U.S. v. Badru

• Decision Date: 04 October 1996
• Docket Number: Nos. 94-3163,94-3178 and 94-3179,s. 94-3163
• Citation: 97 F.3d 1471
• Parties: , 45 Fed. R. Evid. Serv. 1026 UNITED STATES of America, Appellee, v. Edward Adio BADRU, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1471

97 F.3d 1471

321 U.S.App.D.C. 137, 45 Fed. R. Evid. Serv. 1026

UNITED STATES of America, Appellee, v. Edward Adio BADRU, et al., Appellants.

Nos. 94-3163, 94-3178 and 94-3179.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 3, 1996.

Decided Oct. 4, 1996.

Appeals from the United States District Court for the District of Columbia (Nos. 94cr00025-01 to 94cr00025-03).

Gerald I. Fisher, appointed by the court, argued the cause, for Ishmeal Kolawole Badru. Elaine Lubin, Washington, DC, appointed by the court, argued the cause, for Edward Adio Badru. Sunanda K. Holmes, Silver Spring, MD, argued the cause, for Olutoyin O. Fashina. All were on the joint brief, for appellants. Mary E. Davis, appointed by the court, entered an appearance, for appellant Edward Badru.

Mary B. McCord, Assistant United States Attorney, argued the cause, for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Thomas J. Tourish, Jr. and Eileen C. Mayer, Assistant United States Attorneys, Washington, DC, were on the brief.

Before: EDWARDS, Chief Judge, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

In these appeals from convictions by a jury of conspiracy to distribute heroin and related offenses, appellants raise a host of issues, only a few of which require more than cursory discussion. Finding no basis for the reversal of their convictions or their sentences, we affirm.

I.

Briefly summarized, the government's evidence showed that beginning in the fall of 1991, Ishmeal Badru was in the business of selling large quantities of pure heroin in the Washington metropolitan area. Assisting him were his brother, Edward Badru, and Olutoyin Fashina. The government's investigation began when an undercover agent was introduced to Ishmeal and began a series of contacts that involved audio and video taping of meetings and telephone conversations concerning the importation and sale of heroin. The undercover agent made a series of purchases of heroin beginning in November 1991 and continuing until January 1993. Through various contacts, the agent learned about appellants' scheme through April 1993 to smuggle heroin from Nigeria into the United States through Mexico. Appellants succeeded in importing heroin by recruiting couriers who carried the drugs inside specially made toiletry bags that appellants provided to them.

Ishmeal also informed the undercover agent that in his absence the agent should contact Edward, and the agent had several telephone conversations with Edward and purchased heroin from him. The evidence further showed that Fashina's car, apartment, and telephone were used in the distribution activities, and that he, along with Edward, recruited couriers, arranged for their local and overseas transportation and passports, and retrieved their luggage upon their return to the United States. Edward was arrested in January 1993, when state police stopped the car he was driving and found 351.1 grams of heroin during a search of the car.

Eventually, in the spring of 1993, several of the recruited couriers were arrested upon returning from a trip to Nigeria as they crossed from Mexico into the United States near San Diego, California. Inside the couriers' luggage, customs agents found 5,569 grams of heroin, ranging in purity from 69% to 90%. The couriers agreed to cooperate with the government, and as a result, a controlled delivery was made on April 12, 1993, to Ishmeal's wife at her Maryland apartment. In a search of the apartment, agents found evidence linking appellants to the distribution conspiracy, including bank records, a Nigerian passport, and various documents bearing the names of the couriers and the Badrus. Ishmeal was arrested on October 11, 1993, in a van driven by Fashina, who was himself arrested on December 15, 1993.

In January, 1994, the government indicted appellants for conspiracy to distribute and possess with intent to distribute more than 100 grams of heroin, 21 U.S.C. § 846; numerous individual counts of distribution of heroin, id. § 841(a)(1), (b)(1)(B)(i), (b)(1)(C); distribution of heroin within 1,000 feet of a school, id. § 860(a); and possession with intent to distribute 100 grams or more of heroin, id. § 841(a)(1), (b)(1)(B)(i). A jury found Ishmeal Badru guilty of the conspiracy and six of the substantive heroin trafficking counts; Edward Badru guilty of the conspiracy and four substantive heroin trafficking counts; and Fashina guilty of the conspiracy and two substantive heroin trafficking counts. The district court ordered Ishmeal and Edward to forfeit the proceeds from their activities, and sentenced Ishmeal to 960 months imprisonment and eight years supervised release, Edward to 262 months imprisonment and five years supervised release, and Fashina to 240 months imprisonment and four years supervised release.

