U.S. v. Akinola, 92-1587

• Decision Date: 09 December 1992
• Docket Number: No. 92-1587,92-1587
• Citation: 985 F.2d 1105
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Michael Idowu Tunde AKINOLA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1105

985 F.2d 1105

UNITED STATES of America, Plaintiff, Appellee, v. Michael Idowu Tunde AKINOLA, Defendant, Appellant.

No. 92-1587.

United States Court of Appeals, First Circuit.

Heard Dec. 9, 1992.

Decided Feb. 2, 1993.

David N. Cicilline, Providence, RI, for defendant-appellant.

Gerard B. Sullivan, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty. and Margaret E. Curran, Asst. U.S. Atty., Providence, RI, were on brief, for plaintiff-appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Defendant-appellant Michael Idowu Tunde Akinola ("Akinola") launches a five-pronged attack on his conviction for conspiracy to possess with intent to distribute heroin and possession with intent to distribute heroin. ¹ We address the following claimed errors in detail: 1) unconstitutional denial of chosen counsel when the Magistrate Judge denied his desired counsel's motion for admission pro hac vice; 2) erroneous denial of his motion for judgment of acquittal; 3) the impermissible prosecutorial comment on his failure to testify and the trial court's subsequent inadequate curative instruction; and 4) the trial court's improper jury instruction. For the reasons set forth below, we affirm both counts of conviction.

I. Factual Background

We begin by summarizing the evidence in the light most favorable to the government. United States v. Abreu, 952 F.2d 1458, 1460 (1st Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1695, 118 L.Ed.2d 406 (1992).

On June 30, 1991, Patrolman Donald L. Mong of the East Greenwich, Rhode Island, Police Department, was working a routine patrol in a marked cruiser. At approximately 5 p.m., Mong noticed that a car which had just passed perpendicular to his ("the suspect car") did not have a front license plate. Mong and Akinola made eye contact as the suspect car passed Mong. Mong pulled out and began to follow the vehicle, in which Akinola was the driver and Gullity the passenger. When Mong positioned himself behind the suspect car, it accelerated and began to pull away from Mong, eventually reaching a speed of 50 miles per hour in a residential area posted for 25 miles per hour. Mong closed the gap sufficiently so that he could read the vehicle's rear license plate number which he transmitted to police headquarters in order to obtain as much information about the car as possible.

As appellant's car slowed for intersection traffic, Mong shortened the distance between the two vehicles. He then observed Akinola and Gullity having a spirited conversation in which he could see Akinola's head moving and his lips moving fast "as though he was trying to get out a lot of information quickly." After traffic cleared, the suspect car turned left at the intersection, followed by Mong. Again, the suspect car began pulling away from Mong, despite the latter's speed of 50 miles per hour. At that time, the two vehicles were travelling in a 35 mile per hour zone. The suspect car soon approached the vicinity of an entrance ramp for interstate route 95. Although Mong had yet to receive any information on the suspect car, he wanted to avoid following it onto the interstate, and thus activated his car's emergency overhead lights. The suspect car did not enter the interstate, nor, however, did it stop in response to the emergency lights. Mong then flashed his car's headlights and turned on his siren, after which Akinola appeared to glance into his rear-view mirror. After travelling approximately 200 yards further, and passing at least two areas suitable for pulling over, Akinola entered a movie theater parking lot, stopping the vehicle near the front of the theater entrance. Between Mong radioing for information and the suspect car stopping, the vehicles covered about one and one-half miles.

As Mong was informing his dispatcher that both vehicles had stopped, Akinola exited his vehicle and began yelling at Mong in an "agitated" manner. Mong then exited his vehicle, while Akinola continued toward him, yelling at Mong and toward Gullity--who was still seated in the car--in English to Mong and to Gullity in another language which Mong did not understand, which later turned out to be the African dialect Yoruba. Although Mong ordered Akinola to return to his car, Akinola continued towards him, still yelling bilingually. Akinola then began shoving Mong, but after a scuffle, Mong was able to pin Akinola on the ground, handcuff him, and then lock him in the rear of his cruiser.

Meanwhile, during the Mong-Akinola imbroglio, Gullity walked into the theater lobby. After securing Akinola, Mong brought Gullity back to the parking lot, whereupon a citizen bystander, Michael Melchor, directed Mong's attention to a nearby vehicle, under which Melchor claimed he had seen Gullity kick an object he had removed from his shirt pocket. Mong retrieved the object, which turned out to be a tissue containing 46.5 grams of heroin. Akinola was subsequently indicted and convicted on charges of conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846, and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Following his conviction, he was sentenced to a term of 46 months imprisonment.

