U.S. v. Jackson

Decision Date07 June 1995
Docket NumberNos. 94-3315,94-3336,s. 94-3315
Citation55 F.3d 1219
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lucky A. JACKSON, a/k/a Lucky Aletor (94-3315); Richard Akhibi (94-3336), Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Joseph P. Schmitz, Asst. U.S. Atty. (argued and briefed), Cleveland, OH, for U.S.

Debra M. Hughes (argued and briefed), Federal Public Defender's Office, Cleveland, OH, for Lucky Jackson.

Jacqueline A. Johnson, Fed. Public Defender (argued and briefed), Cleveland, OH, for Richard Akhibi.

Before: MILBURN and NORRIS, Circuit Judges; MILES, District Judge. *

MILES, District Judge.

Defendants Lucky A. Jackson, also known as Lucky Aletor ("Jackson") and Richard Akhibi appeal their convictions and sentences for drug charges arising out of the controlled delivery of a package containing heroin. Jackson challenges the district court's denial of his motion to suppress, as well as the denial of his request for a minor participant reduction of his guideline sentence. Akhibi challenges the sufficiency of the evidence to support his convictions. For the reasons to follow, we AFFIRM.

I

On September 27, 1993, in Lagos, Nigeria, a package was turned over to an international shipping company, DHL Airways ("DHL"), for delivery to the United States. The package bore the delivery address of Rev. Peter Akhibi, 14100 Bardwell Avenue, East Cleveland, Ohio 44112, U.S.A. The return address on the package was Mrs. Pat Akhibi, Block 2, Flat 1, Festac Town, 41 Road, Lagos, Nigeria. The package was to be delivered within four business days of its shipping date.

On September 28, 1993, a British customs official stationed at London's Gatwick Airport found the package suspicious and selected it for a manual examination. The official's suspicion was based on the package's origin (a country known as a source for illegal drugs) and on its weight, which was unusually heavy for the description of its contents, a photograph. The package was x-rayed, revealing something concealed inside the frame. The package was then opened, and two plastic bags containing 50 to 80 grams of a white powder were found in a hollowed-out portion of a wooden picture frame. A drug field test was positive for heroin.

The contents of the parcel were photographed, the suspected drugs were placed in a sealed bag, and these items were forwarded to the Cleveland office of the United States Drug Enforcement Administration ("DEA"). DEA made plans for a controlled delivery of the drugs. Under the authority of a search warrant, the package was reopened. The DEA agent assigned to the case removed most of the 80.5 grams of white powder which had been originally contained in the package and substituted an equivalent amount of a sham substance, adding to the sham substance a few grams of the original heroin. The agent then reassembled the contents of the package in preparation for a delivery.

On October 1, 1993, the same day the package was being prepared for a controlled delivery, a male caller contacted DHL regarding the package. The caller complained of nondelivery and provided the DHL representative with detailed information about the package. The caller left the name of Lucky Aletor and described himself as a nephew of the addressee, the Reverend Akhibi. At trial, the evidence was undisputed that it was in fact Akhibi who made this call.

On October 4, 1993, law enforcement officers obtained a search warrant in anticipation of the controlled delivery. The warrant authorized a search of the Bardwell address not only for the package, but also for other evidence of drug activities, including other controlled substances, drug implements, drug paraphernalia, firearms, and documents related to drug activities or tending to establish the identity of the persons in control of the premises. The affidavit submitted in support of the warrant specifically stated the circumstances under which the warrant would be executed:

On October 4, 1993, a controlled delivery of the above described DHL package will be attempted at 14100 Bardwell Avenue, East Cleveland, Ohio, 44112 by Special Agents of the United States Customs Service, U.S. Drug Enforcement Administration, and local police. If the package is successfully delivered and taken inside the residence, a Federal search warrant will be executed shortly thereafter. The warrant will be executed if, and only if, the package is accepted and taken inside the subject premises.

Law enforcement personnel made the controlled delivery on October 4, 1993. Shortly before the delivery, a DHL employee acting at the behest of the DEA telephoned the Bardwell address and spoke to Akhibi, informing him that the package would be delivered that morning at 11:00 a.m.

