U.S. v. Akinrinade

• Decision Date: 21 July 1995
• Docket Number: No. 94-1385,94-1385
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tunji AKINRINADE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1279

61 F.3d 1279

UNITED STATES of America, Plaintiff-Appellee, v. Tunji AKINRINADE, Defendant-Appellant.

No. 94-1385.

United States Court of Appeals, Seventh Circuit.

Argued March 27, 1995.

Decided July 21, 1995.

William D. Shaver, Asst. U.S. Atty. (argued), Crim. Div., Chicago, IL, for plaintiff-appellee.

Frederick F. Cohn (argued), Chicago, IL, for defendant-appellant.

Before EASTERBROOK and KANNE, Circuit Judges, and STIEHL, District Judge. ^*

STIEHL, District Judge.

Tunji Akinrinade was convicted by a jury of conspiracy to possess with intent to distribute mixtures containing heroin, in violation of 21 U.S.C. Sec. 846. The defendant challenges his conviction and sentence. We affirm on all grounds.

I. BACKGROUND

Tunji Akinrinade was a key player in a heroin trafficking organization responsible for smuggling large amounts of heroin from Lagos, Nigeria to Chicago, Illinois from at least 1990 through 1991. The organization was headed by Akinrinade's co-defendants, Taiwo and Kehinde Oshodi, Nigerian twin brothers. ("Taiwo" and "Kehinde"). The trafficking organization used several Nigerian nationals as drug couriers to transport the heroin to Chicago by either swallowing balloons filled with heroin or concealing it in luggage. Once the heroin couriers arrived in Chicago, the drugs were delivered to Akinrinade or Kehinde, who packaged it for further distribution.

The charged conspiracy ran from in or about June 1991 until August 21, 1991, and involved the smuggling of in excess of 1200 grams of heroin from Nigeria to the United States. Among the couriers employed by the organization were Matthew Omololu Pension Smith, Bunmi Kinsoto, and Samuel B. Johnson, a/k/a "Bobby."

On August 21, 1991, Smith was stopped by United States Customs Inspectors at Kennedy International Airport, New York. His luggage was inspected resulting in the seizure of more than 1,200 grams of heroin.

Smith testified at trial that he had, on four prior occasions, smuggled heroin into the United States for the Oshodi/Akinrinade organization by swallowing balloons filled with heroin. On his final trip, Smith was told by the Oshodi twins that it was too dangerous to bring the heroin into the country in balloons, so they would provide two suitcases with the drugs secreted in them. Smith met the brothers in Lagos on August 21, 1991. The Oshodi brothers transferred Smith's clothing into the suitcases, and told him that there were 900 grams of heroin inside. (At the time of the inspection, 1289 grams were discovered.) Smith was told that he would be met by someone at Kennedy Airport, and was given a telephone number for "Tunji" in Chicago.

After his arrest, Smith agreed to cooperate fully with the government and to make consensually monitored telephone calls to Chicago to arrange for delivery of the drugs. In addition, he agreed to participate in a controlled delivery in the company of agents. Smith's call to the number he had been given for "Tunji" was unable to be completed, so at the direction of the customs agents he called the Oshodi brothers in Nigeria. Speaking in a combination of English and Yoruba, a Nigerian language, Smith informed Taiwo and Kehinde that no one had met him at Kennedy Airport. The brothers told Smith to call "Tunji" at a different telephone number and to go to Chicago to make the delivery. Smith called the new number for Akinrinade, again speaking in English and Yoruba. Smith asked Akinrinade why he had not been met at Kennedy, but told Akinrinade that everything was alright, and that he had two suitcases with the heroin. Akinrinade directed Smith to book a flight to Chicago and that he would be met when he arrived. Another courier, Kinsoto, was with Akinrinade at the time of this conversation, and heard it over a speaker telephone. Kinsoto's testimony concerning this conversation corroborated Smith's. Following the conversation, Akinrinade told Kinsoto that he did not trust Smith, and that he was going to forward his calls to Johnson's house.

