United States v. Salimonu

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-1557



                          UNITED STATES,



                            Appellee,



                                v.



                        OLADIPO SALIMONU,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Mark L. Wolf, U.S. District Judge]


Before


Stahl, Circuit Judge,

                 Magill,* Senior Circuit Judge,

                   and Lipez, Circuit Judge.


Kimberly Homan with whom Sheketoff & Homan and John L.

Roberts, by appointment of the Court, were on brief for appellant.

     Jennifer Zacks, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.


July 7, 1999


*Of the Eighth Circuit, sitting by designation.  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 Petrosino, 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

McKinnon.  The agents then accompanied McKinnon to O'Hare Airport

in Chicago, where they arrested Perry, who also agreed to

cooperate.  Agents arrested Petrosino 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

warrantless 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 attempted 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 Salimonu 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.  Salimonu made his initial appearance in the

district court on September 3, 1993.  Salimonu 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 non-excludable 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.  On June 29, 1996,

more than six months after Salimonu had filed his motion to dismiss

the indictment, the district court ruled that the time between the

filing of Salimonu's motions for reconsideration on December 9,

1993 and the hearing on those motions, which it scheduled for

August 2, 1996, was excludable under section 3161(h)(1)(F).  That

section excludes "delay resulting from any pretrial motion, from

the filing of the motion through the conclusion of the hearing on,

or other prompt disposition of, such motion."  18 U.S.C.

 3161(h)(1)(F).  The court first determined that a hearing was

required for Salimonu's motions to reconsider, and then concluded

that the long delay in holding the hearing was therefore

irrelevant.  See Henderson v. United States, 476 U.S. 321, 329-30

(1986) ("[W]hen a pretrial motion requires a

hearing . . . subsection (F) on its face excludes the entire period

between the filing of the motion and the conclusion of the

hearing . . . whether or not a delay in holding that hearing is

'reasonably necessary.'"); United States v. Staula, 80 F.3d 596,

601 (1st Cir. 1996) ("For motions that require a hearing, this

subsection excludes the time between the filing of the motion and

the hearing on that motion, even if the delay is overlong,

inexplicable, or unreasonable.") (citations omitted).

  Salimonu first contends that the court erred in

determining that a hearing was required for his motions for

reconsideration.  Such an error would be significant, because in

contrast to the potentially unreasonable time that is excluded from

STA calculations when a hearing is required, only 30 days may be

excluded when a hearing is not required.  See Henderson, 476 U.S.

at 329 (stating that when a hearing is not required, a motion must

be given a "prompt disposition" within no more than the 30 days

provided for matters held under advisement in section

3161(h)(1)(J)).  While there is little authority on what

constitutes a required hearing, this court has implied that a

request for a hearing ends the inquiry: "[T]he appellant requested

a hearing on his motions, thus acknowledging that one was

appropriate.  Consequently, we need not discuss the factors that

determine whether a given motion 'requires' a hearing."  Staula, 80

F.3d at 601 n.2; accord United States v. Tannehill, 49 F.3d 1049,

1052 n.4 (5th Cir. 1995).  Because Salimonu requested a hearing in

this case, we properly can assume that such a hearing was required

for section 3161(h)(1)(F) purposes.  In any event, the district

court in this case specifically found that this was the type of

motion for which hearings are required: "[A] hearing on the motions

filed on December 9, 1993 is required for their proper disposition. 

Both motions raise serious issues, particularly the motion for

discovery from cooperating individuals.  It is this court's regular

practice to provide hearings on such motions and the court intends

to do so here."  This is a sufficient indication that a hearing was

required: the district court is in a better position to determine

the necessity of a hearing than we are, and although the delay was

significant, we are loath to question the court's judgment in this

area absent obvious subterfuge. 

  Alternatively, Salimonu suggests that even if a hearing

was required for his motions, the delay in his case was not "delay

resulting from any pretrial motion,"  18 U.S.C.  3161(h)(1)(F)

(emphasis added), but rather was caused by administrative

oversight.  Some circuits have held that when there is no causal

link between the pretrial motion and the delay, the delay is not

excludable, see United States v. Gambino, 59 F.3d 353, 359 (2d Cir.

1995) (delay not excludable when hearing on motion was continued

until after trial); United States v. Clymer, 25 F.3d 824, 830-31

(9th Cir. 1994) (same), though not all the circuits have followed

this approach, see United States v. Riley, 991 F.2d 120, 123 (4th

Cir. 1993) (holding that when a hearing on a pretrial motion is

deferred until after trial, all of the time from the filing of the

motion until its disposition is nonetheless excludable); United

States v. Wilson, 835 F.2d 1440, 1443 (D.C. Cir. 1987) (holding

that "the exclusion of the time between the filing and disposition

of pretrial motions under  3161(h)(1)(F) is automatic and need not

cause actual delay of the trial").  Even if we were to adopt the

rule in Gambino and Clymer, however, the rule would not apply in

this particular factual situation.

  In both Gambino and Clymer, the district courts

explicitly continued the motions at issue until the end of the

trials.  In effect, these continuances amounted to denying the

motions without prejudice to the filing of renewed submissions

after trial.  See Gambino, 59 F.3d at 359; Clymer, 25 F.3d at 830. 

