U.S. v. Edun

• Decision Date: 08 December 1989
• Docket Number: No. 88-3209,88-3209
• Citation: 890 F.2d 983
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ajibola J. EDUN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 983

890 F.2d 983

UNITED STATES of America, Plaintiff-Appellee, v. Ajibola J. EDUN, Defendant-Appellant.

No. 88-3209.

United States Court of Appeals, Seventh Circuit.

Argued June 1, 1989.

Decided Dec. 8, 1989.

Kristina M.L. Anderson (argued), and Thomas M. Durkin, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Craig J. Katz (argued), Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, CUMMINGS and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

In a bench trial, the district court found the defendant, Ajibola Edun, guilty of the

following offenses: (1) conspiring to import heroin, in violation of 21 U.S.C. Secs. 952(a), 963, and 18 U.S.C. Sec. 2; (2) conspiring to possess heroin with intent to distribute, in violation of 21 U.S.C. Sec. 846; (3) using a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c); and (4) using a communication facility in committing these offenses, in violation of 21 U.S.C. Sec. 843(b). In this appeal, Mr. Edun submits that the government failed to offer sufficient evidence in support of the section 924(c) violation and that the district court erred in crediting the testimony of the government's primary witness. We affirm the defendant's conviction.

I FACTS

A. The Government's Case

The government's primary witness against Mr. Edun was Tessy Akinwande, a Nigerian citizen who had pleaded guilty to transporting heroin into the United States and was a cooperating witness in this case. The defendant did not request that the district court make any special findings. See Fed.R.Crim.P. 23(c). We reconstruct the facts of the case from Akinwande's testimony.

For at least four years before his arrest, Akinwande had worked as an accountant at Galaxy Airways in Lagos, Nigeria, where he met a man named Gabriel Nasal. In January 1988, Nasal introduced Akinwande to Rasaq Balogun. At that first meeting, the three men discussed traveling. Balogun proposed "doing something" for Akinwande and indicated that Akinwande would earn $1,500--the equivalent of three years' salary at Galaxy Airways--if he delivered heroin to Balogun's friend in the United States. Akinwande was interested and agreed to undertake the delivery. He gave his passport to Balogun who promised to obtain a visa for Akinwande. Under their plan, Akinwande would make an initial trip in March; he would not carry any drugs. The purpose of this trip would be to familiarize him with the travel route and to allow him to meet Balogun's friend, Mr. Edun (called George). If all went smoothly, Akinwande would return to the United States in May; this time he would carry heroin.

Balogun met with Akinwande in February and again discussed the approaching trip to the United States. Balogun reiterated that Akinwande would contact and stay with Mr. Edun, who lived in Chicago. On March 1, Balogun visited Akinwande a final time to deliver the promised visa and plane ticket. Balogun also provided Akinwande with Mr. Edun's phone number and instructed Akinwande to call Mr. Edun upon arrival in New York. As directed, Akinwande telephoned Mr. Edun from the New York airport. Mr. Edun informed Akinwande that a ticket was waiting for him at the Midway Airlines ticket counter. Akinwande picked up the ticket and flew to Chicago. He then hired a taxi and was driven to Mr. Edun's home in Calumet City.

Akinwande stayed at Mr. Edun's home for three weeks. The defendant had been in contact with Balogun before Akinwande's arrival and knew the details of Akinwande's future "mission" in May. The pair discussed heroin and the particulars of the May visit. Before Akinwande left, Mr. Edun agreed to make arrangements for Akinwande's subsequent trip to Chicago. Akinwande then returned to Lagos. There he discussed his Chicago experiences with Balogun. Balogun told Akinwande that he would carry heroin on his next trip to the United States.

