United States v. Amadu

73 F. App'x 488
CourtCourt of Appeals for the Second Circuit
DecidedAugust 21, 2003
DocketNo. 02-1559
StatusPublished
Cited by1 cases

This text of 73 F. App'x 488 (United States v. Amadu) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Amadu, 73 F. App'x 488 (2d Cir. 2003).

Opinion

SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

Joseph Antwi appeals his conviction on one count of conspiracy to distribute and possess with intent to distribute one or more kilograms of heroin in violation of 21 U.S.C. § 846. He also challenges his sentence. Antwi was convicted following a two week jury trial. The government presented testimony from a number of Antwi’s co-defendants who were cooperating with the government. For example, Ibrahim Amadu testified that he obtained 200 grams of heroin from Antwi and another co-defendant Afua Agyeiwah on two separate occasions in 1998 and 1999. He also described eighteen telephone conversation recorded pursuant to an authorized wiretap. Sammuel Anane testified that he was present at Agyeiwah’s apartment on two separate occasions when Antwi was excreting heroin that he had swallowed and smuggled into the country. Also testifying for the government were government agents who testified to drug smuggling methods, Antwi’s eight trips to Ghana during an eighteen month period, and numerous phone calls placed between Antwi’s home and cell phone numbers and the numbers of various co-defendants.

Antwi testified on his own behalf. He testified that he had never smuggled drugs from Ghana into the United States and that the recorded conversations did not relate to drug dealing but rather to personal matters such as Amadu’s romantic interest in a certain woman. He also claimed that most of trips to and from Ghana were for legitimate reasons includ[490]*490ing two trips in March and May of 1999 to assist his sister in obtaining a visa that she had won through the visa lottery. He testified that three of the trips in the travel records represented travel by other members of his family whom he had illegally allowed to use his green card. In rebuttal, the government called Hailu Kebede, the Immigration and Naturalization Service officer-in-charge at the United States Embassy in Ghana. Kebede described Antwi’s visit to the Embassy in the company of a couple Antwi identified as his brother-in-law and sister. Kebede explained that his suspicions were raised during Antwi’s interviews, partly because of inconsistent answers. He took Antwi’s green card as well as the passports of the other individuals. Upon further investigation, Kebede learned of the warrant lodged against Antwi in connection with this case. This led to Antwi’s arrest and extradition.

The jury convicted Antwi on the conspiracy count, and acquitted him on two substantive distribution counts. The jury specifically found that the government proved beyond a reasonable doubt that defendant conspired to distribute or possess with intent to distribute one kilogram or more of heroin. The district court calculated Antwi’s base offense level at 34, based on a finding, by a preponderance of the evidence, that Antwi himself brought 4.8 kilograms of heroin into the country. It declined to find a higher amount based on reasonably foreseeable conduct by Antwi’s co-conspirators because the court did not believe a higher amount was proven by a preponderance of the evidence. The court adjusted Antwi’s offense level upward by two levels pursuant to U.S.S.G. § 3C1.1, based on its finding that Antwi intentionally obstructed justice by giving false testimony on a number of issues material to the jury’s decision on his guilt. The court denied Antwi’s request for a downward departure based on alleged disparity between his sentence and the sentences of some of his co-defendants.

This appeal followed. Antwi challenges the admission of the testimony of Kebede, which he claims was highly prejudicial, irrelevant, and otherwise inadmissible under the Federal Rules of Evidence. He also makes several arguments with respect to his sentence: 1) the district court improperly calculated the drug quantity for which Antwi was responsible; 2) the district court improperly denied Antwi’s request for a downward departure due to an alleged disparity between his sentence and his co-defendants’ sentences; and 3) the - district court improperly found that he has obstructed justice. We find that these challenges are without merit and therefore affirm the judgment of conviction.

With respect to Antwi’s challenge to the admission of Kebede’s testimony, we find that the district court did not abuse its discretion in admitting the evidence. Antwi claims that the evidence was not properly admissible under Fed.R.Evid. 404(b) or 608(b). However, we agree with the government that the district court did not admit the evidence pursuant to Rule 404(b). Instead, the court found that the testimony “makes it more likely that the trips were related to [Antwi’s] smuggling activities.” The court found that the testimony is “evidence directly of the crimes charged in the indictment.” The court then conducted a Rule 403 prejudice analysis, and found that since Antwi himself had admitted that he had allowed others to use his green card to enter the country illegally, any further testimony related to immigration fraud would not be inflammatory. The district court did not abuse its discretion in finding the evidence probative, or in finding that its probative value outweighed any prejudice. Kebede’s testimony about the suspicious circumstances of Antwi’s 2001 visit to the embassy with a sister and [491]*491brother-in-law who won the visa lottery makes it less likely that Antwi testified truthfully in offering innocent explanations for his frequent trips to Ghana. The fact that Antwi visited the embassy in 2001 with a sister who had allegedly won the visa lottery makes it somewhat less likely that two of his 1999 visits to Ghana were for the purpose of assisting another sister who had also been lucky enough to win the random visa lottery. Moreover, the inconsistencies in information received by Kebede from Antwi and the other two visitors cast considerable doubt on Antwi’s claims that the 2001 trip or any prior trip had an innocent immigration-related purpose. The evidence’s considerable probative value far outweighed its weak prejudicial effect.

The district court’s calculation of drug quantity was entirely proper. Antwi contends that the court should have employed a clear and convincing standard rather than a preponderance of the evidence standard. Antwi also argues that even under a preponderance of the evidence standard, the drug quantity determination was inaccurate. Antwi also suggests that the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), should be extended to his situation. In arguing for a higher standard of proof, Antwi relies on United States v. Shonubi, 103 F.3d 1085, 1089 (2d Cir.1997), which suggested that a more rigorous standard of proof might be advisable if disputed aspects of relevant conduct might significantly enhance a sentence. However, we have clarified the Shonubi dictum, and reaffirmed that a district court should employ a preponderance of the evidence standard in determining relevant conduct. United States v. Cordoba-Murgas, 233 F.3d 704, 708-09 (2d Cir.2000).

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Related

Antwi v. United States
349 F. Supp. 2d 663 (S.D. New York, 2004)

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Bluebook (online)
73 F. App'x 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-amadu-ca2-2003.