The Clymer court stated that this was the exceptional situation in

which "the pendency of the motion did not delay the start of the

trial; rather the delay in the commencement of the trial caused the

delay in hearing the motion."  Clymer, 25 F.3d at 831.  In

contrast, "in the ordinary case all pretrial delay that coincides

with the pendency of a motion will occur as a result of that motion

(because the district court will ordinarily hold off the trial date

until it decides the motion) . . . ."  Id. at 830.  Moreover, the

Supreme Court's determination in Henderson that even unreasonable

delays are "automatically" excluded lends support to the idea that

we should not examine whether the pending motion "caused" the delay

in a narrow sense.  See Henderson, 476 U.S. at 327.  Rather, as

long as a hearing on the motion is to be conducted before trial,

the delay until the hearing automatically should be considered

delay "resulting from" a pretrial motion.

  The delay in bringing Salimonu to trial was indeed

overlong, and the district court should have acted with much more

expedition.  Nonetheless, because a hearing was required on his

motions for reconsideration, the delay "resulting from" these

motions was properly excluded from STA calculations.  Thus, the

district court did not err in denying Salimonu's motion to dismiss

for violation of the STA.

                              III.

                     Sixth Amendment Claim

  The fact that the STA was not violated does not

automatically preclude us from finding a violation of Salimonu's

Sixth Amendment right to a speedy trial, although it would be

unusual to have a case where the STA is satisfied but the Sixth

Amendment guarantee is violated.  See Santiago-Becerril, 130 F.3d

at 21.  This circuit reviews a district court's ruling on a Sixth

Amendment speedy trial claim for abuse of discretion.  See id.

  The district court correctly analyzed Salimonu's Sixth

Amendment claim in light of four factors: (1) length of delay; (2)

reason for the delay; (3) defendant's assertion of his right; and

(4) the prejudice to defendant.  See Barker v. Wingo, 407 U.S. 514,

530 (1972).  The court determined that the reasons for the delay

were, at least in part, attributable to Salimonu, and that Salimonu

failed promptly to assert his right.  The court therefore concluded

that the length of the delay and the prejudice to Salimonu were

outweighed by his own responsibility for the delay.

  Salimonu has failed to meet his burden in showing that

this determination was an abuse of discretion.  While the two-year

delay in proceeding with Salimonu's trial was inordinately lengthy,

Salimonu never made an attempt promptly to assert his speedy trial

right or to expedite his trial.  See Barker, 407 U.S. at 532

(finding that failure to assert his right "will make it difficult

for a defendant to prove that he was denied a speedy trial");

Santiago-Becerril, 130 F.3d at 22 ("A defendant should give some

indication, prior to his assertion of a speedy trial violation,

that he wishes to proceed to trial.") (citations omitted). 

Salimonu never brought the pending motions to the court's attention

and waited two years before bringing his STA claim.  Therefore, we

cannot say that the district court abused its discretion in

determining that Salimonu's own responsibility for the delay

outweighed the prejudice to him.

                              IV.

                             Search

  Salimonu claims that the warrantless search of his

apartment violated the Fourth Amendment because Tonya Picou, a

third party, did not have authority to consent to the search and

because her consent was involuntary.  We review the legal

determination of whether a third party had authority to consent to

a search de novo.  Cf. United States v. Schaefer, 87 F.3d 562, 565

(1st Cir. 1996).  Voluntariness of a consent to search is a

question of fact, which we review for clear error.  See United

States v. Kimball, 741 F.2d 471, 473 (1st Cir. 1984). 

  A. Background

  The evidence, as found by the district court, establishes

the following.  On September 3, 1993, while Salimonu was in

custody, the management of Salimonu's apartment building informed

customs agents that a woman had been granted access to Salimonu's

apartment.  The agents proceeded to the apartment, knocked on the

door, and Picou answered.  The agents testified that Picou agreed

to a search of the apartment.  She also told the agents that she

had received a letter giving her authority to move Salimonu's

property from the apartment, presenting to them the following

handwritten note, signed by Salimonu, using one of his aliases:

    To Whom It May Concern

    c/o Columbus Plaza



    This is to authorize the bearer of this

  letter, Ms. Tonya Picou to pick up all the

  contents of 233 E. Wacker, Apt. 3402 and to

  move them out and retain possession of the

  said contents as I am presently encountering

  some legal problems.



    So I Maxwell Ola-Cole (ssn XXX-XX-XXXX) hereby

  give Tonya Picou permission to remove all the

  furnishings and personal effects in their

  entirety.



                       /s/ Maxwell Ola-Cole

                       Apt. 3402



  After first performing a security sweep and then reading

the letter, the agents searched Salimonu's apartment.  Picou was

present during the entire search, which lasted about an hour.

  During the search, the agents found and seized a number

of documents from the kitchen counters and drawers.  These included

a cellular phone contract in the name of Angela Nash.

  On August 22, 1996, Salimonu moved to suppress the

evidence from the search, arguing both that Picou lacked authority

to consent to the search and that her consent was not voluntary. 

After holding an evidentiary hearing, the district court determined

that the letter gave Picou actual authority to permit the agents to

search Salimonu's apartment.  The court also decided that Picou's

consent was voluntary.

