U.S.A. v. Salimonu

• Decision Date: 07 July 1999
• Docket Number: No. 97-1557,97-1557
• Citation: 182 F.3d 63
• Parties: (1st Cir. 1999) UNITED STATES, Appellee, v. OLADIPO SALIMONU, Defendant, Appellant. Heard March 2 1999
• Court: U.S. Court of Appeals — First Circuit

Page 63

182 F.3d 63 (1st Cir. 1999)

UNITED STATES, Appellee, v. OLADIPO SALIMONU, Defendant, Appellant.

No. 97-1557

United States Court of Appeals for the First Circuit

Heard March 2 1999

Decided July 7, 1999

[Copyrighted Material Omitted] Kimberly Homan with whom Sheketoff & Homan and John L. Roberts, by appointment of the Court, were on brief for appellant.

Jennifer Zacks, Assistant United States Attorney, with whom Donald K. Stern United States Attorney, was on brief for appellee.

Before Stahl, Circuit Judge, Magill,^* Senior Circuit Judge, and Lipez, Circuit Judge.

STAHL, Circuit Judge.

After a 14-day trial, a jury found defendant-appellant Oladipo Salimonu guilty on eight counts, including, inter alia, conspiracy to import heroin. He appeals the convictions on several grounds. After a careful review of the record and Salimonu's arguments, we affirm.

I. Background

We sketch the facts in the light most favorable to the verdict. See United States v. Cunan, 152 F.3d 29, 32 (1st Cir. 1998). Salimonu was involved in a conspiracy with Christopher Perry, Ralph Petrosino, Kim McKinnon, and others to import heroin from Thailand. Salimonu and Perry had known each other since about 1988. Beginning in 1990, Perry and Salimonu had several conversations about smuggling drugs and recruiting couriers. Perry recruited Petrosino and McKinnon to act as drug couriers, and introduced Salimonu to them as "Laddie." In May 1992, Petrosino traveled to Bangkok, Thailand, where "Laddie" called him several times at his hotel. Petrosino was given a suitcase, which he brought to McKinnon in Jakarta, Indonesia. "Laddie" called McKinnon at her hotel every day she was in Jakarta. McKinnon subsequently traveled to Boston with the suitcase, where customs agents inspected it and found four kilograms of heroin. McKinnon immediately agreed to cooperate with the customs agents, and that night the agents recorded phone conversations between "Laddie" and McKinnon. The agents then accompanied McKinnon to O'Hare Airport in Chicago, where they arrested Perry, who also agreed to cooperate. Agents arrested Petrosino a few days later, in Chicago. Thereafter, agents recorded a phone conversation between Petrosino and "Laddie."

On September 16, 1992, a grand jury returned an indictment against Salimonu for conspiracy to import heroin, in violation of 21 U.S.C. §§ 963, 952(a); importation of heroin, in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2; conspiracy to possess with intent to distribute, and conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841, 846; possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and unlawful use of a communications facility (the telephone) to facilitate the drug offenses, in violation of 21 U.S.C. § 843(b).

Salimonu was arrested on July 27, 1993. After the arrest and while Salimonu was in custody, customs agents conducted a warrantless search of his apartment, relying upon the consent of a third party.

On December 15, 1995, more than two years after his first appearance in court, Salimonu moved for his indictment to be dismissed with prejudice, alleging violations of both the Speedy Trial Act ("STA") and his Sixth Amendment right to a speedy trial. The district court denied this motion, ruling that most of the time that had elapsed was excludable from STA calculations. Trial began on November 11, 1996.

At trial, Petrosino, McKinnon, and Perry, all of whom had entered plea agreements, identified Salimonu as "Laddie" and testified against him. Their testimony was corroborated by, inter alia, phone records discovered through a phone contract discovered during the search of Salimonu's apartment, and by recordings of the phone conversations between McKinnon and "Laddie" and between Petrosino and "Laddie." Salimonu moved to suppress the phone records and other documentary evidence seized in the search; the district court denied the motion. Salimonu also attempted to introduce expert testimony that the voice in the taped recordings was not his, but the district court excluded the testimony.

On December 6, 1996, a jury found Salimonu guilty on all counts. He was sentenced to 264 months' imprisonment followed by 60 months' supervised release.

On appeal, Salimonu challenges his conviction on five grounds: (1) he was denied his rights under the STA; (2) he was denied his Sixth Amendment right to a speedy trial; (3) evidence used to convict him was illegally obtained in a warrantless search of his apartment that violated the Fourth Amendment; (4) the district court improperly excluded expert testimony from evidence; and (5) the evidence was insufficient as a matter of law to establish his guilt beyond a reasonable doubt.

