U.S. v. Idowu
| Decision Date | 12 January 1996 |
| Docket Number | No. 307,D,307 |
| Citation | 74 F.3d 387 |
| Parties | UNITED STATES of America, Appellee, v. Kemi IDOWU, Defendant-Appellant. ocket 95-1110. |
| Court | U.S. Court of Appeals — Second Circuit |
Howard L. Jacobs, New York City (Susan Beth Jacobs, New York City, of counsel), for Defendant-Appellant.
Arthur P. Hui, Assistant United States Attorney, New York City, Jo-Anne Weissbart, Assistant United States Attorney, New York City, (Zachary W. Carter, United States Attorney for the Eastern District of New York City, New York, Peter A. Norling, Assistant United States Attorney, of counsel) for Appellee.
Before: NEWMAN, Chief Judge, CARDAMONE and CABRANES, Circuit Judges.
The defendant, Kemi Idowu, appeals from a judgment entered February 13, 1995, by the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge ), convicting her, after a jury trial, of importation of heroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. Secs. 952(a) and 841(a)(1), and sentencing her principally to imprisonment for 151 months. Idowu challenges that judgment on two grounds. First, she argues that her indictment should have been dismissed on double jeopardy grounds because the civil forfeiture of her property constituted a prior punishment for the same offense. Second, she argues that she was entitled to an adjustment at sentencing for her mitigating role in the offense pursuant to Sec. 3B1.2 of the Sentencing Guidelines and that she should not be subject to the mandatory minimum sentence. For the reasons set forth below, we affirm the judgment of conviction and the sentence imposed.
On March 15, 1994, Kemi Idowu was indicted in the Eastern District of New York on one count of importing heroin into the United States and one count of possession with intent to distribute heroin. She was tried on those charges on August 15, 1994.
The following is an account of the evidence presented by the government at trial. On February 13, 1994, Idowu was arrested at John F. Kennedy International Airport ("JFK") for attempting to smuggle eight kilograms of heroin into the United States from Nigeria. The heroin was found in the defendant's suitcase during a routine examination by the United States Customs Service ("Customs"). According to the testimony of Special Agent Peter Killie, Idowu agreed to cooperate with law enforcement after her arrest.
Killie testified that Idowu told him she received the suitcase from a "Mrs. T" in Lagos, Nigeria, and that she was to travel to her home in Boston from JFK, where she would receive further instructions regarding the delivery of the suitcase. Initially, Idowu claimed not to know the contents of the suitcase. In an attempt to catch others involved in the scheme, agents transported Idowu home to Boston and arranged a so-called controlled delivery. Killie arranged for Idowu to call Mrs. T in Nigeria to tell her that she would be delayed in arriving in Boston. Idowu's calls to Nigeria were conducted in her native Yoruba language. After several unsuccessful attempts to reach Mrs. T, Idowu left a message, telling agents that she had asked Mrs. T to call her in Boston.
Agent Killie testified that he accompanied Idowu to Boston, where they were joined by Special Agents Edward Salvas and Jim Scott. In Boston, Idowu told Killie that half the heroin was for "Daniel" and the other half was for Mrs. T. This was later confirmed by agents who noted that the bags of heroin were labeled with initials on them.
Salvas testified that Idowu consented to a search of her apartment in Boston. Salvas testified that although Idowu told him no money or drugs were to be found in her apartment, the search uncovered approximately $14,993 in cash and $660 in traveler's checks. According to Salvas, when he confronted Idowu about the cash, she admitted carrying cash for Daniel to Nigeria and Chicago on several prior occasions. She also informed Salvas that she was instructed to call Daniel to arrange for delivery of the suitcase in the event she was unable to reach Mrs. T. Salvas testified that Idowu admitted that she had carried cash for Daniel to Nigeria on her most recent trip and that the money found in her apartment was related to drug transactions. He further testified that Idowu told him that she traveled from Boston to Nigeria on January 7, 1994, to attend her sister's wedding and, while she was there, Mrs. T asked her to carry a suitcase back to Boston.
According to the government, Salvas arranged for Idowu to call Daniel, and she spoke with him briefly--again, in Yoruba. Idowu told agents that from her conversation she believed Daniel knew that she had been arrested. However, subsequent transcription and translation of recordings of Idowu's previous phone calls indicated that in her first phone call to Nigeria, Idowu had told her contacts that she had been arrested. Salvas also testified that Idowu told him she had recently purchased a 1993 Nissan Altima. Although Idowu told him that she had shipped the vehicle to Nigeria, agents located the car in a parking lot at Boston's Logan Airport on February 17, 1994. Subsequent investigation revealed that the car had been bought with $16,000 in cash.