  B. Analysis

  There is some question whether Salimonu's letter gave

Picou authority to consent to the search.  See United States v.

Matlock, 415 U.S. 164, 171 n.7 (1974) ("common authority" over

property such that parties may consent to a search rests on "mutual

use of the property by persons generally having joint access or

control for most purposes") (emphasis added).  But we need not

reach that more difficult issue because any error that the district

court may have committed is harmless; it is "'beyond a reasonable

doubt that the error complained of did not contribute to the

verdict obtained.'"  United States v. Wihbey, 75 F.3d 761, 769

(1st Cir. 1996) (quoting Chapman v. California, 386 U.S. 18, 24

(1967)).

  As noted, the evidence that emerged as a result of the

search included a cellular telephone contract in the name of Angela

Nash.  This contract did lead to the discovery of telephone

records which established that from December 31, 1991 through

February 6, 1992 -- almost four months before the drug couriers

left the country -- Salimonu made 40 calls to Perry's house, 17

calls to Perry's beeper, and 14 calls to the hotels where Perry and

McKinnon (who were romantically involved) were temporarily living. 

The content of these phone calls is unknown.

  Of course, these phone records tended to reinforce a

point already well-established by evidence obtained independently

of the search: that Salimonu and Perry were in regular contact with

one another.  But the fact that Salimonu had an ongoing

relationship with Perry was all but conceded at trial.  Moreover,

the mere fact that Salimonu called Perry regularly did little to

help prove the central point: that Salimonu was involved in an

illicit conspiracy, as was charged.  

  In contrast, there was overwhelming evidence indicating

that Salimonu was involved in the specific drug conspiracy in

question.  See United States v. Innamorati, 996 F.2d 456, 476 (1st

Cir. 1993) (stating that "wrongfully admitted evidence must be

'quantitatively assessed in the context of other evidence

presented'") (citations omitted).  The three co-conspirators

testified in detail as to Salimonu's leadership role in the

conspiracy, avowing that Salimonu planned the drug trips, paid the

co-conspirators' expenses, gave instructions as to where the

couriers should stay and what they should do, and contacted the co-

conspirators frequently.  The fact that the three co-conspirators'

testimony was detailed and basically consistent, despite the fact

that all three were apprehended at different times and apparently

had no opportunity to contact one another after their arrests, was

substantial evidence of guilt.  Compare Coppola v. Powell, 878

F.2d 1562, 1571 (1st Cir. 1989) (no harmless error where untainted

conflicting testimony of three jail inmates "raise[d] serious

questions of credibility" and there were "gaps in the

identification evidence") with Clark v. Moran, 942 F.2d 24, 32 (1st

Cir. 1991) (distinguishing Coppola, because even though untainted

inmate testimony "may have been inherently suspect because of the

inmates' personal motives for testifying," there was "no

conflicting testimony that needed to be reconciled" and there was

other corroboration).  This testimony was further supported by

tapes of incriminating conversations between McKinnon and "Laddie"

and between Petrosino and "Laddie."  The travel agent from whom

Petrosino bought his plane ticket to Bangkok identified Salimonu as

"Laddie," a regular customer at the travel agency, and testified

that Petrosino told him that he was recommended by "Laddie." 

Finally, an invoice seized from Perry's possessions included

handwritten notes of the names of hotels in Bangkok, along with a

notation that stated: "Portable wait for call from Laddie Monday or

Tuesday, 12 hours difference."  Given all this evidence and given

the insignificance of the phone records in the totality of the

government's case, we are convinced that the records did not

contribute to the jury's verdict.

  In response to the government's suggestion that any error

was harmless, Salimonu argues that the phone records were not only

circumstantial evidence of the conspiracy, but were also essential

corroboration of the co-conspirators' testimony.  According to

Salimonu, the records of the 14 calls to the hotels helped bolster

McKinnon's credibility by corroborating her testimony that Salimonu

called her.  But the phone records only indicated that McKinnon was

being truthful as to that one narrow and unimportant point in her

testimony.  Moreover, there was ample corroboration of McKinnon's

central testimony as to Salimonu's involvement in the drug

conspiracy.  See supra.  

  We therefore find that any error in the admission of the

evidence derived from the search was harmless beyond a reasonable

doubt.

                               V.

                     Exclusion of Evidence

  Salimonu next claims that the district court erred in

excluding expert testimony regarding the taped phone conversations. 

We review the district court's decision to exclude expert testimony

for abuse of discretion.  See General Elec. Co. v. Joiner, 522 U.S.

136, 138-39 (1997).  The district court's decision to exclude

evidence pursuant to Fed. R. Evid. 403 is also reviewed for abuse

of discretion, with "great deference to the district court's

judgment."  United States v. Currier, 836 F.2d 11, 18 (1st Cir.

1987).

  A. Background

  Evidence presented against Salimonu included taped

recordings of incriminating conversations between "Laddie" and

McKinnon and between "Laddie" and Petrosino.  Also presented to the

jury, for purposes of comparison, was a voice exemplar that

contained a recording of Salimonu's voice.  

  Salimonu sought to introduce the testimony of two expert

witnesses to establish that the voice in the taped phone

conversations and Salimonu's voice on the exemplar were different. 

