336 F.3d 167 (2nd Cir. 2003), 02-1012, U.S. v. Aina-Marshall

Docket Nº:02-1012
Citation:336 F.3d 167
Party Name:U.S. v. Aina-Marshall
Case Date:July 21, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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336 F.3d 167 (2nd Cir. 2003)

UNITED STATES of America, Appellee,

v.

Bolajoko AINA-MARSHALL, Defendant-Appellant.

No. 02-1012.

United States Court of Appeals, Second Circuit

July 21, 2003

Argued: Jan. 15, 2003.

Page 168

Seth L. Levine, Assistant United States Attorney, for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York (Cecil C. Scott, Seth L. Levine, Assistant United States Attorney, of counsel), Brooklyn, NY, for Appellee.

David Wikstrom, Law Office of David Wikstrom, New York, New York, for Defendant-Appellant.

Before: WINTER, CABRANES, Circuit Judges, and AMON,[*] District Judge.

WINTER, Circuit Judge.

Bolajoko Aina-Marshall appeals from her conviction after a jury trial before Judge Raggi of importing and possessing heroin with the intent to distribute. Appellant claims that the district court improperly instructed the jury on conscious avoidance as a theory of guilt. We affirm.

BACKGROUND

On May 6, 2000, appellant arrived at JFK airport, via Zurich, Switzerland, from her home in Nigeria. A Customs agent began to inspect her luggage, finding "aromatic" dried fish and a bag of spices. She removed the bag of spices, leaving open a space revealing that the bottom of the suitcase was covered in black plastic. The agent momentarily turned away. Upon turning back, the agent found that the open space had been "layered very evenly back in the bag" with the dried fish. The agent thereafter discovered bags of heroin at the bottom of the bag. The agent testified that she then made eye contact with appellant, who "looked heavenward and shook her head slowly from side to side." The agent regarded this reaction as noteworthy

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because appellant could not have seen the heroin from where she was standing. The heroin weighed 23.227 kilograms (more than 50 pounds) and had a wholesale value of $1.8 to $2.3 million and a retail value of $6.9 to $13.9 million.

Appellant was the sole defense witness. She testified that she frequently traveled to the United States to purchase goods for her retail housewares business in Lagos and had been unaware of the heroin in her luggage. She testified that prior to her departure from Nigeria to the United States on the trip in question, she became reacquainted with an old friend, Funmi Odumosu, whom she had not seen in 10 years. Upon learning that appellant would soon be traveling to the United States on business, Odumosu asked whether appellant would be willing to deliver a message to her brother, who lived in the United States. Appellant agreed. On the day of appellant's departure, Odumosu appeared with a bag full of "food stuff" for her brother to sell in the United States. Appellant also testified that Odumosu gave her a slip of paper with the name "Larry" on it and a telephone/beeper number where he could be reached. Appellant claimed that she queried Odumosu about the weight of the bag (approximately 60 pounds), and asked her to open it. Appellant stated that she saw "a lot of [dried] fish and some nylon bags," and that Odumosu informed her the nylon bags contained spices.

In support of her contention that she had been unaware of the heroin, appellant noted that her behavior was inconsistent with that of a smuggler. For example, she had declared $45,000 in currency, which, according to her testimony, had always resulted in her luggage being searched, and had helped hoist her bag onto the inspection belt. On rebuttal, the government presented evidence that appellant's luggage had been searched only twice in the course of five trips between 1999 and 2000.

On cross-examination of appellant, the government elicited several incriminating facts. Appellant had failed to list the fish and spices on her Customs declaration even though she was aware that food had to be declared. The government also noted that appellant had provided her sister's address on the Customs declaration, even though her sister had moved from this address several years earlier. The old address was doubly incriminating because the government showed that the sister's present address was listed both in appellant's address book, which was seized at the time of arrest, and on several furniture invoices that appellant had placed into evidence.

At the charging conference, the government requested a conscious avoidance instruction. Appellant's counsel contended that the instruction was unwarranted because there was no evidence to suggest that appellant had an awareness of a "high probability" that she was carrying drugs. The district court disagreed, pointing out that the circumstances were such that appellant may have "closed her eyes to [what] she should have otherwise understood." The district court noted the following factors as grounds for giving a conscious avoidance instruction: a woman she had not seen in ten years suddenly asks her to take a heavy bag to New York; the foodstuffs, which allegedly were to be sold in the United States, were not packed for sale; one would not normally transport loose dried fish; and the contact information for "Larry" consisted only of a first name and a telephone/beeper number. In the court's view, these events should have raised questions in appellant's mind as to the nature of the items that she was being asked to transport.

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The relevant portions of the instruction given were:

In considering the issue of knowledge, you should further be...

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