February 2, 1993
United States Court of Appeals For the First Circuit
No. 92-1587
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
MICHAEL IDOWU TUNDE AKINOLA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge, and
Stahl, Circuit Judge.
David N. Cicilline for appellant.
Gerard B. Sullivan, Assistant U.S. Attorney, with whom Lincoln C.
Almond, U.S. Attorney and Margaret E. Curran, Assistant U.S. Attorney,
were on brief for appellee.
February 2, 1993
STAHL, Circuit Judge. Defendant-appellant Michael
Idowu Tunde Akinola ("Akinola") launches a five-pronged
attack on his conviction for conspiracy to possess with
intent to distribute heroin and possession with intent to
distribute heroin.1 We address the following claimed errors
in detail: 1) unconstitutional denial of chosen counsel when
the Magistrate Judge denied his desired counsel's motion for
admission pro hac vice; 2) erroneous denial of his motion for
judgment of acquittal; 3) the impermissible prosecutorial
comment on his failure to testify and the trial court's
subsequent inadequate curative instruction; and 4) the trial
court's improper jury instruction. For the reasons set forth
below, we affirm both counts of conviction.
I.
Factual Background
We begin by summarizing the evidence in the light
most favorable to the government. United States v. Abreu,
952 F.2d 1458, 1460 (1st Cir.), cert. denied, U.S. ,
112 S. Ct. 1695 (1992).
On June 30, 1991, Patrolman Donald L. Mong of the
East Greenwich, Rhode Island, Police Department, was working
a routine patrol in a marked cruiser. At approximately 5
1. Akinola was arrested, tried and convicted along with a co-defendant, Joseph Gullity, whose appeal we have already decided. United States v. Gullity, No. 92-1586 (1st Cir.
Dec. 14, 1992) (unpublished).
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p.m., Mong noticed that a car which had just passed
perpendicular to his ("the suspect car") did not have a front
license plate. Mong and Akinola made eye contact as the
suspect car passed Mong. Mong pulled out and began to follow
the vehicle, in which Akinola was the driver and Gullity the
passenger. When Mong positioned himself behind the suspect
car, it accelerated and began to pull away from Mong,
eventually reaching a speed of 50 miles per hour in a
residential area posted for 25 miles per hour. Mong closed
the gap sufficiently so that he could read the vehicle's rear
license plate number which he transmitted to police
headquarters in order to obtain as much information about the
car as possible.
As appellant's car slowed for intersection traffic,
Mong shortened the distance between the two vehicles. He
then observed Akinola and Gullity having a spirited
conversation in which he could see Akinola's head moving and
his lips moving fast "as though he was trying to get out a
lot of information quickly." After traffic cleared, the
suspect car turned left at the intersection, followed by
Mong. Again, the suspect car began pulling away from Mong,
despite the latter's speed of 50 miles per hour. At that
time, the two vehicles were travelling in a 35 mile per hour
zone. The suspect car soon approached the vicinity of an
entrance ramp for interstate route 95. Although Mong had yet
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to receive any information on the suspect car, he wanted to
avoid following it onto the interstate, and thus activated
his car's emergency overhead lights. The suspect car did not
enter the interstate, nor, however, did it stop in response
to the emergency lights. Mong then flashed his car's
headlights and turned on his siren, after which Akinola
appeared to glance into his rear-view mirror. After
travelling approximately 200 yards further, and passing at
least two areas suitable for pulling over, Akinola entered a
movie theater parking lot, stopping the vehicle near the
front of the theater entrance. Between Mong radioing for
information and the suspect car stopping, the vehicles
covered about one and one-half miles.
As Mong was informing his dispatcher that both
vehicles had stopped, Akinola exited his vehicle and began
yelling at Mong in an "agitated" manner. Mong then exited
his vehicle, while Akinola continued toward him, yelling at
Mong and toward Gullity--who was still seated in the car--in
English to Mong and to Gullity in another language which Mong
did not understand, which later turned out to be the African
dialect Yoruba. Although Mong ordered Akinola to return to
his car, Akinola continued towards him, still yelling
bilingually. Akinola then began shoving Mong, but after a
scuffle, Mong was able to pin Akinola on the ground, handcuff
him, and then lock him in the rear of his cruiser.
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Meanwhile, during the Mong-Akinola imbroglio, Gullity
walked into the theater lobby. After securing Akinola, Mong
brought Gullity back to the parking lot, whereupon a citizen
bystander, Michael Melchor, directed Mong's attention to a
nearby vehicle, under which Melchor claimed he had seen
Gullity kick an object he had removed from his shirt pocket.
