                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-14-1998

United States v. Idowu
Precedential or Non-Precedential:

Docket 98-5076




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Recommended Citation
"United States v. Idowu" (1998). 1998 Decisions. Paper 246.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/246


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Filed October 14, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-5076

UNITED STATES OF AMERICA

v.

ISMOILA IDOWU,
Appellant

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. No. 97-cr-00214-2)

Argued: July 17, 1998

Before: BECKER, Chief Judge, STAPLETON and WEIS,
Circuit Judges.

(Filed October 14, 1998)

       EDNA B. AXELROD, ESQUIRE
        (ARGUED)
       443 Northfield Avenue
       West Orange, NJ 07052

       Attorney for Appellant

       FAITH S. HOCHBERG, ESQUIRE
       United States Attorney

       GEORGE S. LEONE, ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       970 Broad Street - Room 502
       Newark, NJ 07102
       Chief of Appeals

       Attorneys for Appellee
OPINION OF THE COURT

BECKER, Chief Judge.

The evidence at the trial of Ismoila Idowu on the charge
of conspiracy to possess with intent to distribute more than
one kilogram of heroin, 21 U.S.C. S 846, made it crystal
clear that Idowu was -- and knew that he was -- involved
in an illicit transaction of some sort. There also is no
question that the transaction that was the subject of the
government's undercover investigation and surveillance, in
which Idowu's co-defendant Monadu Ajao was the buyer,
involved more than one kilogram of heroin. The sole
question on Idowu's appeal, following his conviction by a
jury, is whether there was sufficient evidence that Idowu
knew that the subject matter of the transaction was a
controlled substance, rather than some other form of
contraband, such as stolen jewels or computer chips or
currency, such proof being necessary to support Idowu's
conviction.1

We have consistently held in cases of this genre that,
even in situations where the defendant knew that he was
engaged in illicit activity, and knew that "some form of
contraband" was involved in the scheme in which he was
participating, the government is obliged to prove beyond a
reasonable doubt that the defendant had knowledge of the
particular illegal objective contemplated by the conspiracy.
See, e.g., United States v. Thomas, 114 F.3d 403, 405 (3d
Cir. 1997); United States v. Wexler, 838 F.2d 88, 90 (3d Cir.
1988). We also have consistently held that, in the absence
of such proof, a guilty verdict on a conspiracy charge
cannot be sustained. See Thomas, 114 F.3d at 406; Wexler,
838 F.2d at 91. We think that the evidence that Idowu
knew that heroin or some other controlled substance was
involved is lacking here. Accordingly, we will reverse the
judgment.
_________________________________________________________________

1. Idowu also challenged the admission of testimony regarding the money
that was seized from him. Since we conclude that, even with the
admission of this testimony, there was insufficient evidence to convict
Idowu, we do not reach this argument.

                               2
I.

The events leading up to Idowu's March 24, 1997, arrest
in Jersey City, New Jersey, began two months earlier in
Lahore, Pakistan. At that time, the United States Drug
Enforcement Agency (the "DEA") in Pakistan seized over two
kilograms of heroin in the course of an undercover
operation. The agency used the seized heroin as part of a
sting operation that targeted prospective purchasers in the
United States. Pakistani drug dealers, believing that their
co-conspirators still possessed the heroin, were led to
contact Abdul Khaliq, who actually was a DEA informant.
During a telephone call organized by another DEA
operative, a man who identified himself as "Raja" told
Khaliq that someone would call him to arrange to purchase
the heroin.

Several weeks later, Monadu Ajao, who identified himself
as Raja's friend, and who became Idowu's co-defendant,
telephoned Khaliq. During the course of six telephone
conversations, which were taped by Khaliq, Ajao negotiated
to buy the heroin. Khaliq and Ajao ultimately agreed to
meet at a Quality Inn parking lot in Jersey City, New Jersey
on March 24, 1997. Throughout the telephone negotiations,
Ajao never mentioned Idowu, nor did he specifically
mention heroin. Ajao did indicate that he was acting on
behalf of others, and at one point implied that another man
was helping him to gather the money he was to pay to
Khaliq.

On March 24, DEA agents set up surveillance at the
Quality Inn. They wired Khaliq with a concealed tape
recorder and transmitter so that they could monitor the
transaction from a nearby car. That afternoon, Ajao arrived
at the Quality Inn in a black Lincoln Town Car driven by
Idowu. Ajao and Idowu left the car and entered the hotel
lobby, Idowu carrying a brown leather bag. The two men
then exited the lobby, re-entered the sedan, and moved it to
another location in the parking lot. Khaliq arrived in a Ford
Explorer with a black suitcase in his trunk; the DEA had
previously outfitted the suitcase to hold drugs in its lining.2
_________________________________________________________________

2. This was the same suitcase that the DEA seized in Pakistan in its
undercover operation there.

                               3
Ajao got out of the Town Car and introduced himself to
Khaliq. Idowu remained in the vehicle. Ajao and Khaliq
discussed the payment, which was to have been $30,000.
Ajao told Khaliq that he only had brought $20,000. Idowu
was unable to hear their conversation. Ajao and Khaliq
then returned to the Town Car. Ajao encouraged Khaliq to
get into the car, but Khaliq declined Ajao's offer. Ajao,
sitting in the front seat of the Town Car, continued to talk
to Khaliq, who remained standing outside. Ajao and Idowu
then exited the vehicle, at which point Khaliq met Idowu for
the first time. When Khaliq asked who Idowu was, Ajao
replied that "he is driver."

