U.S. v. Ashimi
| Decision Date | 12 July 1991 |
| Docket Number | No. 90-1014,90-1014 |
| Citation | 932 F.2d 643 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Segun ASHIMI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Patrick S. Layng, Barry R. Elden, Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.
Jeffrey B. Steinback, Genson, Steinback & Gillespie, Allan A. Ackerman, Chicago, Ill., for defendant-appellant.
Before WOOD, Jr., COFFEY and MANION, Circuit Judges.
After a one-day bench trial, Segun Ashimi was found guilty of two counts of possession with intent to distribute a controlled substance. See 21 U.S.C. Sec. 841(a)(1). On direct appeal he challenges only one aspect of his conviction--the pretrial performance of his trial counsel. We cannot conclude on this record, however, that Ashimi was deprived of his sixth amendment right to effective legal assistance. We therefore affirm.
Ashimi was charged in a two-count indictment filed on September 14, 1989. 1 Five days later, he appeared before the district court for arraignment and plead not guilty. His counsel, Mr. Seiden, thereafter waived what the district court referred to as the "30-day requirement." 2 The district court, the government, and Seiden viewed the case as one that could be tried quickly, and trial was set for September 25, 1989.
During the next six days, the record indicates that Ashimi's counsel did not initiate any formal discovery as to the government's case. It does not disclose (with the exception of an incident that we will reach momentarily) the extent, if any, of informal discovery that may have been sought from the United States Attorney's office. Nor does the record indicate the extent, if any, of attempts to procure information from sources outside of the United States Attorney's office.
September 25 arrived and the one-day trial proved true to expectations. The government presented three witnesses. The first, Officer Holliday, testified that on April 13, 1989, he travelled to a Dominick's parking lot for the purpose of effectuating an undercover narcotics purchase. He was accompanied by a confidential informant, identified only as "Tucson," who had prearranged a meeting with a third man. When this third man (who Holliday identified as Ashimi) arrived in a red Toyota Celica convertible with a black top, the informant introduced the man as Ashimi and then walked away. Holliday got into Ashimi's car and exchanged $3300 for a clear plastic bag containing a brown rocky substance. After an exchange of telephone pager numbers, Holliday got out of the car and Ashimi departed. Holliday and the informant then parted company after speaking momentarily.
Officer Holliday also testified that he contacted Ashimi on May 3, 1989, and discussed the possibility of a second narcotics purchase. Another meeting, this time not involving Tucson, was arranged at the Dominick's parking lot on March 4, 1989, and Ashimi again arrived in a red Toyota Celica convertible with a black top. Holliday got into Ashimi's car and exchanged $3800 for a clear plastic bag containing a brown lumpy powdery substance. Both this substance and the substance purchased on April 13 ultimately tested positive for heroin.
After several unsuccessful calls to Ashimi's pager, Holliday was able to schedule a third meeting at the Dominick's parking lot for August 18, 1989. Ashimi had initially protested, explaining that he was no longer in the business of selling heroin, but later agreed to try to locate another individual to procure the heroin. Ashimi arrived at the scheduled time, once again in a red Toyota Celica convertible with a black top, but was unaccompanied. Holliday gave a prearranged signal and Ashimi was arrested.
When Seiden cross-examined Holliday, he brought out the fact that Tucson was compensated for his services. On recross the following colloquy occurred:
The government's second witness, Officer Montgomery, testified that he was assigned to set up surveillance at the Dominick's parking lot on both April 13, 1989, and May 4, 1989. He corroborated Holliday's testimony to the extent his vantage point allowed and also identified Ashimi as the driver of the Toyota.
The government's third witness, Special Agent Mark Hunter, testified as to events on August 18. He stated that an inventory search of Ashimi's Toyota produced a container disguised as a car battery. He also testified as to a subsequent search of Ashimi's apartment, which revealed $3900, a false beer can with a hollow interior, and a Nigerian passport. Neither the search of Ashimi's person, nor the search of the Toyota, nor the search of the apartment produced additional quantities of controlled substances.
The defense called only two witnesses. The first, Agent Hunter, testified that the passport found in Ashimi's apartment contained the defendant's photo but was in the name of Olsegun Bolaji Lasisi. Ashimi also testified in his own behalf.
Ashimi, a Nigerian citizen, recounted the story of a prior drug arrest in the United States for which he had been sentenced in 1986 to a period of incarceration and probation. One of the conditions of probation was that he return to Nigeria, a condition that he initially complied with, although not without some difficulty. 3 Once in Nigeria, Ashimi attempted to make arrangements for his wife and children to join him there. He also applied for a Nigerian passport using the name Olsegun Bolaji Lasisi.
By using the passport, Ashimi obtained visas by which to visit the United States, including a "multiple visa" 4 which was in effect during the time in question. Ashimi testified that he used the multiple visa to enter this country on March 20, 1989, was permitted by the port of entry to remain three weeks, and departed for Nigeria on April 3. He did not thereafter return to the United States until August 12, 1989. He also denied accusations that he had been in the Dominick's parking lot and participated in the narcotics transactions of April 13 and May 4, 1989. 5
Ashimi's testimony about the passport indicates that the document was stamped "Admitted" next to the date March 13, 1989. Ashimi also testified that the document was stamped on April 4, 1989, and that this stamp indicated his arrival in Nigeria. Ashimi then pointed out that the document was stamped "Admitted" next to the date August 12, 1989, and testified that this stamp indicated his subsequent return to the United States. After the passport was admitted into evidence, further references on the record indicate that the passport also contained stamps revealing that the holder left Nigeria in August 1987, September 1987, and November 1988 but did not contain corresponding indications of entry.
Ashimi explained his presence at Dominick's on August 18 by reference to his relationship with Tucson, who he had first met in 1985. Ashimi testified that Tucson borrowed a sum of money in March 1989 6 and offered some jewelry in exchange (ostensibly as collateral). In August 1989, Tucson contacted him and requested the jewelry but was apparently unwilling or unable to pay back the loan. And when Ashimi refused to return the jewelry until he was repaid, 7 Tucson threatened to "get even." As a consequence of this threat, Ashimi agreed to meet Tucson at the Dominick's parking lot on August 18, 1989, where he encountered Officer Holliday and was subsequently arrested.
During closing arguments, Ashimi's counsel once again raised the matter of Tucson:
The plain and simple truth is that this man, whoever he might be, Tucson, Phoenix, or whatever his last name is, got paid for information and is able to hide behind a cloak, and we have no idea what this man's motives were for what he did, whether it was money, anger, revenge or whatever.
The court thereafter determined that the passport stamps could be explained away, that the government's evidence was credible, and that Ashimi's testimony was not credible. It found Ashimi guilty on both counts.
After trial, Ashimi's counsel filed an initial post-trial motion on October 5, 1989, and on October 23 filed a "Supplement and Appendex [sic] to Post Trial Motion" containing documents offered to support the proposition that Ashimi was not in the country during the time in question. These documents included: (1) an airline ticket issued on April 11, 1989, in the name of Segun Ashimi for travel within Nigeria on Nigeria Airways; (2) a bill to Ashimi for lodging for April 11-17, 1989, from the Hamdale Hotel Kadema; (3) a contract entered into by Ashimi in Nigeria on May 10, 1989; and (4)...
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