Mong retrieved the object, which turned out to be a tissue
containing 46.5 grams of heroin. Akinola was subsequently
indicted and convicted on charges of conspiracy to possess
with intent to distribute heroin, in violation of 21 U.S.C.
841(a)(1), (b)(1)(c) and 846, and possession with intent
to distribute heroin, in violation of 21 U.S.C. 841(a)(1),
(b)(1)(c). Following his conviction, he was sentenced to a
term of 46 months imprisonment.
II.
Pretrial Proceedings
Akinola initially appeared in district court on
July 15, 1991, at which time attorney John F. Cicilline
entered an appearance on Akinola's behalf. A probable cause
and detention hearing was then scheduled for July 18, 1991.
On the scheduled date, attorney John M. Cicilline appeared on
behalf of Gullity, and attorney David N. Cicilline attempted
to represent Akinola. John F. Cicilline was not present at
the hearing. Magistrate Judge Boudewyns did not permit David
N. Cicilline to represent Akinola because he was not a member
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of Rhode Island's District bar and because John F. Cicilline
was still listed as counsel of record and had not withdrawn
from the case. The Magistrate Judge also denied John M.
Cicilline's motion to admit David N. Cicilline pro hac vice,
but scheduled a hearing for July 23, 1991, to further
consider the matter.
John F. Cicilline appeared at the July 23, 1991,
hearing and requested the Magistrate Judge to reconsider his
denial of the pro hac vice motion. That request was denied
for several reasons, which appellant now argues were
erroneous. We need not address the merits of this particular
claim, however, because appellant's failure to preserve the
issue leaves us without jurisdiction to consider the matter.
A brief explanation follows.
The courts of appeals have jurisdiction over
appeals "from all final decisions of the district courts of
the United States." 28 U.S.C. 1291; United States v.
Ecker, 923 F.2d 7, 8 (1st Cir. 1991). Furthermore, "[t]o be
a final order of the district court within the meaning of
section 1291, the magistrate's decision must have been
reviewed by the district court, which retains ultimate
decision-making power." Id. (quoting Siers v. Morrash, 700
F.2d 113, 115 (3d Cir. 1983) and cases cited therein)
(internal quotes omitted). See generally Pagano v. Frank,
No. 92-1952, slip op. at 4-7 (1st Cir. Jan. 13, 1993). In
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the case at bar, there is no dispute that the Magistrate
Judge's order was not brought before the district court via
either of the two methods countenanced in Ecker.2 Appellant
seeks to bypass this apparent jurisdictional blockage by
arguing that his apparent default is excused by the
Magistrate Judge's lack of warning, in his order, that
failure to seek district court relief would result in waiver
of appellate rights. It is true, as appellant asserts, that
United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986)
mandated such notice in certain cases to protect the rights
of pro se litigants. But here, Akinola was represented by
experienced counsel at the time of the Magistrate Judge's
ruling. Moreover, as we pointed out during oral argument,
even when such a warning is required, it is necessary only as
part of a Magistrate Judge's report and recommendation to the
district judge, 28 U.S.C. 636(b)(1)(B), (C), and not when
the Magistrate Judge issues a non-dispositive order. 28
U.S.C. 636(b)(1)(A); See, e.g., M.S. Chambers & Son, Inc.
v. Tambrands, Inc., 118 F.R.D. 274, 279 (D. Mass. 1987)
(giving waiver notice only "to the extent that [Magistrate's]
2. In Ecker we noted the existence of two categories of
magistrate's orders--"self-operating" and "non-self- operating." The former type, pursuant to 28 U.S.C. 636(b)(1)(A), which cover most pre-trial and discovery matters, are valid when entered and can be challenged by a motion for reconsideration directed to the district court. Non-self-operating orders are not valid until the district court accepts the magistrate's report and recommendation and enters an order or judgment. 28 U.S.C. 636(b)(1)(A), (B).
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ruling may be considered a report and recommendation").
Therefore, the lack of such notice in this case is of no help
to appellant, and thus we are without jurisdiction to
consider the Magistrate's pro hac vice ruling.
III.
Alleged Trial Errors
A. Denial of Rule 29 Motion for Acquittal A. Denial of Rule 29 Motion for Acquittal
As we have recently reiterated, we review the
district court's denial of a Rule 29 motion by "scrutinizing
the record in the light most favorable to the prosecution and
drawing all reasonable inferences in favor of the verdict."