Idowu testified on her own behalf at trial, denying the charges against her. She admitted telling contacts during her phone calls to Nigeria that she had been arrested, but she denied telling agents that the heroin was for Mrs. T and Daniel or that she had carried money for Daniel on previous occasions. She claimed that she was simply doing a favor for Mrs. T by carrying what she believed to be a suitcase of food into the United States. She also testified that the Nissan was a gift from her boyfriend. Idowu testified that she supported herself and her son through public assistance, and that the nearly $15,000 in cash found in her apartment had been sent by her parents who are wealthy Nigerians. On August 17, 1994, the jury returned a verdict of guilty on both counts of the indictment. On February 9, 1995, after denying Idowu's motion to dismiss pursuant to Rule 29--which will be discussed in greater detail below--the district court sentenced Idowu principally to 151 months imprisonment, the minimum sentence under the guidelines.
On February 14, 1994, Customs in Boston seized the $14,993 in cash and the $660 in traveler's checks found in Idowu's apartment. Three days later, it also seized the Nissan. By two separate letters dated March 21, 1994, Customs notified Idowu of the seizure of the money and the car. She was informed that the money was subject to forfeiture pursuant to 19 U.S.C. Sec. 1595a(a) (); 21 U.S.C. Sec. 881(a)(6) (); and 18 U.S.C. Sec. 981(a)(1)(B) (). Similarly, the car was seized and subject to forfeiture pursuant to 19 U.S.C. Secs. 1595a(a) (); 21 U.S.C. Sec. 881(a)(6) (); and 18 U.S.C. Sec. 981(a)(1)(A) (). Both letters advised Idowu of the procedures to contest the administrative forfeiture of her property, including the need to file a claim and a cost bond within 20 days of April 21, 1994, and April 22, 1994, respectively. Both notices also advised Idowu that "[u]pon satisfactory proof of financial inability to pay the bond, it would be waived." Idowu did not respond to either of these letters.
By two letters dated May 13, 1994, Customs wrote to Idowu, noting that she had failed to respond to previous correspondence regarding the seized currency and the automobile, and stating that she had until 20 days after May 4, 1994, to file a claim and a cost bond. Again, she failed to do so.
On June 17, 1994, the attorney representing Idowu in her criminal case in the Eastern District of New York 1 wrote to Customs in Boston requesting that the forfeiture proceeding be stayed pending the outcome of the criminal case. In response, Customs sent a letter to defendant and her counsel, dated July 11, 1994, allowing Idowu until August 12, 1994, to file a claim and either a cost bond or a bond waiver request. The letter stated that although Customs would not stay the forfeiture proceeding, if Idowu filed a claim and cost bond (or obtained a waiver), the case would be referred to the U.S. Attorney's office for judicial forfeiture proceedings, and Idowu could renew her request for a stay at that time. Customs also noted that a request for waiver should "include as much information as possible regarding ... Idowu's financial assets and liabilities."
In a letter dated July 28, 1994, Idowu filed a claim for the car, the money, and the traveler's checks with Customs in Boston, claiming that they were neither the proceeds of criminal activities nor were they used in an illegal manner. She also requested a bond waiver, stating simply: On August 22, 1994--five days after the jury returned its verdicts of conviction in her criminal case in the Eastern District of New York--Customs advised Idowu that her request for a waiver of bond had been denied because she had offered insufficient information regarding her financial assets and liabilities. The letter from Customs informed Idowu that she must submit a bond deposit by September 1, 1994, in order to avoid administrative forfeiture pursuant to 19 U.S.C. Sec. 1609. 2
On August 26, 1994, Idowu requested a thirty-day extension of time to obtain money from her family in Nigeria to post the required bond. Customs...
To continue reading
Request your trial
-
Matthews v. US
...in order to have successfully halted the administrative process at this early stage. See 19 C.F.R. § 162.47(e); United States v. Idowu, 74 F.3d 387, 394 (2d Cir.1996). Thus, the Court finds no evidence to establish that the notices and opportunities to be heard were not properly afforded to......
-
U.S. v. Branham
...the question have unanimously concluded that jeopardy does not attach for purposes of double jeopardy. See, e.g., United States v. Idowu, 74 F.3d 387, 394-96 (2d Cir.) (concluding that if no judicial administrative forfeiture proceedings are instituted then no jeopardy attaches), cert. deni......
- United States v. Raymundí-Hernández
-
Fisher v. US
...jeopardy context, the Second, Third, Fifth, Seventh, Eighth, and Ninth Circuits have held that it does not. See United States v. Idowu, 74 F.3d 387, 393-396 (2d Cir.1996); United States v. Sykes, 73 F.3d 772, 773-774 (8th Cir.1996); United States v. Cretacci, 62 F.3d 307, 309 (9th Cir.1995)......