U.S.A. v. Ironrere

• Decision Date: 26 September 2000
• Docket Number: No. 99-3671,99-3671
• Citation: 228 F.3d 816
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Lucky Irorere, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 816

228 F.3d 816 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Lucky Irorere, Defendant-Appellant.

No. 99-3671

In the United States Court of Appeals For the Seventh Circuit

Argued May 19, 2000

Decided September 26, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 245-2--Harry D. Leinenweber, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Flaum, Chief Judge, and Manion and Williams, Circuit Judges.

Flaum, Chief Judge.

Defendant Lucky Irorere appeals his conviction of conspiring to import heroin in violation of 21 U.S.C. sec. 952(a), 21 U.S.C. sec. 963, and 18 U.S.C. sec. 2, as well as his conviction of importing heroin in violation of 21 U.S.C. sec. 952(a) and 18 U.S.C. sec. 2. The defendant argues that the evidence presented at trial was insufficient for a jury to convict him of conspiring to import heroin and importing heroin and that the district court erred in refusing to explicitly instruct the jury that the defendant had to have knowledge of the foreign origins of the heroin in order to be convicted of both charges. The defendant also contends that the district court erred in refusing to appoint a lawyer to represent him at sentencing and in denying his motion for a new trial based on statements made by his alleged co-conspirators during their plea colloquies. In addition, the defendant claims that the indictment issued against him was void because it allegedly lacked the signatures of the grand jury foreperson and an attorney for the government. For the reasons stated herein, we affirm the district court.

I. Background

The charges of which the defendant was convicted stem from an extensive investigation of drug trafficking between Thailand and the United States. As part of this operation, the Drug Enforcement Administration ("DEA") placed Mark Lasyone a cooperating source, in Thailand. Lasyone was eventually introduced to several members of a purported drug trafficking organization, including Haas David Kalusha, also known as Nicholas Onaro, and Onaro's girlfriend, Thiamchan Chiawan.

As part of the drug trafficking investigation in which Lasyone was participating, DEA agents Anthony Thomas and Jeff Johnson posed as Lasyone's contacts in the United States. In addition, the DEA office in Chicago obtained an undercover fax number and two undercover postal addresses to be used as a point of receipt for heroin shipped to the United States. Once these undercover addresses were established, Lasyone informed Onaro that he could arrange locations in the United States that could accept delivery of heroin and subsequently notified Onaro of the existence of the two undercover postal addresses.

Following Onaro's receipt of the undercover postal addresses, two separate shipments of heroin were sent to the United States. On January 22, 1998, a package containing 289.9 grams of heroin arrived at one of the undercover addresses following the receipt of a fax from "David," an alias of Onaro's, indicating that the "samples" had been shipped. A second package containing 310.7 grams of heroin arrived at one of the undercover postal addresses on March 24, 1998. The defendant contacted Agent Thomas shortly after the arrival of both of these shipments.

On March 30, 1998, Chiawan traveled to the United States where she met Agent Thomas, whom she believed to be Lasyone's son-in-law. Agent Thomas and Chiawan planned to deliver the heroin, obtain payment for it, and return to a nearby hotel to meet Lasyone. On the same day that Chiawan arrived in the United States, the defendant contacted Lasyone to inform him that everything had arrived. Although the defendant arranged a meeting between himself, Agent Thomas, and Chiawan for March 31, 1998, that meeting was rescheduled for the following day at the request of the defendant.

After the defendant cancelled the March 31, 1998 meeting, Lasyone became dissatisfied with the defendant's handling of the drug transaction. On April 1, 1998, Lasyone telephoned Onaro to complain about the defendant's conduct. Shortly after this call, Agent Thomas and Agent Johnson arrived at Chiawan's hotel to meet with the defendant. The agents met the defendant in the hotel lobby and then proceeded to Chiawan's room where the defendant and Agent Thomas discussed payment arrangements. When Agent Thomas expressed concern over the defendant's failure to produce any money in payment for the heroin shipment, the defendant responded that he had a long-standing relationship with Onaro and that Agent Thomas should call Onaro to discuss it with him.