United States v. Gonzalez-Torres, No. 91-2140, slip op. at 5
(1st Cir. Nov. 20, 1992) (citing United States v. Amparo, 961
F.2d 288, 290 (1st Cir.), cert. denied, U.S. , 113 S.
Ct. 224 (1992)). If, upon such a reading of the record, we
conclude that a rational jury could have found the defendant
guilty beyond a reasonable doubt, then we must affirm the
district court. Id.; United States v. Plummer, 964 F.2d
1251, 1254 (1st Cir.), cert. denied, U.S. , 113 S. Ct.
350 (1992). Moreover, the prosecution need not exclude every
reasonable hypothesis of innocence and may prove its entire
case through the use of circumstantial evidence, so long as
the totality of the evidence permits a conclusion of guilt
beyond a reasonable doubt. Gonzalez-Torres, No. 91-2140, slip
op. at 5 (citations omitted).
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1. Possession with Intent to Distribute
In order to convict Akinola of possession with
intent to distribute heroin, the government must prove that
he knowingly and intentionally possessed the heroin and that
he did so with the intent to distribute it. Unites States v.
Barnes, 890 F.2d 545, 549 (1st Cir. 1989), cert. denied, 494
U.S. 1019 (1990); United States v. Latham, 874 F.2d 852, 863
(1st Cir. 1989). In addition, and especially relevant to the
case at bar, the government need not prove that Akinola
actually possessed the heroin. Instead, proof of
constructive possession is sufficient to support a
conviction. United States v. Martinez, 922 F.2d 914, 923 (1st
Cir. 1991); Latham, 874 F.2d at 861. Constructive
possession may be proved by demonstrating defendant's power
and intent to exercise ownership, dominion, or control over
the contraband itself, or over the area in which the
contraband was concealed. Constructive possession may be
sole or joint and may be achieved directly or through others.
United States v. Ocampo-Guarin, 968 F.2d 1406, 1409-10 (1st
Cir. 1992) (citations and quotations omitted); United States
v. Vargas, 945 F.2d 426, 428 (1st Cir. 1991) (citations
omitted).
The government concedes that it has no direct
evidence of Akinola's actual possession of the heroin.
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Instead, the case against Akinola is based on an inferential
chain of circumstantial evidence. The government argues that
Akinola's actions after he became aware of Mong's presence
all support the conclusion that he had knowledge of the
heroin in Gullity's pocket. Specifically, the government
relies on Mong's testimony that Akinola suddenly accelerated
after he and Mong made initial eye contact, speeding through
a residential neighborhood at twice the speed limit. Later,
when Akinola was forced to slow for traffic, he and Gullity
were seen in an animated conversation, which the government
claims related to the heroin and what to do in the face of
Mong's presence. Next, the government points to Akinola's
failure to yield after Mong activated his lights and sirens,
passing at least two suitable turnoffs before pulling into
the movie theater parking lot, as further evidence of
evasion. In addition, the government argues that Akinola's
physical assault on Mong was an attempt at creating a
diversion so that Gullity could dispose of the heroin.
Finally, the government claims that Akinola was shouting to
Gullity in the Yoruba language in order to give Gullity
instructions which Mong would be unable to understand. The
government argues that Akinola was instructing Gullity to
dispose of the heroin, which Gullity did, albeit
unsuccessfully.
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Appellant contends that any inference of either
knowledge or dominion and control drawn from the above
described events is nothing more than rank speculation,
resulting from the government's attempt to "pile inference
upon inference." Although this is a close case, we reject
appellant's exhortations.
Based on the evidence of Akinola's evasive actions
following the initial contact with Mong, the jury could infer
that he knew of the heroin in Gullity's pocket. Further, the
jury could conclude that the pair's animated conversation was
a reflection of Akinola's knowledge of the heroin.
Additionally, a rational jury could conclude that Akinola's
initiation of physical conflict with Mong was a diversion
intended to allow Gullity to get away with, or dispose of,
the heroin. The jury could have also found that Akinola's
Yoruban communication to Gullity related to the heroin, given
the temporal proximity between Akinola's actions, his
unprovoked assault on Mong, the communication, and Gullity's
actions. Moreover, the same events could lead a jury to
conclude that Akinola--through Gullity--was attempting to
exercise his dominion and control over the heroin. Finally,
evidence indicated that the amount of heroin seized was
equivalent to 2,300 doses. That fact, combined with
testimony to the effect that neither Akinola nor Gullity were
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heroin users, supports a conclusion that the heroin was
intended for distribution. See Vargas, 945 F.2d at 428-29.
