In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1690

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

YETUNDE FOLAMI, also known as "Tawa,"

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 80--James B. Zagel, Judge.


Argued October 26, 2000--Decided January 9, 2001



  Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.

  EVANS, Circuit Judge. Sometimes it’s better to
be real late than just a little late. With that,
Yetunde Folami would certainly agree. For had she
been just a tad later than she was for an
appointment at a hotel in Chicago’s Lincoln Park
area, chances are she would not be here today
appealing her conviction on a drug charge.

  This case, involving a conspiracy to distribute
a kilo of heroin, started in Africa’s largest
city--Lagos, Nigeria. There, a Nigerian woman
named "Lynda" recruited another Nigerian woman,
41-year-old Nina Iwese, to smuggle drugs into the
United States. On February 3, 1999, Lynda gave
Iwese a cardboard box containing 10 individually
wrapped packages of heroin and a round-trip
ticket to Chicago with a stop at JFK
International in New York City. Lynda gave Iwese
a detailed itinerary. She was to fly to New York
with the box and, upon arrival, place a telephone
call back to Lagos; from New York she was to go
to Chicago and, once there, again call Lynda for
further instructions; in Chicago, a person whom
Lynda did not identify was to meet Iwese, get the
box, and pay Iwese $5,000 for her efforts;
mission accomplished, she was then to return to
Nigeria.

  With the box packed inside her luggage, Iwese
boarded a flight bound for New York. After a
stopover in Brussels, Belgium, the plane arrived
at JFK airport on February 4. All’s well so far,
but things quickly went haywire. At the airport,
agents from the United States Customs Service
searched Iwese’s luggage and discovered over a
kilo of heroin, most of it 83 percent pure, which
testimony showed had a wholesale value of
approximately $100,000 and a "street" value of
$2.5 million.

  Iwese was arrested and, with very few
attractive alternative options, she agreed to
continue her journey, this time in cahoots with
the government. Iwese called Lynda in Nigeria
and, without mentioning her arrest, reported that
she "arrived safely" in New York and was ready to
fly to Chicago, which she did, with undercover
government agents, the next morning, February 5.

  In Chicago, Iwese went, as directed, to the
Days Inn hotel at the corner of Clark Street and
Lincoln Avenue. There, agents reserved two
adjacent rooms--one (room 620) to use as the site
of the expected delivery of heroin and the other
as the "command center" from which activities in
room 620 could be monitored. Room 620 was bugged
with various audio and video recording devices.

  Once in room 620, Iwese placed and received a
number of telephone calls. During the first of
these calls, which occurred soon after noon on
February 5, Iwese spoke with Lynda and gave her
the hotel’s telephone number and the room number.
Lynda told Iwese that a person in London named
"Tony" would call the hotel room within 3 hours
and "connect" Iwese with the person in Chicago
who was to pick up the dope. Around mid-
afternoon, "Tony" telephoned Iwese and said that
another person would call her. A few minutes
later, Iwese received a call from Yetunde Folami,
who identified herself as "Tawa." Tawa told
Iwese, "Maybe I will see you [in a] couple of
hours," and added, "When I finish at work I will
come and see you." Iwese said that she had just
spoken with Tony, and she asked Folami, "So when
you are coming . . . are you coming with eh . .
. the money for me to collect from you first or
what?" Tawa replied, "Before I come I’ll call you
back again." But the phone didn’t ring.

  With no action by 7 p.m., Iwese again called
Lynda in Nigeria. Iwese told Lynda that she had
spoken to both Tony and Tawa but that Tawa had
not yet come to the hotel. Lynda gave Iwese
Tony’s cellular telephone number. She also
instructed Iwese to remove the individually
wrapped packages of heroin from the box, saying
that the packages were ultimately to be divided
among Tony, a man named "Onoche," and another
person.
  After unsuccessfully attempting to call Tony,
Iwese placed another call to Lynda that evening.
Lynda told Iwese that she (Lynda) neither knew
Tawa nor her telephone number. Perhaps
clairvoyant, Lynda cautioned Iwese not to place
calls from the hotel and not to discuss "things"
with Tawa over the telephone because "people
might be listening."

  No one arrived at the hotel that evening so the
agents decided to continue the stakeout through
the following morning--Saturday, February 6.

  At approximately 10:15 a.m. on February 6,
Iwese spoke with Lynda and advised her that Tawa
still had not arrived at the hotel and that she
(Iwese) was considering throwing in the towel and
catching a plane back to Nigeria. But Lynda
assured her that "[t]hey will come" and that
"[t]hey will call you." Iwese was told to "wait
for them" and "be patient." Lynda then told Iwese
that she (Lynda) would try to call Onoche and
"ask him if there’s any other person he thinks we
can trust."

  Without any action, the spirits of the agents
dampened, so around 11:30 a.m. they decided to
abort the operation. The recording equipment in
the room was dismantled and the group was poised
to leave the hotel.

