U.S. v. Abayomi, No. 86-2897

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before WOOD and RIPPLE, Circuit Judges, and FAIRCHILD; HARLINGTON WOOD, Jr.
• Citation: 820 F.2d 902
• Parties: 23 Fed. R. Evid. Serv. 221 UNITED STATES of America, Plaintiff-Appellee, v. Olatunji ABAYOMI, Defendant-Appellant.
• Docket Number: No. 86-2897
• Decision Date: 04 June 1987

Page 902

820 F.2d 902 23 Fed. R. Evid. Serv. 221 UNITED STATES of America, Plaintiff-Appellee,
v.
Olatunji ABAYOMI, Defendant-Appellant. No. 86-2897. United States Court of Appeals,
Seventh Circuit. Argued April 15, 1987.
Decided June 4, 1987.

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James Holloway, Fed. Defender Program, Chicago, Ill., for defendant-appellant.

Bradley E. Lerman, Asst. U.S. Atty., and Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before WOOD and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

The United States charged defendant Olatunji Abayomi with possession of heroin with intent to distribute it and with conspiracy to possess the same in violation of 21 U.S.C. Secs. 841(a)(1) & 846 (1982). After a four-day jury trial the jury found Abayomi guilty on the conspiracy charge, but not guilty on the possession charge. Abayomi moved for a new trial and for a judgment of acquittal. The district judge denied the motions and sentenced Abayomi on his conspiracy conviction. ¹ Abayomi appeals his conspiracy conviction on the bases of insufficiency of the evidence and an evidentiary ruling. We affirm.

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I. BACKGROUND

On May 16, 1985, three envelopes from India arrived at Kennedy Airport in New York City. The envelopes all had return addresses of "The Bible Society, P.O. Box 3455, Anna Negar, West Madras 600040, South India." They were five inches by eight inches in size. The envelopes were all addressed to the same post office box in Chicago, but they each bore the name of a different addressee: (1) "Mr. and Mrs. Thompson-Bathlomein;" (2) "Sister Antonia-Holloway;" and (3) the "Rev. James-John." A customs agent of the United States Customs Mail Facility at the airport inspected the envelopes. Within each envelope, the customs agent found a brown powder that field-tested positive for heroin. The customs agent resealed the envelopes and sent them in a sealed pouch to postal inspectors in Chicago.

The Chicago postal inspectors who received the pouch determined that the post office box to which the envelopes were addressed was located in a post office at 5008 North Sheridan Road in Chicago. This post office box was registered to Oladejo Ibrahim and also listed Akinfenwa-Donus as a recipient of mail.

Postal Inspector Peter Harrison organized a surveillance team to cover the post office. The team included agents from the federal Drug Enforcement Administration (DEA) and the Chicago Police Department. On July 2, 1985, the surveillance team initiated a controlled delivery of the three envelopes. The team arrived at the post office before it opened. They put the three letters in the post office box indicated by the addresses on the envelopes. The team also drilled two peepholes in a door at the back of the post office through which agents could observe any person coming into or going out of the post office. The peepholes also allowed the agents to have an unobstructed view of the post office box under surveillance. Some members of the team waited behind the door in the post office. Others were stationed outside in marked and unmarked automobiles.

Shortly before 2:00 p.m. Postal Inspector Harrison and Special Agent Kevin Lane of the DEA, through the two peepholes in the door, saw defendant Abayomi walk into the post office. Although Abayomi had a separate post office box of his own in the same post office, he walked directly to the box under surveillance. He opened the box with a key, removed the three envelopes and an unrelated fourth piece of mail, and closed the box. Abayomi then walked directly out of the post office. As Abayomi walked out of the post office, Special Agent Nancy Colletti of the DEA came out from behind the back door and followed Abayomi on foot at a distance of five to ten feet. Abayomi walked out of the post office and crossed over Sheridan Road to a brown Pontiac automobile. He climbed into the driver's seat. Akinfenwa-Donus, the person listed as a recipient of mail for the post office box, was sitting in the passenger seat. Abayomi and Akinfenwa-Donus lived in the same apartment building and were acquainted with one another. After Abayomi got into the automobile, he held up the four unopened envelopes. Special Agent Colletti heard both men exclaim, "all right!"

