USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1190
UNITED STATES OF AMERICA,
Appellee,
v.
VALENTINE EKE,
Defendant, Appellant.
____________________
No. 96-1191
UNITED STATES OF AMERICA,
Appellee,
v.
OBINNA EGBOUDIKOGU,
Defendant, Appellant.
____________________
No. 96-1320
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY NWOKEJI,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
____________________
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
____________________
Alan D. Rose, by Appointment of the Court, with whom Rose &
Associates was on brief for appellant Valentine Eke.
John Salsberg, by Appointment of the Court, with whom Alan D.
Campbell
and
Salsberg,
Cunha & Holcomb, P.C. were on brief for appellant
Anthony Nwokeji.
Richard E. Bachman, by Appointment of the Court, for appellant
Obinna Egboudikogu.
Deborah
Watson
,
Criminal Division, Appellate Section, Department of
Justice,
with
whom
Donald
K. Stern, United States Attorney, was on brief
for the United States.
____________________
July 8, 1997
____________________
BOUDIN,
Circuit
Judge
.
Obinna Egboudikogu, Valentine Eke,
and Anthony Nwokeji were indicted on charges of importing
heroin
into
the
United
States, 21 U.S.C. S 952(a) and 18 U.S.C.
S 2, and conspiracy to import, 21 U.S.C. S 963. Egboudikogu
and Nwokeji pled guilty, and Eke was convicted following a
trial. On appeal, Eke makes various claims of trial error,
including
a
challenge to the sufficiency of the evidence. All
three defendants dispute the district court's sentencing
calculations.
The defendants are Nigerian citizens who resided or did
business in Boston or New York. According to the government,
the
defendants recruited couriers to travel to Asia, where the
couriers
would
receive
heroin and then return with the drugs to
Boston. The government offered evidence concerning three
specific importation efforts between August and November 1994
involving
different couriers. We describe the evidence in the
light most favorable to the verdict. United States v. Smith,
46 F.3d 1223, 1226 (1st Cir.), cert. denied, 116 S. Ct. 176
(1995).
In August 1994, Nwokeji and Egboudikogu offered to pay
Lamaria
Hurt
$10,000
to
travel to Hong Kong and Singapore; they
told her that she would bring back clothes and documents but
that
no
drugs
would
be
involved. When Hurt agreed, Egboudikogu
helped her obtain a passport, and Nwokeji and Egboudikogu
provided her with an airline ticket. Hurt left Boston for
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Singapore in September 1994. She traveled on to Malaysia,
where she ultimately received a bag whose lining was packed
with a substance; at trial, she said that the substance was
heroin,
although
she
did
not actually see it. Hurt returned to
Boston on September 14 and gave the bag to Nwokeji and
Egboudikogu, who said that Egboudikogu would be going to New
York
"to
get
rid of the stuff." They later paid Hurt $10,000.
Next,
in
late
September
or early October 1994, Nwokeji and
Egboudikogu arranged a second trip, offering a woman named
Bethany Dagen $10,000 to travel overseas. They helped Dagen
obtain
a
passport
and
purchased her airline ticket. On October
9, Dagen flew from Boston to Hong Kong and then to Manila,
where she received an oversized children's book. On October
28,
Dagen
was searched at Detroit airport, en route to Boston,
when customs officials detected a powerful glue odor from the
book.
They
found
229.9
grams of heroin concealed in the book's
cover. Dagen was arrested and agreed to cooperate.
Meanwhile, a third trip had been planned using a third
courier, Mona Lisa Smith-Mixon. In October 1994, Egboudikogu
and Eke went to a travel agency in New York, and Egboudikogu
bought
an
airline ticket from Florida to Hong Kong in the name
of a third person. Eke picked up the ticket several days
later,
and
thereafter
requested two name changes on the ticket,
each time paying a ticket-change penalty of $200. The travel
agency finally issued the ticket to Smith-Mixon and delivered
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it
to
Egboudikogu.
Egboudikogu and Nwokeji offered Smith-Mixon
$5,000 to make the trip and helped her obtain a passport, but
Smith-Mixon ultimately refused to go.
As for Dagen, she returned to Boston after her arrest in
Detroit and (at the direction of federal agents) arranged to
meet with Nwokeji and Egboudikogu to deliver the children's
book. On November 5, 1994, wearing a recorder, she met
Egboudikogu in a Boston restaurant. Egboudikogu told Dagen
that
she
had
not received all the heroin that she was supposed
to get in Asia. He also said that his partner, who had just
come from Houston, was waiting at a nearby Dunkin' Donuts
store,
would
give her partial payment of her fee, and would be
distributing the heroin in New York.