The customs agents booked a flight to Midway Airport for Smith, who called Akinrinade. The forwarded call was answered by Johnson's roommate, a woman named Adinike Benire. She told Smith that Johnson had flown to LaGuardia and that Smith should meet him at the Midway Airlines gate. Smith and the customs agents went from Kennedy to LaGuardia. They were unable to locate Johnson, who testified that he returned to Chicago when he failed to find Smith. Smith placed one last call to Akinrinade. Benire, answering the forwarded call, informed Smith that Johnson had returned to Chicago and that Smith should come to Chicago where he would be met by either Johnson or Akinrinade. All of the telephone calls, except the last one made at LaGuardia, were consensually monitored, translated, and admitted into evidence at trial.

Upon arrival at Midway Airport in Chicago, Smith, while under surveillance, claimed the two bags and was met by Johnson. The agents arrested Johnson after the luggage had been placed in the trunk of his Mercedes. Smith, Johnson, and Kinsoto were all witnesses for the government.

II. DISCUSSION

A. Assertions of Trial Error

We review district court evidentiary rulings for an abuse of discretion. United States v. Mounts, 35 F.3d 1208, 1214 (7th Cir.1994). "An abuse of discretion occurs only when no reasonable person could take the view of the trial court." Id., (citation omitted).

1. Testimony of Agent Jackson

The defendant asserts that the district court erred when it permitted Special Agent Amanda Jackson, United States Customs Service, to testify that the drugs seized from Smith were destined for Chicago for delivery to the defendant. The crux of defendant's complaint is that Agent Jackson testified as to the content of Smith's monitored calls, the greatest portions of which were in Yoruba, which she could not understand.

At trial, the defendant only made three specific objections to agent Jackson's direct examination testimony. The first was to the government's question concerning Smith's initial consensually monitored telephone call to a Chicago telephone number which turned out to be incorrect. The defendant objected on the grounds that the agent's testimony was a summary, and the Court overruled the objection. The second objection was to the description by Agent Jackson of Smith's second successful call to Chicago when he spoke with a woman (later identified as Benire), and the directions Benire gave him to meet Johnson at LaGuardia Airport. The defendant made a general hearsay objection to this testimony which the court overruled. The third objection occurred when the government returned to the first attempted monitored telephone call which involved a wrong telephone number. The defendant objected on the grounds that the testimony was a conclusion. The district court overruled the objection and admitted this evidence in order to put into context the subsequent actions of Agent Jackson, as well as the subsequent acts of Smith, as directed by Agent Jackson.

A district court's ruling whether to admit out-of-court statements as non-hearsay is discretionary, and will be reversed only for an abuse of discretion. United States v. Colston, 936 F.2d 312, 316 (7th Cir.), cert. denied, 502 U.S. 951, 112 S.Ct. 403, 116 L.Ed.2d 352 (1991). Hearsay is defined in Fed.R.Evid. 801(c) as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Here, Agent Jackson's testimony was properly admitted by the trial court as non-hearsay evidence. United States v. Sanchez, 32 F.3d 1002, 1005 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 346, 130 L.Ed.2d 302 (1994); United States v. Levine, 5 F.3d 1100, 1107 (1993), cert. denied, --- U.S. ----, 114 S.Ct. 1224, 127 L.Ed.2d 569 (1994). The testimony at issue was not admitted to prove the truth of the asserted matter, but only to establish the course of the investigation, including the background as to why Agent Jackson directed Smith to place the sequence of telephone calls to Nigeria and Chicago.

On review, we apply an abuse of discretion standard to evidence admitted over objection; however, we review the admissibility of evidence to which an objection was not made for plain error. United States v. Caputo, 978 F.2d 972, 974 (1992). The Court finds that the trial court properly admitted Agent Jackson's testimony as non-hearsay over defendant's objection.

Although the defendant now asserts that the admission of Agent Jackson's testimony was also in violation of his rights under the confrontation clause, he did not specifically raise this objection at trial. This claim is therefore reviewed for plain error. Id. See also Fed.R.Crim.P. 52(b), and United States v. Olano, --- U.S. ----, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (where the Court stated: " 'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' " Id. at ----, 113 S.Ct. at 1776, quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834 (1944)). Plain error is that which affects substantial rights, id. Only those errors which "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936), quoted in Olano, --- U.S. at ----, 113 S.Ct. at 1776, constitute plain error which would warrant reversal. Here the admission of Agent Jackson's testimony was not plain error and there was no miscarriage of justice. The defendant was able to fully cross-examine Agent Jackson as well as Smith concerning the recorded telephone calls. In light of the overwhelming evidence in this case, reversal is not warranted.

2. The...