                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                             Argued December 6, 2005
                              Decided April 19, 2006

                                      Before

                     Hon. WILLIAM J. BAUER, Circuit Judge

                     Hon. JOHN L. COFFEY, Circuit Judge

                     Hon. TERENCE T. EVANS, Circuit Judge

No. 04-4130

UNITED STATES OF AMERICA,                    Appeal from the United States District
    Plaintiff-Appellee,                      Court for the Northern District of
                                             Illinois, Eastern Division
      v.
                                             No. 03 CR 808
YEMI ODULATE,
     Defendant-Appellant.                    Matthew F. Kennelly,
                                             Judge.


                                    ORDER

       Yemi Odulate, a native of Nigeria, was convicted after a jury trial of one
count of conspiracy to possess with intent to distribute heroin, 21 U.S.C. §§ 846,
841(a)(1), six counts of possession with the intent to distribute heroin, 21 U.S.C.
§ 841(a)(1), and two counts of using a telephone to commit a narcotics offense, 21
U.S.C. § 843(b). Odulate appeals his conviction and argues that there was
insufficient evidence at trial to sustain the jury’s finding that he was part of the
single conspiracy alleged in the indictment, that the district court erred in denying
his motions for a new trial, and that the government withheld exculpatory evidence.
We affirm.
No. 04-4130                                                                    Page 2



                                  I. Background

       The investigation into the criminal conspiracy at issue here began when a
confidential informant notified DEA agents that he could buy heroin from a man
named Al Stevens. The DEA began using the informant to conduct controlled buys
of heroin from Stevens and obtained a court-authorized Title III wiretap on Stevens’
telephone. The controlled buys and telephone surveillance revealed that Odulate
was helping Stevens fill the informant’s orders through his direct and indirect
connections to Theodore Fabriek, Olajide Omosanya, and Akin Martins. Odulate
was present for at least one controlled buy, on August 27, 2002.

       The DEA next obtained a wiretap on Odulate’s telephone and recorded a
series of conversations which expanded the scope of the investigation. One in
particular on or about November 27, 2002, delineated Odulate’s role in the
conspiracy. At the DEA’s request, the confidential informant placed an order for
100 grams of heroin through Stevens, who in turn called Odulate. Stevens told
Odulate, “It’s a whole hundred.” One minute after hanging up with Stevens,
Odulate called his codefendant Martins and left a message, in the Nigerian
language Yoruba, instructing him to return his call immediately. Shortly after
leaving that message, Odulate called another unindicted associate and discussed,
also in Yoruba, how quickly that associate could obtain “a hundred.” The subject of
the transaction was not specifically referred to as heroin or any other substance, but
merely as a quantity. Odulate then called Stevens and they discussed what they
referred to as the “common denominator” during their conversation, settling on
“8750.” Odulate then reached Martins on the phone, and they discussed whether
they could get “a whole one.” “The cost has to go down,” Odulate said, “because we
are not going to make any profit on it at all.” A series of calls between Odulate and
Stevens and between Odulate and Martins followed, but the deal, which the DEA
had never intended to carry out, fell through. The next day, November 28, Odulate
called Martins and instructed him on how to retrieve an unspecified “it” from a gym
shoe in “that house.” The investigation continued until Odulate was arrested
several months later and indicted on nine separate counts. Martins, Omosanya,
Fabriek, and Stevens were also arrested and charged in the same conspiracy
counts.1


      1
        Count One of the indictment alleged that couriers under Fabriek’s direction
ingested heroin in Africa and flew to Chicago, where Fabriek recovered the heroin
and stored it until Omosanya divided it among other coconspirators, including
Martins, for distribution. Martins in turn arranged for his share of the heroin to be
                                                                        (continued...)
No. 04-4130                                                                    Page 3


        Only Martins and Odulate went to trial; the other indicted co-conspirators
pleaded guilty and testified against the two men. At trial neither Fabriek nor
Omosanya admitted to knowing Odulate personally or being familiar with his
particular transactions, but they did testify as to their links to Martins. Stevens
testified as to his role in the five controlled buys underlying Counts Two through
Six and to his communications with Odulate about planned transactions. He
testified, for example, that he and Odulate tried to cultivate the informant as a
repeat customer by selling him, in the very first deal, sixteen grams of high-quality
heroin rather than twenty-five lower quality grams that he requested. He also
offered testimony concerning the defendants’ protocol for arranging heroin
transactions, which included using code words in conversations with each other to
obscure the subject of their arrangements. He indicated, for example, that the
conspirators referred to grams of heroin as “ladies.”

