U.S. v. Ojebode, 91-2091

• Decision Date: 30 March 1992
• Docket Number: No. 91-2091,91-2091
• Citation: 957 F.2d 1218
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Folonsho Samuel OJEBODE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1218

957 F.2d 1218

UNITED STATES of America, Plaintiff-Appellee, v. Folonsho Samuel OJEBODE, Defendant-Appellant.

No. 91-2091.

United States Court of Appeals Fifth Circuit.

March 30, 1992.

Jose I. Gonzalez-Falla, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for defendant-appellant.

Kathlyn G. Snyder, Paula Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before REAVLEY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

I.

Folonsho Samuel Ojebode, a Nigerian citizen legally residing in the United States, was indicted for:

Count One: Conspiracy to import in excess of 100 grams of heroin from Nigeria into the United States in violation of 21 U.S.C. § 952(a), 960(b)(2)(A), and 963;

Count Two: Importation in excess of 100 grams of heroin, in violation of 21 U.S.C. § 952(a) and 960(b)(2)(A);

Count Three: Conspiracy to possess with intent to distribute in excess of 100 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846;

Count Four: Possession with intent to distribute in excess of 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B); and

Count Five: Possession of in excess of 100 grams of heroin aboard an aircraft entering the United States, in violation of 21 U.S.C. § 955 and 960(b)(2)(A).

The case was tried to a jury. Ojebode called no witnesses. He moved for acquittal at the close of the government's case-in-chief and the motion was denied. The jury convicted him on all counts.

Ojebode was sentenced to serve concurrent sixty-three month terms in the custody of the Attorney General to be followed by five years supervised release. On appeal Ojebode raises four grounds for relief as follows:

1. The trial court abused its discretion in refusing Ojebode's request for a subpoena duces tecum.

2. The evidence was insufficient to support Ojebode's conviction for conspiracy to import, importation, conspiracy to possess, and possession with intent to distribute.

3. The trial court erred when it instructed the jury on scienter required for conviction for conspiracy to import heroin.

4. The trial court erred when it charged the jury on deliberate ignorance.

We AFFIRM in part and REVERSE and REMAND in part.

II.

On July 22, 1990, Folonsho Samuel Ojebode, a Nigerian national but resident alien of the United States, was a passenger on a Lufthansa flight from Frankfurt, West Germany to Mexico City, with a scheduled stop in Houston, Texas. When the plane landed in Houston, Ojebode and the other in-transit passengers were ordered off the plane while the crew cleaned the cabin. The passengers were directed to a transit lounge where they were to wait under the supervision of airline representatives until they could reboard the plane and continue their flight to Mexico City.

The corridor from the plane to the transit lounge was a "sterile" area with limited access only to passengers arriving from foreign ports. United States Customs Inspectors Clifford Shaefer and Frederick Waters were assigned to the corridor and had stationed themselves at the threshold of the transit lounge in the international corridor. Their duties included the interdiction of contraband and the detection of Customs law violations.

When the flight arrived, the inspectors interviewed various passengers going into the transit lounge. These interviews involved stopping the passengers and inspecting their tickets and passports. Inspector Shaefer observed Mr. Ojebode, the only black person on the Lufthansa flight, walking toward the transit lounge. Shaefer noticed Ojebode because he was carrying an unusually large carry-on bag for a transit passenger. When Ojebode approached, Inspector Shaefer asked to see his passport and ticket. Ojebode showed the inspector a Nigerian passport. Ojebode stated that he had left his airline ticket on the plane. Noting that it was unusual for an intransit passenger to be without a ticket, Shaefer directed Ojebode to Inspector Waters for an interview. Inspector Shaefer continued to screen passengers leaving the Lufthansa flight. In response to questioning, Ojebode stated that he had arrived from Frankfurt where he had been visiting a sick brother and that he had travelled to Frankfurt on a round-trip ticket which he had thrown away. Waters asked Ojebode if he had been anywhere else, and Ojebode told him he had not. Waters inspected Ojebode's passport and noted that he had visited Nigeria and the Ivory Coast in October-November 1989. Waters also noticed that there was no entry stamp on Ojebode's passport to indicate that he had legally travelled to West Germany. When questioned further about his trip, Ojebode stated that he had stayed in the Frankfurt Airport for two days and was denied entry into Germany because he had no visa. According to Ojebode, another brother flew to Germany from Nigeria and gave him a ticket for Mexico. Ojebode explained that he was going to Mexico to meet his wife for a vacation. Inspector Waters became suspicious by Ojebode's responses. Waters and Shaefer escorted Ojebode to a jetway where Shaefer conducted a pat-down search of Ojebode. During the search, Inspector Shaefer noticed that Ojebode's heart beat rapidly and that his stomach seemed unusually hard and protruding. The inspectors also examined Ojebode's carry-on zipper bag and discovered a computer-generated flight itinerary and a temporary entry permit for Mexico. The itinerary did not indicate any stopover in Houston, but it did show that Ojebode had travelled from Lagos, Nigeria to Frankfurt and that he was on his way from Frankfurt to Mexico City. Ojebode's identification in his wallet indicated that he was a Houston-area resident. Ojebode had given no indication to the inspectors that he lived in Houston, Texas. The Customs inspectors thought it unusual for someone living in Houston to be flying directly to Mexico and bypassing his own city. The inspectors observed that Ojebode had very little clothing in his bag and he told them that he had no other luggage. Ojebode was dressed in a loose-fitting shirt and short pants.

