U.S. v. Shonubi

Decision Date30 June 1993
Docket NumberD,1433,Nos. 1307,s. 1307
Citation998 F.2d 84
PartiesUNITED STATES of America, Appellee-Cross-Appellant, v. Charles O. SHONUBI, Defendant-Appellant-Cross-Appellee. ockets 92-1607, 92-1653.
CourtU.S. Court of Appeals — Second Circuit

Karen A. Popp, Asst. U.S. Atty. E.D.N.Y., Brooklyn, NY (Susan Corkery, Asst. U.S. Atty., Mary Jo White, U.S. Atty. E.D.N.Y., Brooklyn, NY, of counsel), for appellee-cross-appellant.

Before: OAKES, NEWMAN and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

Charles O. Shonubi was arrested for importing 427.4 grams of heroin into the United The critical question presented on this appeal is whether an inference drawn by the sentencing court that the quantity of drugs seized from defendant after his last visit abroad may simply be multiplied by the number of such visits to obtain proof of the quantity of drugs defendant imported. Such surmise will not, of course, substitute for specific proof of quantity; nor does it constitute proof by the requisite preponderance of the evidence.

                States from Nigeria.   He refused a plea bargain that might have resulted in a sentence of 30 months (two and one-half years) imprisonment, and instead demanded a jury trial.   Unfortunately for him, not only was he found guilty of importing the 427.4 grams but the government also proved that he made seven additional trips to Nigeria for the purpose of importing heroin.   The district court then found that Shonubi lied throughout his trial testimony.   His sentence was based on his importing a total of 3419.2 grams of heroin, and he was committed to over 12 1/2 years imprisonment.   Shonubi appeals the sentence he received in the October 6, 1992 judgment of the United States District Court for the Eastern District of New York (Weinstein, J.).   The government cross-appeals from the trial court's refusal to enhance appellant's sentence after finding that he lied during the trial and sentencing hearing
                

Another question posed on this appeal is how to treat for sentencing purposes a defendant's willful lies. The situation before us is similar to that of a person who is caught red-handed by the police inside a closed building late at night with cash from a vending machine and later swears at trial that he was not the burglar. In the instant case, appellant was intercepted on entry into this country with a number of heroin-filled balloons, which he had swallowed and were in his stomach. While detained, he passed the balloons. At trial, he swore the heroin had not come from his body. Genuine self-delusion may well be a rare occurrence, but the law does not deny the possibility of its existence. In any event, the state of a defendant's mind, his mens rea, is always a matter for the trial court to determine. If a defendant's lies are found to be willful, an obstruction of justice enhancement must be imposed at sentencing.

BACKGROUND

On December 10, 1991 Shonubi returned to the United States from a trip to Lagos, Nigeria. Upon arriving at JFK International Airport in New York he was interviewed by U.S. Customs Inspector Jules Persad. During the interview Inspector Persad noticed that Shonubi, a citizen of Nigeria but a resident of New Jersey, had made five trips to his homeland in the previous 15 months. When the inspector asked Shonubi the purposes of these trips, he gave inconsistent explanations in a nervous manner. Shonubi told the inspector, for example, that he had been married on his last trip, but a few moments later said he had just visited Nigeria because his mother was ill.

At this point the inspector suspected appellant of drug trafficking and asked him to consent to an X-ray examination. Shonubi agreed. An X-ray taken at the customs medical center revealed the presence of foreign bodies in Shonubi's digestive tract. Detained for the night, he passed 103 balloons containing a net weight of 427.4 grams of heroin worth $44,000. After his arrest for importing and possessing this quantity of heroin, appellant told Special Agent Amanda Jackson of the Drug Enforcement Administration that he owned the heroin and that he had bought it in Nigeria from "an ordinary man on the street".

