United States v. Adeyinka

410 F. App'x 986
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 17, 2011
DocketNo. 10-2976
StatusPublished
Cited by2 cases

This text of 410 F. App'x 986 (United States v. Adeyinka) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Adeyinka, 410 F. App'x 986 (7th Cir. 2011).

Opinion

ORDER

Ajiboye Adeyinka was convicted of conspiracy to possess cocaine with intent to distribute 21 U.S.C. §§ 846, 841(a)(1), and possession with intent to distribute, id. § 841(a)(1). The district court calculated a guidelines imprisonment range of 78 to 97 months and sentenced Adeyinka to a total of 97 months. Adeyinka filed a notice of appeal, but his appointed lawyer seeks to withdraw because he cannot identify a nonfrivolous ground for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Adeyinka opposes counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief and Adeyinka’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).

Counsel first considers whether Adeyin-ka could argue that the trial evidence does not support his convictions. To convict on the substantive count, the government had to prove that Adeyinka knowingly possessed cocaine for distribution. See 21 U.S.C. § 841(a)(1); United States v. Starks, 309 F.3d 1017, 1022 (7th Cir.2002). To convict Adeyinka on the conspiracy count, the government needed to prove that there was an agreement to possess and distribute cocaine, and that each defendant joined the agreement knowingly and intentionally. See 21 U.S.C. §§ 846, 841(a)(1); United States v. Medina, 430 F.3d 869, 881 (7th Cir.2005).

We agree with counsel that a sufficiency challenge would be frivolous. The government introduced audio and video recordings of a meeting between an informant and codefendant Adesola Ayoola where they agreed that the informant would ingest cocaine pellets and smuggle them to London for distribution. Ayoola told the informant that he would arrange for someone to deliver the cocaine along with food and medicine that would help him ingest the pellets. At the appointed time Adeyinka delivered a bag of cocaine [989]*989pellets, lemons, salt, and antidiarrheal medication to the informant at his hotel. During the encounter, which was captured on audio and video and observed by surveillance agents, Adeyinka arrived at the informant’s hotel room, told him he had some things for him in his car, and together they called Ayoola to confirm that Adeyinka was supposed to deliver the package to the informant. Investigators then observed Adeyinka and the informant return to his car to retrieve the package and Adeyinka driving evasively on his return home. After he was arrested and again at trial, Adeyinka denied involvement in the conspiracy and explained that, in exchange for a $2,000 loan, he had agreed to deliver lemons and salt to someone who urgently needed them. A federal agent also explained how cocaine sometimes is smuggled into the United States and then on to London where it commands a higher price. The agent related that ingesting cocaine pellets is one way that couriers smuggle the drug, and he discussed how the quantity and purity of cocaine varies at different stages of the distribution chain.

Counsel next considers whether Adeyinka could challenge the admission of the agent’s testimony about the distribution of cocaine. Over a relevancy objection, the agent was permitted to offer an expert opinion that the quantity and purity of the cocaine delivered by Adeyinka—700 grams of 98% purity—were consistent with distribution rather than personal use. The district court reasoned that the testimony was relevant because the government had to prove intent to distribute. Law enforcement agents routinely testify about the mechanics of the drug trade, and expert testimony is an accepted method of proving intent to distribute. See, e.g., United States v. Huddleston, 593 F.3d 596, 601 (7th Cir.2010); United States v. Winbush, 580 F.3d 503, 510-11 (7th Cir.2009); United States v. Morris, 576 F.3d 661, 673-674 (7th Cir.2009). Given that we would review for abuse of discretion, see United States v. Klebig, 600 F.3d 700, 715 (7th Cir.2009), counsel is correct that an appeal on this basis would be frivolous.

Counsel also evaluates whether Adeyinka might argue that it was error to admit the recordings of his and Ayoola’s conversations with the informant, who did not testify at trial. But Adeyinka’s recorded statements were nonhearsay admissions, see Fed. R. Evid. 801(d)(2)(A); United States v. Dennis, 497 F.3d 765, 769 n. 1 (7th Cir.2007), and Ayoola’s were non-hearsay statements of a eoeonspirator, see Fed. R. Evid. 801(d)(2)(E); United States v. Hargrove, 508 F.3d 445, 449 (7th Cir.2007). And the absence of the informant was inconsequential, since his side of the conversations was properly admitted as nonhearsay background to give context to the recorded statements of Adeyinka and Ayoola. See United States v. James, 487 F.3d 518, 524 (7th Cir.2007); United States v. Van Sach, 458 F.3d 694, 701 (7th Cir.2006); United States v. Tolliver, 454 F.3d 660, 666 (7th Cir.2006). The recordings captured the planning and execution of Adeyinka’s cocaine delivery, and we agree with counsel that an appellate challenge to their admission would be frivolous.

Another potential issue discussed by counsel is the use of an “ostrich instruction” in the jury charge. The district court, responding to Adeyinka’s trial testimony that he did not know what was in the bag he delivered to the informant, instructed the jurors that they could “infer knowledge from a combination of suspicion and deliberate indifference to the truth” and might conclude that Adeyinka acted knowingly if they found that he “had a strong suspicion that things were not what they seemed or that someone had withheld some important facts, yet deliberately shut his eyes for fear of what he would learn.” [990]*990Adeyinka had argued that this instruction, which is drawn from the pattern language, see Seventh Circuit Pattern Jury Instruction 4.06, would allow the jury to convict him based on negligent conduct. But we have approved the use of indistinguishable instructions many times, see, e.g., United States v. Garcia, 580 F.3d 528, 536-37 (7th Cir.2009); United States v. Leahy, 464 F.3d 773

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Bluebook (online)
410 F. App'x 986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-adeyinka-ca7-2011.