With respect to appellant's claim of inference-
piling, we recall, as we did in a recent case, the words of
Judge Aldrich:
The rule is not that an inference, no matter how reasonable, is to be rejected if it in turn depends upon another reasonable inference; rather, the question is whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt.
United States v. Clifford, No. 92-1748, slip op. at 6 (1st
Cir. Nov. 20, 1992) (quoting Dirring v. United States, 328
F.2d 512, 515 (1st Cir. 1964)). Based on the foregoing, we
find the evidence of Akinola's constructive possession of the
heroin is sufficient to sustain his conviction for possession
with intent to distribute heroin.
2. Conspiracy to Possess with Intent to Distribute
To support Akinola's conviction on this count, the
government must prove the existence of a conspiracy, the
defendant's knowledge of it, and his participation in it. In
addition, the government must show Akinola's intent to both
agree with his co-conspirator, and to commit the substantive
offense. Clifford, slip op. at 2.
"A criminal conspiracy is a tacit or explicit
agreement to perform an unlawful act, which can be
established by direct or circumstantial evidence that the
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putative co-conspirators agreed and intended to facilitate
the aims of the alleged unlawful activity." Vargas, 945 F.2d
at 429 (citations and internal quotations omitted).
The government essentially argues that the same
circumstantial facts which supported Akinola's guilt on the
possession count also support the conspiracy conviction.
Appellant argues that the government's case is based on
little more than Akinola's presence in the vehicle with
Gullity. We disagree that the evidence in this case supports
a finding of no more than that Akinola was merely present
with Gullity.
As we have already noted, the jury could have found
that Akinola knew of the heroin prior to Mong's presence
based on his sudden acceleration at the sight of Mong. In
addition, the animated conversation and Akinola's actions in
the parking lot, when he first shouted toward Gullity and
then attempted to create a diversion for him, could be
indicative of the existence of an agreement between them.
This is especially true since the parking lot incident
occurred soon after their animated conversation, which
occurred after Mong had been following for some time.
Although this count, too, presents a close call, we conclude
that a rational jury could reasonably infer from Akinola's
actions the existence of an agreement with Gullity to possess
with intent to distribute the heroin.
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B. Prosecutorial Misconduct and Curative Instruction
During closing argument, the prosecutor made the
following statement:
We must show you that defendant Akinola knew the heroin was there. And we do that by showing a high speed chase, an animated conversation, a failure to yield, an unprovoked physical assault and yelling in a foreign language which are
unexplained by anything other than
knowledge of the heroin in the car.
(emphasis added)
Defense counsel objected, on the basis that the emphasized
portion of the argument constituted impermissible comment on
Akinola's failure to testify. The trial court initially
overruled the objection, but then, sua sponte, gave the
following instruction to the jury:
Excuse me. I don't mean to interpret (sic) you, Mr. Sullivan. Let me make one thing clear to the jury. I am sure Mr. Sullivan says unexplained, what he is referring to is unexplained by the facts that have been presented to you. As I told you before, the defendants don't have any obligation to explain anything. And I'm sure that's what Mr. Sullivan is referring to.
On appeal, Akinola reiterates the claim of impermissible
comment, and also claims that the trial court's curative
instruction was so deficient as to compound the prosecution's
error. We disagree.
It is beyond question that comment on a defendant's
failure to testify is violative of the Fifth Amendment
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guarantee against self-incrimination. Griffin v. California,
380 U.S. 609 (1965); United States v. Lavoie, 721 F.2d 407
(1st Cir. 1983), cert. denied, 465 U.S. 1069 (1984). The
standard by which we review potential violations is
whether, in the circumstances of the particular case, the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.
United States v. Glantz, 810 F.2d 316, 322 (1st Cir.), cert.
denied, 482 U.S. 929 (1987) (citations and quotations
omitted). We review any such violation for harmless error.
United States v. Hasting, 461 U.S. 499, 508-12 (1983);
United States v. Cox, 752 F.2d 741, 746 (1st Cir. 1985). See
generally United States v. Lilly, No. 92-2192, slip op. at
14-16 (1st Cir. Dec. 4, 1992).
