U.S. v. Eke, s. 96-1190

• Decision Date: 02 June 1997
• Docket Number: 96-1191 and 96-1320,Nos. 96-1190,s. 96-1190
• Citation: 117 F.3d 19
• Parties: UNITED STATES of America, Appellee, v. Valentine EKE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Obinna EGBOUDIKOGU, Defendant, Appellant. UNITED STATES of America, Appellee, v. Anthony NWOKEJI, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 19

117 F.3d 19

UNITED STATES of America, Appellee, v. Valentine EKE, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Obinna EGBOUDIKOGU, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Anthony NWOKEJI, Defendant, Appellant.

Nos. 96-1190, 96-1191 and 96-1320.

United States Court of Appeals, First Circuit.

Heard June 2, 1997.

Decided July 8, 1997.

Alan D. Rose, Boston, MA, by Appointment of the Court, with whom Rose & Associates was on brief, for appellant Valentine Eke.

John Salsberg, Boston, MA, by Appointment of the Court, with whom Alan D. Campbell and Salsberg, Cunha & Holcomb, P.C. were on brief, for appellant Anthony Nwokeji.

Richard E. Bachman, Elmwood, MA, by Appointment of the Court, for appellant Obinna Egboudikogu.

Deborah Watson, Criminal Division, Appellate Section, Department of Justice, with whom Donald K. Stern, Boston, MA, United States Attorney, was on brief, for the United States.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

Obinna Egboudikogu, Valentine Eke, and Anthony Nwokeji were indicted on charges of importing heroin into the United States, 21 U.S.C. § 952(a) and 18 U.S.C. § 2, and conspiracy to import, 21 U.S.C. § 963. Egboudikogu and Nwokeji pled guilty, and Eke was convicted following a trial. On appeal, Eke makes various claims of trial error, including a challenge to the sufficiency of the evidence. All three defendants dispute the district court's sentencing calculations.

The defendants are Nigerian citizens who resided or did business in Boston or New York. According to the government, the defendants recruited couriers to travel to Asia, where the couriers would receive heroin and then return with the drugs to Boston. The government offered evidence concerning three specific importation efforts between August and November 1994 involving different couriers. We describe the evidence in the light most favorable to the verdict. United States v. Smith, 46 F.3d 1223, 1226 (1st Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 176, 133 L.Ed.2d 116 (1995).

In August 1994, Nwokeji and Egboudikogu offered to pay Lamaria Hurt $10,000 to travel to Hong Kong and Singapore; they told her that she would bring back clothes and documents but that no drugs would be involved. When Hurt agreed, Egboudikogu helped her obtain a passport, and Nwokeji and Egboudikogu provided her with an airline ticket. Hurt left Boston for Singapore in September 1994. She traveled on to Malaysia, where she ultimately received a bag whose lining was packed with a substance; at trial, she said that the substance was heroin, although she did not actually see it. Hurt returned to Boston on September 14 and gave the bag to Nwokeji and Egboudikogu, who said that Egboudikogu would be going to New York "to get rid of the stuff." They later paid Hurt $10,000.

Next, in late September or early October 1994, Nwokeji and Egboudikogu arranged a second trip, offering a woman named Bethany Dagen $10,000 to travel overseas. They helped Dagen obtain a passport and purchased her airline ticket. On October 9, Dagen flew from Boston to Hong Kong and then to Manila, where she received an oversized children's book. On October 28, Dagen was searched at Detroit airport, en route to Boston, when customs officials detected a powerful glue odor from the book. They found 229.9 grams of heroin concealed in the book's cover. Dagen was arrested and agreed to cooperate.

Meanwhile, a third trip had been planned using a third courier, Mona Lisa Smith-Mixon. In October 1994, Egboudikogu and Eke went to a travel agency in New York, and Egboudikogu bought an airline ticket from Florida to Hong Kong in the name of a third person. Eke picked up the ticket several days later, and thereafter requested two name changes on the ticket, each time paying a ticket-change penalty of $200. The travel agency finally issued the ticket to Smith-Mixon and delivered it to Egboudikogu. Egboudikogu and Nwokeji offered Smith-Mixon $5,000 to make the trip and helped her obtain a passport, but Smith-Mixon ultimately refused to go.

As for Dagen, she returned to Boston after her arrest in Detroit and (at the direction of federal agents) arranged to meet with Nwokeji and Egboudikogu to deliver the children's book. On November 5, 1994, wearing a recorder, she met Egboudikogu in a Boston restaurant. Egboudikogu told Dagen that she had not received all the heroin that she was supposed to get in Asia. He also said that his partner, who had just come from Houston, was waiting at a nearby Dunkin' Donuts store, would give her partial payment of her fee, and would be distributing the heroin in New York.

