
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________       No. 96-1190                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                   VALENTINE EKE,                                Defendant, Appellant.                                ____________________       No. 96-1191                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                 OBINNA EGBOUDIKOGU,                                Defendant, Appellant.                                ____________________       No. 96-1320                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                  ANTHONY NWOKEJI,                                Defendant, Appellant.                                ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Richard G. Stearns, U.S. District Judge]                                ____________________                                       Before                               Torruella, Chief Judge,                           Campbell, Senior Circuit Judge,                             and Boudin, Circuit Judge.                                 ____________________            Alan D.  Rose, by  Appointment  of the  Court, with  whom Rose  &       Associates was on brief for appellant Valentine Eke.            John Salsberg,  by Appointment  of the Court,  with whom  Alan D.       Campbell                              and                    Salsberg,                             Cunha & Holcomb, P.C. were on brief for appellant       Anthony Nwokeji.            Richard E.  Bachman, by Appointment  of the Court,  for appellant       Obinna Egboudikogu.            Deborah                    Watson                        ,                           Criminal Division, Appellate Section, Department of       Justice,                 with                     whom                          Donald                               K. Stern, United States Attorney, was on brief       for the United States.                                ____________________                                    July 8, 1997                                ____________________                 BOUDIN,                         Circuit                                Judge                                    .                                                                               Obinna Egboudikogu, Valentine Eke,            and Anthony  Nwokeji were  indicted on  charges of  importing            heroin                   into                        the                           United                                  States, 21 U.S.C. S 952(a) and 18 U.S.C.            S 2, and conspiracy to import, 21 U.S.C. S 963.   Egboudikogu            and Nwokeji pled  guilty, and Eke  was convicted following  a            trial.  On appeal,  Eke makes various claims of trial  error,            including                      a                        challenge to the sufficiency of the evidence.  All            three defendants  dispute  the  district  court's  sentencing            calculations.                 The defendants are Nigerian citizens who resided or  did            business in Boston or New York.  According to the government,            the                defendants recruited couriers to travel to Asia, where the            couriers                     would                          receive                                  heroin and then return with the drugs to            Boston.   The  government offered  evidence concerning  three            specific importation efforts between August and November 1994            involving                      different couriers.  We describe the evidence in the            light most favorable to the verdict.  United States v. Smith,            46 F.3d 1223, 1226 (1st  Cir.), cert. denied, 116 S. Ct.  176            (1995).                 In August 1994, Nwokeji  and Egboudikogu offered to  pay            Lamaria                    Hurt                         $10,000                                to                                   travel to Hong Kong and Singapore; they            told her that she would bring back clothes and documents  but            that                 no                    drugs                         would                               be                                  involved.  When Hurt agreed, Egboudikogu            helped her  obtain a  passport, and  Nwokeji and  Egboudikogu            provided her  with an airline ticket.   Hurt left Boston  for                                         -3-                                         -3-            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                                         -4-                                         -4-            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                                         -5-                                         -5-            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.                                         -6-                                         -6-                 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                                         -7-                                         -7-            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,                                         -8-                                         -8-            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.                                         -9-                                         -9-                 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                                        -10-                                        -10-            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.                                        -11-                                        -11-            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-                                        -12-                                        -12-            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                                        -13-                                        -13-            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                                         -14-                                        -14-            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.                                        -15-                                        -15-
