U.S. v. Adegbite

• Decision Date: 05 June 1989
• Docket Number: Nos. 964,972,D,s. 964
• Citation: 877 F.2d 174
• Parties: UNITED STATES of America, Appellee, v. Kofoworola ADEGBITE, a/k/a "Gbenro," and Joseph Obalaja, a/k/a "Niran," Defendants-Appellants. ockets 88-1565, 88-1566.
• Court: U.S. Court of Appeals — Second Circuit

Page 174

877 F.2d 174

UNITED STATES of America, Appellee, v. Kofoworola ADEGBITE, a/k/a "Gbenro," and Joseph Obalaja a/k/a "Niran," Defendants-Appellants.

Nos. 964, 972, Dockets 88-1565, 88-1566.

United States Court of Appeals Second Circuit.

Argued April 21, 1989.

Decided June 5, 1989.

David C. James, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. for the Eastern District of New York, John Gleeson, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for appellee.

Michael E. Deutsch, Chicago, Ill. (Elizabeth M. Fink, Brooklyn, N.Y., on the brief), for defendant-appellant Adegbite.

Richard I. Rosenkranz, Brooklyn, N.Y., for defendant-appellant Obalaja.

Before KEARSE, ALTIMARI and MAHONEY, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Kofoworola Adegbite and Joseph Obalaja appeal from judgments entered in the United States District Court for the Eastern District of New York after a jury trial before Edward R. Korman, Judge, convicting each of them on one count of importation of heroin, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), and 960(b)(2)(A) (1982 & Supp. V 1987), and 18 U.S.C. Sec. 2 (1982); and one count of conspiracy to import heroin, in violation of 21 U.S.C. Secs. 960(a)(1), 960(b)(2)(A), and 963 (1982 & Supp. V 1987). Each was sentenced to five years' imprisonment on the importation count and three years' imprisonment on the conspiracy count, to be served concurrently, followed by five years' supervised release, and was ordered to pay special assessments totaling $100. On appeal, defendants seek a reversal of this Court's prior ruling that certain evidence should not be suppressed, see United States v. Adegbite, 846 F.2d 834 (2d Cir.1988) ("Adegbite I "), and challenge the sufficiency of the evidence to convict them even without suppression of that evidence. For the reasons below, we affirm the judgments of conviction.

I. BACKGROUND

The events underlying the present prosecution are fully set forth in Adegbite I, familiarity with which is assumed. Briefly summarized, the evidence at the pretrial suppression hearing, which was substantially repeated at trial, showed the following.

Law enforcement agents intercepted one Olasogi Olukoya arriving at John F. Kennedy International Airport in New York on an international flight with approximately a half pound of heroin in his possession. Olukoya informed agents of the United States Drug Enforcement Administration ("DEA") that he was to deliver the heroin to a man called "Niran," whose telephone number was (301) 485-9597. Under DEA supervision, Olukoya placed recorded calls to that number and spoke to a man called "Gbenro" in Yoruba, a Nigerian dialect; they discussed the quantity and delivery of the heroin. In subsequent calls to that number, Olukoya talked with both Gbenro and Niran about delivery of the heroin. Thereafter, a United States Magistrate issued "John Doe" arrest warrants for two men with the nicknames or aliases "Niran" and "Gbenro."

DEA agents in Maryland thereafter obtained an accurate address to which the telephone number was registered, 4410 Franconia Drive in Baltimore, and, when the telephone number was changed, obtained the new number. Calling the new number, an agent was advised that Gbenro and Niran, though resident there, were not then available but would be the next morning. On the following morning, four law enforcement officials went to 4410 Franconia Drive. As two men, deemed by the agents to be Nigerians because of their appearance, began to leave in an ice cream truck, two agents on foot flagged them down. When the truck stopped, the agents identified themselves and requested identification from the driver. The latter produced a driver's license in the name of Joseph Adeniran Obalaja; the agents noticed that the latter portion of his middle name was "niran," the nickname on one of the arrest warrants.