When Egboudikogu started to leave the restaurant to get
his
supposed
partner,
he
was arrested. Two agents then went to
the nearby Dunkin' Donuts shop, where they saw Eke and
questioned him. He was the only customer sitting at a table
and a priority mail envelope from Houston, addressed to Eke,
was sitting on his table. When Eke admitted that he had just
been with Egboudikogu, he was arrested. Nwokeji was arrested
later that evening.
A
grand
jury
returned a three-count indictment, which set
forth two substantive counts of drug importation or attempted
importation (based on the trips by Hurt and Dagen) and one
count of conspiracy to import, spanning the time from August
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1994 until the defendants' arrests. Egboudikogu and Nwokeji
were charged in all three counts; Eke was charged only in the
Dagen
importation count and the conspiracy count. Egboudikogu
and Nwokeji pled guilty to all counts and were each sentenced
to
108
months' imprisonment. Eke was convicted on both counts
by
a
jury
and was sentenced to 84 months' imprisonment. These
appeals followed.
1. We begin with Eke's challenge to his conviction. At
trial, Eke argued that he was an innocent businessman "whose
only sin was associating with one of the conspirators
[Egboudikogu]
." On appeal, he renews this claim, arguing that
the evidence was insufficient to sustain his conviction. To
prevail
Eke
must
show
that, viewing the evidence most favorably
to the government, a rational jury could not have found him
guilty
beyond
a
reasonable doubt. United States v. Valerio, 48
F.3d 58, 63 (1st Cir. 1995).
Perhaps
the
strongest
single piece of evidence against Eke
was Egboudikogu's statement to Dagen (recorded on audiotape)
that his "partner" in the nearby Dunkin' Donuts shop would be
distributing the heroin in New York and would provide Dagen
with part of her payment for making the smuggling trip. The
companion turned out to be Eke. As a threshold matter, Eke
argues that this statement by Egboudikogu was inadmissible
hearsay.
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The district court admitted the tape recording as a co-
conspirator's statement. Fed. R. Evid. 801(d)(2)(E). That
hearsay exception required the government to prove by a
preponderance of evidence, apart from using the statement
itself, that (1) a conspiracy existed between the declarant
(Egboudikogu) and the defendant (Eke), and (2) the statement
was
made
"during
and
in
furtherance of the conspiracy." United
States v. Sepulveda, 15 F.3d 1161, 1180-82 (1st Cir. 1993),
cert. denied, 512 U.S. 1223 (1994). The district court's
findings of fact on both points are reviewed for clear error.
Id. at 1180.
If an importation conspiracy existed and included Eke,
Egboudikogu's statements to Dagen about his "partner's" role
were made during and in furtherance of the conspiracy:
Egboudikogu's references to his partner were aimed at
persuading Dagen to hand over the heroin-laden book so that
delivery of the drugs to New York could be completed. See
United
States
v.
Leal
,
831 F.2d 7, 9-10 (1st Cir. 1987). There
was also considerable evidence, independent of the statement,
suggesting that Eke was a member of the conspiracy.
First, Eke accompanied Egboudikogu when the latter
purchased
an
airline
ticket for travel to Hong Kong in the name
of a third person, and Eke himself had the name on the ticket
changed to Smith-Mixon, who had been recruited by Egboudikogu
and
Nwokeji
to serve as a courier. In these dealings with the
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travel
agency,
Eke
twice
paid the $200 name-change fee in cash;
and
in
each
case Eke gave the travel agency a modified version
of his middle name, rather than his true last name. Eke also
accompanied Egboudikogu to the meeting with Dagen and waited
nearby.
Second,
the
government also presented evidence concerning
several entries in Eke's pocket diary, which was seized upon
his
arrest.
That
diary
listed the phone number of Nwokeji, who
in
turn
had
Eke's pager number. Eke's diary also included the
names of "Jeff Obi," an alias used by Egboudikogu when
recruiting couriers; Anthony Isiamah, who allegedly served as
a contact in Bangkok for Egboudikogu; and Beth Freeland, a
friend of Dagen. While Dagen was in Manila on her trip, she
had telephoned Nwokeji and Egboudikogu and asked them to send
money to Freeland in order to pay Dagen's rent.
Third,
the
operator of a New York business that sends and
receives international calls for customers testified that Eke
received
a
fax from Thailand sent by someone named "Chris." A
Nigerian
also named "Chris" had delivered heroin from Bangkok,
Thailand,
to
Manila,
where he gave it to Dagen concealed in the
children's book. There was no further indication of the
identity
of
the person who sent the fax or the contents of the
fax.
