268 F.3d 377 (6th Cir. 2001), 00-1399, United States v Emuegbunam

Docket Nº:00-1399
Citation:268 F.3d 377
Party Name:United States of America, Plaintiff-Appellee, v. Chucks Emuegbunam, Defendant-Appellant.
Case Date:October 05, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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268 F.3d 377 (6th Cir. 2001)

United States of America, Plaintiff-Appellee,

v.

Chucks Emuegbunam, Defendant-Appellant.

No. 00-1399

United States Court of Appeals, Sixth Circuit

October 5, 2001

Submitted: August 8, 2001

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 98-80299. Denise Page Hood, District Judge.

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Kathleen Moro Nesi (briefed), ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

Chucks Emuegbunam (briefed), Oakdale, Louisiana, pro se.

Martin J. Beres (briefed), St. Clair Shores, Michigan, for Appellant.

Before: KEITH, NORRIS, and BATCHELDER, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

On June 16, 1998, a federal grand jury returned an indictment against "Chucks Emuegbunam a/k/a 'Chuck,'"1 a citizen of Nigeria who had been arrested in Canada, on one count of conspiring with an individual named Johnnie D. Player and others to

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import approximately 800 grams of a substance containing heroin into the United States in violation of 21 U.S.C. §§ 952, 960, and 963.2 Following his extradition to the United States, Defendant filed numerous pretrial motions both pro se and through counsel, the most significant of which for purposes of this appeal include a motion for a pre-trial hearing to determine the admissibility of co-conspirator statements, a motion to strike and amend the indictment, and a motion to dismiss the indictment pursuant to Article 36(1)(b) of the Vienna Convention on Consular Relations. The district court denied these motions.

Shortly before trial, the district court entered an order allowing Emuegbunem to represent himself with advisory counsel appointed to assist in his defense as needed. Following a six-day trial, the jury returned a verdict of guilty on September 23, 1999. At the close of neither the prosecution's case nor his own did Defendant move for a judgment of acquittal.

On October 18, 1999, Emuegbunem filed a post-trial motion seeking a judgment of acquittal or, in the alternative, a new trial based on the sufficiency of the evidence, the government's alleged interference with obtaining a defense witness through compulsory process, and alleged prosecutorial misconduct during closing arguments. At a hearing the district court concluded that Defendant did not timely file the motion, but proceeded to deny the motion on the merits. Departing downward from the guideline range of seventy-eight to ninety months imprisonment pursuant to U.S.S.G. § 5K2.0, the district court sentenced Emuegbunem to the statutory minimum term of sixty months imprisonment to be followed by four years of supervised release. This timely appeal followed. For the reasons that follow, we will affirm Defendant's conviction.

I. Statement of Facts

Evidence adduced at trial demonstrates that at approximately 2:00 a.m. on February 13, 1997, Johnnie Player attempted to enter the United States from Canada at the Blue Water Bridge in Port Huron, Michigan. When Player could not produce identification, United States customs officials referred him to a secondary inspection, during which inspectors found a bag of marijuana in the pocket of Player's pants and a three-by-five index card on which the names "Chucks" and "Jeff" appeared next to a hotel phone number and the notation "extension 1403," and a phone number with a New Jersey area code, respectively. A subsequent search of Player's car turned up a computer modem box under the front seat containing sixty-nine pellets filled with a white powdery substance that weighed 675.5 grams and tested positive for seventy percent pure heroin hydrochloride.

Initially, Player maintained that an individual named Acadak, his former brother-in-law, arranged for him to pick up the heroin in Toronto. After a conversation with his brother, a Michigan state trooper, Player decided to cooperate with the authorities. Player then gave a statement that Jeff from New Jersey, whom he had

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met through Acadak, directed him to meet "Chuks" at Room 1403 of the Crowne Plaza Hotel in Toronto with $15,000 of the heroin's $65,000 purchase price on February 12, 1997, around 9:00 p.m. Player indicated that he had never met Chuks before and that Chuks supplied him with the pellets in his hotel room. When Player informed Chuks that he had brought only $10,000 with him, Chuks admonished him to bring half of the purchase price with him in the future as a down payment and told him to deliver the balance to Jeff the next day at the Detroit Metropolitan Airport. Chuks also asked Player to call him at the hotel, as well as Jeff in New Jersey, upon his safe return to the United States.