       The jury found both Odulate and Martins guilty on all counts. Before
sentencing, Odulate moved for a new trial under Federal Rule of Criminal
Procedure 33. Odulate presented multiple arguments, including that the he should
have been tried separately from Martins because there were multiple conspiracies
at issue and because had they been tried separately Martins would have testified on
his behalf that their recorded conversations had been about marijuana rather than
heroin. The district court denied this motion, noting that Odulate had not shown
that if the trial been severed that Martins would have chosen to testify on his
behalf. Odulate then renewed his Rule 33 motion, adding an affidavit from Martins
attesting that he never discussed or trafficked heroin with Odulate, and that he
would testify accordingly. The renewed post-trial motion also added an argument
that there was insufficient evidence to convict him on any of the counts in the
indictment, including the substantive counts. After conducting a hearing, the
district court denied the motion. Odulate renewed again, and this time added an
assertion that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by
not revealing that DEA agents questioned Taofiki Lasisi, one of Odulate’s


      1
       (...continued)
sold by Odulate and Stevens. Counts Two through Six alleged that Odulate and
Stevens possessed heroin with the intent to distribute it on the dates of the
controlled transactions with the informant. Count Seven alleged that Martins and
Odulate possessed heroin with the intent to distribute on November 27, 2002, when
Martins and Odulate tried to fill the order for 100 grams placed by the informant
through Stevens. Counts Eight and Nine accused Odulate and Stevens and Martins
and Odulate, respectively, of using a telephone in furtherance of the underlying
narcotics offenses.
No. 04-4130                                                                    Page 4

associates, during their investigation. Odulate offered an affidavit from Lasisi
explaining that he was questioned by the DEA in relation to a surveillance
photograph showing Lasisi handing a shoulder bag to Odulate, and told by the
interviewing agent that the bag had been recovered, that it belonged to Odulate,
and that it contained heroin. Odulate also submitted an affidavit from Lanre
Ogunnubi, a mutual associate, supporting Lasisi’s statement. Odulate contended
that this revelation was exculpatory because the government would have offered the
photograph, heroin, or Lasisi’s testimony at trial if the government’s investigation
of Lasisi implicated Odulate. The prosecution denied that the DEA was ever in
possession of such a photograph or any bags or heroin not admitted at trial. The
district court, concluding that the agents had perhaps mislead Lasisi, but also that
the prosecution had not withheld any exculpatory evidence, denied Odulate’s
motion.

      Odulate was sentenced to 72 months’ incarceration, near the low end of the
guideline range of 70 to 87 months. The district court stated that it would have
given Odulate the same sentence under either a mandatory or discretionary
guideline regime.

                                  II. Discussion

       Odulate argues that the government failed to prove that he was part of the
single conspiracy for which he was indicted, and at most proved the existence of
multiple, smaller conspiracies. He contends that this variance makes the evidence
introduced at trial, including the testimony of coconspirators who did not know him,
insufficient to support his conviction. We treat an assertion of variance as a claim
that there was insufficient evidence to support the jury’s finding that the defendant
was a member of the charged conspiracy. United States v. Polichemi, 219 F.3d 698,
706 (7th Cir. 2000). Showing the existence of multiple conspiracies is not enough to
warrant a reversal; Odulate must show that no reasonable juror could have found
that he was part of the charged conspiracy. United States v. Messino, 382 F.3d 704,
709 (7th Cir. 2004). We evaluate the evidence in the trial record in the light most
favorable to the government. United States v. Julian, 427 F.3d 471, 475 (7th Cir.
2005).

