U.S. v. Esieke

• Decision Date: 25 July 1991
• Docket Number: No. 1045,D,1045
• Citation: 940 F.2d 29
• Parties: UNITED STATES of America, Appellee, v. Chico ESIEKE, Defendant-Appellant. ocket 90-1571.
• Court: U.S. Court of Appeals — Second Circuit

Page 29

940 F.2d 29

UNITED STATES of America, Appellee, v. Chico ESIEKE, Defendant-Appellant.

No. 1045, Docket 90-1571.

United States Court of Appeals Second Circuit.

Argued March 21, 1991.

Decided July 25, 1991.

Darrell B. Fields, New York City (The Legal Aid Soc., New York City of counsel), for defendant-appellant.

Alan Vinegrad, Asst. U.S. Atty., E.D.N.Y. (Andrew J. Maloney, U.S. Atty., Matthew E. Fishbein, Asst. U.S. Atty., E.D.N.Y., of counsel), for appellee.

Before FEINBERG, MESKILL and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Chico Esieke appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York, following a jury trial before Judge I. Leo Glasser. The jury found Esieke guilty of importing and possessing with intent to distribute more than 100 grams of heroin in violation of 21 U.S.C. Secs. 841(a)(1) (1988) and 952(a) (1988). On this appeal, Esieke contends, among other things, that his conviction must be reversed on the ground that the district court failed to suppress heroin seized and statements made while he was detained at the border by United States customs officials. Specifically, Esieke argues that suppression was warranted because his detention was neither supported by reasonable suspicion nor properly authorized by a judicial officer. He also claims that the conditions under which he was detained precluded the district court's finding that his detention was permissible under the Fourth Amendment.

For the reasons set forth below, we affirm the judgment of the district court.

BACKGROUND

On the morning of March 10, 1990, defendant-appellant Chico Esieke arrived at John F. Kennedy Airport ("Kennedy Airport") on a flight that originated in Lagos, Nigeria. As Esieke proceeded through the customs area of the International Arrivals In response to the Inspector's questions, Esieke related that he was in the camera sales business and had travelled to Nigeria for approximately six weeks to conduct business. Esieke further stated that he was a Nigerian citizen who resided in Fort Worth, Texas and possessed a green card. Indeed, Esieke produced a Nigerian passport which had been issued in Lagos, Nigeria on March 5, 1990, i.e., five days prior to his return to the United States. The passport listed Esieke's occupation as an engineer and indicated that his previous passport had been lost. Additionally, Esieke informed Inspector Powers that, for reasons related to his camera business, he had taken $5,000 with him to Nigeria. However, Esieke subsequently remarked that he had taken only $1,000 on his trip. Esieke also told Powers that he expected to earn $10,000 to $15,000 in the camera business this year.

Building, he was stopped by Senior Inspector Dwight Powers of the U.S. Customs Service. Inspector Powers identified himself and asked to see Esieke's passport and customs declaration card. According to Powers, Esieke appeared to be very nervous; his hands were shaking and he fumbled about as he attempted to locate and produce the requested documents.

Inspector Powers accompanied Esieke to the custom's baggage examining area and then turned his attention to Esieke's luggage, which consisted of a small garment bag and a briefcase. Upon examination of the contents of the garment bag, Powers found that Esieke was travelling with few items of clothing. Inside the briefcase Powers found a billfold which contained a check imprinted with the name "Chico Food Market." When Powers removed the check from the billfold, Esieke explained that he had neglected to mention that he owned a supermarket. While examining the briefcase, Powers also discovered Esieke's Texas driver's license as well as several photographs of Esieke standing next to and sitting inside a new BMW automobile. Unlike Esieke's other forms of identification, the driver's license included a middle name, "Oruworuowho." After completing the luggage examination, Powers and Esieke moved to a room which was off the main floor of the International Arrivals Building.

As a result of the foregoing, Inspector Powers suspected that Esieke might be an alimentary canal smuggler, i.e., that Esieke had swallowed balloons or condoms containing narcotics that would be recovered from Esieke's feces after he had successfully entered the United States. After conferring with his supervisor, Powers conducted a strip-search of Esieke, which failed to reveal any contraband. At this point, Powers informed Esieke that he was suspected of carrying narcotics internally and presented Esieke with an x-ray consent form, which Esieke was asked to read. In response, Esieke became extremely angry, threw the form down and asked to see his lawyer. Powers then explained that if Esieke did not consent to an x-ray he could be detained for monitored bowel movements. Nevertheless, Esieke refused to be x-rayed, commenting that he had been x-rayed in Dallas and that x-rays were harmful. Powers once again consulted with his supervisor, who ordered Esieke to be held for monitored bowel movements.

