Manuel v. State

Citation581 A.2d 1287,85 Md.App. 1
Decision Date14 November 1990
Docket NumberNo. 1511,1511
PartiesEdward MANUEL, Charles Onwuneme, Celestine Aniunoh, Cajetan Ohakwe and Joshua Brewer v. STATE of Maryland. Sept. Term 1989.
CourtCourt of Special Appeals of Maryland

Michael R. Malloy, Asst. Public Defender (Alan H. Murrell, Public Defender on the brief), Baltimore, for appellants.

Valerie J. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City on the brief), Baltimore, for appellee.

Argued before MOYLAN, GARRITY and JAMES S. GETTY, (retired), Specially Assigned, JJ.


Appellants Edward Manuel, Charles Onwuneme, Celestine Aniunoh, Cajetan Ohakwe, and Joshua Brewer were charged with conspiracies to possess and to distribute heroin and with other crimes involving controlled dangerous substances (CDS). All of the appellants were convicted of conspiracy to distribute heroin. All of the appellants except Onwuneme were convicted of conspiracy to possess heroin with intent to distribute. Appellant Manuel was also convicted of conspiracy to distribute cocaine. In addition, appellant Aniunoh was convicted of conspiracy to distribute cocaine and six counts each of distribution of heroin and possession with intent to distribute heroin. The appellants present the following questions for review:

I. Did the lower court err by permitting more than one conviction for conspiracy of appellants Aniunoh, Brewer, Manuel and Ohakwe and by failing to merge each appellant's conspiracy conviction into a single conviction?

II. Did the lower court err by denying appellant Manuel and appellant Onwuneme's motions to dismiss on double jeopardy grounds?

III. Did the lower court err by denying each appellant's request for a severance of his trial from that of all the other defendants?

IV. Did the lower court err by allowing amendment of the conspiracy indictments and by denying postponements in light of the amendments?

V. Did the lower court err by failing to dismiss the charges against the appellants because Rule 4-271 had been violated?

VI. Did the lower court err by overruling the appellants' objections to Mr. Tabansi as an expert translator?

VII. Did the lower court err by refusing to give appellant Aniunoh's requested jury instructions?

VIII. Was the evidence insufficient?


The appellants' 1 arguments with respect to merger are threefold. Aniunoh, 2 who was indicted and convicted of six separate instances of distribution of heroin and the lesser-included offense of possession with intent to distribute heroin, assigns error to the trial court's imposition of sentences on the lesser-included offenses. Second, appellants Aniunoh, Brewer, Manuel, and Ohakwe 3 contend that the trial court erred when it failed to merge each appellant's two heroin conspiracy convictions into one heroin conspiracy conviction. Finally, appellants Aniunoh and Manuel, 4 each of whom was convicted of conspiracy to distribute cocaine and conspiracy to possess cocaine with the intent to distribute, contend that these convictions should merge into one conspiracy conviction encompassing both the cocaine and heroin conspiracies.


The evidence adduced at trial showed that the appellants were part of a continuing conspiracy to distribute heroin from Nigeria and to possess that heroin with the intent to distribute. These objects of the conspiracy are considered the same offense for purposes of merger based on the reasoning in Hagans v. State, 316 Md. 429, 559 A.2d 792 (1989). Faced with the issue of whether a defendant could be convicted of an offense which is not charged but which is a lesser-included offense of one which is charged, the Hagans Court adopted the "required evidence" test as the basis for determining what is a lesser-included offense. Hagans, supra, at 449, 559 A.2d 792. The Court wrote, "[a]ll the elements of the lesser included offense must be included in the greater offense. Therefore, it must be impossible to commit the greater without also having committed the lesser." Id. Likewise, in Hankins v. State, 80 Md.App. 647, 659, 565 A.2d 686 (1989), we held that where the possession with intent to distribute cocaine and the distribution of cocaine emanate from the same transaction, "distribution includes and subsumes possession with intent to distribute because the evidence required to prove distribution includes control over the substance." Id.

Therefore Aniunoh's six convictions for possession of heroin with intent to distribute should be merged with his corresponding convictions for distribution of heroin. Accordingly, the sentences for the lesser-included offenses should be vacated.


The appellants contend and the State concedes that their multiple heroin conspiracy convictions should be merged into one heroin conspiracy conviction per appellant. We agree.

