US v. Ailemen, CR-94-0003 VRW.

• Decision Date: 24 March 1995
• Docket Number: No. CR-94-0003 VRW.,CR-94-0003 VRW.
• Citation: 893 F. Supp. 888
• Parties: UNITED STATES of America, Plaintiff, v. Pius AILEMEN, et al., Defendants.
• Court: U.S. District Court — Northern District of California

893 F. Supp. 888

UNITED STATES of America, Plaintiff, v. Pius AILEMEN, et al., Defendants.

No. CR-94-0003 VRW.

United States District Court, N.D. California.

March 24, 1995.

Lester Rosen, San Rafael, CA, for defendant Theukwu.

Frank McCabe, San Francisco, CA, for defendant Dele Ailemen.

Stephen Shaiken, San Francisco, CA, for defendant Ofomata.

Mark J. Rochon, Washington, DC, for defendant Tinney.

Michael J. Yamaguchi, U.S. Atty. by Jonathan Howden, Teresa Canepa, Asst. U.S. Attys., San Francisco, CA, for plaintiff.

Gail Shifman, San Francisco, CA, for defendant Pius Ailemen.

Susan Raffanti, Oakland, CA, for defendant Gladney.

Brian Berson, San Francisco, CA, for defendant Onuaguluchi.

REPORT AND RECOMMENDATION RE MOTION BY DEFENDANT AILEMEN TO DISMISS ON GROUNDS OF DOUBLE JEOPARDY^*

BRAZIL, United States Magistrate Judge.

INTRODUCTION

Given the holding by the Court of Appeals for the Ninth Circuit in United States v. $405,089.23 U.S. Currency (referred to hereafter as Arlt, the surname of the lead defendant), 33 F.3d 1210 (9th Cir.1994), and the findings of fact made in the next section, I need address in depth only two issues to rule on defendant's motion to dismiss based on the Double Jeopardy Clause of the Fifth Amendment. These two issues are: (1) whether defendant's failure to file claims in the forfeiture actions of which he had notice forecloses application of the Double Jeopardy doctrine, and, if not, (2) whether some or all of the offenses with which defendant Pius Ailemen is charged in the Superseding Indictment (filed July 11, 1994) are the same offenses for which punishment was imposed on him through the forfeiture proceedings.

FINDINGS OF FACT

1. In 1989 a grand jury indicted Pius Ailemen on charges of conspiring to import heroin into the United States, conspiring to possess with intent to distribute heroin, distributing heroin, procuring interstate travel in furtherance of a business enterprise to unlawfully import and distribute heroin, making false statements to the INS, and making false statements in an application for a passport. Superseding Indictment in CR 89-0585 WHO, filed Nov. 30, 1989.

2. On October 5, 1989, federal agents seized $12,012 in currency and one cellular telephone from Pius Ailemen (aka Muhammed Musiliu Popoola). The seizure and subsequent forfeiture action were based on the allegation that the currency and phone had been "used or acquired as a result of a drug-related offense." Exhibits 1 and 2 in Support of Defendant's Motion to Dismiss, Feb. 7, 1995 (emphasis in original).

3. On October 12, 1989, agents seized an additional $15,000 in currency from Pius Ailemen, again on the ground that this money had been used in or acquired through illegal drug trafficking. Id., Ex. 3.

4. In December of 1989, Pius Ailemen, through counsel, filed formal notices of claims of ownership in the $12,012 and in the $15,000. Id.

5. Though the details of the remainder of the forfeiture process in 1989 and 1990 are not clear (e.g., it is not clear whether Pius Ailemen took all the steps necessary to compel the government to file a complaint for forfeiture in the district court, or whether, if such a complaint was filed, whether he formally answered it or presented evidence to try to defeat the forfeiture action), it appears that the property identified in paragraphs 2 and 3, above, eventually was forfeited to the United States. Uncontested averments in defense counsel's Memorandum in Support of Pius Ailemen's Motion to Dismiss, Feb. 7, 1995, at 2.

6. After a trial in 1990, a jury acquitted Pius Ailemen of the drug charges in the superseding indictment, but convicted him of passport fraud. Court file in CR 89-0585 SC, Docket Numbers 96, 108, and 113. See also Ex. 12 in Support of Ailemen's Motion to Dismiss, filed February 7, 1995, and Affidavit of Special Agent Robert J. Silano in Support of Application to Extend Authorization for Wiretap, filed November 10, 1993, at pages 13-14.

7. Despite the 1989-90 prosecution, the government believed that Pius Ailemen's "heroin trafficking organization remained intact" and that after he was released from custody he resumed his activities running a major drug trafficking organization. Affidavit of Special Agent Robert J. Silano in Support of Application for authorization to intercept wire communications (a wiretap), filed July 29, 1993, at pp. 8-9. It is not clear how aggressive the monitoring and investigation of Ailemen's activities were until the latter part of 1992.