We discuss each issue in turn, setting forth additional relevant facts as necessary.

II. Speedy Trial Act

Salimonu claims that the STA, 18 U.S.C. §§ 3161-3174, was violated by the delays in bringing his case to trial, and that the district court should therefore have dismissed his indictment. This court reviews an STA determination "for clear error as to factual findings and de novo as to legal rulings." United States v. Santiago-Becerril, 130 F.3d 11, 15 (1st Cir. 1997) (citation omitted).

Section 3161(c)(1) of the STA dictates that a defendant be tried within seventy days of the indictment or the date of defendant's first appearance, whichever comes later. See 18 U.S.C. § 3161(c)(1). Section 3161(h), however, mandates the exclusion of certain periods of delay in calculating these seventy days, including some delays resulting from pretrial motions. See 18 U.S.C. § 3161(h).

Here, the relevant dates and proceedings are generally not in dispute. Salimonu made his initial appearance in the district court on September 3, 1993. Salimonu moved for a bill of particulars and for further discovery relating to cooperating witnesses on October 4, 1993. On November 11, 1993, without a hearing, the magistrate judge denied these motions. On December 9, 1993, Salimonu moved for reconsideration of the magistrate's November 11 orders in the district court, and requested a hearing on the motions. The district court took no actions on Salimonu's motions for reconsideration and did not schedule a hearing for either motion. Two years later, on December 15, 1995, Salimonu moved to dismiss the indictment against him with prejudice, asserting violations of the STA.

The parties are not in dispute that, as of December 8, 1993, fewer than 70 non-excludable days had elapsed. Thus, the merits of Salimonu's STA motion turn on whether the time period beginning December 9, 1993, when Salimonu made two motions for reconsideration, is excludable for STA purposes. On June 29, 1996, more than six months after Salimonu had filed his motion to dismiss the indictment, the district court ruled that the time between the filing of Salimonu's motions for reconsideration on December 9, 1993 and the hearing on those motions, which it scheduled for August 2, 1996, was excludable under section 3161(h)(1)(F). That section excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(F). The court first determined that a hearing was required for Salimonu's motions to reconsider, and then concluded that the long delay in holding the hearing was therefore irrelevant. See Henderson v. United States, 476 U.S. 321, 329-30 (1986) ("[W]hen a pretrial motion requires a hearing . . . subsection (F) on its face excludes the entire period between the filing of the motion and the conclusion of the hearing . . . whether or not a delay in holding that hearing is 'reasonably necessary.'"); United States v. Staula, 80 F.3d 596, 601 (1st Cir. 1996) ("For motions that require a hearing, this subsection excludes the time between the filing of the motion and the hearing on that motion, even if the delay is overlong, inexplicable, or unreasonable.") (citations omitted). Salimonu first contends that the court erred in determining that a hearing was required for his motions for reconsideration. Such an error would be significant, because in contrast to the potentially unreasonable time that is excluded from STA calculations when a hearing is required, only 30 days may be excluded when a hearing is not required. See Henderson, 476 U.S. at 329 (stating that when a hearing is not required, a motion must be given a "prompt disposition" within no more than the 30 days provided for matters held under advisement in section 3161(h)(1)(J)). While there is little authority on what constitutes a required hearing, this court has implied that a request for a hearing ends the inquiry: "[T]he appellant requested a hearing on his motions, thus acknowledging that one was appropriate. Consequently, we need not discuss the factors that determine whether a given motion 'requires' a hearing." Staula, 80 F.3d at 601 n.2; accord United States v. Tannehill, 49 F.3d 1049, 1052 n.4 (5th Cir. 1995). Because Salimonu requested a hearing in this case, we properly can assume that such a hearing was required for section 3161(h)(1)(F) purposes. In any event, the district court in this case specifically found that this was the type of motion for which hearings are required: "[A] hearing on the motions filed on December 9, 1993 is required for their proper disposition. Both motions raise serious issues, particularly the motion for discovery from cooperating individuals. It is this court's regular practice to provide hearings on such motions and the court intends to do so here." This is a sufficient indication that a hearing was required: the district court is in a better position to determine the necessity of a hearing than we are, and although the delay was significant, we are loath to question the court's judgment in this area absent obvious subterfuge.¹

Alternatively, Salimonu suggests that...