United States v. Salimonu

182 F.3d 63, 52 Fed. R. Serv. 711, 1999 U.S. App. LEXIS 15060, 1999 WL 450332
CourtCourt of Appeals for the First Circuit
DecidedJuly 7, 1999
Docket97-1557
StatusPublished
Cited by61 cases

This text of 182 F.3d 63 (United States v. Salimonu) 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. Salimonu, 182 F.3d 63, 52 Fed. R. Serv. 711, 1999 U.S. App. LEXIS 15060, 1999 WL 450332 (1st Cir. 1999).

Opinions

STAHL, Circuit Judge.

After a 14-day trial, a jury found defendant-appellant Oladipo Salimonu guilty on eight counts, including, inter alia, conspiracy to import heroin. He appeals the convictions on several grounds. After a careful review of the record and Salimonu’s arguments, we affirm.

I.

Background

We sketch the facts in the light most favorable to the verdict. See United States v. Cunan, 152 F.3d 29, 32 (1st Cir.1998). Salimonu was involved in a conspiracy with Christopher Perry, Ralph Petro-sino, Kim McKinnon, and others to import heroin from Thailand. Salimonu and Perry had known each other since about 1988. Beginning in 1990, Perry and Salimonu had several conversations about smuggling drugs and recruiting couriers. Perry recruited Petrosino and McKinnon to act as drug couriers, and introduced Salimonu to them as “Laddie.” In May 1992, Petrosino traveled to Bangkok, Thailand, where “Laddie” called him several times at his hotel. Petrosino was given a suitcase, which he brought to McKinnon in Jakarta, Indonesia. “Laddie” called McKinnon at her hotel every day she was in Jakarta. McKinnon subsequently traveled to Boston with the suitcase, where customs agents inspected it and found four kilograms of heroin. McKinnon immediately agreed to cooperate with the customs agents, and that night the agents recorded phone conversations between “Laddie” and McKin-non. The agents then accompanied McKinnon to O’Hare Airport in Chicago, where they arrested Perry, who also agreed to cooperate. Agents arrested Pe-trosino a few days later, in Chicago. Thereafter, agents recorded a phone conversation between Petrosino and “Laddie.”

On September 16, 1992, a grand jury returned an indictment against Salimonu for conspiracy to import heroin, in violation of 21 U.S.C. §§ 963, 952(a); importation of heroin, in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2; conspiracy to possess with intent to distribute, and conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841, 846; possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and unlawful use of a communications facility (the telephone) to facilitate the drug offenses, in violation of 21 U.S.C. § 843(b).

Salimonu was arrested on July 27, 1993. After the arrest and while Salimonu was in custody, customs agents conducted a war-rantless search of his apartment, relying upon the consent of a third party.

On December 15, 1995, more than two years after his first appearance in court, Salimonu moved for his indictment to be dismissed with prejudice, alleging violations of both the Speedy Trial Act (“STA”) and his Sixth Amendment right to a speedy trial. The district court denied this motion, ruling that most of the time that had elapsed was excludable from STA calculations. Trial began on November 11, 1996.

At trial, Petrosino, McKinnon, and Perry, all of whom had entered plea agreements, identified Salimonu as “Laddie” and testified against him. Their testimony was corroborated by, inter alia, phone records discovered through a phone contract discovered during the search of Salimonu’s apartment, and by recordings of the phone conversations between McKinnon and “Laddie” and between Petrosino and “Laddie.” Salimonu moved to suppress the phone records and other documentary evidence seized in the search; the district court denied the motion. Salimonu also [67]*67attempted to introduce expert testimony that the voice in the taped recordings was not his, but the district court excluded the testimony.

On December 6, 1996, a jury found Sali-monu guilty on all counts. He was sentenced to 264 months’ imprisonment followed by 60 months’ supervised release.

On appeal, Salimonu challenges his conviction on five grounds: (1) he was denied his rights under the STA; (2) he was denied his Sixth Amendment right to a speedy trial; (3) evidence used to convict him was illegally obtained in a warrantless search of his apartment that violated the Fourth Amendment; (4) the district court improperly excluded expert testimony from evidence; and (5) the evidence was insufficient as a matter of law to establish his guilt beyond a reasonable doubt.

We discuss each issue in turn, setting forth additional relevant facts as necessary.

II.

Speedy Trial Act

Salimonu claims that the STA, 18 U.S.C. §§ 3161-3174, was violated by the delays in bringing his case to trial, and that the district court should therefore have dismissed his indictment. This court reviews an STA determination “for clear error as to factual findings and de novo as to legal rulings.” United States v. Santiago-Becerril, 130 F.3d 11, 15 (1st Cir.1997) (citation omitted).

Section 3161(c)(1) of the STA dictates that a defendant be tried within seventy days of the indictment or the date of defendant’s first appearance, whichever comes later. See 18 U.S.C. § 3161(c)(1). Section 3161(h), however, mandates the exclusion of certain periods of delay in calculating these seventy days, including some delays resulting from pretrial motions. See 18 U.S.C. § 3161(h).

Here, the relevant dates and proceedings are generally not in dispute. Sali-monu made his initial appearance in the district court on September 3, 1993. Sali-monu moved for a bill of particulars and for further discovery relating to cooperating witnesses on October 4, 1993. On November 11, 1993, without a hearing, the magistrate judge denied these motions. On December 9, 1993, Salimonu moved for reconsideration of the magistrate’s November 11 orders in the district court, and requested a hearing on the motions. The district court took no actions on Salimonu’s motions for reconsideration and did not schedule a hearing for either motion. Two years later, on December 15, 1995, Salimonu moved to dismiss the indictment against him with prejudice, asserting violations of the STA.

The parties are not in dispute that, as of December 8, 1993, fewer than 70 nonexcludable days had elapsed. Thus, the merits of Salimonu’s STA motion turn on whether the time period beginning December 9, 1993, when Salimonu made two motions for reconsideration, is excludable for STA purposes.

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Bluebook (online)
182 F.3d 63, 52 Fed. R. Serv. 711, 1999 U.S. App. LEXIS 15060, 1999 WL 450332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-salimonu-ca1-1999.