U.S. v. Ogbuehi

• Decision Date: 15 March 1994
• Docket Number: 93-50243,Nos. 93-50109,s. 93-50109
• Citation: 18 F.3d 807
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marizu Jite OGBUEHI, aka Morris Ogbuehi, aka Mariczu Jite Ogbuehi, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Payton Eugene TEAGUE, aka Eugene P. Teague, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 807

18 F.3d 807

UNITED STATES of America, Plaintiff-Appellee, v. Marizu Jite OGBUEHI, aka Morris Ogbuehi, aka Mariczu Jite

Ogbuehi, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Payton Eugene TEAGUE, aka Eugene P. Teague, Defendant-Appellant.

Nos. 93-50109, 93-50243.

United States Court of Appeals Ninth Circuit.

March 15, 1994.

Eugene G. Iredale, San Diego, CA, for defendant-appellant Marizu Jite Ogbuehi.

Debra A. DiIorio, DiIorio & Hall, San Diego, CA, for defendant-appellant Payton Eugene Teague.

John R. Kraemer, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: SNEED, THOMPSON, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Marizu Ogbuehi, Eugene Teague, and Rosalie Williams were arrested by Customs Agents as Teague and Williams attempted to smuggle 2.5 pounds of heroin across the border at the San Ysidro Port of Entry. After his motion to suppress was denied, Teague entered a conditional guilty plea to conspiracy to import heroin (21 U.S.C. Secs. 952, 960, 963), importation of heroin and aiding and abetting (21 U.S.C. Secs. 952, 960 and 18 U.S.C. Sec. 2), conspiracy to possess heroin with intent to distribute (21 U.S.C. Secs. 841(a)(1), 846), and possession of heroin with intent to distribute and aiding and abetting (21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2). Teague appeals the denial of his motion to suppress, arguing that Customs Agents lacked a reasonable suspicion to detain him once he had cleared inspection, even though he was still on Port of Entry property; and that his post-arrest statements were taken in violation of his Miranda rights after he had made an equivocal request for counsel. He also argues that he should be sentenced based only on the heroin he carried rather than the total amount he and Williams carried.

Ogbuehi was convicted by a jury of the same counts. He argues that the district court erred in refusing to examine and require the prosecutor to turn over his notes from pretrial interviews with Rosalie Williams under the Jencks Act, and in admitting "drug courier profile" testimony and testimony regarding the street value of the heroin.

We affirm Teague's convictions and sentence. We remand to the district court so that it can determine in camera whether the withheld notes were "statements" under the Jencks Act, and, if so, whether it was harmless error not to turn them over to Ogbuehi.

I

Ogbuehi, Teague, Rosalie Williams, and Linda Williams (no relation) lived around Atlanta, Georgia. Ogbuehi, a resident alien from Nigeria, recruited Teague and the two Williamses to carry heroin into the United States from Nigeria. Each was recruited separately; none of the three knew of the others when he or she agreed to smuggle the heroin. The recruits met each other for the first time after they arrived in Nigeria. They stayed for approximately two weeks, and, while there, Rosalie and Linda were each given a belt and girdle filled with 1.5 pounds of heroin. Teague got a pair of shoes with a pound of heroin in the soles.

Ogbuehi, Teague, and the Williamses then began their trip back to the United States. Ogbuehi carried no drugs. From Nigeria they flew to Spain, Mexico City and Tijuana, sitting in different parts of the plane to avoid suspicion.

They took a bus to the Port of Entry in Tijuana but left most of their luggage on the bus and walked through the pedestrian inspection areas. Teague walked through separately. The two Williamses walked through a pedestrian lane without incident after showing their Georgia driver's licenses. When inspected, Ogbuehi showed Customs Agent Toothman his green card and told him he was born in Nigeria. Toothman thought that the Williamses and Ogbuehi were a group, and that Ogbuehi appeared "overdressed for the occasion." He therefore sent Ogbuehi to secondary inspection.

In secondary, Ogbuehi told Customs Agent Blackburn he was a Nigerian citizen who lived in Georgia. Ogbuehi was cooperative but repeatedly stated that he had to hurry or he would miss his plane. He also said that he had traveled from Atlanta to Mexico City to Tijuana with some American friends from whom he had been separated.

During the inspection, Blackburn found Ogbuehi's passport which showed numerous trips in and out of Nigeria as well as his recent travels by way of Spain. When asked why he neglected to mention his recent trip to Nigeria and Spain, Ogbuehi said he forgot. When asked about his luggage, he said he left it on the bus.