He decided to stand trial rather than plead to the charges and--against the advice of his attorney--testified in his own defense. Appellant swore that the heroin-filled balloons had not come from his body. On cross-examination, the prosecutor asked him how many trips he had made to Nigeria and whether he had used more than one passport. Shonubi admitted making four trips, but denied using different passports. The prosecution introduced evidence showing that the date stamps on his passport conflicted not only with his account of when he had traveled, but also with his attendance records at work, leading to the inference that he had used more than one passport. Shonubi's work records showed absences for eight He was sentenced on October 1, 1992 before Judge Weinstein. Shonubi took the stand again at the sentencing hearing and stated that he made only four trips to Nigeria and did not import heroin. The district court discredited this testimony and found that the proof at trial showed appellant made at least eight trips to Nigeria between September 1990 and December 1991. The court further found that he imported heroin on each occasion and therefore multiplied the number of trips by 427.4 grams--the quantity of heroin recovered from his body on December 10, 1991--to establish that Shonubi imported a total of 3419.2 grams of heroin. This quantity of drugs translated into a base offense level of 34. United States Sentencing Commission, Guidelines Manual, § 2D1.1(c) (Nov. 1992).

                trips, but his passport recorded only five journeys.   Appellant's explanations of his reasons for travel contradicted earlier stories that he had given to customs agents and to his employer.   He was unable to explain how he could afford eight round-trip airplane tickets costing at least $900 each on the $12,000 salary he earned as a toll collector on the George Washington Bridge.   The jury convicted Shonubi of heroin importation and possession with intent to distribute in violation of 21 U.S.C. §§ 952 and 841 (1988)
                

Because appellant was in Criminal History Category I, the applicable sentencing range was 151 to 188 months imprisonment. The district court credited Shonubi's post-arrest statement that he owned the drugs and refused to find that he was a minor or minimal participant in drug trafficking, which would have reduced his sentence by two to four levels. See id. § 3B1.2. Even though specifically finding that appellant lied throughout the trial and the sentencing hearing, the district court declined to enhance his sentence by two levels for obstruction of justice. See id. § 3C1.1. Shonubi was sentenced to a total of 151 months imprisonment, five years supervised release, and a $100 special assessment. United States v. Shonubi, 802 F.Supp. 859, 864 (E.D.N.Y.1992). This appeal with respect to appellant's sentence followed. We reverse and remand for resentencing.

DISCUSSION
I Obstruction of Justice

We discuss the cross-appeal first. The government contends the district court erred in refusing to enhance Shonubi's sentence for obstruction of justice. At sentencing, the government must prove disputed factual allegations by a preponderance of the evidence. United States v. Lee, 818 F.2d 1052, 1057 (2d Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987). A sentencing court's resulting factual findings may be disturbed on appeal only when they are clearly erroneous. United States v. Pimentel, 932 F.2d 1029, 1031 (2d Cir.1991). But whether the facts found here constitute obstruction of justice is a question of law subject to de novo review. See United States v. Perdomo, 927 F.2d 111, 118 (2d Cir.1991).

The Sentencing Guidelines provide for a two-level increase in offense level where the defendant "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense...." U.S.S.G. § 3C1.1. This enhancement applies to a defendant who commits perjury. Id. at comment. (nn. 1 & 3). Perjury is defined by statute as willfully giving false testimony under oath concerning a material matter. 18 U.S.C. § 1621 (1988). In the case at hand the trial court found that "defendant clearly lied willfully" during his sworn trial testimony. Shonubi, 802 F.Supp. at 863. Nonetheless, in an exercise of its discretion it refused to enhance Shonubi's sentence under § 3C1.1 because it considered increasing the already lengthy incarceration "inappropriate and cruel." Id.

Our consideration of this issue is informed by a recent Supreme Court case addressing it. We should add in fairness to the district court judge that this controlling precedent was argued and decided in the Supreme Court several months after the district court had imposed sentence on Shonubi. In a unanimous decision in that case the Court held that district courts generally lack discretion in this area of the law and that "[u]pon a proper determination that the accused The Supreme Court explained that in order to apply § 3C1.1 a sentencing court must carefully review the evidence and "make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same, under the perjury definition...." Id.; see also United States v. Cunavelis, 969 F.2d 1419, 1423 (2d Cir.1992). In making that determination the allegedly perjurious statements must be evaluated "in a light most favorable to the defendant." U.S.S.G. § 3C1.1, comment. (n. 1); see also United States v. Matos, 907 F.2d 274, 276 (2d Cir.1990). Although separate and clear findings on each element of perjury are preferred, a general finding of obstruction that tracks those...

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