When Egboudikogu started to leave the restaurant to get his supposed partner, he was arrested. Two agents then went to the nearby Dunkin' Donuts shop, where they saw Eke and questioned him. He was the only customer sitting at a table and a priority mail envelope from Houston, addressed to Eke, was sitting on his table. When Eke admitted that he had just been with Egboudikogu, he was arrested. Nwokeji was arrested later that evening.

A grand jury returned a three-count indictment, which set forth two substantive counts of drug importation or attempted importation (based on the trips by Hurt and Dagen) and one count of conspiracy to import, spanning the time from August 1994 until the defendants' arrests. Egboudikogu and Nwokeji were charged in all three counts; Eke was charged only in the Dagen importation count and the conspiracy count. Egboudikogu and Nwokeji pled guilty to all counts and were each sentenced to 108 months' imprisonment. Eke was convicted on both counts by a jury and was sentenced to 84 months' imprisonment. These appeals followed.

1. We begin with Eke's challenge to his conviction. At trial, Eke argued that he was an innocent businessman "whose only sin was associating with one of the conspirators [Egboudikogu]." On appeal, he renews this claim, arguing that the evidence was insufficient to sustain his conviction. To prevail Eke must show that, viewing the evidence most favorably to the government, a rational jury could not have found him guilty beyond a reasonable doubt. United States v. Valerio, 48 F.3d 58, 63 (1st Cir.1995).

Perhaps the strongest single piece of evidence against Eke was Egboudikogu's statement to Dagen (recorded on audiotape) that his "partner" in the nearby Dunkin' Donuts shop would be distributing the heroin in New York and would provide Dagen with part of her payment for making the smuggling trip. The companion turned out to be Eke. As a threshold matter, Eke argues that this statement by Egboudikogu was inadmissible hearsay.

The district court admitted the tape recording as a co-conspirator's statement. Fed.R.Evid. 801(d)(2)(E). That hearsay exception required the government to prove by a preponderance of evidence, apart from using the statement itself, that (1) a conspiracy existed between the declarant (Egboudikogu) and the defendant (Eke), and (2) the statement was made "during and in furtherance of the conspiracy." United States v. Sepulveda, 15 F.3d 1161, 1180-82 (1st Cir.1993), cert. denied, 512 U.S. 1223, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994). The district court's findings of fact on both points are reviewed for clear error. Id. at 1180.

If an importation conspiracy existed and included Eke, Egboudikogu's statements to Dagen about his "partner's" role were made during and in furtherance of the conspiracy: Egboudikogu's references to his partner were aimed at persuading Dagen to hand over the heroin-laden book so that delivery of the drugs to New York could be completed. See United States v. Leal, 831 F.2d 7, 9-10 (1st Cir.1987). There was also considerable evidence, independent of the statement, suggesting that Eke was a member of the conspiracy.

First, Eke accompanied Egboudikogu when the latter purchased an airline ticket for travel to Hong Kong in the name of a third person, and Eke himself had the name on the ticket changed to Smith-Mixon, who had been recruited by Egboudikogu and Nwokeji to serve as a courier. In these dealings with the travel agency, Eke twice paid the $200 name-change fee in cash; and in each case Eke gave the travel agency a modified version of his middle name, rather than his true last name. Eke also accompanied Egboudikogu to the meeting with Dagen and waited nearby.

Second, the government also presented evidence concerning several entries in Eke's pocket diary, which was seized upon his arrest. That diary listed the phone number of Nwokeji, who in turn had Eke's pager number. Eke's diary also included the names of "Jeff Obi," an alias used by Egboudikogu when recruiting couriers; Anthony Isiamah, who allegedly served as a contact in Bangkok for Egboudikogu; and Beth Freeland, a friend of Dagen. While Dagen was in Manila on her trip, she had telephoned Nwokeji and Egboudikogu and asked them to send money to Freeland in order to pay Dagen's rent.

Third, the operator of a New York business that sends and receives international calls for customers testified that Eke received a fax from Thailand sent by someone named "Chris." A Nigerian also named "Chris" had delivered heroin from Bangkok, Thailand, to Manila, where he gave it to Dagen concealed in the children's book. There was no further indication of the identity of the person who sent the fax or the contents of the fax.

The evidence just described adequately supports the district judge's ruling, by a preponderance of the evidence, that Eke was a member of the conspiracy. This made the hearsay statement admissible. And, adding the hearsay statement to the evidence just described, the cumulative evidence was more than adequate to permit a rational jury to conclude beyond a reasonable doubt that Eke was a member of the conspiracy and had participated in the Dagen importation. See United States v. Andujar, 49 F.3d 16, 21-22 (1st Cir.1995).

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