The court permitted Robert Berkovitz, the developer of a spectogram

computer program which plots the frequency and magnitude of speech

signals, to testify that substantial differences between the

spectograms of the two voices indicated that the tapes were of two

different people.  But the court would not allow Dr. Stephen

Cushing, a linguist, to testify based on his listening to the tapes

that the two voices were different.

  The district court conducted a voir dire, during which

Cushing stated that he had listened to the tapes several times and

distinguished 14 differences between the two voices.  Cushing

admitted that he had no training or special certification in voice

identification or comparison, and that he had only engaged in voice

recognition procedures two or three times before.  He had never

before testified in court regarding voice identification.  He

conceded that a person may be able to disguise his voice, and

stated that he did not know whether the voice in this exemplar was

disguised.  Cushing knew of no studies to determine the rate of

error for this kind of identification.  Finally, he stated that a

lay person without linguistics training would be able to discern

the same differences that he had by listening to the tapes.

  Based on the voir dire, the district court excluded

Cushing's testimony, relying upon several alternative theories. 

First, pointing to the lack of an error rate or other indicia of

reliability, the court concluded that voice comparison was not

scientific knowledge as defined in Daubert v. Merrell Dow Pharms.,

Inc.  See 509 U.S. 579, 592-94 (1993) (relevant factors include

whether the technique has been tested, whether it is subject to

peer review, whether there is a high "known or potential rate of

error," and whether the technique enjoys general acceptance within

the scientific community).  Given that the jurors could listen to

the tapes and discern differences in the voices themselves, the

court also determined that this would not be an area in which

expert testimony would be helpful to the jury.  See id. at 591

(asserting that expert testimony must assist the jury in resolving

a relevant factual dispute); Fed. R. Evid. 702.  Next, the court

concluded that Cushing was not a qualified expert in the field even

if this was a proper area for expert testimony, and his testimony

should therefore be excluded under Rule 702.  See Fed. R. Evid. 702

(stating that a witness "qualified as an expert by knowledge,

skill, experience, training, or education" may give expert

testimony).  Finally, the court stated that even if the testimony

were admissible under Rule 702, it should be excluded under Rule

403, because the unfair prejudice of the testimony would

substantially outweigh its probative value.  See Fed. R. Evid. 403.

  B. Analysis

  Salimonu contends that the court erred in subjecting

voice comparison -- which he argues is specialized knowledge, not

scientific knowledge -- to the Daubert analysis for determining

whether expert testimony rests upon sound scientific methodology. 

According to Salimonu, the Daubert analysis only applies to

testimony based upon scientific knowledge.  A recent Supreme Court

case contradicts this assertion and affirms that a district court

has discretion to determine the reliability of any specialized

knowledge asserted by an expert witness.  See Kumho Tire Co., LTD.

v. Carmichael, 119 S. Ct. 1167, 1171, 1176 (1999).  It would seem,

then, that the court's assessment that Cushing's analysis was not

reliable, based upon the lack of an error rate, the testimony that

a voice could be disguised, and the lack of other indicia of

reliability, was soundly within the court's discretion.  See id. at

1179 (holding that the district court's decision that expert

testimony failed to satisfy Daubert's factors "or any other set of

reasonable reliability criteria" was not abuse of discretion). 

  At any rate, Cushing admitted that a layperson could

distinguish the differences that he found by listening carefully to

the two tapes.  Thus, it was within the court's discretion to

determine that Cushing's testimony would not "assist the trier of

fact to understand the evidence or to determine a fact in issue." 

Fed. R. Evid. 702.  Salimonu argues that the testimony would assist

the jury, because the jury could not, without expert assistance,

understand the reasons for the differences in the tapes or

determine whether the differences indicated that the two speakers

were different.  Cf. United States v. Shay, 57 F.3d 126, 132 (1st

Cir. 1995) (questioning "'[w]hether the untrained layman would be

qualified to determine intelligently and to the best degree, the

particular issue without enlightenment from those having a

specialized understanding of the subject matter involved'")

(citations omitted).  We are unconvinced.  Cushing stated that an

ordinary lay person without training in linguistics would be able

to discern that the two voices were different without knowing why. 

It was not important, however, that the jurors be able to identify

exactly which vowel sounds or intonations were different in the two

tapes: their job was simply to determine whether the two voices

were different.  By Cushing's own admission, the jurors were

perfectly well-equipped to do that.  The court did not, therefore,

abuse its discretion in excluding Cushing's testimony.  

                              VI.

                  Sufficiency of the Evidence

  Finally, Salimonu contends that the government did not

establish that he was guilty of all elements of the crimes beyond

a reasonable doubt.  We review the guilty verdict to determine

"whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime[s] beyond a reasonable doubt." 

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citation omitted).

  Salimonu argues that there was insufficient evidence to

support his convictions for conspiracy and for aiding and abetting

on Counts 1, 2, 3, and 4, because there was no evidence that the

co-conspirators had the requisite knowledge that they were agreeing

to import a controlled substance.  This argument is patently

incorrect.  Perry testified that he had many conversations with

Salimonu about smuggling drugs.  This in itself is sufficient

evidence that Perry had the requisite knowledge.  The testimony of

McKinnon and Petrosino about the large sums of money they were to

receive in exchange for transporting a suitcase into the country

would enable a reasonable jury to infer that they knew they were

importing a controlled substance into the country.  Finally, the

court instructed the jury that it could find Salimonu guilty of

importing heroin even if McKinnon did not know she was bringing a

controlled substance into the country "if the defendant willfully

caused her to bring a controlled substance into the country." 