  Just before noon, however, as Iwese and four
agents were about to leave room 620, the
investigation received a shot of adrenalin as
Folami arrived at the door. Had she been 10
minutes later, the room would have been empty.
But no such luck for Folami. One of the agents
looked through a peephole and saw Folami standing
on the other side of the door. The agent noted
that she was "nervously" looking back and forth
while waiting for the door to open.
  The agents quickly tried to make the best of
the situation. The box containing the heroin was
placed on the bed and the agents hid, two in the
bathroom and two in a closet. With the agents out
of view, Iwese partially opened the door and
greeted Folami, who said she was "Tawa" and that
she had come to pick up the "package." Folami
stepped inside. Iwese complained that she had
been waiting a long time, asking Tawa "what [had
taken] her so long." Folami said, "We have been
taking our time" because the hotel was in a
"dangerous area."

  Iwese then pointed to the box on the bed as
Folami asked whether they were "alone." Iwese
said yes as Folami said she had "to be very
careful." Folami walked past Iwese toward the
bathroom, where she opened the door and saw the
hiding agents. She then bolted out of the room,
down a hall, and into a stairwell. But the agents
were faster.

  As Folami was arrested, agents saw her
attempting to "hide something." The something was
a piece of paper with the names "Tony," "Nina"
(Iwese’s first name), the phone number of the
hotel and the number "620."

  The facts led to an indictment charging Folami
with conspiracy to possess more than a kilogram
of heroin with intent to distribute and a
substantive count of attempting to possess
heroin. A jury trial resulted in conviction on
the conspiracy count and acquittal on the
attempted possession count. From the conviction,
Folami appeals.

  Folami contends that the evidence is
insufficient to support the jury’s verdict. Her
task, therefore, is a daunting one for she must
establish that no rational jury could have
concluded that she was a member--even a minor
one--of a conspiracy to possess heroin with
intent to distribute. United States v. Larkins,
83 F.3d 162, 165 (7th Cir. 1996). And we view, of
course, the evidence in the light most favorable
to the government. Id.

  Here, there is no doubt that a conspiracy, as
charged in the indictment, existed. The question
is whether the facts, as we have related them,
are sufficient to prove that Folami was one of
the conspirators.

  Defendants, of course, have a Fifth Amendment
right not to testify in their cases, but they
must live with the consequences of their
decisions. Here, Folami did not testify, so the
jury, other than a little bit of conjecture in
closing argument by her attorney, heard no
reasonable--and innocent--explanation for her
presence at the door to room 620. Therefore, in
the real world, a "mere presence" defense was
going to be a hard sell to any rational jury. And
apparently it was in this case.

  To be sure, the facts gave Folami a slight
basis for arguing that she simply was in the
wrong place at the wrong time: she didn’t have a
stack of money with her when she arrived at the
door to room 620 and, once inside, she didn’t
immediately go for the box of heroin on the bed.
On the other hand, it certainly strains credulity
to suggest that someone on the receiving end of
a valuable shipment of heroin would entrust its
pick up from an international courier (Iwese) to
a complete stranger (Folami). Putting two and two
together, the jury could easily have reasonably
concluded that Folami knew why she went to room
620. Couple this reasonable inference with the
suspicious nature of "Tawa’s" phone
conversations, the note in her possession, her
nervousness at the door, her concern for privacy
when she entered the room, and her hightailing it
out of the room when she learned the bathroom
wasn’t empty, and enough facts, and inferences,
point to her knowing participation in the illegal
scheme. The evidence, we conclude, was sufficient
to support the jury’s verdict.

  Folami next questions the admissibility of
opinion testimony offered to the jury by a Drug
Enforcement Administration agent who explained
how drug deliveries involving "middlemen" are
often conducted. We have examined the questioned
testimony and find nothing in it that is
objectionable. The testifying agent made no
mention of Folami, much less to the facts of her
case. Juries of lay persons, generally unfamiliar
with the underworld of drug importation,
transportation, delivery, and distribution, often
need information about how the system works, and
judges would be remiss in keeping it from them.
Here, the testimony of how "middlemen" generally
operate was properly received.

  The final claim on appeal relates to the heroin
which, strangely, was not "available" at the
trial. Before the trial started, the government
attorney, sheepishly no doubt, explained:

  With regard to the heroin--we don’t have it . .
. . What happened is it was tested by the DEA
lab, brought back to the Customs inventory and
last seen on September 23[, 1999,] when we went
to go take it out for evidence. It isn’t there.
It looks like it has been destroyed because there
was a huge destruction of unnecessary drugs on
September 23. Although that is still being
investigated.

  I don’t think it is relevant to any of the
issues in this case. The documentation is very
clear that all of our witnesses here did not have
any--would not have had access to it in any way.
Mr. Frankel [Folami’s counsel] suggested that he
was going to be questioning along those lines.
However, at no point did he ever contest the
chemical analysis or anything like that. Since
none of our witnesses would be involved with the
disappearance of these drugs or the destruction
of these drugs, it is not really relevant to the
case and it throws in a bunch of red herrings.

