U.S. v. Sobamowo, s. 87-3056

• Decision Date: 19 December 1989
• Docket Number: 87-3057,87-3061 and 87-3062,Nos. 87-3056,s. 87-3056
• Citation: 892 F.2d 90
• Parties: UNITED STATES of America v. Oliyinka SOBAMOWO, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 90

892 F.2d 90

282 U.S.App.D.C. 74

UNITED STATES of America v. Oliyinka SOBAMOWO, Appellant.

Nos. 87-3056, 87-3057, 87-3061 and 87-3062.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 21, 1989.

Decided Dec. 19, 1989.

[282 U.S.App.D.C. 76] Appeals from the United States District Court for the District of Columbia (Criminal Action Nos. 86-00313-03, 86-00313-04, 86-00313-01 and 86-00313-07).

Ferris R. Bond, Reston, Va. (appointed by this Court), and Jane C. Norman, Washington, D.C., were on the brief for appellant, Francis Sheen in No. 87-3057.

Thomas Lumbard, Washington, D.C. (appointed by this Court), was on the brief for appellant, Victoria Toomer in No. 87-3062.

Per A. Ramfjord, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and William J. O'Malley, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

David P. Nicoli, with whom Geoffrey F. Aronow, Washington, D.C. (appointed by this Court), was on the brief, for appellant, Eddie Adair in No. 87-3061.

William A. Schwennesen, with whom George Ruttinger (appointed by this Court), Richard L. Beizer and J. Michael Klise, Washington, D.C., were on the brief, for appellant, Oliyinka Sobamowo in No. 87-3056.

Before RUTH B. GINSBURG and D.H. GINSBURG, Circuit Judges, and FRIEDMAN, ^* Senior Circuit Judge.

RUTH BADER GINSBURG, Circuit Judge:

Defendants were convicted of conspiracy and related substantive offenses stemming from their involvement in heroin trafficking. The central actor in the case was defendant Eddie Adair, who in 1986 bought heroin in quantity from Nigerian suppliers, including defendants Oliyinka Sobamowo and Francis Sheen. Adair sold the heroin to street-level distributors, including defendant Victoria Toomer. All four defendants, along with two codefendants not appellants here, were convicted of conspiracy to distribute heroin and to possess heroin with intent to distribute it, 21 U.S.C. § 846. Adair was also convicted of distributing heroin and possessing heroin with intent to distribute it, 21 U.S.C. § 841(a), and of aiding and abetting unlawful interstate travel, 18 U.S.C. §§ 2, 1952(a)(3). In addition, Adair, Sheen, and Toomer were convicted of unlawful use of a communication facility, 21 U.S.C. § 843(b).

Defendants, each separately represented by appellate counsel, challenge their convictions on numerous grounds. ¹ After full review of each allegation of error, we are satisfied that none merits relief, and therefore affirm the convictions.

I. WIRETAP EVIDENCE

Sobamowo and Sheen argue that the district court should have suppressed evidence obtained from wiretaps placed on their telephones. ² Under the federal wiretap authorization Sobamowo first contends that the affidavits submitted to support two successive wiretap orders on his telephone relied on conclusory statements and provided no factual basis for a finding of necessity. Sections of an affidavit framed in conclusory terminology, this court has observed, "cannot rationally be separated from ... preceding detailed descriptions of ... investigative events." United States v. Williams, 580 F.2d 578, 589 (D.C.Cir.), cert. denied sub nom. Lincoln v. United States, 439 U.S. 832, 99 S.Ct. 112, 58 L.Ed.2d 127 (1978). In this case, the government's conclusions followed upon a detailed description of the course of the investigation and the specific investigative procedures already employed. "[E]xamined as a whole and in a common sense fashion," United States v. Carneiro, 861 F.2d 1171, 1177 (9th Cir.1988), the affidavits in question satisfy the legal requirement: they contained facts sufficient to support the district court's necessity determination.