In an attempt to break the impasse over the method of payment for the drugs, Agent Thomas called Lasyone and arranged for Lasyone to telephone Onaro. When Agent Thomas informed the defendant that Lasyone was going to contact Onaro, the defendant stated that he had been surprised by Agent Thomas's request for immediate payment and that he would be prepared next time. The defendant also said that he had talked to Lasyone at least twice and that no one had ever mentioned money.

After speaking with Agent Thomas, Lasyone telephoned Onaro in Thailand and complained that the defendant had not brought any money with him to the exchange. Although Onaro agreed that it was Agent Thomas's decision as to whether the transaction would proceed, Agent Thomas eventually relented and decided to go forward without payment in advance. Agent Thomas then sent Agent Johnson to retrieve a package that was purportedly filled with heroin. When Agent Johnson returned, the package was shown to the defendant and placed in the defendant's duffel bag. The defendant was arrested as soon as he took possession of the heroin.

Following his arrest, the defendant waived his Miranda rights and gave a post-arrest statement to the government. In that statement, the defendant said that he was first contacted by an associate who gave him Onaro's phone number and who told him that David in Thailand was trying to contact him. The defendant also described various aspects of the heroin shipment from Thailand to the United States and admitted that he traveled to Chicago to pick up the drugs that Onaro sent from Thailand.

On October 12, 1999, the defendant was convicted of conspiring to import heroin in violation of 21 U.S.C. sec. 952(a), 21 U.S.C. sec. 963, and 18 U.S.C. sec. 2, as well as importing heroin in violation of 21 U.S.C. sec. 952(a) and 18 U.S.C. sec. 2. Based on these convictions, the defendant was sentenced to one hundred months in prison. The defendant now appeals, alleging various errors on the part of the district court during both the guilt and sentencing phases of trial.

II. Analysis

A. Sufficiency of the Evidence

At trial, the defendant made a motion for a judgment of acquittal, arguing that the government did not present sufficient evidence to prove beyond a reasonable doubt that he conspired to import the heroin in question or that he imported it. "Challenging the sufficiency of the evidence is an uphill battle and the defendant bears a heavy burden." United States v. Wallace, 212 F.3d 1000, 1003 (7th Cir. 2000). In reviewing the defendant's sufficiency of the evidence claim, "[w]e consider the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor." United States v. Frazier, 213 F.3d 409, 416 (7th Cir. 2000). As an appellate court, we will not reweigh the evidence presented or second-guess the jury's credibility determinations. See United States v. Alcantar, 83 F.3d 185, 189 (7th Cir. 1996) ("Questions of witness credibility are reserved for the jury, and its assessment will not be second-guessed by an appellate panel."); United States v. Hubbard, 22 F.3d 1410, 1415 (7th Cir. 1994). "'Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.'" United States v. Lundy, 809 F.2d 392, 396 (7th Cir. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979) (stating that the test for the sufficiency of the evidence is "whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt") (emphasis in original).

Initially, we want to emphasize that the evidence presented at trial was clearly sufficient to establish that the defendant's participation in Onaro's drug trafficking activities was more substantial than the kind of buyer-seller relationship that this Court has rejected as the basis for a conspiracy charge. See United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993) (en banc) (holding that evidence of a mere buyer-seller relationship does not support a conspiracy charge). As early as February 16, 1998, more than a month before the heroin at issue was mailed to the United States, the defendant mentioned his relationship with Onaro to Agent Thomas and alluded to the proposed heroin deal. The defendant admitted of his ongoing relationship with Onaro during subsequent conversations with DEA agents when he stated that he knew "David" and that he had been working with him, and Onaro's willingness to allow the defendant to sell the drugs on consignment reflects the existence of a prior and ongoing relationship of trust, a fact which can be evidence of a conspiracy, see United States v. Ferguson, 35 F.3d 327, 331 (7th Cir. 1994) ("[E]vidence of providing [drugs] 'up front' may establish the existence of a conspiracy . . . because it indicates cooperation and trust rather than an arm's length retail-type sale."). This evidence is sufficient for a rational jury to find that the defendant both agreed to participate in the relevant heroin transaction and assisted in that transaction, and we therefore reject the defendant's sufficiency of the evidence claim insofar as he contends that he participated...