United States v. Eke

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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