II. Pretrial Proceedings

Akinola initially appeared in district court on July 15, 1991, at which time attorney John F. Cicilline entered an appearance on Akinola's behalf. A probable cause and detention hearing was then scheduled for July 18, 1991. On the scheduled date, attorney John M. Cicilline appeared on behalf of Gullity, and attorney David N. Cicilline attempted to represent Akinola. John F. Cicilline was not present at the hearing. Magistrate Judge Boudewyns did not permit David N. Cicilline to represent Akinola because he was not a member of Rhode Island's District bar and because John F. Cicilline was still listed as counsel of record and had not withdrawn from the case. The Magistrate Judge also denied John M. Cicilline's motion to admit David N. Cicilline pro hac vice, but scheduled a hearing for July 23, 1991, to further consider the matter.

John F. Cicilline appeared at the July 23, 1991, hearing and requested the Magistrate Judge to reconsider his denial of the pro hac vice motion. That request was denied for several reasons, which appellant now argues were erroneous. We need not address the merits of this particular claim, however, because appellant's failure to preserve the issue leaves us without jurisdiction to consider the matter. A brief explanation follows.

The courts of appeals have jurisdiction over appeals "from all final decisions of the district courts of the United States." 28 U.S.C. § 1291; United States v. Ecker, 923 F.2d 7, 8 (1st Cir.1991). Furthermore, "[t]o be a final order of the district court within the meaning of section 1291, the magistrate's decision must have been reviewed by the district court, which retains ultimate decision-making power." Id. (quoting Siers v. Morrash, 700 F.2d 113, 115 (3d Cir.1983) and cases cited therein) (internal quotes omitted). See generally Pagano v. Frank, 983 F.2d 343, 345-46 (1st Cir.1993). In the case at bar, there is no dispute that the Magistrate Judge's order was not brought before the district court via either of the two methods countenanced in Ecker. ² Appellant seeks to bypass this apparent jurisdictional blockage by arguing that his apparent default is excused by the Magistrate Judge's lack of warning, in his order, that failure to seek district court relief would result in waiver of appellate rights. It is true, as appellant asserts, that United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986) mandated such notice in certain cases to protect the rights of pro se litigants. But here, Akinola was represented by experienced counsel at the time of the Magistrate Judge's ruling. Moreover, as we pointed out during oral argument, even when such a warning is required, it is necessary only as part of a Magistrate Judge's report and recommendation to the district judge, 28 U.S.C. § 636(b)(1)(B), (C), and not when the Magistrate Judge issues a non-dispositive order. 28 U.S.C. § 636(b)(1)(A); See, e.g., M.S. Chambers & Son, Inc. v. Tambrands, Inc., 118 F.R.D. 274, 279 (D.Mass.1987) (giving waiver notice only "to the extent that [Magistrate's] ruling may be considered a report and recommendation"). Therefore, the lack of such notice in this case is of no help to appellant, and thus we are without jurisdiction to consider the Magistrate's pro hac vice ruling.

III. Alleged Trial Errors

A. Denial of Rule 29 Motion for Acquittal

As we have recently reiterated, we review the district court's denial of a Rule 29 motion by "scrutinizing the record in the light most favorable to the prosecution and drawing all reasonable inferences in favor of the verdict." United States v. Gonzalez-Torres, 980 F.2d 788, 790 (1st Cir.1992) (citing United States v. Amparo, 961 F.2d 288, 290 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992)). If, upon such a reading of the record, we conclude that a rational jury could have found the defendant guilty beyond a reasonable doubt, then we must affirm the district court. Id.; United States v. Plummer, 964 F.2d 1251, 1254 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 350, 121 L.Ed.2d 265 (1992). Moreover, the prosecution need not exclude every reasonable hypothesis of innocence and may prove its entire case through the use of circumstantial evidence, so long as the totality of the evidence permits a conclusion of guilt beyond a reasonable doubt. Gonzalez-Torres, 980 F.2d 788, 790 (citations omitted).

1. Possession with Intent to Distribute

In order to convict Akinola of possession with intent to distribute heroin, the government must prove that he knowingly and intentionally possessed the heroin and that he did so with the intent to distribute it. United...