U.S. v. Obiukwu

• Decision Date: 03 February 1994
• Docket Number: 92-2120,Nos. 92-2051,s. 92-2051
• Citation: 17 F.3d 816
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph OBIUKWU (92-2051) and Thomas Glenn (92-2120), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 816

17 F.3d 816

UNITED STATES of America, Plaintiff-Appellee, v. Joseph OBIUKWU (92-2051) and Thomas Glenn (92-2120) Defendants-Appellants.

Nos. 92-2051, 92-2120.

United States Court of Appeals Sixth Circuit.

Argued Jan. 19, 1994.

Decided Feb. 3, 1994. ^*

Kathleen Moro Nesi, Asst. U.S. Atty., Office of the U.S. Atty., J. Michael Buckley, Office of the U.S. Atty., Detroit, MI, for U.S.

Curtis L. Blood (argued and briefed), Collinsville, IL, for Joseph Obiukwu.

Joseph Obiukwu, pro se.

Mark E. Weaver (argued), Birmingham, MI, for Thomas Glenn.

Before: KENNEDY and NELSON, Circuit Judges; and CONTIE, Senior Circuit Judge.

PER CURIAM.

Convicted of conspiring to distribute heroin and sentenced to terms of imprisonment exceeding 12 years in length, the defendants have appealed both their convictions and their sentences. We shall affirm the convictions. Because the district court failed to make appropriate factual findings on the amount of illegal drugs for which each defendant was responsible, we shall vacate the sentences and remand the case for further factfinding and resentencing.

I

In March of 1991 the Drug Enforcement Administration began an investigation of suspected illegal narcotics-dealing activity by a resident of Detroit, Michigan, named Abiodun Adeshina. On April 5, 1991, an undercover DEA agent, Durell Hope, agreed to purchase half an ounce of heroin from Mr. Adeshina. When they met that evening to consummate the transaction, Adeshina had Hope drive him to defendant Thomas Glenn's house. When the two men arrived there, however, Mr. Glenn, whom Adeshina identified as a supplier, was not at home. At Adeshina's direction, Agent Hope then drove to the house of Glenn's sister. Mr. Glenn was not there either, and no heroin changed hands that night.

Five days later Agent Hope returned to Mr. Adeshina's residence in another attempt to buy heroin. When he arrived at the house, Thomas Glenn and a woman named Christine Black were on the premises with Mr. Adeshina. Glenn produced a plastic bag containing an ounce of heroin, which he showed to Agent Hope. No one had a scale with which to weigh the half-ounce of heroin that Hope had agreed to purchase, and Glenn refused to give Hope the entire ounce and take payment for it later.

The three men then drove to a nearby liquor store, where Agent Hope gave Adeshina $3,750 for the half-ounce of heroin. After leaving the scene for a few minutes, Glenn returned and gave Adeshina the correct amount of the drug; Adeshina passed the drug to Agent Hope.

On April 17, 1991, Agent Hope returned to Adeshina's residence to negotiate another heroin purchase. This time defendant Joseph Obiukwu was at the house when Hope arrived. Adeshina told Hope that Obiukwu supplied heroin of high quality, and he explained to the agent that he had multiple sources, including Obiukwu and Glenn. Hope and Adeshina agreed on the sale of one ounce of heroin for $7,500, and, after consulting with Obiukwu, Adeshina told Agent Hope that the heroin would be available the following day.

Agent Hope returned to Adeshina's residence on April 18 to buy the ounce of heroin. Obiukwu was not present when Hope arrived, but Adeshina and Ms. Black told Hope that he would be there soon. While they waited for Obiukwu, Hope and Adeshina discussed a projected purchase of 500 grams of heroin, which Adeshina said he could obtain from a source in New Jersey. Obiukwu failed to arrive, and Hope told Adeshina that he wanted to leave. Adeshina then tried to telephone Obiukwu and left a message on his answering machine. Attempting to persuade Hope not to leave, Adeshina told Hope that Obiukwu had more than a kilogram of heroin available for sale.

Agent Hope met Adeshina in a parking lot on April 24 and purchased 26.6 grams of heroin obtained from Mr. Obiukwu. Adeshina, accompanied by an unknown man, sold Hope an additional 25.3 grams of heroin on May 15.

On May 31 agents of the DEA executed a search warrant on a van driven by Mr. Obiukwu. The search uncovered what appeared to be a drug ledger, containing names, dollar and gram amounts, and an entry reading "$36,000" next to what appeared to be Mr. Adeshina's name. Mr. Adeshina testified at trial that on the day of the search he had owed Obiukwu $36,000 for heroin purchased on credit.

On June 14 Adeshina agreed to sell Agent Hope four ounces of heroin for $25,000. Hope testified at trial that Mr. Adeshina appeared nervous during this meeting and that he mentioned Mr. Obiukwu's recent arrest.