At approximately 11:30 a.m. on October 4, 1993 special agent Nathan LaVoie of the United States Customs Service travelled to the Bardwell address, dressed in DHL delivery garb, to deliver the package. As LaVoie left his vehicle, Akhibi was standing at the front door of the residence apparently anticipating the package's arrival. When LaVoie told Akhibi he had a delivery for "Reverend Peter Akhibi," Akhibi responded that he would sign for it and that he had just called to ask about the package. LaVoie then told Akhibi to sign and print his own name on the delivery form. Akhibi did sign the form 1 but printed the name of "Peter Akhibi" instead of his own name.

Akhibi took the package inside the residence. Minutes later, a S.W.A.T. unit entered the home. Sergeant Alliston Moreland, the leader of the S.W.A.T. unit, announced the entry by shouting, "police, search warrant." Moreland then entered the residence and saw two men running at full speed pace towards the rear of the home. DEA agents positioned at the rear of the home apprehended both defendants. At the time he was apprehended, Jackson was in possession of the package and was attempting to climb a backyard fence. Akhibi was at the rear door of the home at the time he was apprehended.

Police searched the home after securing the premises, approximately 20 to 25 minutes after the S.W.A.T. unit's entry. Various items indicative of drug trafficking were seized during the search, including 27 individual packets of marijuana, a large quantity of small plastic bags, a hollowed-out library book, a DHL shipping envelope, and a pager. Personal documents and identification belonging to Akhibi and Jackson were also seized, as were documents bearing a telephone number, 2 the same Nigerian address which had appeared on the DHL package, and the name "Osato Igbanugo." Finally, also seized was a handwritten letter directed to "Osato" from "Richard" or "Ricardo," undisputedly defendant Akhibi. In the letter, Akhibi stated that "[t]his is the best I could come up with" and instructed Osato to "try and make it a hundred and forward it to the address I gave you." Akhibi also stated that "I promise you, no matter how much you borrow ... I should send enough to cover everything." Akhibi further disclosed that he had "never gone this far before" and stated that he trusted Osato to "handle it with the utmost care."

Akhibi and Jackson were charged in a four-count indictment returned on October 27, 1993. Counts One and Two of the indictment charged the defendants with attempting to possess, with intent to distribute, and with attempting to import approximately 75 grams of heroin, in violation of 21 U.S.C. Secs. 841(a)(1), 846, 952(a), 960(a)(1), and 963, and 18 U.S.C. Sec. 2. Count Three charged the defendants with possession with intent to distribute 2.5 grams of heroin, the amount left in the package upon delivery, in violation of 21 U.S.C. Sec. 841(a)(1). Count Four charged the defendants with possession with intent to distribute approximately 30 grams of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1).

Jackson filed a motion to suppress the evidence seized during the October 4, 1993 search. The district court denied the motion. Later, on a motion for reconsideration filed by Jackson, the district court granted suppression of oral statements made by Jackson, but denied his request for suppression of the seized items.

Both defendants were tried before a jury. At the close of the government's case, the district court denied Jackson's motion for judgment of acquittal. However, it granted Akhibi's Fed.R.Crim.P. 29 motion in part, dismissing Count Four, the marijuana charge, as to him. The jury found both defendants guilty on all remaining counts.

Akhibi testified in his own defense at trial. A former medical student in his native Nigeria, Akhibi travelled to the United States in August, 1993 to live with his cousin, defendant Jackson, and aunt at the latter's home on Bardwell in East Cleveland. Akhibi described escalating violence and turmoil, including the military's shutdown of the universities, taking place in Nigeria before his departure. He denied knowledge of the true contents of the DHL package and gave the following explanation for his receipt of the package. In the days before he left Nigeria, he was approached by an old friend, Anthony Osato, who asked if Akhibi would perform a favor. 3 Osato's cousin had a brother who was an "activist" who had fled the military in Nigeria. The exiled brother was living in the United States. However, his pregnant wife had remained behind in Nigeria, and had given birth to a baby in her husband's absence. Osato asked Akhibi to take a picture of the baby to the exile, and Akhibi agreed to do so.

Akhibi explained that although he was shown the infant's photo when approached by Osato, he did not take it with him upon leaving Nigeria. He explained that Osato's cousin wanted to write a letter to include with the photo, and he, Akhibi, planned to retrieve both at a later time. However events transpired, he claimed, which prevented him from obtaining the photo. Direct flights to the United States from Nigeria became unavailable....

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