There was sufficient evidence for the jury to reach this

conclusion.

  Finally, Salimonu also argues that the voice

identification testimony by McKinnon was insufficient to support a

conviction on the counts involving use of a telephone.  Between

McKinnon's testimony and the tapes of the conversations provided,

there was plenty of evidence to support the jury's verdict in this

regard.

                              VII.

                           Conclusion

  For the foregoing reasons, we affirm Salimonu's

convictions in all respects.                                     

  Affirmed.     


Dissent follows.  LIPEZ, Circuit Judge, dissenting.  The majority concludes

that "any error the district court may have committed [in admitting

evidence from the search] is harmless" because it is "beyond a

reasonable doubt that the error complained of did not contribute to

the verdict obtained."  I respectfully disagree with that

conclusion.  I must therefore analyze the legality of the search

and the issue of harmless error.

                           The Search

  I do not question the district court's factual findings,

e.g., I accept that Picou voluntarily consented to the search.  I

do, however, disagree with the district court's legal determination

that Picou had actual legal authority or, in the alternative, that

she had apparent authority to consent to the search of Salimonu's

apartment.

  It is basic that "any intrusion upon a constitutionally-

protected privacy interest without a proper warrant is per se

unreasonable under the Fourth Amendment subject only to a few

specifically established exceptions."  United States v. Donlin, 982

F.2d 31, 33 (1st Cir. 1992) (internal quotation marks omitted). 

Consent is one such exception to the warrant requirement.  Id.; see

also Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).  In order

for the consent to a warrantless search to be valid, however, the

consent must come either from the defendant or "from a third party

who possessed common authority over or other sufficient

relationship to the premises or effects sought to be inspected." 

United States v. Matlock, 415 U.S. 164, 171 (1974).  The Court

explained in Matlock that common authority requires

    mutual use of the property by persons

  generally having joint access or control for

  most purposes, so that it is reasonable to

  recognize that any of the co-inhabitants has

  the right to permit the inspection in his own

  right and that the others have assumed the

  risk that one of their member might permit the

  common area to be searched.



Id. at n.7.  It is common authority which gives the consenting

party the ability to allow the government to conduct a search "even

when the defendant specifically objects to it."  Donlin, 982 F.2d

at 33.  This common authority requirement reflects an important

principle: the consenting party does not waive the defendant's

Fourth Amendment rights.  Instead, the consenting party voluntarily

consents to waive his or her own privacy interest in the property

to be searched, thereby validating the government's otherwise-

proscribed warrantless search.  "The burden of establishing that

common authority rests upon [the government]."  Illinois v.

Rodriguez, 497 U.S. 177, 181 (1990).

  The district court erred in concluding that Picou had the

requisite authority to consent to the search of Salimonu's

apartment.  At the suppression hearing, it was established that

Picou did not live there; none of her possessions was in the

apartment; indeed, she had never been in the apartment before the

day it was searched.  Far from having "joint access or control for

most purposes," Picou's authority was highly circumscribed, as was

evident from the letter and the circumstances surrounding her

presence (e.g., that she needed the building management to provide

her with a key).  She had permission to enter the apartment solely

for the purpose of facilitating the move of Salimonu's possessions

into storage.  Access to the apartment for that limited purpose

cannot be reconciled with the joint access or control for most

purposes which is required for valid consent. See United States v.

Hyson, 721 F.2d 856, 859 (1st Cir. 1983) (citing Matlock, 415 U.S.

at 171). 

  The district court did not distinguish between joint

access or control over (and thus authority to consent to a search

of) the apartment and joint access or control over the possessions

inside the apartment when it emphasized in its decision Picou's

authority to "take and retain possession of the property in the

defendant's apartment."  See United States v. Warner, 843 F.2d 401,

403 (9th Cir. 1988) (permission for landlord to enter apartment for

particular purpose did not give landlord authority to consent to

search of apartment); see also United States v. Fultz, 146 F.3d

1102 (9th Cir. 1998) (distinguishing joint access to a garage from

joint access and control over the personal property in the garage). 

Whether the situation would be materially different if the

government had attempted to secure consent to search possessions

that had already been removed from the apartment is a question we

do not have to address.  The fact is that the government decided to

execute a warrantless search of Salimonu's apartment and must

justify this search.  Lacking joint access or control over the

apartment for most purposes, Picou lacked authority to consent to

its search.

  The government's alternative apparent authority theory

for justifying the search also misses the mark.  Even if Picou

lacked actual authority to consent to the search of Salimonu's

apartment, the government argues, the search was valid because

Picou had apparent authority to consent.  Relying on Illinois v.