The other two agents approached the truck and asked the passenger, Adegbite, for identification. Adegbite responded that his identification was in his room and he asked if he could retrieve it. Accompanied by DEA Agent Joseph Dombroski and a local police detective, Adegbite proceeded to his room in the building at 4410 Franconia Drive but was unable to produce any identification. When DEA Agent Gerald Masiello arrived in the apartment, he asked Adegbite if he had any identification and told him it would be in his best interest to produce some. When no identification was forthcoming, Masiello asked him, "You are Gbenro, aren't you?" Adegbite responded affirmatively. The agents then placed both Adegbite and Obalaja under arrest.

A. The Ruling in Adegbite I

Prior to trial, defendants moved to suppress prearrest statements made by them and physical evidence taken from Obalaja. The district court ruled that the agents did not have reasonable suspicion to believe the two men in the ice cream truck were the men listed in the warrants and that waving down the truck thus constituted an improper seizure under the Fourth Amendment. The court suppressed Adegbite's acknowledgement that he was "Gbenro" on the additional ground that Adegbite was in custody for Miranda purposes and that the response was the fruit of an unlawful custodial interrogation.

On appeal by the government pursuant to 18 U.S.C. Sec. 3731 (1982 & Supp. V 1987), we reversed both rulings. Adegbite I, 846 F.2d 834. With respect to the stop of the truck, we discussed Supreme Court cases such as United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); and Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), and stated as follows:

The test provided by the Supreme Court for determining what constitutes a "seizure" under the fourth amendment, and the point in time when any seizure occurs, is whether "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."

846 F.2d at 837 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (opinion of Stewart, J.)). We noted that the agents in the present case had been in plain clothes and had merely waved their arms at the truck to flag it down. When it stopped, two agents identified themselves and asked the driver to identify himself. Thereafter, the other two agents left their car, walked to the other side of the truck, and requested identification of the passenger. Both pairs of agents had approached the truck without display of either badges or guns, and there had been no show of force or authority. We concluded that the defendants had not been "seized" within the meaning of the Fourth Amendment. See Adegbite I, 846 F.2d at 838. We also concluded that all of the information possessed by the agents gave them the requisite reasonable suspicion to pursue their request for identification. Id.

As to the suppression of Adegbite's acknowledgement that he was "Gbenro," we reversed on the ground that "the solicitation of information concerning a person's identity and background does not amount to custodial interrogation prohibited by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ...." 846 F.2d at 838.

B. Proceedings on Remand

On remand, the previously suppressed evidence was admitted at defendants' trial on the charges of importation of and conspiracy to import heroin. The jury found both defendants guilty, and they were sentenced as indicated above.

After trial, the district court wrote an opinion reiterating its pretrial view that the evidence should have been suppressed. The court stated as follows:

Because the defendant has indicated that he intends to raise this issue again on appeal, and because the testimony at trial has significantly supplemented the record, I write now to set forth in a more detailed manner the reasons for my pre-trial order.

The record of the suppression hearing, as supplemented by the testimony of Agent Masiello at trial, shows that, prior to the time he "asked Adegbite once again if he had any identification, and told him it would be in his best interest to produce some" and finally received an affirmative response to the question "you are Gbenro, aren't you", [846 F.2d] at 836, Adegbite had identified himself as Kofoworola Adegbite and had written his name down on a piece of paper .... The purpose of Agent Masiello's further questioning was to elicit incriminating information ...:

Q. Isn't it a fact, Agent, that it would have been better for your case if you got him to admit that his name was Gbenro?

* * *

* * *

A. Yes, sir.

Q. That is the name you were looking for; is that right?

A. Yes.

Q. That is the identification you were looking for?

A. That's correct.

Q. That is what you needed in order to make this case against this defendant; is that correct?

A. That's correct.

What distinguishes this interrogation from the pedigree statements taken from defendants as part of the post-arrest process is the purpose of the interrogation. Specifically, in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Supreme Court defined interrogation for Miranda purposes as including any questioning "that the police should know is reasonably likely to evoke an incriminating response from a suspect." Id. at 301, 100 S.Ct. at 1689-90.

Unlike questions put to a defendant during the booking process, which are intended to elicit routine information of a nature essential to facilitate the arrest and arraignment of the defendant, Agent Masiello candidly admitted that the question he was asking sought information that he "needed in order to make this case against this defendant,"....

District Court Memorandum, 713 F.Supp. 559, 560-61 (1988) ("Memorandum") (footnote omitted). The district court concluded as follows:

The questioning at issue here...