Customs Agent Proctor overheard this and went outside to question the bus drivers. One driver said that he had two black male and two black female passengers who sat in the back of the bus and left their luggage. When the luggage was brought to secondary, Ogbuehi identified only one of the bags as his and said he did not know who owned the others.

Ogbuehi again said that he was going to miss his plane. When Blackburn examined Ogbuehi's ticket, however, he saw that Ogbuehi's reservations were for a flight that left two days earlier. Proctor then told Toothman to find the two women who had preceded Ogbuehi in line. Toothman went outside the Customs building and saw Teague and Rosalie Williams hugging and kissing. He also saw Linda Williams leave in a car.

Toothman approached Teague and Williams and asked them to come back into the Customs building to clear up some questions about the luggage. When they returned to secondary inspection, Teague and Williams denied knowing Ogbuehi and vice versa. Agent Blackburn, after looking at Williams's and Teague's identification again, noticed that all three were from Georgia. He then found Williams's passport and airplane tickets which showed an itinerary identical to Ogbuehi's. The two were asked again whether they knew Ogbuehi, and they again denied that they did. However, they stated that the remaining luggage belonged to them.

A Customs Agent conducted a pat-down search of Williams and discovered the belt and girdle under her clothes. After a narcotics dog alerted on Williams, the belt and girdle were opened and the heroin discovered. The dog then alerted on Teague. He was strip-searched, and the heroin was found in his shoes. All three were arrested. After her arrest, Williams implicated Ogbuehi as the organizer of the conspiracy. Teague also confessed to his involvement.

II

A

Ogbuehi first argues that the district court erred in refusing to order the prosecutor to turn over statements made by Rosalie Williams before trial. The Assistant United States Attorney ("AUSA") interviewed Williams on two different occasions. Ogbuehi moved for in camera review and production of the notes on the ground that they were "statements" under the Jencks Act, 18 U.S.C. Sec. 3500. ¹ The district court declined to review them unless a foundation were laid that Williams had adopted the notes as her statement.

The AUSA had taken notes of the Williams interviews on his word processor, but represented that they were not "verbatim in the sense of a transcript or a deposition, you know, my question in quotes, her answer in quotes." He also stated that the notes were never shown to Williams. Williams testified that the AUSA would "from time to time" read something back to her and ask if he had it right. She would say, "Yes, that's what I said" or if it were "no," he would correct it. The court rejected Ogbuehi's renewed request for lack of foundation, noting that there was nothing to show that Williams had read the full statement and adopted it or that it was a verbatim statement that she was allowed to review and adopt.

Ogbuehi now argues that this case is controlled by Goldberg v. United States, 425 U.S. 94 (1976). ² We agree. In Goldberg, prosecutors took notes during a witness interview. Id. at 100-01. They "occasionally read [the notes] back to [the witness] to see whether or not they correctly understood what [he was] saying" and he "either correct[ed] them or sa[id], 'Yes, that's right,' or 'No, that's not right because it went this way, I believe,' words to that effect." Id. The Court held that this testimony "raised a sufficient question under the Act to require the trial judge to conduct such an [in camera ] inquiry, and [so] ... a remand for such an inquiry by the District Court is required to determine whether petitioner's motion should have been granted." Id. at 109. Relying on Goldberg, we subsequently held in United States v. Boshell, 952 F.2d 1101, 1105 (9th Cir.1991), that notes which are occasionally read back to a witness to confirm their accuracy before being dictated into a tape recorder constitutes adoption by the witness.

The government relies on the Goldberg concurrences which would have adopted more stringent requirements for the showing needed to prove that a statement is producible and a higher standard for in camera review. The full Court has not, however, embraced this view.

The government also asks us to follow the Fifth Circuit's test that, "[i]n order for interview notes to qualify as a statement under Sec. 3500(e)(1) the witness must have signed, read, or heard the entire document read." United States v. Pierce, 893 F.2d 669, 675 (5th Cir.1990). Since Pierce conflicts with Boshell and relies on the Goldberg concurrences rather than the majority, we cannot follow it. ³ Based on the majority opinion in Goldberg, Ogbuehi laid a sufficient foundation to require in camera review. See also United States v. Rewald, 889 F.2d 836, 867 (9th Cir.1989), cert. denied, 498 U.S. 819 (1990) ("prima facie showing" requires in camera review).

B

Ogbuehi argues that, based on Goldberg, his conviction must be reversed if the district court erred. The government argues that, if the court erred, we need not reverse or remand because the error was harmless. Both views are incorrect. Goldberg requires us to remand so the district court can conduct an in camera review to...