Rodriguez, 497 U.S. 177 (1990), the government contends that the

Fourth Amendment is not violated by a consensual warrantless search

if the police mistakenly, but reasonably, believed that the

consenting party had actual legal authority to consent to the

search.  See id. at 188-89.  In Rodriguez, however, the police

officers were literally tricked into reasonably believing that the

consenting party had actual authority.  See id. at 179.  The police

in Rodriguez responded to a call and were met by Fischer, who

showed signs of a severe beating.  She told the officers where they

could locate her assailant and agreed to take them to the apartment

and to unlock the door with her key so that the officers could

arrest him.  Fischer repeatedly referred to the apartment as "our"

apartment, and told the officers that she had clothes and furniture

there.  Id.  Some of these representations turned out to be false,

and the Supreme Court concluded that the lower court's

"determination of no common authority over the apartment was

obviously correct."  Id. at 182.  Nonetheless, the Court held that

"what is generally demanded of the many factual determinations that

must regularly be made by [government] agents . . . is not that

they always be correct, but that they always be reasonable,"  id.

at 185-86 (italics added), and upheld the search because of

Fischer's apparent authority to consent to the search.

  In this case, there are no mistaken factual

determinations by the officers and the apparent authority doctrine

is thus inapplicable.  See United States v. Whitfield, 939 F.2d

1071, 1074 (D.C. Cir. 1991) (holding that Rodriguez "held only that

the Fourth Amendment does not invalidate warrantless searches based

on a reasonable mistake of fact, as distinguished from a reasonable

mistake of law" and concluding that "Rodriguez thus applies to

situations in which an officer would have had valid consent to

search if the facts were as he reasonably believed them to be.");

United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993) ("[T]he

doctrine is applicable only if the facts believed by the officers

to be true would justify the search as a matter of law.").  Neither

the Supreme Court nor any court of appeals that has applied

Rodriguez's apparent authority doctrine has extended it to validate

a warrantless search by officers who have made a reasonable error

of law.  See United States v. Salinas-Cano, 959 F.2d 861, 866 (10th

Cir. 1992) ("[The police officer's mistake] was a mistake of law

rather then a mistake of fact, and Rodriguez therefore does not

resolve the issue.") (internal citation omitted).  

  Rodriguez does not purport to alter the legal standard

for determining authority to consent to a search.  Instead, it

instructs that courts are to apply the correct legal standard not

only to the facts as they actually existed but to the facts as a

reasonable police officer would have believed them to be.  In this

case, unlike in Rodriguez, there were no factual misunderstandings

about Picou's relationship with the apartment, and therefore the

apparent authority doctrine is inapplicable.  The officers only

knew that someone who had come to the building with a letter from

Salimonu authorizing her access to the apartment had also been

given a key to the apartment by the building manager.  On the basis

of this information alone, government agents went to the apartment

and asked Picou to consent to the search.  It is irrelevant whether

they read the letter from Salimonu before or after securing Picou's

consent because, as discussed above, the letter as a matter of law

would not "warrant a man of reasonable caution in the belief,"

Rodriguez, 497 U.S. at 188, that Picou had "joint access or

control [over the apartment] for most purposes,"  Matlock, 415 U.S.

at 171, n.7.  Under such circumstances, the warrantless entry was

unlawful.  See Rodriguez, 497 U.S. at 188-89.

  Harmless Error Beyond a Reasonable Doubt

  Having determined that the warrantless search violated

Salimonu's Fourth Amendment right against unreasonable searches, I

must inquire whether the government can carry its burden "to prove

beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained."  Chapman v. California, 386

U.S. 18, 24 (1967).  The government's theory at trial was that

Salimonu organized and led a conspiracy involving Christopher

Perry, Kim McKinnon, and Ralph Petrosino, among others.  The case

against Salimonu came from the testimony of Perry and McKinnon, who

had been caught with evidence incriminating them in a drug

importation scheme, and from Petrosino, who admitted his

involvement in the conspiracy.  Each of them had plea bargained in

exchange for testimony implicating Salimonu.  Other than the

testimony of the three co-conspirators, the government's remaining

evidence  consisted largely of (1) tape-recorded telephone

conversations between Salimonu and McKinnon and Salimonu and

Petrosino; and (2) the evidence seized during the warrantless

search of Salimonu's apartment.

  The defense's theory was that Salimonu had been mis-

identified -- that Perry, McKinnon, and Petrosino had falsely

implicated him to protect themselves.  One of the government's lead

agents testified that a woman who had been recruited to join but

did not in fact participate in the conspiracy identified another

man (also Nigerian) as "Laddie" and as the head of the conspiracy. 

There was evidence that for some time during the fourteen months

between the end of the conspiracy and Salimonu's eventual arrest

the government considered that man, Olayinka Apanpa, to be the

"Laddie" they were looking for, and three searches (each of them

pursuant to a search warrant) were executed on Apanpa's properties.

  I now turn to a more detailed discussion of the

government's evidence.

  1. The Consistency of the Co-conspirator's Testimony

  The majority notes the consistency of the testimony of

the co-conspirators and states that "[t]he three co-conspirators

testified in detail as to Salimonu's leadership role in the

conspiracy, declaring that Salimonu planned the drug trips, paid

the co-conspirators' expenses, [and] gave instructions as to where

the couriers should stay and what they should do."  In fact,

however, McKinnon's and Petrosino's testimony was derived largely

from what Perry told them.  McKinnon and Petrosino had limited

personal contact with Salimonu; their involvement in the conspiracy

was for the most part at the direction of Perry as well as other,

unindicted co-conspirators who did not testify.  They were

recruited by Perry and both had personal relationships with Perry

which pre-dated and were independent of the alleged conspiracy. 

