                                              Filed:   February 14, 2001

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 00-4263
                            (CR-99-235-DKC)



United States of America,

                                                  Plaintiff - Appellee,

           versus


Kingsley Obi, etc.,

                                                 Defendant - Appellant.



                               O R D E R



     The court amends its opinion filed February 8, 2001, as

follows:

     On the cover sheet, section 7, lines 1 and 4 -- counsel’s firm

name is corrected to read “Bennett & Nathans, L.L.P.”

     On the cover sheet, section 7, line 4 -- counsel’s name is

corrected to read “Jason C. Tulley.”

                                           For the Court - By Direction




                                           /s/ Patricia S. Connor
                                                    Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                              No. 00-4263

KINGSLEY OBI, a/k/a Obi Kingsley,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-99-235-DKC)

Argued: December 8, 2000

Decided: February 8, 2001

Before NIEMEYER and MOTZ, Circuit Judges, and
James C. CACHERIS, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Motz and Senior Judge Cacheris joined.

_________________________________________________________________

COUNSEL

ARGUED: Fred Warren Bennett, BENNETT & NATHANS, L.L.P.,
Greenbelt, Maryland, for Appellant. Ronald Jay Tenpas, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee. ON
BRIEF: Jason C. Tulley, BENNETT & NATHANS, L.L.P., Greenbelt,
Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,
Sandra Wilkinson, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Kingsley Obi appeals his convictions on four counts charging him
with heroin distribution, in violation of 21 U.S.C. § 841(a)(1), and
one count charging him with conspiracy to distribute heroin, in viola-
tion of 21 U.S.C. § 846. In his appeal, he challenges: (1) the district
court's decision to give a jury instruction on the significance of his
attempted flight while being arrested; (2) the indictment's failure to
charge him with the amount of drugs for which he was sentenced; and
(3) two evidentiary rulings. Because we conclude that no reversible
error was committed, we affirm.

I

During the period from May 1998 to May 1999, Obi allegedly par-
ticipated in a conspiracy to distribute heroin in Maryland. In May
1998, he was arrested when attempting to pick up a Federal Express
package containing 1.4 kilograms of heroin at his former girlfriend's
apartment in Wheaton, Maryland. After he was released from cus-
tody, he allegedly supplied heroin to Mohammed Sallah, a co-
conspirator, who in turn sold the heroin to an undercover police offi-
cer on October 14, 1998 (97.8 grams), October 27, 1998 (97 grams),
May 4, 1999 (47.4 grams), and May 7, 1999 (248 grams). Obi was
indicted for conspiracy to distribute heroin and for distributing heroin
on the dates when heroin was sold to the undercover police officer.

At trial, the government presented evidence that Obi arranged to
have heroin shipped in May 1998 to the apartment of his former girl-
friend, Nkumu Ilongoyi. The package, shipped via Federal Express
from the Philippines to a fictitious name at Ilongoyi's address, con-
tained pots with false bottoms concealing 1.4 kilograms of heroin.
After U.S. Customs Service agents intercepted the package, they
removed all but a small amount of the heroin from the pots and

                  2
resealed the package. They then made a "controlled delivery" of the
package in which a federal agent posed as a Federal Express delivery
person and other law enforcement officials conducted surveillance.
Ilongoyi's sister accepted the package and departed almost immedi-
ately thereafter, leaving the package unopened inside Ilongoyi's
apartment. The sister met Ilongoyi outside the apartment building and
the two drove off together, at which point the federal agents stopped
and questioned them. Ilongoyi told the agents that Obi had arranged
to have the package sent to her apartment and was coming soon to
pick it up. The agents then took Ilongoyi and her sister back to Ilon-
goyi's apartment and waited for Obi to arrive. When he did, they
arrested him.

Following his arrest, Obi was incarcerated in a Montgomery
County, Maryland, holding facility with Mohammed Sallah, where
the two became friends. Following their respective releases, Obi
returned to his home in Chicago, while Sallah remained in Maryland.

A few months later, Sallah sold heroin to undercover detective
Tom Roberts of the Montgomery County Police Department on four
separate occasions between October 1998 and May 1999. During this
period, Officer Roberts recorded conversations with Sallah in which
Sallah provided indications that Obi was Sallah's supplier for the her-
oin. Sallah told Roberts that his supplier was from Chicago, where
Obi was living at the time; that his source did not like to use the mail
to send drugs; and that his source "just got caught here in Wheaton,"
a possible reference to Obi's May 1998 arrest following his attempt
to pick up the Federal Express package. There was also evidence that
between May 4 and May 7, 1999 -- the period between two of the
transactions -- Obi and Sallah exchanged 50 telephone calls. One of
these calls was recorded when Sallah, then cooperating with police,
called Obi and told him that undercover detective Roberts had not
brought all the money for the May 7 deal. Obi responded, "How much
did he bring?" indicating his familiarity with the drug deal. Finally,
approximately half of the marked government funds used by Officer
Roberts to make the May 4 purchase were found in Obi's possession
when he was arrested on May 7, 1999.