After the search, the inspectors removed Ojebode from his flight for further investigation. They informed him that they suspected that he was an internal body carrier of illegal narcotics, and they requested that he consent to be X-rayed at a local hospital. Ojebode refused to sign the consent form for such an X-ray, although he had initially consented to being X-rayed. The inspector transported Ojebode to a local hospital where he was detained pending a monitored bowel movement. At the hospital, Ojebode acceded to the inspector's requests that he sign a consent form to be X-rayed. The X-ray revealed numerous, unusually-shaped objects inside Ojebode's intestine. Ojebode was then admitted to the hospital to permit monitored excretion of these foreign objects. Eventually, he excreted 45 pellets containing 299.6 grams of heroin.

Later, United States Customs Agent Sarah Scott and DEA Agent Floyd Stanley came to the hospital to interrogate Ojebode. Ojebode told the agents substantially the following:

In December 1989, he had travelled to Nigeria to attend a brother's funeral and was introduced to a man named Chuck who offered him money to smuggle heroin. After he expressed interest through a third party, Chuck wrote him a letter in which Chuck instructed him to obtain a visa from the Mexican consulate, so that he could return with the heroin from Lagos to Mexico City. Chuck further instructed him to meet Chuck in Lagos to discuss the details of the smuggling operation.

He purchased a plane ticket from Houston to Lagos to meet Chuck. In Lagos, Chuck told him to deliver the heroin to a man named Santos in Mexico City. Chuck's brother furnished the heroin and the airline ticket to Mexico City to him.

III.

A. DEFENDANT'S REQUEST FOR A SUBPOENA DUCES TECUM.

Ojebode first claims on appeal that the district court abused its discretion in denying his request for a subpoena duces tecum under Fed.R.Crim.P. 17(b).

Prior to trial Ojebode moved the court, for issuance of a subpoena duces tecum at the government's expense, requesting the Regional Commissioner of the United States Customs Service, Southern District of Texas to produce certain documents. The Court denied the request without stating any grounds to support its action.

Fed.R.Crim.P. Rule 17(b) provides:

The Court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon satisfactorily showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense.

Fed.R.Crim.P. Rule 17(c) provides that "[a] subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein."

This Court has generally given district courts wide discretion in determining whether a subpoena should issue under Fed.R.Crim.P. 17(b). United States v. Samples, 897 F.2d 193 (5th Cir.1990).

Rule 17(b), Fed.R.Crim.P., governs an indigent's right to have witnesses subpoenaed at government expense. Of course, the issue is not entirely procedural; it implicates both the sixth amendment right to compulsory process and the fifth amendment protection against unreasonable discrimination based upon the ability to pay. We have long held, however, that, within the limits imposed by the Constitution, "[t]he decision to grant or deny a Rule 17(b) motion is vested in the sound discretion of the trial court." As a threshold matter, an indigent seeking a Rule 17(b) subpoena must allege facts that, if true, demonstrate "the necessity of the requested witness' testimony." The trial court may then exercise its discretion to deny the subpoenas if the...