The evidence just described adequately supports the
district judge's ruling, by a preponderance of the evidence,
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that
Eke
was
a
member
of
the conspiracy. This made the hearsay
statement
admissible.
And, adding the hearsay statement to the
evidence
just described, the cumulative evidence was more than
adequate to permit a rational jury to conclude beyond a
reasonable doubt that Eke was a member of the conspiracy and
had participated in the Dagen importation. See United States
v. Andujar, 49 F.3d 16, 21-22 (1st Cir. 1995).
It is true that without the hearsay statement and the
evidence
just described, Eke's mere presence at the restaurant
showed very little. But with the additional evidence, Eke's
presence could be viewed as a further step by him in the
conspiracy,
in
addition
to his involvement with the Smith-Mixon
ticket. As for the required element of intent to enter into
the conspiracy, see Andujar, 49 F.3d at 22, Egboudikogu's
hearsay statement identified Eke as a partner in the
conspiracy, a statement consistent with the other evidence as
to Eke's activities.
Eke makes other claims of error regarding his conviction
based on an alleged variance between the indictment and trial
evidence, various evidentiary rulings, the district court's
denial of his new trial motion, and the absence of minorities
on the jury. We do not think any of these claims of error is
arguably
close,
and
to
the extent that Eke seeks an explanation
on those points, his claims are answered in the government's
brief.
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2. All three defendants challenge the district judge's
calculation of drug quantity at sentencing. Under the
Sentencing Guidelines, the base offense level for importing
drugs depends on the total drug quantity involved in the
offenses. U.S.S.G. S 2D1.1(c); id. comment. (n.12). The
government must prove drug quantity by a preponderance of the
evidence. United States v. Lindia, 82 F.3d 1154, 1161 (1st
Cir.
1996).
The
district court's findings of fact are reviewed
for
clear
error, and its legal rulings are considered de novo.
Id. at 1159.
The
only
drugs
seized
were the 229.9 grams of heroin found
in the children's book carried by Dagen. Hurt entered the
country without detection, and Smith-Mixon never took the
planned trip. Nonetheless, following an evidentiary hearing,
the district court found that the conspirators intended Hurt
and
Dagen
each
to
import
400 grams of heroin, while Smith-Mixon
was
intended
to import 200 grams--a total of 1,000 grams. The
court
found
Eke
not
responsible for the Hurt trip, reducing the
amount attributed to him to 600 grams.
Under section 2D1.1(c), the kilogram charged to
Egboudikogu
and Nwokeji gave them each a base offense level of
32;
Eke,
responsible
for
600 grams, had a base offense level of
28. Egboudikogu and Nwokeji received adjustments for their
role in the offense and acceptance of responsibility. All
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three
defendants
were
sentenced within the applicable guideline
ranges. On appeal, the only issues relate to the amount of
drugs attributed to the individual defendants.
At the outset, the defendants assert that no quantity
whatsoever should be attributed to them based on the Hurt and
Smith-Mixon transactions. Egboudikogu and Nwokeji say that
Hurt may have been making a test run and carrying no heroin;
but both defendants pled guilty to count 2 of the indictment,
which
charged them with successfully importing heroin. As for
the
aborted
Smith-Mixon trip, section 2D1.1 expressly includes
in the attributed amount any drugs sought to be imported
through attempts and conspiracies, even if the efforts were
unsuccessful. See also U.S.S.G. S 2D1.1 comment. (n.12).
The more difficult question is how to determine drug
quantity
for
a transaction where no drugs are seized (Hurt and
Smith-Mixon) or where the government says that the amount
seized understates the scale of the offense (Dagen).
Application note 12 to section 2D1.1 provides the starting
point. It states:
Where there is no drug seizure or the amount seized
does
not
reflect the scale of the offense, the court
shall approximate the quantity of the controlled
substance. In making this determination, the court
may consider, for example, the price generally
obtained for the controlled substance, financial or
other records, similar transactions in controlled
substances by the defendant, and the size or
capability of any laboratory involved.
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An approximation will be upheld "as long as it represents a
reasoned estimate of quantity." United States v. Webster, 54
F.3d 1, 5 (1st Cir. 1995).
It is apparent that some estimating methods (e.g.,
inventory
records)
are
likely to be quite reliable, and others-
-such as computing drugs from sale proceeds--are reasonably
accurate. Here, however, the government had no such data.