Obi was convicted on all five counts, and on May 20, 2000, the dis-
trict court sentenced him to 200 months imprisonment and five years
supervised release. This appeal followed.

                  3
II

Obi contends first, based on the evidence presented at trial, that the
district court abused its discretion by giving a jury instruction that
characterized Obi's conduct when being arrested outside Ilongoyi's
apartment in May 1998 as attempted flight and that the giving of the
flight instruction was prejudicial. The government argues that the evi-
dence presented at trial was sufficient to justify giving the flight
instruction.

The evidence shows that after Obi knocked on the door to Ilon-
goyi's apartment in May 1998, apparently to pick up the Federal
Express package, a man dressed in shorts and a T-shirt with a police
officer's badge around his neck "ran out of the door [of the laundry
room in which he was hiding] yelling police, get down on the ground,
get down on the ground." Obi's reaction was to"turn[ ] slightly [and]
start[ ] to take a couple of steps down the hallway," whereupon the
officer "jumped on his back." Obi "carried[the officer] for a couple
more steps before some of the other officers got there." Before being
subdued, Obi struggled with these officers for approximately 50 sec-
onds, which they characterized as "a long period for a struggle" of this
nature.

In light of this evidence, the district court instructed the jury that
it had

        heard evidence that the defendant attempted to flee after he
        believed that he was about to be arrested for the crime for
        which he is now on trial. The defendant denies that he
        attempted to flee. If proved, the flight of a defendant after
        he knows he is to be accused of a crime may tend to prove
        that the defendant believed that he was guilty. It may be
        weighed by you in this connection, together with all other
        evidence.

        However, flight may not always reflect feelings of guilt[ ].
        Moreover, feelings of guilt which are present in many inno-
        cent people do not necessarily reflect actual guilt. You are
        specifically cautioned that evidence of flight of a defendant
        may not be used by you as substitute for proof of guilt.

                  4
        Flight does not create a presumption of guilt. Whether or not
        evidence of flight does show that the defendant believed that
        he was guilty and the significance, if any, to be given to the
        defendant's feelings on this matter are for you to determine.

Obi challenges this jury instruction as unsupported by the evidence of
his conduct at the time of his arrest.

It cannot be doubted that in appropriate circumstances, a con-
sciousness of guilt may be deduced from evidence of flight and that
a jury's finding of guilt may be supported by consciousness of guilt.
As Professor Wigmore aptly observes, "The innocent man is without
[consciousness of guilt]; the guilty man usually has it. Its evidential
value has never been doubted." 1 A Wigmore on Evidence § 173 (Till-
ers rev. 1983).

But the jury's consideration of evidence of flight requires that it be
able, from the evidence, to link such flight to consciousness of guilt
of the crime for which the defendant is charged. This requires evi-
dence supporting all the inferences in the causative chain between
flight and guilt. See United States v. Beahm, 664 F.2d 414, 420 (4th
Cir. 1981) (noting that the evidence of flight must be scrutinized to
"ensure that each link in the chain of inferences leading to that con-
clusion [of the defendant's guilt] is sturdily supported"). To establish
this causal chain, there must be evidence that the defendant fled or
attempted to flee and that supports inferences that (1) the defendant's
flight was the product of consciousness of guilt, and (2) his con-
sciousness of guilt was in relation to the crime with which he was
ultimately charged and on which the evidence is offered. See United
States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977) (articulating the
chain of inferences in four deductive steps: "(1) from the defendant's
behavior to flight; (2) from flight to consciousness of guilt; (3) from
consciousness of guilt to consciousness of guilt concerning the crime
charged; and (4) from consciousness of guilt concerning the crime
charged to actual guilt of the crime charged"); United States v.
Schepp, 746 F.2d 406, 409-10 (8th Cir. 1984) (same). In the absence
of evidence to support any single link in the causative chain, it is error
to give a flight instruction. See United States v. Hawkes, 753 F.2d
355, 358 (4th Cir. 1985) (reversing defendant's conviction because
there was "no direct evidence to indicate that[the defendant] was at

                   5
the farm and subsequently fled to avoid capture and arrest by the
police"); Beahm, 664 F.2d at 420 ("The government's failure to sub-
stantiate adequately the inference that defendant was aware he was
wanted for the crime renders the instruction given the jury in this case
irretrievably erroneous").