Approximately two weeks after Akinwande's return to Nigeria, Nasal and Balogun met with him and explained some details of the return trip to the United States in May. To demonstrate how Akinwande would transport the heroin, Nasal swallowed two "balloons"--actually condoms--filled with heroin. The day Akinwande left for the United States, Balogun brought Akinwande ninety-two "balloons" filled with heroin. Akinwande swallowed them all. Balogun then instructed Akinwande to call Mr. Edun upon arrival in New York as he had done on the first trip. Balogun also When he arrived in New York, Akinwande was detained by Customs agents. An X-ray examination administered with his consent revealed his fragile contraband cargo. Akinwande then was taken to a hospital where the balloons were removed safely. He was placed under arrest and subsequently agreed to cooperate with law enforcement authorities. Accordingly, Akinwande made a telephone call to the defendant's number, but Mr. Edun was not home. Akinwande attempted to reach Mr. Edun several more times and spoke with the defendant's wife on each call. In their first conversation, she informed Akinwande that Balogun had called. Akinwande left a telephone number where he could be reached in New York and asked that Mr. Edun call back. When the defendant returned Akinwande's calls, Akinwande reported that he had "got two out." Tr. at 72. Mr. Edun responded that he understood and then directed Akinwande to "[c]ome on with the heroin and help [me] sell it." Tr. at 40. A translated transcript of these phone calls was admitted into evidence.

mentioned that Mr. Edun would pay Akinwande $1,500.

Akinwande then flew from New York to Midway Airport in Chicago. Upon his arrival, he made further recorded telephone calls to Mr. Edun. The defendant eventually met Akinwande at Midway Airport. Akinwande was carrying a bag containing drugs, and he began to discuss the heroin. Mr. Edun quieted him and admonished that they should not discuss that subject in the airport but should get to the car. Akinwande testified that he handed the bag to Mr. Edun as the pair left the airport. When they reached Mr. Edun's car, parked fifteen feet from the building, government agents stopped and arrested them. A search of the car revealed a .38 caliber semi-automatic handgun and ammunition in the trunk. No fingerprints were found on the gun. Title to the car, which had been purchased five days earlier, was held jointly by the defendant and his wife.

At trial, the government also called Drug Enforcement Administration Agent Robert Fanter who testified to the quantity and quality of the heroin seized. Agent Fanter stated that the government seized 122.3 grams of 66% pure heroin, having a street value of more than $98,000; 150.7 grams of 71% pure heroin, having a street value of $120,000; and 37.5 grams of 86% pure heroin, having a street value of more than $30,000. Agent Fanter testified that the total amount of heroin, just over 300 grams, would support a heroin addict's daily use for over two years.

B. The Defense Case

Mr. Edun moved for a judgment of acquittal at the close of the government's case. The motion was based solely upon Mr. Edun's position that Akinwande's testimony lacked credibility. Having determined that there was relevant evidence from which it could find the defendant guilty of each count beyond a reasonable doubt, the trial court denied the motion.

Mr. Edun called one witness. Special DEA Agent Mark Giuffre testified that he saw Akinwande and the defendant leave the airport; Akinwande was carrying the bag containing heroin. Agent Giuffre was unable to say with certainty who was carrying the drugs at the time of arrest, but agreed that it was "clear that nobody ever saw Mr. Edun carrying the bag." Tr. at 100.

II ANALYSIS

A. The Firearms Charge--Sufficiency of the Evidence

1.

Mr. Edun's first contention is that the government failed to present sufficient evidence to sustain a conviction under 18 U.S.C. Sec. 924(c). That statute provided in relevant part:

(1) Whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime,, [sic] be sentenced to imprisonment for five years....

(2) For purposes of this subsection, the term "drug trafficking crime" means any felony violation of Federal law involving the distribution, manufacture, or importation of any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).

18 U.S.C. Sec. 924(c). ¹

At the outset, we note that Mr. Edun bears a heavy burden. In reviewing a sufficiency challenge, "[t]he test is whether, after viewing the evidence in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original).

We recently had occasion to explore the meaning of section 924(c) in United States v. Rosado, 866 F.2d 967 (7th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 117, 107 L.Ed.2d 79 (1989). We noted that "the starting point for our analysis of section 924(c) is the plain language employed by Congress." Id. at 969 (citing Indiana Port Comm'n v. Bethlehem Steel Corp., 835 F.2d 1207, 1210 (7th Cir.1987)); see also United States v. Nash, 876 F.2d 1359, 1362 (7th Cir.1989) (to construe the meaning of Sec. 924(c)(2) the court began with the statute's plain language); United States v. Rawlings, 821 F.2d 1543, 1545 (11th Cir.) ("When examining [section 924(c) ], we must assume that Congress used the words of the statute as they are commonly and ordinarily understood."), cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987). Read in this manner, section 924(c) contains two essential elements. First, the defendant must have used or carried the...