U.S. v. Azubike

• Decision Date: 29 April 2009
• Docket Number: No. 08-1493.,08-1493.
• Citation: 564 F.3d 59
• Parties: UNITED STATES of America, Appellee, v. Franklin AZUBIKE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

564 F.3d 59

UNITED STATES of America, Appellee, v. Franklin AZUBIKE, Defendant, Appellant.

No. 08-1493.

United States Court of Appeals, First Circuit.

Heard February 2, 2009.

Decided April 29, 2009.

James H. Budreau, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.

LYNCH, Chief Judge.

After this court vacated a prior conviction and remanded for a new trial, Franklin Azubike was again convicted for conspiring to distribute heroin and possessing heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846. This court had vacated his prior 2006 conviction and had remanded to the district court, finding that although there was sufficient evidence to uphold the jury's verdict, prosecutorial error required a new trial. United States v. Azubike (Azubike I), 504 F.3d 30, 31 (1st Cir.2007). He appeals from his 2008 conviction; this time, we affirm.

I.

The background for this case is detailed in our previous opinion. See Azubike I, 504 F.3d at 32-34. We briefly recount the facts essential to this appeal.

The story begins with a briefcase filled with heroin. The briefcase had been sent by FedEx to Richard Mukasa, a Malden resident, from Solomon Lui, a Sudanese businessman living in Uganda. Solomon had set up a sham courier service for the purpose of importing heroin into the United States. Mukasa had been told by Solomon that he would receive packages containing African arts and crafts, intended for Sudanese refugees in the country; the refugees' relatives would pick up the packages and pay Mukasa a small fee. Mukasa was not aware of the true nature of these shipments.¹

Immigration and Customs Enforcement ("ICE") intercepted the package containing the briefcase in Memphis, Tennessee, on February 13, 2005. The airbill indicated that the contents of the package were "African design cloths," and the briefcase did in fact contain several brightly colored cloths — but the briefcase was also unusually heavy. An x-ray of the briefcase revealed that there were two secret compartments built into its walls. Within these compartments, approximately two kilograms of high-potency heroin were expertly hidden. The wholesale value of the heroin was approximately $120,000.

On February 15, an undercover police officer dressed as a FedEx delivery person delivered the package to Mukasa. After Mukasa signed for the package, he was approached by law enforcement agents from ICE and the state police. He informed the agents that he did not know what was in the briefcase but that he had been suspicious, and he agreed to cooperate with the government.

The next day, at the agents' direction, Mukasa called Solomon; the call was recorded. Mukasa told Solomon he knew what was in the package. He said he had not opened it, but that he had lifted it, and "it was real heavy my friend." Mukasa demanded that Solomon give him more money to compensate for putting him at risk. Solomon agreed to pay Mukasa $1500 for handling the package, and told him a man named "Johnson" would call to arrange the exchange.²

Mukasa received a call from "Johnson," who was later identified as Peter Ike, the following day. Initially confused by the voice, Mukasa asked Ike if he was Solomon; Ike responded, "Not Solomon, Johnson. . . . Yah, sound like Solomon." The two arranged to meet in a movie theater parking lot in Revere, Massachusetts, on February 18. The meeting went according to plan, and Mukasa handed Ike the briefcase in exchange for $1500.

On March 4, 2005, Mukasa received another briefcase from Solomon. This briefcase also contained approximately two kilograms of heroin. That night, Solomon called Mukasa to confirm the package had been delivered; he said "Mike" would call to arrange an exchange. "Mike," who was later identified as Roy Oki, called Mukasa on March 8, and said he would be sending "Franklin" to pick up the briefcase. He indicated that "Franklin" was coming from New York and would call Mukasa when he was nearby.

On March 11, 2005, a Friday, Mukasa received a call from defendant Franklin Azubike, who identified himself as "Al Hajji," his childhood nickname. He asked Mukasa, "Did Mike tell you about me?" Mukasa answered "yes." Azubike told Mukasa that "Mike" had delayed him, but that he was now on his way to Boston. Mukasa, however, told Azubike that the "stuff" was not yet ready; the package was being kept by a friend, and he could not retrieve it until Sunday. Azubike was irritated at the delay, and the two argued about who was at fault. Azubike said he would call Mukasa back. After trying and failing to reach "Mike," Azubike did so, and the two continued to argue.