Instead, at the evidentiary hearing, it called as a witness
Peter Amentas, a federal customs agent familiar with heroin
smuggling to the east coast of the United States and regarded
as an expert by the government. In a companion affidavit,
Amentas stated that since August 1994,
fees paid to couriers importing heroin into the
eastern United States have . . . remained stable.
Over
that
period, couriers have been paid an average
of between $1,000 and $2,500 per 100 grams of a
mixture containing heroin (having a purity of
approximately 75%) brought into the Eastern portion
of the country.
The
district
court
agreed to use the government's proposed
approach.
The court cautiously selected the highest rate from
the range identified by Amentas ($2,500 per 100 grams of
heroin), thereby reducing the resulting drug quantity.
Dividing this $2,500 figure into the fees paid or offered to
the three couriers, the court concluded that the defendants
intended Hurt and Dagen each to import 400 grams of heroin
(since
each
had been paid or promised $10,000) and that Smith-
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Mixon was intended to import 200 grams (based on the offer of
$5,000).
Needless
to
say, the defendants say that the computations
made by the district court are unduly speculative. They urge
that Hurt had imported 229.9 grams for $10,000 and therefore
the amounts attributed to the other two couriers should be
computed
at
the
same
rate (about 60 percent of the rate adopted
by the district court). On this calculation, the amount
reflected by the total courier fees ($25,000) would be 574.75
grams, with Eke accountable for only 344.85 grams. At first
blush,
this
might
appear
a reasonable estimating approach based
on a transaction actually undertaken by the defendants.
The difficulty is that the drugs seized from Hurt
understated
the amount that she had been intended to carry--or
at
least
it
was
reasonable for the district court to reach this
conclusion. Egboudikogu told Dagen that she had not received
as
much
heroin from the Asian suppliers as she was supposed to
get; according to Egboudikogu, the supplier had to rush the
order
because Dagen, already delayed many days, had hurried to
return to the United States. The defendants' proposed
calculation is premised upon this understatement.
The district court is not required to prefer a less
reliable
calculation
to
a more reliable one, and the guidelines
themselves instruct that where "the amount seized does not
reflect the scale of the offense, the court shall approximate
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the quantity." U.S.S.G. S 2D1.1 comment. (n.12). Yet a more
reliable estimate is not automatically reliable enough: the
question
remains whether the government's calculation here had
"sufficient indicia of reliability to support its probable
accuracy."
Webster
,
54
F.3d at 5 (citing U.S.S.G. S 6A1.3(a)).
Here, the "indicia of reliability" was the experience of
the government's witness, who said that he had worked on 200
heroin cases, and also had secured information from other
officers. In 15 of the cases, Amentas acted in an undercover
capacity and in many others he had interviewed the couriers.
On this basis, Amentas testified to the payment range for
couriers--$1,000 to $2,500 per 100 grams--engaged in similar
transactions:
importing comparably pure heroin from Southeast
Asia to the U.S. east coast.
In principle, drug courier services are a "market," like
drug
sales,
and extrapolations based on street drug prices are
commonly
used to determine drug quantity. E.g., United States
v. Jackson, 3 F.3d 506, 511 (1st Cir. 1993). Quite possibly,
the
price
for heroin couriers at a given time and location may
vary more widely than for retail sales (simply because market
imperfections are greater); and one may suspect that a direct
linear
relationship between quantity and price is less likely.
Indeed, Amentas readily admitted that courier payments
varied for many reasons, including supply and demand changes
and the experience and understanding of the courier. But he
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testified
to
a payment range and said that this range had been
steady for a considerable period. He was cross-examined
extensively;
this
court
has reviewed the cross-examination, and
nothing in it seriously undermined Amentas' testimony. The
district judge, who has considerable latitude in this area,
accepted it as persuasive.
Our
case
law
requires caution in estimating drug quantity
but, in the last analysis, an estimate of drug quantity is
treated as a "fact." United States v. Sepulveda, 102 F.3d
1313,
1318
(1st Cir. 1996). Here, the district court credited
the
government's
witness
on the figures used for the range, and
the
court's
calculation
of quantity flowed rationally from that
premise.
The court guarded itself by taking the lowest end of
the
range
offered by Amentas. Compare United States v. Sklar,
920
F.2d
107,
112
(1st
Cir. 1990). On the record before us, we
cannot say that the district court's estimate was clearly
erroneous.
The defendants have made other criticisms of the
government's
evidence
at
sentencing and of the district court's
calculations, but again, most of the remaining claims are
addressed
in
the government's brief and none requires separate
discussion.
Nwokeji points to mitigating circumstances in his
own case, but the guidelines are largely driven by quantity,
and he identifies no specific error by the district court in
determining other adjustments.
Affirmed.
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