U.S. v. Jinadu

• Decision Date: 17 October 1996
• Docket Number: 95-3900,Nos. 95-3833,s. 95-3833
• Citation: 98 F.3d 239
• Parties: 45 Fed. R. Evid. Serv. 1096 UNITED STATES of America, Plaintiff-Appellee, v. Olayemi Dele JINADU (95-3833), Moruf Omotola Lawal (95-3900), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 239

98 F.3d 239

45 Fed. R. Evid. Serv. 1096

UNITED STATES of America, Plaintiff-Appellee, v. Olayemi Dele JINADU (95-3833), Moruf Omotola Lawal

(95-3900), Defendants-Appellants.

Nos. 95-3833, 95-3900.

United States Court of Appeals, Sixth Circuit.

Submitted Sept. 23, 1996.

Decided Oct. 17, 1996.

Robert Brichler, Asst. U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Cincinnati, OH, for U.S.

Charles H. Schaffner (briefed), Erlanger, KY, for Olayemi Dele Jinadu.

Robert A. Perez (argued and briefed), Cincinnati, OH, for Moruf Omotola Lawal.

Before MARTIN, Chief Judge; CONTIE, Circuit Judge; CARR, District Judge. ^*

CONTIE, Circuit Judge.

Defendant-appellant, Jinadu, appeals his conviction and sentence for conspiracy to import and to distribute heroin. For the following reasons, we affirm. Defendant-appellant, Lawal, appeals his conviction and sentence for conspiracy to import and to distribute heroin and for attempt to distribute heroin. We affirm in part and reverse in part.

I.

On November 16, 1994, a five-count indictment was returned against defendants Moruf Omotola Lawal and Olayemi Dele Jinadu, and coconspirators Sherifkat Obihazar and Ferdinand Obasi. Count One charged that beginning sometime in 1991 until November 16, 1994, the four coconspirators conspired together to import and to attempt to import heroin originating in Bangkok, Thailand into the United States in violation of 21 U.S.C. §§ 952, 960 and 963. The indictment stated that it was part of the conspiracy that Obihazar, a Nigerian citizen, obtained heroin from Bangkok, Thailand and elsewhere and gave it to couriers for transportation to the United States or used the international mails to send heroin concealed within the cover of books. The indictment stated that it was part of the conspiracy that Lawal, Obasi, and Jinadu, who were living in Chicago, received heroin from couriers in Chicago, and traveled to Cincinnati, Ohio to pick up heroin sent from Obihazar to a person known to the grand jury.

Count Two of the indictment charged that beginning sometime in 1994 up to November 16, 1994, the four coconspirators conspired together to distribute heroin in violation of 21 U.S.C. §§ 846 and 841. Count Three charged that on or about October 27, 1994, the four coconspirators attempted to import into the United States in excess of one kilogram of heroin in violation of 21 U.S.C. §§ 952, 960(b)(1)(A), 963 and 18 U.S.C. § 2. Count Four charged that on November 7, 1994, Obasi and Jinadu unlawfully traveled from Illinois to Cincinnati, Ohio with the intent to import and distribute heroin in violation of 18 U.S.C. §§ 1952 and 2. Count Five charged that on November 7, 1994, Obihazar, Obasi, and Jinadu attempted to possess with intent to distribute in excess of one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i), 21 U.S.C. § 846, and 18 U.S.C. § 2.

The facts giving rise to this indictment were as follows. On October 27, 1994, a United States Customs inspector in San Francisco inspected an international mail parcel arriving from Jakarta, Indonesia and found it contained 1029 grams of heroin. The package was addressed to a post office box in Cincinnati, Ohio, and customs and post office officials arranged for a controlled delivery.

On November 2, 1994, Martina Murphy was arrested after she took delivery of the package and was followed back to her residence. Ms. Murphy immediately began to cooperate with the government, advising the United States that her fiance, Obihazar, had arranged for the parcel to be sent to her post office box in Cincinnati under a fictitious name. She received a telephone call from Obihazar about the parcel that day.

On November 3, 1994, the United States Customs Service in Oakland, California seized a second parcel addressed to the same post office box in Cincinnati. This parcel contained approximately 318.5 grams of heroin.

On November 4, 1994, Martina Murphy, acting in an undercover capacity, contacted Obihazar in Bangkok by telephone and advised him that she had received the second parcel. The next day, Obihazar called Ms. Murphy and advised her that his "guy" was in Cincinnati and was staying at the Quality Hotel, room No. 231. Obihazar instructed her to open the second parcel, remove the reference book, take the front and back off the book, and give him (the "guy" in room No. 231) the "things" in black.