In a later phone call that day, Azubike continued to press Mukasa for an earlier meeting date. As the argument continued, Mukasa said, "Solomon called me . . . [l]ike ten days ago, and I've been here all the time." Azubike responded, "No, no, no, forget about that. What is going to happen? Forget about what happened." Mukasa then told Azubike that the package would not be available until Monday at noon. Azubike was exasperated, but Mukasa explained that he didn't want his friend, who was keeping the briefcase, "to get involved in this stuff." "I don't want him to be suspicious," he added, "because he doesn't know much about this stuff." Azubike responded: "It's OK, it's OK. You don't have to say that on the phone. . . . Don't say nothing more, don't say anything."

Mukasa later spoke to "Mike," who assured him that his "friend" would be able to pick up the package that Monday. On Sunday, March 13, Azubike called Mukasa and the two agreed to meet the following day around noon. The meeting was to take place in a theater parking lot in Revere.

On Monday morning, Mukasa called Azubike to say he was en route. Shortly thereafter, Azubike told Mukasa he did not like the meeting place they had agreed upon, since there were "no cars" in that parking lot; Mukasa agreed to move the meeting place to the Stop 'N Shop parking lot across the street. Azubike drove into the Stop 'N Shop parking lot in a blue Impala that had been rented in Baltimore under a different name and pulled up next to Mukasa's Jeep. Azubike handed Mukasa $2000 and then retrieved the briefcase from the trunk of the Jeep. He then opened the trunk of his car, placed the briefcase at the back, and rearranged the other luggage in the trunk so the briefcase was not visible. Azubike asked Mukasa for directions out of Boston and left the parking lot, driving south.

Azubike was stopped by Massachusetts state police a short time later, while driving on Interstate 95 South. Questioned by the officer, Azubike said he had come to Boston to visit his cousin and that he had stayed the previous night in the Colonnade Hotel. Pressed further, he was unable to tell the officer what his cousin's name was, and he did not respond when asked where his cousin lived. Azubike never asked why he had been stopped. A search of Azubike and his car revealed, among other things, $490, a receipt for a storage locker in New York, and the briefcase. Azubike was arrested.

In a later search of the New York storage locker, officers found documents containing Ike's phone number. Azubike's telephone records also showed that, between February 1, 2005 and March 14, 2005, there were 175 calls between Azubike and Oki and three calls between Azubike and Ike. Two calls were made from Azubike's cell phone to Oki on March 14, after the briefcase was exchanged, but before Azubike was arrested; six more calls were made from Oki to Azubike the same day, after Azubike was arrested.

After a seven-day trial, Azubike was convicted and sentenced to 120 months' imprisonment. On appeal, this court rejected Azubike's challenge to the sufficiency of the evidence. Azubike I, 504 F.3d at 36-38. However, it vacated and remanded on the grounds of prosecutorial error.³ Id. at 31.

Azubike was tried again. The evidence presented to the jury during this five-day trial was largely the same as that presented in the first trial, with a few minor differences At retrial, Mukasa did not testify as he did in the first trial about certain unrecorded conversations he had with other co-conspirators; he had also testified at greater lengths at the first trial about certain background matters. Moreover, at retrial the government chose not to put on the stand one of its witnesses who had been impeached during the first trial. Defendant also presented witnesses at the second trial who testified that he and Ike were not known to be close.

More importantly, at the retrial, unlike in the first trial, the district court gave the jury a willful blindness instruction. Over defendant's objection, the court instructed the jury:

In deciding whether Mr. Azubike acted knowingly, you may, but need not, infer that he had knowledge of a fact if you find that he deliberately closed his eyes to a fact that otherwise would have been obvious to him. In order to infer knowledge, you must find that two things have been established. First, that Mr. Azubike was aware of the high probability of the fact in question, second, that Mr. Azubike consciously and deliberately avoided learning of that fact; that is to say, that he willfully made himself blind to that fact. . . . [I]t is important to bear in mind that mere negligence or mistake in failing to learn the fact is not sufficient. There must be a deliberate effort to remain ignorant of the fact.

Azubike was convicted on the same counts on February 29, 2008, and was sentenced to 72 months' imprisonment.

II.

Defendant raises three challenges on appeal: (1) that the evidence was not sufficient to support the conviction; (2) that the court erred in giving a willful blindness instruction to the jury; and (3) that the court erred in denying his motion for a new trial. We reject all...