Perry's motivation to plea bargain and implicate Salimonu in

exchange for leniency was abundantly clear, and his credibility was

further undermined by his admission that he had been a drug dealer

of marijuana and cocaine prior to this conspiracy.

   Petrosino testified to meeting Salimonu on only two or

three occasions in the basement of the house of Perry's mother

where Perry had been cutting Salimonu's hair.  Any conversation

between Salimonu and himself was brief, consisting exclusively of

salutations, and he never spoke to Salimonu in person about

anything relating to the conspiracy.  In fact, Petrosino testified

that Perry began recruiting him for the conspiracy in April 1992,

more than three months after the last time Petrosino ever saw

Salimonu in person.  Petrosino also testified that he was given

money in furtherance of the conspiracy on two occasions by a man

named Foley whom Perry had instructed him to meet.  Perry also told

Petrosino how to get his pre-arranged plane ticket and how to

acquire a passport, and it was Perry who provided Petrosino with

money for his passport application.  Indeed, on cross examination

by the defense, Petrosino testified that on three separate

occasions he expressed a desire to abandon the conspiracy but that

Perry coerced him into continuing participation through threats and

intimidation.

  Although McKinnon likewise had relatively little face-to-

face interaction with Salimonu, testifying that during the course

of the alleged conspiracy she met him three or four times, she  did

testify to more significant personal interaction with Salimonu than

Petrosino had described.  McKinnon testified that she met Salimonu

shortly after Perry had begun recruiting her and that she rode

around in a car with Perry and Salimonu for an hour, when Salimonu

told her that she could make a lot of money and repeatedly assured

her that "everything was going to be alright."  But it was Perry

who told McKinnon when she was to travel, gave McKinnon her plane

ticket, provided McKinnon with spending money for the trip, and

paid for her hotel rooms.  Although McKinnon testified that it was

her understanding that Salimonu was reimbursing Perry for all the

money she saw Perry spend in furtherance of the conspiracy, she got

that impression mostly from what Perry told her.  On the witness

stand, McKinnon admitted that she had told the customs

investigators an entirely different story (in her words, "a bunch

of lies") during her initial interrogation.  McKinnon also

admitted on the witness stand that she lied in an attempt to

protect Perry (the father of one of her children).

  The majority also emphasizes that the co-conspirators

were consistent with one another even though they "apparently had

no opportunity to communicate after their arrests."  However,

McKinnon was arrested on May 29, 1992 and flew to Chicago the next

day (accompanied by U.S. Customs agents) in order to make a

controlled delivery to Perry. Perry came to meet McKinnon at the

airport on May 30, 1992 and from the time Perry met McKinnon (who

had been under arrest for over a day at that point) until he was

arrested in the airport parking lot, Perry and McKinnon were alone

(although under visual surveillance) with a chance to communicate. 

  2. The Tapes of Phone Conversations

  The prosecution introduced into evidence five taped phone

conversations involving Salimonu, one of which involved Petrosino

and four of which involved McKinnon.  (A sixth tape involved 

McKinnon and Perry.)  Petrosino and McKinnon were under arrest and

cooperating with the U.S. Customs agents at the time of each of the

calls.  The call between Petrosino and Salimonu was not

inculpatory.  Petrosino attempted to draw Salimonu into a

conversation about the conspiracy but Salimonu simply responded

with confusion.  It is undisputed that Petrosino had never called

Salimonu in furtherance of the conspiracy; the U.S. Customs agents

had to provide Petrosino with a phone number for Salimonu because

Petrosino only knew how to contact Perry throughout the course of

the conspiracy.

  Three of four conversations between McKinnon and the man

who was identified as Salimonu were likewise benign.  Salimonu is

heard asking McKinnon how her trip was, helping to arrange

McKinnon's flight from Boston to Chicago, and sympathizing with how

much McKinnon misses her children.  In their fourth conversation,

Salimonu asks McKinnon: "[d]id they go through your stuff at all?" 

When McKinnon responds in the negative, Salimonu says: "Thank God." 

Of course, the jury could decide that it was in fact Salimonu on

the tape and use this exchange as evidence of Salimonu's knowing

participation in the conspiracy. 

  3. The Evidence from the Search  

  The evidence seized during the warrantless search and

ultimately admitted into evidence includes (1)the Foley Shomuga

phone card and travel records, and (2)multiple cellular phone

records.  The former led the government to Angela Nash who

testified that Laddie had asked her to get a cellular phone in her

name for his use.  See Wong Sun v. United States, 317 U.S. 471,

485-86 (1963) (noting that the exclusionary rule applies to

evidence gained during a search or as a direct result of a search

and applies to physical as well as verbal evidence).  The jury

could have used the Angela Nash testimony to ascribe guilty motives

to Salimonu's deceptive acquisition of a cellular phone using a

non-conspirator's identity.  Nash was the only non-conspirator fact

witness to testify to such suspicious activity on the part of

Salimonu, and the government argued her disinterested credibility

to the jury.