       The evidence presented at trial demonstrates that a reasonable juror could
have found that Odulate was part of a single conspiracy with the shared goal of
distributing heroin. When the informant approached Stevens to purchase heroin,
Stevens contacted Odulate, who in turn notified Martins and others about the
proposed sale. Stevens testified that he and Odulate discussed how to maximize
and divide their profits from selling heroin, and how to entice the informant into
becoming a regular customer by selling him the highest quality heroin possible as
part of the first transaction. Fabriek described the mechanics of the supply side of
No. 04-4130                                                                     Page 5

the conspiracy, including the importation of heroin from Nigeria. He testified that
Omosanya gave Martins some of the imported narcotics. It is obvious from
testimony at trial and the wiretaps that the relationship between the conspirators
was not merely that of buyers and sellers, but that of cooperating coconspirators.
For instance, Fabriek testified that in exchange for regular duties, Omosanya paid
off his living expenses rather than paying him per heroin shipment. This is
precisely the sort of standardized dealing and prolonged cooperation that we have
found to be indicative of a conspiratorial, rather than buy-seller relationship. See
United States v. Suggs, 374 F.3d 508, 518 (7th Cir. 2004). Fabriek also testified
that he never saw Martins pay for the heroin he received, which is known as
“fronting” and is another characteristic that establishes more than a buyer-seller
relationship between Fabriek, Omosanya, and Martins. Indeed, it evinces the
mutual trust and prolonged cooperation inherent in a conspiratorial relationship.
Id. The connection between Martins and Odulate was confirmed by the wiretaps
that showed Odulate’s reliance on Martins for delivering the quantities of heroin he
expected to sell to the confidential informant through Stevens. This demonstrates a
common, cooperative goal of heroin distribution, and that the parties “could not
have conducted business nearly as well without such cooperation.” United States v.
Messino, 382 F.3d 704, 710 (7th Cir. 2004).

       Odulate next argues that the district court should have granted his Rule 33
motion for a new trial. Rule 33 allows a district court to grant a new trial “if the
interest of justice so requires.” We have ruled that to fulfill the requirements for a
new trial on the basis of newly discovered evidence, the defendant has the burden of
demonstrating that the evidence “(1) came to his knowledge only after trial; (2)
could not have been discovered sooner had due diligence been exercised; (3) is
material and not merely impeaching or cumulative; and (4) would probably lead to
an acquittal in the event of a retrial.” United States v. McGee, 408 F.3d 966, 979
(7th Cir. 2005). Odulate asserts that Martins’ affidavit, in which he denies that he
ever discussed or trafficked heroin with Odulate and affirming his willingness to
testify to that effect, satisfies the requirements.

        This contention is frivolous. In his affidavit Martins talks about his dealings
with Odulate, so his information––if true––must have been known to Odulate all
along, and therefore does not constitute evidence which was discovered only “after
trial.” United States v. Lee, 399 F.3d 864, 865 (7th Cir. 2005). Moreover, Odulate
falls far short of establishing that calling Martins, his codefendant, would have led
to an acquittal. Even ignoring the testimony of the other co-conspirators, Odulate’s
recorded telephone conversations with Martins are enough to establish that
Martins is being anything but truthful in his affidavit.

      Finally, Odulate contends that the government committed a Brady violation
when it failed to disclose that the DEA interviewed Lasisi and Ogunnubi. Lasisi’s
No. 04-4130                                                                   Page 6

affidavit simply stated that he was interviewed by the DEA and that he was told
that the agency had a photograph of him and Odulate with a bag, that the bag had
been recovered for fingerprinting, and that it contained heroin. Odulate asserts
that the district court based its denial of his Rule 33 motion on the assumption that
the bag in question was one of the plastic bags introduced at trial, but that the bag
described to Lasisi was a shoulder bag or backpack. But even assuming that this
characterization is correct, under Brady Odulate is required to demonstrate why
the evidence in question is exculpatory, that it was suppressed by the government,
and that the suppression prejudiced his defense. United States v. Banks, 405 F.3d
559, 563-64 (7th Cir. 2005). Odulate failed to demonstrate any of these elements.
In particular, he does not explain how the fact that Lasisi was interviewed or the
bag he was told the DEA possessed could be exculpatory. In fact, if the bag did exist
and did contain heroin, it might be inculpatory evidence. Nor has Odulate
attempted to explain how, if evidence was suppressed, his defense was prejudiced;
he has failed to demonstrate that the trial would probably have had a different
outcome had the evidence he describes been disclosed. See United States v. Irorere,
228 F.3d 816, 829 (7th Cir. 2000).

                                                                       AFFIRMED.