                [282 U.S.App.D.C. 77]  statute, a wiretap application must include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous."  18 U.S.C. § 2518(1)(c).   The statute also requires the issuing judge to determine whether an adequate showing of necessity for the wiretap has been made, see 18 U.S.C. § 2518(3)(c);  a district judge's necessity determination is reviewable for abuse of discretion
                

Sobamowo further argues, in particular, that the government failed to investigate him adequately before resorting to the wiretap. Rather, Sobamowo contends, the government improperly relied on prior affidavits submitted in conjunction with applications to tap Adair's phones. Circuit precedent clarifies that "a court may authorize the wiretap of the phone of a member of an operation if traditional investigative techniques have proved inadequate to reveal the operation's full 'nature and scope.' " United States v. Brown, 823 F.2d 591, 598 (D.C.Cir.1987). Evidence collected by the government and detailed in the Adair affidavits revealed that a conspiracy existed and that Sobamowo was connected with it. While the government appropriately relied on the Adair affidavits to outline the contours of the conspiracy and explain the difficulty of penetrating it by traditional means, the government did not rest at that point. Before seeking to tap Sobamowo's telephone, the government in fact attempted to gather information about him in other ways. See Joint Appendix (J.A.) at 322, 324, 326 (use of undercover agents and informers, examination of law enforcement records, surveillance attempts). As Sobamowo's own brief indicates, see Sobamowo Br. at 14, 16 n. 10, 18, those efforts included contacting Nigerian sources, checking DEA and FBI records, and conducting physical surveillance of Sobamowo's residence. Considered in conjunction with the earlier investigative efforts described in the Adair affidavits, these attempts to investigate Sobamowo sufficed to justify the district court's wiretap permission.

Finally, Sobamowo maintains that the affidavits fatally failed to inform the district court that the government 1) had not awaited the results of a pen register installed on Sobamowo's telephone, 2) had not obtained a clear photograph of Sobamowo, and 3) had missed an opportunity to follow Sobamowo one night after he met with Adair. We find no crucial omission. The government did not falsely state any investigative procedure it in fact employed. Having engaged in an adequate range of investigative endeavors, the government properly sought wiretap permission and was not required to enumerate every technique or opportunity missed or overlooked. We find no cause to believe that the three items Sobamowo now features, if known to

                [282 U.S.App.D.C. 78] the district judge, would have altered the district court's determination that a wiretap was necessary.   See United States v. Ippolito, 774 F.2d 1482, 1485-86 (9th Cir.1985)
                

II. SEARCH WARRANT

Sobamowo next contends that the district court erroneously denied his request for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to test the veracity of an affidavit supporting the warrant to search his apartment. To obtain a Franks hearing, a defendant must make an adequately supported claim that the affidavit rests on statements deliberately false or made with reckless disregard for the truth. See United States v. Richardson, 861 F.2d 291, 293-94 (D.C.Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1325, 103 L.Ed.2d 593 (1989). Sobamowo failed to meet this test. The affidavit supporting the warrant must be read as a whole and in a " 'sensible, pragmatic' " manner. Id. at 293. It is evident, upon such a reading, that the detective who prepared the affidavit was simply summarizing the contents of Sobamowo's recorded conversations and interpreting them, guided by his experience in narcotics investigations, as referring to heroin. The requisite "substantial preliminary showing" of intentional or reckless falsehood, Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676-77, is utterly lacking here.

III. SUFFICIENCY OF THE EVIDENCE

Sobamowo, Toomer, and Sheen all challenge the sufficiency of the evidence to support their conspiracy convictions. They claim that the government's evidence proved at most individual buyer-seller relationships between them and Adair. Alternately, they claim that only multiple conspiracies were proven at trial, rather than the single overall plot alleged in the indictment.

Drug distribution enterprises such as this one, involving a "chain" composed of importers, middlemen, and street dealers, have been appropriately tried on a conspiracy theory. See, e.g., United States v. Douglas, 874 F.2d 1145, 1151-55 (7th Cir.), cert. denied sub nom. Pruitt v. United States, --- U.S. ----, 110 S.Ct. 126, 107 L.Ed.2d 87 (1989) (affirming conspiracy convictions of street-level drug dealers based on evidence of purchases of cocaine on credit from drug distributor); United States v. Arbelaez, 719 F.2d 1453, 1457-58 (9th Cir.1983), cert. denied sub nom. Ponce de Leon v. United States, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984) (affirming conspiracy convictions of drug suppliers who dealt with a common distributor). "Under the chain analysis, the government need not prove a direct connection between all the conspirators. A single conspiracy may be established when each conspirator knows of the existence of the larger conspiracy and the necessity for other participants...." United States v. Tarantino, 846 F.2d 1384, 1392 (D.C.Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988).

From the evidence presented in this case, the jury could have concluded that all three objecting defendants were knowingly involved in a single conspiracy to purchase and distribute heroin. The evidence suggested that Sheen sold heroin to Adair, with payment deferred until Adair could unload the drugs through street dealers. Toomer served as one of those street dealers, to whom Adair supplied heroin to be paid for with street sale returns. Sobamowo initially supplied...