The two men drove away from the post office, going north on Sheridan Road. Special Agent Thomas Kelly of the DEA followed them in an unmarked automobile. Special Agent Kelly saw the passenger lean forward toward the automobile's glove compartment. About one and one-half miles away from the post office, Special Agent Kelly and other law enforcement officers stopped the Pontiac and arrested the two men. Special Agent Kelly searched the Pontiac. He found the three envelopes from India, unopened, hidden under the floor mat on the passenger's side of the automobile. The DEA ultimately determined that the three envelopes from India contained eighty-five grams of 77% pure heroin--amounting to a street value of nearly $1 million.

A fourth envelope was in plain view on the seat between the driver and the passenger. Special Agent Colletti testified Abayomi had, at the time of his arrest, a receipt for certified mail addressed to Abayomi's own post office box, not the one from

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which he had just picked up the three heroin-filled envelopes. Postal Inspector Harrison, on the other hand, testified that he watched Abayomi from the time Abayomi entered the post office to the time he left it and that Abayomi went only to the post office box under surveillance and to no others.

Finally, Abayomi's wife testified that she found two opened envelopes in the Pontiac the day after Abayomi was arrested. The Pontiac had not been seized by any law enforcement agents following Abayomi's arrest. Abayomi's wife testified the two envelopes were addressed to Abayomi's own box and contained important forms to obtain college financial aid. The envelopes were postmarked June 28, 1985, four days before Abayomi was arrested. One of them had a return address naming "Federal City Programs" and the other naming "ACT Student Need Analysis Services."

Abayomi appeals his conviction on the bases of insufficiency of the government's evidence and an evidentiary ruling.

In analyzing a challenge to the sufficiency of the government's evidence, "[o]ur standard of review requires that the evidence be viewed in the light most favorable to the government in determining whether 'any rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Draiman, 784 F.2d 248, 251 (7th Cir.1986) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)) (emphasis in original); United States v. Perlaza, 818 F.2d 1354, 1358 (7th Cir.1987).

In evaluating a district judge's evidentiary rulings, on the other hand, our review is governed by the abuse of discretion standard. Webb v. City of Chester, 813 F.2d 824, 827 (7th Cir.1987); United States v. Buishas, 791 F.2d 1310, 1313 (7th Cir.1986). "Under the 'abuse of discretion' standard of review, the relevant inquiry is not how the reviewing judges would have ruled if they had been considering the case in the first place, but rather, whether any reasonable person could agree with the district court." Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 563 (7th Cir.1984) (emphasis in original). In other words, "if reasonable men could differ as to the propriety of the [district] court's action, no abuse of discretion has been shown." Smith v. Widman Trucking & Excavating, Inc., 627 F.2d 792, 796 (7th Cir.1980).

II. DISCUSSION

Abayomi asks us to reverse his conviction, or at least grant him a new trial, because the government's evidence against him was insufficient and because the district judge improperly excluded evidence Abayomi believes was favorable to him.

To prove that Abayomi participated in a conspiracy to possess heroin, the government must show two things: (1) that a conspiracy existed and (2) that Abayomi participated in the conspiracy.

"A conspiracy consists of a combination or confederation between two or more persons formed for the purpose of committing, by their joint efforts, a criminal act." United States v. Hedman, 630 F.2d 1184, 1192 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). The crux of a conspiratorial combination is agreement. "The agreement need not be marked by technical formalities. Indeed, such formalities are typically absent from a conspiratorial agreement because the 'mark of a successful conspiracy is secrecy.' " United States v. Perlaza, 818 F.2d 1354, 1358 (7th Cir.1987) (quoting United States v. Varelli, 407 F.2d 735, 741 (7th Cir.1969), cert. denied,...