United States v. Azubike

504 F.3d 30, 2007 U.S. App. LEXIS 22524, 2007 WL 2745011
CourtCourt of Appeals for the First Circuit
DecidedSeptember 21, 2007
Docket06-2255
StatusPublished
Cited by46 cases

This text of 504 F.3d 30 (United States v. Azubike) is published on Counsel Stack Legal Research, covering Court of Appeals for the First 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. Azubike, 504 F.3d 30, 2007 U.S. App. LEXIS 22524, 2007 WL 2745011 (1st Cir. 2007).

Opinions

DYK, Circuit Judge.

After a jury trial in the United States District Court for the District of Massachusetts, appellant Franklin Azubike (“Azubike”) was found guilty of (1) conspiring to possess with intent to distribute heroin in violation of 21 U.S.C. § 846, and (2) possessing heroin with intent to distribute in violation of 21 U.S.C. § 841. He asserts that the trial court erred in failing to grant his motion for judgment of acquittal. Alternatively, Azubike argues that the prosecution’s misstatements during closing argument warrant a new trial. Although we find that the evidence was sufficient to support the jury’s verdict, we vacate Azubike’s convictions and remand for a new trial because we find that the prosecutor’s misstatements could have improperly led the jury to reach a guilty verdict.

[32]*32BACKGROUND

I.

In considering the motion for judgment of acquittal, we recite the facts in the light most favorable to the government. See United States v. Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir.1991). This case stems from a scheme to import heroin from Uganda into the United States. In 2005, Solomon Lui (“Solomon”), a Sudanese businessman living in Uganda, set up a courier service as a front for his heroin importation business. In January 2005, John Kaggwa (“Kaggwa”), a Ugandan lawyer, introduced Solomon to Richard Muka-sa (“Mukasa”). Mukasa also had been a lawyer in Uganda but was now living in Malden, Massachusetts. Solomon falsely explained to Mukasa that the purpose of the business was to send items and clothes to Sudanese refugees in the United States. Solomon proposed to send briefcases through a courier service to Mukasa’s apartment in Malden, Massachusetts. The refugees’ relatives would then pick up the package and pay Mukasa $300 per package. Mukasa, Kaggwa, and Solomon would share the $300. Mukasa agreed to the arrangement. Neither Mukasa nor Kaggwa was initially aware that the courier business was a front and that heroin would be hidden in the briefcases.

Five days after Mukasa’s conversation with Solomon, a company called TNT Couriers telephoned Mukasa to tell him that a package had arrived from Uganda. Solomon called Mukasa to confirm that the package had arrived and told him that someone would call to arrange to pick it up. Shortly thereafter, a man with a Nigerian accent who identified himself as “Johnson” called Mukasa and informed him that he was flying in from Houston, Texas to retrieve the package and that he would be there on Saturday. “Johnson” would not give Mukasa his telephone number. Mukasa was concerned by the telephone call because the man did not have a Sudanese accent, as would have been expected if he had been a Sudanese refugee, and because the telephone number that he called from had a Chicago area code. That Saturday Mukasa told the receptionist in his building to give the package to “Johnson.” The receptionist reported that TNT Couriers never delivered the package, and that although “Johnson” had come by he eventually left.

In January or February of 2005, a second package was sent to Mukasa. This time FedEx was the courier. The briefcase was heavy and locked. Solomon called that evening and told Mukasa that “Mike” would pick up the package. Muka-sa asked about the earlier package, and Solomon told him not to worry about it. Solomon stated that both packages contained crafts and local clothing. “Mike” called Mukasa the same night. He informed Mukasa that an unnamed woman would pick up the package and would bring $300. Like “Johnson,” “Mike” would not leave his telephone number. A woman with an African American accent then called for directions because she was driving up from New Jersey to pick up the package. When she arrived, she told Mu-kasa that she did not know what was in the briefcase. She gave Mukasa $300 and left. The next day, Mukasa told Solomon that he had given the woman the package and had received $300.

Shortly thereafter a third package was sent to Mukasa by FedEx. The package contained a briefcase that was addressed to Mukasa. The airbill indicated that the package was sent from “John M.” in Kampala, Uganda, and stated that the briefcase contained “African designed cloths” valued at $80. On February 13, 2005, Immigration and Customs Enforcement (“ICE”) agents seized the package when it entered [33]*33the United States and found that it had two hidden compartments, each containing approximately one kilogram of heroin. The hidden compartments were so secure and well hidden that the agents only discovered the heroin by x-ray. On February 15, an undercover state police officer, dressed as a FedEx agent, delivered the package to Mukasa. After Mukasa signed for the package, he was approached by federal and state officers. When told that the briefcase contained heroin, Mukasa agreed to cooperate. He informed the agents that the package had been sent by a man named Solomon in Uganda. While he denied knowing the contents of the package, Mukasa admitted that he had been “a little bit suspicious.”

The next day, at the agents’ direction, Mukasa spoke with Solomon, informed him that the third package had arrived, and implied that he knew the package contained drugs.1 Mukasa stated that the $300 that he was paid was insufficient given the “big risk” that he was taking. J.A. 47. Solomon agreed to pay Mukasa $1500 for the next package and $2000 for additional packages. When Mukasa asked whether Kaggwa knew about “this business,” Solomon stated that “I have nobody who know[s] this business.... I am a confidential man. John [Kaggwa] doesn’t know anything about this.” J.A. 48, 53. Solomon said that “Johnson” would pick up the third package. In a conversation later that day, Solomon reiterated that someone would be coming up from New York to pick up the package and that he would be calling “now.” Solomon also instructed Mukasa to remove Solomon’s address from the outside of the package.

Later that day, “Johnson,” who was later identified as Peter Ike, called Mukasa to tell him that he would be coming from New York to pick up the package. Ike called again on February 17. When Mu-kasa answered the telephone, he asked, “Who’s this, Solomon?” J.A. 67. Ike answered, “Not Solomon, Johnson.” Id. Mu-kasa said, “Oh, sorry, Johnson,” and Ike responded, ‘Yah, sound like Solomon.” Id. Ike confirmed that he would arrive the next day to pick up the package. On February 18, Ike and Mukasa arranged to meet in a theater parking lot in Revere, Massachusetts. Ike arrived, got into Mu-kasa’s car, gave Mukasa $1500, removed the briefcase from Mukasa’s trank, and left the parking lot.

Mukasa received a fourth briefcase from FedEx on March 4, 2005. Again the agents investigated the briefcase and found that it contained fabric and clothes and two more kilograms of heroin in hidden compartments. The agents removed the heroin and replaced it with a bag containing confectioner’s sugar and 106 grams of heroin. That day Solomon called Mukasa to say that “Mike” would retrieve the package and bring $2000.2 This “Mike” (later identified as Roy Oki) called later that day to say that he would send someone to pick up the package. On March 8 Oki called again to say that “Franklin” (Azubike’s first name) was coming from New York to pick up the package. Mukasa reminded Oki that he was to be paid $2000 for this package, and Oki confirmed that Solomon had told him so.

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Cite This Page — Counsel Stack

Bluebook (online)
504 F.3d 30, 2007 U.S. App. LEXIS 22524, 2007 WL 2745011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-azubike-ca1-2007.