Working independently, police officers in Oak Park, Michigan, arrested Thomas Glenn on July 2, 1991. At the time of his arrest Mr. Glenn was carrying 9.25 grams of a heroin mixture, an address book, and $679 in cash. The address book contained Mr. Adeshina's nickname and his home telephone and pager numbers. A briefcase in Mr. Glenn's possession contained $49,960 in cash, $16,000 in cashier's checks, receipts for $99,000 in cashier's checks, and 46 grams of a cocaine-heroin mixture. Found under the mattress in the motel room where Glenn was arrested were a loaded handgun, $22,000 in cash, and a quantity of cocaine.

Mr. Glenn went to trial in a state court on charges of possessing cocaine with intent to deliver it. In a preliminary examination during the state proceedings, a magistrate held the evidence found under the mattress to be inadmissible as the product of an illegal search. A jury subsequently found Mr. Glenn guilty anyway, and the Michigan court sentenced him to prison for a term of thirteen to twenty years.

A federal grand jury indicted Messrs. Obiukwu and Glenn, along with Mr. Adeshina and Ms. Black, on October 22, 1991. Obiukwu and Glenn were both charged with conspiring to distribute heroin and with conspiring to possess heroin with intent to distribute it; in addition, Glenn was charged with aiding and abetting the distribution of heroin.

Adeshina and Black entered into plea agreements under which they pleaded guilty to conspiring to distribute heroin. Obiukwu and Glenn were tried together before a jury, and they were convicted on April 30, 1992. Mr. Obiukwu was sentenced to 151 months' imprisonment, and Mr. Glenn was sentenced to 155 months' imprisonment, the federal sentence to run concurrently with the state sentence. Obiukwu and Glenn both filed timely notices of appeal.

II

A

Prior to his federal trial, Mr. Glenn filed a motion styled "Motion in Limine to Exclude Anticipated Testimony and Evidence." This motion was filed on January 30, 1992, twenty days after the motion cut-off date set by the trial court. The motion sought to exclude the contents of the briefcase Glenn was carrying at the time of his July 2 arrest and about nine grams of a cocaine-heroin mixture found in a plastic bag in Mr. Glenn's pants pocket. The motion argued that these items should be excluded under Rule 403, Fed.R.Evid., because the effect of admitting them would be substantially more prejudicial than probative. The government responded by arguing that the items were relevant and that their probative value would predominate over any prejudicial impact they might have if introduced at trial.

In its response to Mr. Glenn's motion, the government also

"put[ ] Defendant Glenn on notice of the Government's intention to seek admission into evidence [of] the Tech-9 semi-automatic pistol (loaded), $22,000 in U.S. currency, and $16,000 in cashier's checks found between Glenn's mattress and box spring in his motel room. Although said items were seized without benefit of a search warrant, said items would have been inevitably discovered. Nix v. Williams, 467 U.S. 431 [104 S.Ct. 2501, 81 L.Ed.2d 377] (1984)."

Prior to the date on which the government filed its response, Mr. Glenn had made no request under Rule 16, Fed.R.Crim.P., for production of tangible objects that the government intended to use at trial.

Mr. Glenn's response to the government's notice of its intent to use the items found under the mattress was contained in his "Brief in Response to Government's Answer to Defendant's Motion in Limine to Exclude Evidence." Glenn argued there that "it would be a great injustice to allow the Government to introduce collateral evidence previously suppressed in [the state prosecution], in which said evidence was not collateral." He claimed that the state magistrate "could not find an exception to the Fourth Amendment exclusionary rule that would allow for the introduction of [these] items," and attempted to distinguish the circumstances of the arrest at the motel from those in the Nix case.

At oral argument on the motion, the parties discussed the admissibility both of the items listed in Glenn's original motion and of the items found under the mattress. Although oral argument focused on the grounds for exclusion advanced in Mr. Glenn's original motion--relevancy and undue prejudice--Glenn's counsel also discussed Nix v. Williams in an apparent attempt to argue that the inevitable discovery exception to the exclusionary rule did not apply. Seeking clarification of the basis of Glenn's objection, the court asked his attorney:

"THE COURT: Are you basing your objection on 403, more prejudicial than probative? Is that the basis of your objection?

"MR. WEAVER: The gun, I am basing it on the facts. I don't see how it comes in. They didn't have a search warrant. I am basing it also on 401 and 403. The money, I am basing it on the [preliminary] exam[ination] testimony [at the state trial] of [another witness] where she says, 'It's mine.' "

At the close of the hearing, the court denied Mr. Glenn's motion to exclude the evidence. It stated that the issue presented in the motion "boils down to a 403 question." Since, in the court's view, "there [wa]s no question that all this evidence is relevant," and since its potential prejudicial impact did not substantially outweigh its probative worth, the court denied the motion in limine. Mr. Glenn did not request a ruling at that point on...