  The judge agreed with the AUSA’s point,
concluding that the destruction of the heroin was
not "relevant yet," but he noted, without
elaborating, that "it could become relevant
depending on [the defendant’s] case-in-chief." As
such, the court ruled that Folami would "not be
able to bang any of [the government’s] witnesses
over the head with this," because the matter had
"nothing to do with impeachment."

  In arguing that her due process rights were
abridged by this ruling Folami relies heavily on
California v. Trombetta, 467 U.S. 479 (1984), and
United States v. Kelly, 14 F.3d 1169 (7th Cir.
1994). These cases, however, support, rather than
undermine, the challenged decision.

  In Trombetta, the Supreme Court observed that
the loss or destruction of evidence does not
implicate the Due Process Clause of the
Fourteenth Amendment, at least in the absence of
"official animus" or a "conscious effort to
suppress exculpatory evidence." 467 U.S. at 488.
Trombetta coupled this requirement with one of
materiality, holding that the "evidence must both
possess an exculpatory value that was apparent
before the evidence was destroyed, and be of such
a nature that the defendant would be unable to
obtain comparable evidence by other reasonably
available means." 467 U.S. at 489.

  In Kelly, the defendant argued that the
district court erred in permitting testimony as
to certain narcotics evidence "in light of the
loss of . . . the evidence and an inadequate
chain of custody." 14 F.3d at 1174. We rejected
the argument, finding that the defendant

has presented no evidence that the seized
narcotics evidence, which disappeared after being
analyzed, was lost in bad faith. Further, there
is no indication that the contraband was anything
but what the chemical analysis indicated it to
be--cocaine and heroin. In addition, [the
defendant] had the opportunity to cross-examine
all government witnesses . . . about the seized
evidence and the loss.

Id. at 1175. We went on, however, in Kelly to
note that we were "troubl[ed]" by the lack of an
explanation for the loss of the evidence and
counseled prosecutors in future cases to "provide
an explanation if similar losses occur." Id.
Nevertheless, we concluded that "in light of our
previous holding in [an earlier case] that seized
narcotics need not be placed before the jury, we
do not believe the government’s failure to
explain the loss of drugs requires suppression of
the officers’ testimony." Id.

  Here, the district court’s treatment of the
destruction of evidence issue was fully in
keeping with the principles of Trombetta and
Kelly. There was no allegation, much less
evidence, of bad faith on the part of the
government, the destroyed evidence was not
exculpatory or otherwise material, there was no
dispute that the evidence was in fact heroin, and
the government provided an explanation, although
not a comprehensive one, for its destruction. See
United States v. Nesbitt, 852 F.2d 1502, 1520-21
(7th Cir. 1988) (rejecting due process argument
based upon destruction of evidence, where
defendant failed both bad faith and materiality
prongs of Trombetta test), abrogated on other
grounds by United States v. Durrive, 902 F.2d
1221 (7th Cir. 1990), superseded by statute on
other grounds by United States v. Guerrero, 894
F.2d 261 (7th Cir. 1990).

  More to the point, Trombetta and its progeny
are essentially inapposite. This authority,
again, governs instances in which a defendant
seeks the suppression of testimony concerning
material evidence alleged to have been destroyed
in bad faith. Such a request to suppress is
properly made to the district court as a means of
precluding, in the first instance, the
presentation of such testimony to the jury on the
ground that the government’s conduct compromised
the defendant’s right to a fair trial;
conversely, Trombetta is not authority for the
proposition that a defendant may seek generally
to attack the credibility of government
witnesses, particularly where those witnesses, as
is the case here, had absolutely nothing to do
with the inability to produce the evidence in
court.

  The fact that Folami was precluded from cross-
examining the government’s witnesses about the
destruction of the heroin is unimportant in this
case. Through this proposed cross-examination,
the defense was not seeking to discredit the
notion that Iwese was carrying heroin with her or
to suggest that the chain of custody was broken
in such a way as to render the drug evidence
somehow unreliable. Indeed, the defense
foreshadowed as much in a pretrial submission:

The case involves the defendant’s state of mind
when she retrieved a package from a cooperating
individual. . . . The defense will not dispute
that the cooperating individual was carrying
drugs at the time of her arrest, that she came to
Chicago to attempt to deliver the drugs, that the
defendant appeared at the hotel room where the
cooperating individual was staying, and that the
defendant left the room after discovering two
agents hiding in the bathroom.

At trial, consistent with its theory, the defense
stipulated to the precise nature and quantity of
the drug evidence (1,071.1 grams of heroin), as
well as the complete, predestruction chain of
custody.

  The best we can say here is that Folami sought
to elicit testimony regarding the destruction of
the heroin as a means of impeaching government
witnesses. But these witnesses, as the district
court correctly noted, were not themselves
involved in, or responsible for, its
disappearance. Under these circumstances, the
court correctly precluded the defense from
pursuing this line of cross-examination.
AFFIRMED.