With Player's consent, investigators recorded his calls to Chuks, for whom Player left a voice mail message, and Jeff, who an unidentified individual indicated had left for Detroit on a flight scheduled to arrive that afternoon. Agents arranged for Player and one undercover customs agent acting as Player's cousin to meet Jeff at the airport. When Jeff arrived he met Player and the undercover agent. A transcript of the recorded meeting shows that Player and Jeff discussed the balance of the money owed for the heroin, and mentioned "Chuck" in their conversation. When Player and the undercover agent took Jeff to the trunk of Player's car to retrieve the money, Jeff was arrested. Authorities later identified Jeff as Jeff Emuegbunem, also known as Jophet Uwafil-Iloba, the brother of Defendant Chuks Emuegbunem.

Meanwhile, customs agents had contacted the Royal Canadian Mounted Police ("RCMP") with the information Player had provided about Defendant's activities at the Crowne Plaza Hotel. The RCMP undertook its own investigation and learned that hotel records listed the occupant of room 1403 as "Mr. E. Chucks." When advised that the occupant was checking out of the hotel, the RCMP arrested him. A search of Emuegbunem yielded approximately $8,000 in United States currency. Pursuant to a warrant, the RCMP searched room 1403 and recovered Defendant's organizer containing a receipt from Western Union for $1,000 wired to Jeff Emuegbunem in New Jersey on February 13, 1997; Defendant's address book listing Jeff Emuegbunem's phone number in New Jersey under the letter "J" and a number for Johnnie Player on the same page; a piece of paper in the garbage can subtracting 10,000 from 62,100 and also bearing the number 31,500; and a note found in Defendant's briefcase reading, "He must come with at least 1/2 next time." The hotel's records reflect that during his stay Defendant made twelve calls to Jeff Emuegbunem's phone number in New Jersey. These records also show that Defendant paid cash on a daily basis for his stay at the hotel beginning on February 9, 1997. Until his extradition Defendant remained in Canadian custody following his arrest, and the Canadian government eventually dismissed charges in favor of indictment by American authorities.

II. The Vienna Convention on Consular Relations

Claiming that federal officials violated his rights under the Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36, 21 U.S.T. 77, 596 U.N.T.S. 261 (1969) ("Vienna Convention"), which, upon the arrest of a foreign national, requires notification of the diplomatic representatives of the nation of which the individual taken into custody is a citizen, and that this violation prejudiced his defense, Emuegbunem seeks dismissal of the indictment or, in the alternative, reversal of his conviction.

A. Factual Basis of the Claim

Sometime in June 1999, approximately one year after his extradition to the United

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States, Emuegbunem complained to the district court that prosecutors had not honored his rights under the Vienna Convention. At a hearing on June 8, 1999, the district court allowed the parties additional time to research the matter. Treating Defendant's complaint as a motion for the assistance of Nigerian consular officials, at a hearing on June 18, 1999, the district court directed the prosecutor to contact the Nigerian consulate. Subsequently, both the prosecutor and Emuegbunem did so. The prosecutor sent a letter informing the Nigerian consulate of the crime with which Emuegbunem had been charged, the location at which he was being held, and the name and address of his attorney. For his part, Defendant sought the assistance of Nigerian officials in procuring witnesses and physical evidence from Nigeria. In a letter dated August 13, 1999, the Nigerian Embassy in Washington, D.C., sent Defendant the following letter:

I am directed to ackwoledge [sic] the receipt of your letter and other relevant attached documents regarding your case # 98-CR-80299-DT. However, we have not been informed nor have it in our record as a notice of your arrest not until you called and left a message in the voice mail. Also the request for your witnesses who resides [sic] in Nigeria to be at your trial is untimely given the fact your witnesses if contacted would require at least two months to seek and obtain travel documents which include US visa, this is because of their new rule now.

Can we now look forward to the August 31st 1999 for the trial and see what is coming out and then we can go from there. My senior officer (A.A. Musa) is not in the country right now. He is to initiate the approval for our coming to be at the trial which I cannot guarantee if we will be coming or not, but at any case we wish you the best.

Upon receipt of the letter, Emuegbunem filed a motion to dismiss the indictment pursuant to the Vienna Convention and claimed prejudice from the denial of earlier contact with Nigerian diplomatic representatives.

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