U.S. v. Asibor
| Decision Date | 27 March 1997 |
| Docket Number | No. 96-60031,96-60031 |
| Citation | 109 F.3d 1023 |
| Parties | 46 Fed. R. Evid. Serv. 1020 UNITED STATES of America, Plaintiff-Appellee, v. Stanley Harrison ASIBOR, also known as Ol Boy, and Ganiu Ladejobi, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Victoria May, Alfred B. Jernigan, Jr., Assistant U.S. Attorneys, Jackson, MS, for U.S Gerald Robert Fry, Houston, TX, for Stanley Harrison Asibor.
Appeals from the United States District Court for the Southern District of Mississippi.
Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.
Stanley Harrison Asibor ("Asibor") and Ganiu Ladejobi ("Ladejobi") (collectively referred to as "Appellants"), appeal their convictions for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and illegal entry into the United States in violation of 8 U.S.C. § 1326(b)(2). Ladejobi also appeals his conviction on two counts of possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1). For the following reasons, we affirm.
In April of 1994, Wayne VanCleave ("VanCleave") and Sammy Pleasant ("Pleasant") were arrested in southwestern Louisiana, by local authorities, for possession of three kilograms ("kilos") of cocaine and a firearm. Subsequently, VanCleave and Pleasant traveled to Lake Charles, Louisiana and met with the local authorities regarding their cooperation in exchange for a lighter sentence. VanCleave and Pleasant were cooperative, but the local authorities discovered that they had no useful information. Thus, at the time VanCleave and Pleasant left Louisiana, no agreement had been reached. Nevertheless, the Louisiana authorities contacted the Drug Enforcement Administration ("DEA") in Jackson, Mississippi, and suggested that VanCleave and Pleasant might be useful informants.
On September 22, 1994, VanCleave and Pleasant were interviewed by two Jackson-based DEA agents, Steve Montachello and Joe Bond. With full knowledge that VanCleave had pled guilty to perjury in state court, the agents formed an agreement with VanCleave and Pleasant in return for their cooperation. 1 As a result of the cooperation agreement, DEA agents recorded two telephone conversations between VanCleave and Asibor. As a result of those conversations, VanCleave sent Jeffrey Dees to Houston to purchase two kilos of cocaine from Asibor. Upon Dees' return, VanCleave and Pleasant informed the DEA agents that only one kilo of cocaine had been purchased; however, in actuality, Dees had received two kilos of cocaine. The proceeds from the sale of the second kilo, $20,000, were hidden in Pleasant's house. Later, VanCleave and Pleasant admitted to purchasing two kilos of cocaine and distributing the second kilo; however, they claimed that the money had been stolen from its hiding place.
On October 21, 1994, during a meeting recorded by DEA agents, VanCleave purchased 29.7 grams of cocaine base (crack) from Ladejobi. Shortly after the meeting, it was discovered that the drug amount was "short." VanCleave telephoned Ladejobi who agreed to make up for the shortage and arranged a second meeting on the same day. The second meeting was also recorded. The two transactions on October 21 form the basis for Ladejobi's additional indictments for possession with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and the resulting convictions.
On November 29, 1994, VanCleave traveled to Houston with DEA agents. He phoned Asibor and the two men agreed to meet at a playground. Asibor arrived on a bicycle and was arrested within minutes. 2 A few days later, Asibor was transported to Jackson, Mississippi.
At the time of Asibor's arrest, a search yielded a pager and a wallet with a Washington State driver's license in the name of Benjamin Quintana. After further investigation, DEA agents were able to discover Asibor's On the following day, DEA agents went to Asibor's residence and spoke with Barbara Asibor, Asibor's wife. Mrs. Asibor acknowledged that Stanley Harrison Asibor was her husband and had been missing for 24 hours. She then signed a written consent form authorizing the agents to search the house. The search of the house yielded birth certificates in the name of Benjamin Quintana and Angel Ortiz, passports from Nigeria and Canada, a personal telephone directory, telephone records, and other personal papers belonging to Asibor.
true identity and place of residence. Apparently, Asibor had been arrested in Jackson, Mississippi, in 1991 for possession of cocaine with intent to distribute.