In Tracy v. State, 319 Md. 452, 454, 573 A.2d 38 (1990), the Court of Appeals held that convictions for conspiracy to commit murder and conspiracy to commit armed robbery, based on one continuing conspiratorial relationship, must merge. "It is well settled in Maryland that only one sentence can be imposed for a single common law conspiracy no matter how many criminal acts the conspirators have agreed to commit." Id. at 459, 573 A.2d 38. Likewise in Mason v. State, 302 Md. 434, 445, 488 A.2d 955 (1985), the Court held that "a defendant who distributes a number of controlled dangerous substances in accordance with a single unlawful agreement commits but one crime: common law conspiracy." Id. at 445, 488 A.2d 955. The Court cautioned, however, that before reaching this conclusion the nature of the agreement must be analyzed to determine whether there are single or multiple conspiracies. Id. Accordingly, we turn now to the nature of the agreement between the appellants.

The trial transcripts are replete with evidence of a massive Nigerian drug trafficking operation. In January, 1987, Detective Sergeant Warren Rineker commenced an investigation of this drug ring as a result of information provided by a registered confidential informant named James Thomas, who was deceased by the time of trial. Through Thomas the police learned that appellant Aniunoh was a mid-level supplier of heroin. During the course of the investigation the police obtained Aniunoh's telephone number. On August 24, 1987, they placed a pen register 5 on Aniunoh's home telephone which recorded the telephone numbers later associated with Manuel, Ohakwe and Eze. 6 After obtaining a court order for a wire tap, the police conducted the tap between October 6, 1987 and November 27, 1987. Other wire taps were conducted on alleged co-conspirators and co-defendants Eze, Okoroafor and Obi. 7 As a result, the police recorded and transcribed thousands of telephone calls which revealed that Aniunoh was a middle-level dealer who obtained heroin from suppliers, including Eze; that he was at the same level as associates Manuel and Ohakwe; and that he was a level above the street suppliers whom he supplied, such as Brewer and Thomas, the informant.

The police set up a large three ounce heroin buy scheduled to occur on December 18, 1987 at informant Thomas' Baltimore City residence. Appellant Manuel arrived. After Thomas displayed the $18,000 cash, Manuel left to "get my man." He returned with appellant Onwuneme and the heroin. The prospective buyers rejected the heroin. Consequently, Manuel and Onwuneme left. They travelled from Baltimore City to Baltimore County where the police, after arresting the appellants, retrieved the three ounces of heroin from beneath the passenger seat of the vehicle where Onwuneme had been sitting.

Pursuant to a search and seizure warrant obtained as a result of the arrest, the police searched Onwuneme's Towson hotel room. The police learned that Onwuneme arrived from Nigeria on December 15, 1987, and he was scheduled to return in a few days. His telephone bill showed calls to Manuel and Thomas. Papers seized from Manuel revealed, inter alia, telephone calls to, or the telephone number of, Okoroafor, Ohakwe, Aniunoh, Thomas, and a person from Nigeria designated "Bossman" Chief Charles, Charles Onwuneme.

This evidence firmly establishes a single conspiracy among appellants to distribute heroin and to possess heroin with the intent to distribute. The wiretaps and the staged heroin transaction clearly establish the connection between and the roles of the appellants in the drug ring.

Since the evidence demonstrates a single conspiracy, the appellants multiple heroin conspiracy convictions must be merged into one conviction per appellant for conspiracy to distribute heroin.


The final merger issue is raised by appellants Aniunoh and Manuel who contend that their cocaine conspiracy convictions should be merged with their heroin conspiracy convictions. While we do not agree with that position, we believe that like the multiple heroin conspiracy convictions, the multiple cocaine conspiracy convictions should be merged into one cocaine conspiracy conviction.

In light of Mason, supra, we must consider whether the nature of the agreement among the members of the drug ring extended to cocaine trafficking.

Of the thousands of telephone calls intercepted by the police and the numerous conversations recorded via Thomas' body wire, there are four distinct components of one cocaine transaction. In the course of a heroin deal which occurred on October 15, 1987, Aniunoh told Thomas that he could obtain some "girl," the street name for cocaine, if Thomas was interested. Aniunoh revealed possible sources in Virginia and in Atlanta. Aniunoh then contacted a possible supplier, Kingsley, in Mississippi, who disclosed his terms and invited Aniunoh to Mississippi to conclude the deal. Aniunoh also discussed with Manuel the terms of the cocaine supplier with whom the latter was familiar. Aniunoh then contacted Thomas to further negotiate the cocaine trafficking scheme.

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