Ms. Murphy cooperated with government agents and agreed to set up a controlled delivery of the second parcel, containing 318.5 grams of heroin on November 5, 1994. On that date, defendant Lawal occupied room No. 231 at the Quality Hotel under the fictitious name of Stephen Samuel. Ms. Murphy knocked on the door to the room, and defendant Lawal opened the door and took the package. After the package was delivered, agents from United States Customs, the Drug Enforcement Agency, and the Department of Alcohol, Tobacco and Firearms knocked on the door, entered, and placed defendant Lawal under arrest.

After Lawal was arrested, he initially agreed to cooperate with the United States. He received several telephone calls from Obihazar while at the hotel and was questioned initially by Bureau of Alcohol, Tobacco and Firearms Special Agent Terry Sullivan, and then by U.S. Customs Special Agent Jac Hein. Special Agent Hein died a few months later. Special Agent Sullivan, however, was available to testify at trial about Lawal's admissions made to Hein in his presence. Lawal admitted to Special Agent Hein that he had been to Cincinnati before to pick up packages from Ms. Murphy and that he had given her money for Obihazar in exchange for the packages. Special Agent Hein asked Lawal if he knew that the packages contained "China White" heroin, and Lawal responded, "yes." Agents also found evidence that Lawal had been in telephone contact with Obihazar in Bangkok.

Meanwhile, Ms. Murphy was instructed to stay in contact with Obihazar. She called him and told him that she was scared and wanted the first parcel (the one containing 1029 grams of heroin), which she had previously received on November 2nd, out of her residence. On November 7, 1994, Obihazar telephoned from Bangkok with instructions that coconspirator Obasi would pick up this parcel.

At about 3:30 a.m. on November 7, 1994, Obasi, defendant Jinadu, and Jinadu's girlfriend, Ginger Sanders, arrived in Cincinnati from Chicago in an automobile rented by Jinadu. Obasi called Ms. Murphy and told her that he was at a motel in Cincinnati on Central Parkway and gave her the room number. Customs agents attempted to make a controlled delivery of the package, but at first they went to the wrong hotel. By the time Ms. Murphy arrived at the right hotel where Obasi, Jinadu and Sanders were located, it was after 9 a.m. and they were in the process of checking out. Obasi and Jinadu were immediately arrested, and Ms. Sanders was detained, questioned, and then released. Jinadu had in his possession a cellular phone which had been used en route to Cincinnati to call Obihazar in Bangkok. Jinadu was identified at trial as the person who had leased the phone.

At the time of Jinadu's arrest, his girlfriend, Ginger Sanders, told the agents that she lived at 633 North Sheridan, Apt. 202 in Chicago, Illinois. Agents obtained and executed a search warrant at this residence, which had the name "Sanders" on the mailbox. Agents found suitcases that were cut open with the linings pulled out, along with glue, saws, and other equipment used for altering suitcases.

A trial by jury commenced on February 27, 1995, and ended on March 24, 1995. Lawal was found guilty on all counts of the indictment with which he had been charged: Count One--conspiracy to import heroin; Count Two--conspiracy to possess with intent to distribute heroin; and Count Three--attempt to import one kilogram of heroin on or about October 27, 1994. Jinadu was found guilty on Counts One and Two and acquitted on Counts Three, Four and Five. Codefendant Obasi was acquitted, and coconspirator Obihazar remains a fugitive from justice. Jinadu was sentenced on July 28, 1995 to 121 months in prison on each count to run concurrently. Lawal was sentenced on August 18, 1995 to 120 months on each count to run concurrently. Both defendants filed timely notices of appeal.

Moruf Lawal

II.

Defendant Lawal argues that the testimony of Agent Sullivan about his alleged confession to Agent Hein was hearsay and was erroneously admitted at trial. Agent Sullivan was one of the agents present after Lawal was arrested after the controlled delivery of heroin on November 5, 1994. Agent Sullivan questioned defendant initially. After Agent Hein arrived, he interviewed Lawal. Agent Sullivan remained in the room and listened to the interview. Agent Hein died shortly thereafter. Although he took notes during the interview, the United States was not able to find them. Agent Sullivan testified at trial about the statements of Hein in the questioning of Lawal and Lawal's responses, which he had overheard on November 5, 1994.

In particular, defendant Lawal objects to the following colloquy which took place at trial between the prosecution and Agent Sullivan, who testified as follows:

Q. And do you recall anything that Mr. Lawal was asked concerning the package itself, the content of the package?

A. Yes sir. Agent Hein asked Mr. Lawal if--something to the effect if he knew how much the package weighed, and Mr. Lawal--

MR. PEREZ: Objection, Your Honor. This is hearsay.

THE COURT: He may answer. Proceed.

A. I heard Mr. Lawal answer Agent Hein that he did not know the weight of the package. I think Agent Hein at this time mentioned an amount somewhere over two--

THE COURT: I'll sustain the objection at this point.

MR. BRICHLER: Okay.

Q. Now, did you hear any conversation concerning what was actually in the package?

A. Yes sir. I heard Agent Hein ask--

MR. PEREZ: Same objection.

THE COURT: He may answer.

A. He said...