8. By no later than October of 1992 agents of the DEA, working undercover and with the help of a confidential informant, were actively developing evidence of Ailemen's alleged drug trafficking operations. Id., at 9 and 10.

9. On July 29, 1993, the government formally applied for authorization to establish a wiretap for use in this investigation. Id. In the Affidavit of Special Agent Robert J. Silano filed in support of the wiretap application the government alleged that it had probable cause to believe that Pius Ailemen and others, including Sidney Gladney and Robert Tinney, "have committed,, are committing, and will continue to commit the following offenses: importing a controlled substance in violation of Title 18, United States Code, Section 545 and Title 21, United States Code, Sections 952 and 960; distributing and possessing with intent to distribute a controlled substance in violation of Title 21, United States Code, Section 841(a)(1); conspiracy to import and conspiracy to distribute controlled substances in violation of Title 21, United States Code, Sections 963 and 846; use of a communication facility to commit or facilitate the commission of the foregoing offenses in violation of Title 21, United States Code, Section 843(b); and violations of Title 18, United States Code, Section 1952, involving travel in interstate or foreign commerce to promote, manage, establish or carry on an unlawful activity, to wit, a narcotics trafficking enterprise." Id., at 3.

The government also claimed in this affidavit that it had probable cause to believe that the conversations to be intercepted would concern the methods and means by which Ailemen and others managed and carried out "their heroin and cocaine operation." Id., at 4. A confidential informant whom the government perceived as reliable provided information beginning as early as October of 1992 that indicated that Ailemen and others were heavily involved "in cocaine and white heroin trafficking organizations". Id., at 9. And an undercover agent allegedly had extensive conversations with Ailemen related to plans to import cocaine from Mexico and to exchange Ailemen's heroin for cocaine from a Columbian source. Id., at 11, 15, 25-27, 29-33, 35, 39, 45.

10. On July 29, 1993, District Judge D. Lowell Jensen signed an order "Authorizing Interception of Wire Communications". CR-93-320 MISC. Based on a series of affidavits from DEA agents and a submission by counsel for the government, Judge Jensen extended this wiretap authorization four times, so DEA agents were permitted to monitor a very large number of Pius Ailemen's conversations over a period running well into December of 1993.

11. On August 30, 1993, Special Agent William de Freitas executed and submitted to Judge Jensen an affidavit in support of a request to extend the wiretap authorization. In that affidavit, Agent de Freitas affirmed his belief that the evidence thus far generated by the government established probable cause to believe that Pius Ailemen and others had been and continued to be involved in, among other things, a "conspiracy to import and conspiracy to distribute controlled substances," "offenses involving the laundering of monetary instruments representing the proceeds of unlawful activity and those involving monetary transactions in criminally derived property, in violation of Title 18, United States Code, Sections 1956 and 1957," and "travel in interstate or foreign commerce to promote, manage, establish, or carry on an unlawful activity, to wit, a narcotics trafficking enterprise, in violation of Title 18, United States Code, Section 1952." de Freitas Affidavit of August 30, 1993, at 7-8.

This affidavit proceeded to set forth evidence that Pius Ailemen and his agents were trying to orchestrate transactions not only in heroin, but also in large quantities of cocaine, were trying to launder proceeds of drug deals, and that Pius Ailemen was the principal manager/leader of an ongoing drug trafficking enterprise that involved at least six other people. See, e.g., pages 12, 20 and 23.

12. During September of 1993 DEA agents monitored many telephone conversations between Pius Ailemen in California and co-defendant Dele Ailemen in London, England. When Dele Ailemen arrived at Los Angeles International Airport on September 18, 1993 after a flight from England he declared to the U.S. Customs Service that he was bringing $60,000 into the United States. When the funds were counted, they totaled $48,260. These funds were "seized by DEA agents as drug proceeds based upon pertinent conversations intercepted between Pius Ailemen and Dele Ailemen during the wiretap." Affidavit of Special Agent Amie Stanton in Support of Complaint filed December 20, 1993, at p. 48.

13. On October 1, 1993, Special Agent Robert J. Silano executed and presented to Judge Jensen another affidavit in support of another request to extend the wiretap authorization. In this affidavit Agent Silano again swore that the government had probable cause to believe that Pius Ailemen was involved in systematic, large scale drug trafficking operations that involved use of telephones, interstate and international travel, and money laundering. See, e.g., note 1 on page 15, which states: "On September 4, 1993, from approximately 12:00 noon to 6:00 p.m., undercover agents who posed as narcotics traffickers met with Ellis Quarshie. Quarshie told them about Ailemen's method of importing heroin,...