Having read the challenged comment in the context
of the entire closing argument, we are satisfied that the use
of the word "unexplained", while perhaps unfortunate, did not
stray into forbidden territory nor was it intended to do so.
Instead, consistent with the circumstantial nature of the
case, the prosecutor recounted each of the events culminating
in Akinola's arrest, and followed each by suggesting to the
jury the government-preferred inference.3 In using
3. Some examples include, "The only reason Akinola did that was his knowledge of the heroin;" "There is no other plausible explanation for Akinola jumping out of the car."
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"unexplained," the prosecutor was attempting to reinforce his
thesis that Akinola's actions could only be interpreted in
one way, and could not logically be consistent with anything
except Akinola's guilt.
The prosecutor's comments here are somewhat
reminiscent of those in United States v. Skandier, 758 F.2d
43 (1st Cir. 1985), where the prosecutor concluded his
argument by saying:
[I] will have a chance to speak with you one more time and see if [defense counsel] can explain the story that would be any different with regard to the responsibility of the defendant in this case. So I submit to you that he cannot.
Id. at 45.
We concluded that such a "`how-does-he-explain'" argument was
improper for two reasons--the Fifth Amendment transgression,
and the apparent shift of the burden of proof to the
defendant. Id. In reaching that conclusion, we relied in
part on United States v. Wilkins, 659 F.2d 769, 774 (7th
Cir.), cert. denied, 454 U.S. 1102 (1981), wherein the court
held that the prosecutor's statements that the government's
theory was the "only explanation" and "[s]ee if defendant's
attorney explains ... " were improper comment on defendant's
failure to testify. Unlike Skandier, however, the
prosecutor's remark here was clearly aimed at the evidence,
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rather than at the defendant. Thus, we find that the comment
here at issue did not run roughshod over Akinola's rights.4
C. Final Jury Instructions
Appellant assigns two errors to the trial court's
final instructions. First, appellant argues that the trial
court neglected to explain that while it might draw
inferences from circumstantial evidence, it was not
permitted to engage in speculation or conjecture to do so.
However, at the close of trial, the judge instructed the
jury, inter alia, to
Bear in mind though, as I said before, that in order to draw such an inference [from circumstantial evidence] you have to be careful that the inference is a reasonable one and that it is directly based on facts that have been proven by the direct evidence, the testimony of witnesses or exhibits.
Having read the instructions in their entirety, including the
above-quoted section, we conclude that while the trial court
did not use appellant's suggested words, the jury members
4. We note further that while the court's immediate curative instruction dealt with the burden of proof shift and made no mention of the Fifth Amendment, the court twice gave the jury Fifth Amendment instructions, including once just before deliberations. Based on that combination of instructions, we are satisfied that any error was rendered harmless. Indeed, in a close case such as this, it is the combination of the trial judge's instructions, and not the "strong evidence of defendant's guilt"--as described by the government--that would render the prosecutor's putative violation harmless. Cf. Lilly, slip op. at 19 (strength of government's case
contributed to rendering harmless potentially improper prosecutorial comment); Skandier, 758 F.2d at 46 (same).
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were adequately apprised of the proper legal standard to
employ. See, e.g., United States v. Noone, 913 F.2d 20, 30
(1st Cir. 1990), cert. denied, U.S. , 111 S. Ct. 1686
(1991) (refusal to give the particular instruction requested
is not error where the court's instruction substantially
covers the request and the applicable law).
Appellant next argues that the trial court erred in
its instructions regarding appellant's failure to testify,
about which the court said that the jury "ought not"
penalize the defendant for exercising the right not to
testify, and "should not" draw inferences from one who has
done so. Appellant argues that the trial court's failure to
use "must not" in those circumstances is reversible error.
We disagree.
After defense counsel objected to the "ought not"-
"should-not" charge, the judge supplemented his charge by
telling the jury, in effect, that he used the terms "ought,"
"should," and "must" interchangeably, and therefore, where he
said that something should not be done, he meant it must not
be done. When reviewing jury instructions, we gauge each
instruction in the context of the entire charge. United
States v. Boylan, 898 F.2d 230 (1st Cir.), cert. denied,
U.S. , 111 S. Ct. 139 (1990). Again, having read the
entire charge, we are satisfied that the judge's supplemental
caution to the jury cleared up any misunderstanding.
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Finally, we have considered appellant's claim of
erroneous admission of "bad act" evidence, and find it to be
without merit.
IV.
Conclusion
Appellant's conviction is affirmed. affirmed
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