Additionally, at some point during the course of these events, Powers ran Esieke's name and date of birth through the Treasury Enforcement Communications System Computer. The computer system revealed that "Esieke Chico Oruworuowho" was suspected of narcotics smuggling. Powers later learned that the alleged smuggling activities had occurred in the Dallas-Fort Worth area.

Inspector Powers informed Esieke that he was going to be detained for monitored bowel movements. Powers handcuffed Esieke and escorted him to a large mobile two-story structure that served as a customs detention facility. Inside the structure, Esieke changed into a hospital gown and was placed on a bed. One of his hands was secured to the bed railing by a handcuff and his legs were placed in leg irons. There were several other customs' detainees held in the facility and, like Esieke, each was handcuffed to a bed. The detainees were permitted to leave their beds only if they needed to use the facility's "potty seat," which consisted of a toilet seat During his first day in detention, Esieke failed either to defecate or urinate. The following day, around noon-time, Esieke indicated that he wanted to speak with one of the customs inspectors on duty. According to Customs Inspector Michael Snow, Esieke motioned for him to come to his bedside and then stated: "Inspector, I have been here for about a day and a half and I seen [sic] other prisoners come in and pass drugs, ... I hadn't [sic] admitted this to anyone, but I swallowed 63 balloons." In response, Inspector Snow called over his supervisor, Senior Inspector Thomas Falanga. In the presence of both Inspectors Falanga and Snow, Esieke repeated that he had swallowed 63 balloons.

mounted on a receptacle. On such occasions, a customs inspector would escort the detainee to the potty seat and observe as the detainee relieved himself.

Later that afternoon, Esieke moved his bowels for the first time since he had been detained. Upon examination, it was determined that Esieke had passed 24 balloons containing heroin. One of the inspectors then placed Esieke under arrest and informed Esieke of his rights. Over the course of the next day-and-a-half, Esieke, who was still being held in the customs detention facility, passed an additional 39 heroin-filled balloons.

On the morning of March 13, after Esieke passed the final balloon, an agent of the Drug Enforcement Administration ("DEA") took custody of Esieke. The DEA agent again read Esieke his rights and drove him to the United States Courthouse for the Eastern District of New York. En route, Esieke questioned the DEA agent about the weight of the drugs he had passed. The agent stated that the gross weight, i.e., the weight of both the drugs and the balloons, was 600 to 700 grams. Esieke then commented that he thought he had swallowed only 300 grams. In response, the agent explained that the net weight is usually several hundred grams lower than the gross weight. During the ride, Esieke also admitted that the "stuff" was supposed to go to Baltimore.

A superseding indictment was ultimately filed against Esieke, charging him with importing into the United States over 100 grams of heroin, in violation of 21 U.S.C. Sec. 952(a), and with possessing with intent to distribute over 100 grams of heroin, in violation of 21 U.S.C. Sec. 841(a)(1).

Prior to trial, Esieke moved to suppress both the heroin contained in the balloons he had internally smuggled and the various statements he made during his detention and trip to the Courthouse. Esieke essentially argued that suppression was warranted because the customs inspectors' decision to detain him was not supported by reasonable suspicion and, consequently, that evidence obtained as a result of that detention was the product of a seizure in violation of the Fourth Amendment. A suppression hearing was held before District Judge Glasser, at which Senior Inspector Powers was the sole witness. Following the hearing, the district court denied Esieke's motion to suppress.

Thereafter, Judge Glasser sua sponte raised the issue of whether Esieke's statements had been obtained during the course of a custodial interrogation at which Esieke--despite his request to speak with a lawyer--was not represented by counsel. As a result, the government was required to call two additional witnesses who testified to the circumstances in which Esieke's statements were made. Based on the witnesses' testimony, Judge Glasser determined that Esieke's statements were not the product of a custodial interrogation and were voluntarily made during conversations initiated by Esieke. Accordingly, the district court again concluded that there was no need to suppress the statements.

The case proceeded to trial and Esieke was found guilty on both counts of the indictment.

DISCUSSION

On this appeal, as in district court, Esieke...