                     7
to the jury." Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994) (cita-
tion and internal quotes omitted).

In this case, the district court gave an instruction defining reason-
able doubt only after the jury requested such an instruction. The defi-
nition of reasonable doubt that the district court gave the jury was
almost identical to the definition of reasonable doubt endorsed by the
Federal Judicial Center. See Federal Judicial Center, Pattern Criminal
Jury Instructions 17-18 (1987) (instruction 21). Our inquiry, then, is
whether this instruction correctly conveys the reasonable doubt stan-
dard.

Several circuit courts have endorsed the reasonable doubt instruc-
tion of the Federal Judicial Center. See United States v. Conway, 73
F.3d 975, 980 (10th Cir. 1995); United States v. Williams, 20 F.3d
125, 128-32 (5th Cir. 1994). In addition, in her concurring opinion in
Victor, Justice Ginsburg specifically cited this instruction with
approval as a "clear, straightforward, and accurate" explication of rea-
sonable doubt. 114 S. Ct. at 1253 (Ginsburg, J., concurring in part and
concurring in the judgment). After setting out the Federal Judicial
Center's proposed jury instruction on reasonable doubt, Justice Gins-
burg explained that the Federal Judicial Center's instruction "plainly
informs the jurors that the prosecution must prove its case by more
than a mere preponderance of the evidence, yet not necessarily to an
absolute certainty." Id. Justice Ginsburg further opined that "[t]he
`firmly convinced' standard for conviction, repeated for emphasis, is
. . . enhanced by the juxtaposed prescription that the jury must acquit
if there is a `real possibility' that the defendant is innocent." Id.

We are persuaded by Justice Ginsburg's concurring opinion in
Victor, the Fifth Circuit's decision in Williams and the Tenth Circuit's
decision in Conway. We agree that the "firmly convinced" phrase jux-
taposed with the insistence that the defendant must be acquitted if
there is a "real possibility" that he is innocent conveys a cogent state-
ment of the reasonable doubt standard. Accordingly, we reject Maha-
bir's challenge to the district court's instruction on reasonable doubt.

IV

At sentencing, Mahabir argued that his crimes represented a single
act of aberrant behavior justifying a downward departure from his

                     8
guideline range. See United States Sentencing Commission,
Guidelines Manual, Ch. 1, Pt. A, 4(d), p.s. Following our decision in
United States v. Glick, 946 F.2d 338 (4th Cir. 1991), the district court
declined to depart, concluding: "[T]he facts presented are not of suffi-
cient magnitude to warrant a departure under the aberrant behavior
test because there was not, as stated in Glick , sufficient evidence of
a spontaneous and seemingly thoughtless act rather than one which
was the result of substantial planning." (J.A. 1396).

On appeal, Mahabir urges us to abandon the "spontaneity" require-
ment adopted in Glick in favor of the more expansive view of "aber-
rant behavior" adopted by the First, Ninth, and Tenth Circuits. See
United States v. Grandmaison, 77 F.3d 555, 561-64 (1st Cir. 1996)
(eschewing focus on spontaneity in favor of totality of circumstances
approach); United States v. Takai, 941 F.2d 738, 741-44 (9th Cir.
1991) (same); United States v. Pena, 930 F.2d 1486, 1494-96 (10th
Cir. 1991) (same). As a panel of this court, we are in no position to
overrule Glick. See Brubaker v. Richmond , 943 F.2d 1363, 1381-82
(4th Cir. 1991). Glick settled the issue of what constitutes aberrant
behavior, and we cannot disturb it. Accordingly, Mahabir's argument
on this score must be rejected.

V

Mahabir raises an additional argument which he contends should
be resolved in his favor. He contends that there is insufficient evi-
dence in the record to support his convictions. We have reviewed this
assignment of error and find it to be without merit. Accordingly, for
the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED

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