  The Foley Shomuga evidence corroborated Petrosino's

testimony.  Petrosino testified that "Foley" had given him cash to

buy his plane ticket and, at a later date, cash for his trip.  It

is true, as the majority notes, that the prosecution had also

discovered independently of the search and had placed into evidence

a letter from Salimonu to a former landlord in Atlanta establishing

that Salimonu knew a person named Foley.  But the phone card seized

from Salimonu's apartment and admitted into evidence put Foley in

Salimonu's apartment in Chicago and also allowed the government to

subpoena Shomuga's travel records from Salimonu's travel agent. 

Until the warrantless search, the police had no surname for Foley. 

Those records, which revealed Foley's travel between Chicago and

Atlanta (a city in which other evidence showed Salimonu had shared

an apartment with Foley), along with the Foley Shomuga phone card

in Salimonu's apartment, provided a key link between Petrosino's

testimony that "Foley" provided him with money for the conspiracy

and the government's theory that Salimonu was the conspiracy's

organizer.  Although the majority minimizes this evidence,

claiming that it did not "ha[ve] any significance to the

government's case," it clearly enhanced Petrosino's credibility.

  Angela Nash's testimony also established a foundation for

admission of the cellular phone records which were in her name but

which, according to her testimony, reflected Salimonu's use of the

cellular phone.  Although other evidence established that Salimonu

knew Perry and McKinnon, the cellular phone records provided a

documentary basis for arguing that Perry and McKinnon had

truthfully described their involvement with Salimonu in drug

trafficking.  Perry's appointment book had multiple references to

Salimonu with an "HC" next to them.  Perry himself testified that

these were references to haircut appointments.  Fifty-seven phone

calls, however, from Salimonu to Perry, and another fourteen to the

motels where McKinnon was staying with Perry, altered the

evidentiary landscape significantly, and substantially corroborated

Perry's and McKinnon's account of their relationship with Salimonu.

  The government emphasized the significance of the phone

records by preparing poster-size enlargements of summaries of them

so that the jurors could give them extra attention.  Then, in its

argument to the jury, the government continuously urged the jury to

rely on the phone records as evidence of the conspiracy and

corroboration of the credibility of the government's witnesses:

    We know that [Salimonu convinced Angela Nash

  to get him a phone in her name] a couple of

  ways.  We know that, number 1, she told you.

  We know that, number 2, because the contract

  for that phone was found in his apartment. 

  Remember that?  The search in September of

  1993 revealed the service contract in the name

  Angela Nash for that telephone, 3152877.



      And as exhibits in this case, ladies

  and gentlemen, as Exhibits 90, 91, and 92,

  you're going to have the phone charts.  They

  are summaries of the Cellular One telephone

  records.  Look at them.



                             * * *



    You have the [phone] records, you can analyze

  them.  But what do they show, ladies and

  gentlemen?  They show   I can get the numbers

  here   some 57 telephone calls from the cell

  phone that [Salimonu] had in Angela Nash's

  name to Christopher Perry in that one six-week

  period.

      But more than that, they corroborate

  Christopher Perry, and they corroborate Kim

  McKinnon, because they show seven calls to the

  Day's Inn where Kim McKinnon was being housed

  and fed, and they show some seven calls to the

  Kitchenette Hotel where she moved . . .

                              * * * 

      What we have now is Cellular One

  corroborating Christopher Perry and Cellular

  One corroborating Angela Nash, who in turn

  corroborates Christopher Perry . . .

                              * * *

    And then where does this great conspiracy of

  Chris Perry [wrongly implicating Salimonu]

  reach?  It reaches into the - - the tentacles

  go into the Cellular One Telephone Company. 

  They reach out to Angela Nash.



                             * * *

      Now, try hard as he might, [defense

  counsel] can't cover-up the evidence that does

  show [Salimonu's] guilt.  Do you remember the

  57 telephone calls to Chris Perry, either to

  his mother or to the beeper, and then the

  additional ones to the Day's Inn and the

  Kitchenette Hotel?  What do you think Laddie's

  calling Chris Perry for?  I want to confirm my

  haircut for six weeks from now.  But I'll call 

  you again in an hour.  But let's just make

  sure we know.  57 times?  Holy Moses.  Get

  away.



  These multiple exhortations by the prosecutor that the

jury should rely on the phone records reflect the government's

awareness that corroborating the testimony of the co-conspirators

was critical to its case.  All of the main witnesses in the case --

Perry, McKinnon, and Petrosino   had plea bargained in exchange for

their testimony and had other credibility issues.  Although the

jury could believe them without the corroborative evidence obtained

through the search of Salimonu's apartment, that evidence

significantly enhanced the credibility of the co-conspirators. 

Hence the government repeatedly emphasized the importance of the

phone records to the jury in its closing arguments.

  It is an inescapable fact that "[t]he force of a

prosecutor's argument can enhance immeasurably the impact of false

or inadmissible evidence."  Brown v. Borg, 951 F.2d 1011, 1017 (9th

Cir. 1991).  That enhancement is particularly significant when the

prosecution uses illegally seized corroborative evidence to remove

reasonable doubts from the government's case.  I therefore cannot

conclude beyond a reasonable doubt that the evidence gained from

the unconstitutional search of Salimonu's apartment did not affect

the jury's verdict.  I would vacate that verdict and remand for a

new trial.