On December 21, 1994, a seven-count indictment was returned against Asibor, Ladejobi, and three other co-conspirators. 3 The indictment charged Asibor with conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) ("Count I"), and being an alien who had previously been convicted of an aggravated felony and deported and then found in the United States without the express consent of the Attorney General of the United States to reenter the United States in violation of 8 U.S.C. § 1326(b)(2) ("Count VI"). Ladejobi was indicted for conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (also "Count I"), distribution of 29.7 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) ("Count IV"), distribution of 27.1 grams of cocaine HCL in violation of 21 U.S.C. § 841(a)(1) ("Count V"), and being an alien who had previously been convicted of an aggravated felony and deported and then found in the United States without the express consent of the Attorney General of the United States to reenter the United States in violation of 8 U.S.C. § 1326(b)(2) ("Count VII").
On September 7, 1995, the trial court granted Asibor and Ladejobi's motions to sever Count I from Counts VI and VII. On September 29, in the United States District Court for the Southern District of Mississippi, a jury found both Asibor and Ladejobi guilty of conspiracy as alleged in Count I of the indictment. Ladejobi was also found guilty of possession with intent to distribute as alleged in Counts IV and V. The court further found that pursuant to the relevant conduct standard, Ladejobi was responsible for distributing cocaine in an amount equivalent to 1,692.3 kilograms of marijuana. In a separate jury trial, Asibor and Ladejobi were found guilty of illegal entry into the United States in violation of 8 U.S.C. § 1326(b)(2).
Asibor and Ladejobi assign numerous points of error to their trial proceedings. We discuss each of those points below.
Asibor attacks his convictions on Count I and Count VI. Specifically, he argues that: (1) the search of his house violated the Fourth Amendment to the United States Constitution because there was no search warrant and his wife's consent was coerced and involuntary; (2) the evidence was insufficient to support a conviction because the transactions that were the subject of the indictment were with a government informant; (3) taped conversations between him and VanCleave are inadmissable hearsay, since VanCleave was a government informant, and by law not a co-conspirator; (4) the court abused its discretion by not giving the requested jury instruction regarding the buyer-seller relationship between Asibor and VanCleave; (5) the court abused its discretion by not transferring Count VI to Houston; (6) the court committed reversible error in refusing to instruct the jury that if in "good faith" he believed he had the consent of the United States Attorney General to re-enter the country, then Asibor could not be found guilty on Count VI; (7) his deportation hearing was fundamentally unfair and violated the Due Process Clause to the United States Constitution; and (8) his motion for judgment of acquittal should have been granted because on December 8, 1994, the date he is alleged to have committed the offense of being found in the country, he was being held involuntarily in custody.
Ladejobi appeals his convictions on Counts I, IV, V, and VII. He argues that in regard to Counts I, IV, and V, the court reversibly erred by not instructing the jury on his theory that the evidence showed multiple conspiracies rather than a single conspiracy as charged in the indictment; his due process rights were violated by the outrageous conduct of the government in its use of VanCleave as an informant; and the drug charges should be dismissed because the trial court erred in overruling his objections to the evidence offered. As for Count VII, Ladejobi contends the illegal re-entry charge should be dismissed because the court erred in overruling his objections to the evidence offered; the illegal re-entry charge failed to charge an essential element of the crime; the court committed reversible error by failing to instruct the jury that if in "good faith" he believed he had the consent of the United States Attorney General to re-enter the country, he could not be found guilty of illegal re-entry; and the court wrongly assessed the entire amount of drugs to him as relevant conduct at sentencing.
For purposes of this appeal, Ladejobi adopted Asibor's arguments regarding insufficiency of the evidence, the courts decision to admit the hearsay evidence over objection, the courts refusal to give buyer-seller instruction, and the courts refusal to give "good faith" instruction on illegal re-entry charge. Thus, we address these issues contemporaneously.
The standard of review for determining whether there was sufficient evidence to convict a defendant is whether the evidence, when reviewed in the light most favorable to the government with all reasonable inferences and credibility choices made in support of a conviction, allows a rational fact finder to find every element of the offense beyond a reasonable doubt. United States v. Flores-Chapa, 48 F.3d 156, 161 (5th Cir.1995). The evidence is viewed in the light most favorable to the verdict, accepting...
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