In this case, substantial evidence was presented to indicate that the
package at Obi's ex-girlfriend's apartment contained contraband and
that Obi intended to pick the package up at the time he was arrested.
There is also evidence to indicate that at the time of his arrest, Obi
was aware that the persons seeking to arrest him were police officers.
The step in the causal chain wherein the adequacy of the evidence
may be questioned most fruitfully is whether there was sufficient evi-
dence of flight.

On being confronted by the police officers at the apartment, the
evidence reveals only that Obi "turned slightly, started to take a cou-
ple steps down the hallway," and that after a policeman jumped on
Obi's back, "he carried [the officer] for a couple more steps" before
being brought down. Obi notes that this conduct could reasonably be
interpreted as evidence that Obi was startled at having been pounced
upon unexpectedly by a man dressed in street clothing who burst from
a hiding place.

We agree with Obi that the evidence is thin and may be ambiguous.
But even if we were to conclude that the district court erred in
instructing the jury on flight, we are satisfied, beyond a reasonable
doubt, that the error was harmless. See United States v. Hastings, 134
F.3d 235, 241 (4th Cir. 1998). In making such a determination, we
"consider . . . what effect the . . . error had . . . upon the guilty verdict"
by looking "to the basis on which `the jury actually rested its ver-
dict.'" Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (quoting Yates
v. Evatt, 500 U.S. 391, 404 (1991)).

In this case, we are satisfied, beyond a reasonable doubt, that the
jury based its conspiracy conviction on the evidence linking Obi to
the illegal parcel provided by the circumstances of his coming to the
apartment and by the unrelated facts involving the four acts of heroin
distribution that occurred several months later. Indeed, it is beyond all
doubt that the jury did not consider any consciousness of guilt mani-

                    6
fested in May 1998 when it convicted Obi on four distribution counts
relating to transactions that occurred months later. Obi could not have
attempted to escape from police because of criminal behavior that had
not yet occurred or, presumably, even been contemplated at the time
the proposed flight occurred.

Accordingly, we find that if the giving of the flight instruction was
erroneous, it was harmless. See Sullivan, 508 U.S. at 279 ("The
inquiry, in other words, is not whether, in a trial that occurred without
the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was surely
unattributable to the error").

III

Obi next contends that his indictment, charging him with distribu-
tion of a "detectible amount" of heroin, was fatally defective under
United States v. Hooker, 841 F.2d 1225, 1232-33 (4th Cir. 1988) (en
banc), because it failed to charge him with the offense for which he
was sentenced -- distribution of 1-3 kilograms of heroin. He cites
several cases for the proposition that a district court lacks jurisdiction
to try a defendant when the underlying indictment fails to include an
essential element of the offense, thus requiring that his subsequent
conviction be vacated. See e.g., id. at 1232; see also United States v.
Tran, 2000 WL 1701651 (2d Cir. Nov. 15, 2000). In support of the
proposition that the drug amount used to sentence Obi is an essential
element of the offense, Obi relies upon the Supreme Court's recent
decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Based on
his claim of defect, Obi asserts that he is entitled to have his convic-
tions reversed.

If we were to assume for the sake of discussion that drug quantity
is indeed an essential element of Obi's drug trafficking offense, the
indictment in this case nevertheless charged Obi with that element, as
well as every other element of the offense. The amount charged in the
indictment -- a "detectable amount" of heroin -- fulfills the language
of 21 U.S.C. § 841 prohibiting the distribution of "a controlled sub-
stance." Accordingly, Obi's indictment properly charged him with
every element of a crime for which he was subsequently found guilty
by a jury beyond a reasonable doubt. Obi's assignment of error there-

                  7
fore cannot relate to the indictment or jury finding of guilt on that
indictment, but must relate to sentencing, during which the district
court found that Obi was involved in the distribution of 1-3 kilograms
of heroin by a preponderance of the evidence and relied on that
amount in fixing the final sentence.

This argument, however, is foreclosed by our recent decision in
United States v. Kinter, 235 F.3d 192, 201 (4th Cir. 2000), which
instructs that factual determinations that increase a defendant's sen-
tence under the sentencing guidelines do not implicate Apprendi and
may be made by the sentencing judge as long as the sentence imposed
is less than the maximum permitted by statute for the offense for
which the defendant was convicted. Kinter emphasizes that Apprendi
held specifically only that factual findings that "increase[ ] the penalty
for a crime beyond the prescribed statutory maximum" must be found
by a jury beyond a reasonable doubt. Id. at 199 (quoting Apprendi,
120 S. Ct. at 2362-63 (internal quotation marks omitted)).