II.

Appellants contend that the district court erred in allowing the government to introduce evidence of their involvement in smuggling heroin from Nigeria into the United States through couriers in 1992 and early 1993. They maintain that this evidence should have been excluded as extrinsic evidence of prior bad acts under Rule 404(b) of the Federal Rules of Evidence. ¹ Because we conclude that this evidence was intrinsic to the charged offenses and therefore not within the proscription of Rule 404(b), this contention is ultimately unpersuasive.

At trial, the government offered evidence relating to the couriers' trips to Nigeria as direct, relevant evidence of the conspiracy to distribute heroin. The government maintained that three separate trips in June, September, and December 1992 coincided with occasions when Ishmeal and Edward Badru indicated to the undercover agent that they had new heroin to sell, and that the April 1993 seizure of 5,569 grams of heroin from the couriers constituted direct evidence of the charged offenses. Alternatively, the government argued that the evidence of the smuggling operations was admissible under Rule 404(b). The district court deferred ruling on the admissibility of the evidence until the government had presented some of its evidence at trial. Over defense objection, the district court subsequently ruled that the evidence was relevant. In the district court's words, the government was "trying to demonstrate that this was a part of the conspiracy to distribute. The only way I can distribute heroin is to get heroin." The court rejected defense arguments that the smuggling evidence was unnecessary, prejudicial, confusing, and speculative because the government could not prove that heroin was smuggled on the three trips to Nigeria prior to April 1993. The court concluded that the government had proffered circumstantial evidence that the 1992 trips involved heroin. Although the court indicated willingness to entertain argument again if the evidence became unduly prejudicial, appellants made no request for a formal balancing under Federal Rule of Evidence 403. The court also denied a mid-trial request for a limiting instruction with respect to "other crimes" evidence, on the ground that the evidence was not admitted as Rule 404(b) evidence, but instead was "just coming in as part of the case."

In United States v. Allen, 960 F.2d 1055 (D.C.Cir.), cert. denied, 506 U.S. 881, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992), the court drew the distinction that is relevant here. In Allen, the district court admitted testimony that the defendant was observing his codefendant sell drugs to an undercover officer just minutes before the police executed a search warrant for the house where the charged sale was made. Rejecting the contention that the evidence fell within the ban on "other crimes" evidence under Rule 404(b), the court held that the testimony was "an intrinsic part of the witness' account of the circumstances surrounding the offense for which [the defendant] was indicted...." 960 F.2d at 1058. By contrast, Rule 404(b) excludes evidence that is "extrinsic" or "extraneous" to the crimes charged. Id. Similarly, in United States v. Washington, 12 F.3d 1128, 1134-35 (D.C.Cir.), cert. denied., 513 U.S. 828, 115 S.Ct. 98, 130 L.Ed.2d 47 (1994), the court upheld, as intrinsic to the possession with intent to distribute cocaine charge, the admission of evidence that the defendant, seen on the day of the crime holding his left arm, used an insurance card in someone else's name to obtain treatment for the arm the next day.

Other circuits have reached similar results. The Eleventh Circuit has explained that there exist several forms of "other crimes" evidence that are not considered extrinsic within the meaning of Rule 404(b):

Evidence of criminal activity other than the charged offense is not considered extrinsic if it is an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, if it was inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime of trial....

United States v. Weeks, 716 F.2d 830, 832 (11th Cir.1983) (per curiam) (citations omitted). Likewise, in United States v. Roberts, 933 F.2d 517, 519-20 (7th Cir.1991), the Seventh Circuit held that testimony regarding the recovery of a gun that Roberts used in the armed robbery of a drug store was intrinsic to the charge of armed bank robbery occurring two days earlier. The same distinction between extrinsic and intrinsic evidence is reflected in United States v. Randall, 887 F.2d 1262, 1268 (5th Cir.1989), and United States v. Towne, 870 F.2d 880, 886 (2d Cir.), cert. denied, 490 U.S. 1101, 109 S.Ct. 2456, 104 L.Ed.2d 1010 (1989). As Professors Wright and Graham explain In cases where the incident offered is a part of the conspiracy alleged in the indictment, the evidence is admissible under Rule 404(b) because it is not an "other" crime. The evidence is offered...