In this case, Obi was convicted of distributing, or of having an
intent to distribute, "a detectable amount of heroin, a . . . controlled
substance," in violation of 21 U.S.C. § 841(a)(1). The sentence for
this crime, when it involves an unspecified, detectable amount of a
controlled substance, may not exceed 20 years' imprisonment. Simi-
larly, a conviction under 21 U.S.C. § 846, which criminalizes conspir-
acy, tracks the underlying offense and may not be penalized for more
than 20 years. While 21 U.S.C. § 841 indicates that penalties exceed-
ing 20 years may be imposed if greater amounts of a controlled sub-
stance are involved, Obi's sentence was only 200 months.

In this case, therefore, pursuant to Kinter, Obi's sentence does not
offend the standards set forth in Apprendi, despite the fact that his
sentence is based, in part, on factual findings of drug quantity made
by the sentencing judge by a preponderance of the evidence.

IV

Finally, Obi challenges two evidentiary rulings made during trial
permitting the admission of (1) evidence that Obi had previously been
incarcerated, and (2) hearsay testimony that linked Obi to known drug
dealers. When an objection to the admission of evidence has been

                   8
made, we review the district court's evidentiary rulings for an abuse
of discretion. See United States v. Queen, 132 F.3d 991, 993 (4th Cir.
1997).

Obi argues that the evidence of his incarceration during May and
June of 1988, when he met Sallah, was so prejudicial that admitting
it constituted an abuse of the district court's discretion under Federal
Rule of Evidence 403. We reject this argument for the same reasons
given by the district court, which pointed out that it is not tenable to
claim that the probative value of highly material evidence -- that
which linked Obi to his alleged co-conspirator Sallah -- was "sub-
stantially outweighed by the danger of unfair prejudice" to Obi. In
fact, the likelihood of additional prejudice to the jury was slight. The
jury learned only that Obi was incarcerated following his arrest for
shipping heroin to his girlfriend's apartment -- an arrest about which
they had already heard evidence that was not itself contested as hav-
ing been improperly admitted. Moreover, Obi himself testified to
meeting Sallah while incarcerated.

Obi also challenges the admission of hearsay testimony elicited
from Detective Roberts to explain how he began investigating Sallah
and Obi. Detective Roberts testified that he was introduced to Sallah
by Adrian Eskridge, who was cooperating following a cocaine distri-
bution arrest, and Sallah is reported to have stated he "knew some
dude named Obi." Obi now contends that the evidence should not
have been admitted because it prejudiced him unduly by connecting
him in the mind of the jury to "known, incarcerated drug dealers."
Our review of the record reveals that Obi did not preserve this objec-
tion for appeal. At most, he requested an instruction limiting the gov-
ernment's inquiry, which the government apparently followed to his
satisfaction at trial.

But even if his objection had been preserved by his request for a
limiting instruction and the government's compliance with his
request, we have permitted the admission of hearsay testimony "of-
fered for the limited purpose of explaining why a government investi-
gation was undertaken." United States v. Love, 767 F.2d 1052, 1063
(4th Cir. 1985).

Obi relies heavily upon United States v. Williams, 133 F.3d 1048,
1052 (7th Cir. 1998), in which the court found a "strong possibility

                   9
that the jury made improper use of the evidence introduced through
[the FBI agent's] testimony, i.e., as concrete proof that Williams did
indeed participate in the bank robbery." However, in that case, unlike
here, there was "no corroboration offered as to the reliability or truth-
fulness of the informant's declaration. The identifications of Williams
[were] weak at best, and it [was] obvious that the minimal evidence
the government did have was bolstered by inadmissible hearsay and
opinion testimony." Id. at 1053.

Here, in contrast, it cannot be said that the hearsay testimony was
the de facto basis for Obi's convictions. The government introduced
a substantial amount of evidence linking Obi and Sallah, including
their meeting in the Montgomery County holding facility; Obi's
admissions that he visited Sallah and vice versa; the many phone calls
made between their phones over the course of the relevant time
period; and the marked bills given to Sallah during the fourth drug
deal and found on Obi's person at the time of his arrest.

Given that the hearsay testimony in this case was used for a pur-
pose recognized as legitimate in this circuit and that there was strong
evidence linking Obi to Sallah in this conspiracy, it was well within
the discretion of the district court to have admitted the evidence.

Accordingly, we affirm Obi's conviction.

AFFIRMED

                  10