All three gathered near the trunk of the Town Car. Idowu
opened the trunk, which contained the brown leather bag;
he then opened the bag, displaying the money inside to
Khaliq. As Khaliq counted the money, Khaliq stated that he
would have to take the bag with him. Idowu had some
documents in the bag, and Khaliq told Idowu, who wanted
to get the bag back, that Idowu could "pull [the documents]
out" and that he would return the bag to Idowu the next
day. Idowu told Khaliq that he had checked the money
himself, and that all $20,000 was there.

Khaliq took the bag of money to the Ford and opened the
rear hatch. Idowu, who previously had pulled the Town Car
into a spot next to the Ford, then removed the specially-
outfitted black suitcase from Khaliq's car and placed it into
the still-open trunk of the Town Car. Idowu unzipped the
black suitcase and, on seeing nothing inside, told Ajao,
"They didn't pack this thing." Ajao told Idowu to press the
suitcase with his hands. Khaliq tried to reassure Ajao and
Idowu by explaining that something was concealed in the
frame of the suitcase. Moments later, the DEA arrested
Ajao and Idowu.

The DEA agents recovered $3,000 in cash from Idowu's
right front pocket, $495 from his back pocket, and $18,000
in cash from the brown leather bag.

II.

As both Idowu and the government correctly point out,
we "must determine whether, viewing the evidence most

                                4
favorably to the government, there is substantial evidence
to support the jury's guilty verdict." Wexler, 838 F.2d at 90
(citing Glasser v. United States, 315 U.S. 60, 80 (1942)).
"The elements of a conspiracy may be proven entirely by
circumstantial evidence, but each element of the offense
must be proved beyond a reasonable doubt." 838 F.2d at
90 (citations omitted). One element the government must
show in a conspiracy case is that "the alleged conspirators
shared a `unity of purpose', the intent to achieve a common
goal, and an agreement to work together toward the goal."
Id. at 90-91. In order for us to sustain a defendant's
conviction for conspiracy, the government must have put
forth evidence "tending to prove that defendant entered into
an agreement and knew that the agreement had the specific
unlawful purpose charged in the indictment." Id. at 91. See
also United States v. Scanzello, 832 F.2d 18, 20 (3d Cir.
1987).

Idowu acknowledges that the evidence tends to show that
he reached some kind of agreement with Ajao and that he
knew that he was involved in some form of illicit activity.
Nevertheless, he contends that the evidence offered at trial
is insufficient to prove beyond a reasonable doubt that he
knew that the purpose of the illicit transaction was to
obtain possession of a controlled substance.

The government points to a series of acts by Idowu that,
in its opinion, prove that Idowu knew he was part of a drug
deal. First, Idowu carried the brown leather bag containing
the money. Second, Idowu apparently owned the bag, as
evidenced by the fact that he kept personal documents in
the bag. Third, Ajao was willing to leave Idowu alone with
the money. Fourth, Ajao believed that it was safe to talk to
Khaliq in the presence of Idowu. Fifth, Idowu was the one
who showed Khaliq the money and who told Khaliq that he
had checked it to ensure that it was all there. Sixth, Idowu
opened the black suitcase to check the contents without
being prompted by Ajao. Seventh, the two defendants spoke
Yoruban (a Nigerian dialect) together. Eighth, Ajao urged
Idowu to feel around in the suitcase. Ninth, Idowu had
$3,000 in his pocket at the time he was arrested, which he
presumably had skimmed from the stash.

                               5
From these facts, the government attempts to draw a
number of inferences about Idowu's behavior. However,
only two inferences are proper: that Idowu had some kind
of preexisting relationship with Ajao, and that Idowu knew
he was participating in some sort of illegal transaction. But
the evidence does not support the critical inference on
which the government's case depends -- that Idowu knew
the transaction was a drug transaction. Neither Ajao nor
Khaliq referred to the subject of their deal as "heroin" or
"drugs" in Idowu's presence on the day of the transaction,
or in their recorded phone conversations. Instead, they
referred to the subject matter of the deal as "the stuff,"
which can describe a variety of contraband. Nor did Idowu
take part in any of the recorded conversations with Khaliq
that preceded the March 24 transaction. While Idowu may
have known that the object of the sale was small enough to
be placed in a suitcase, a wide variety of contraband items
can fit into a container of that size, including stolen jewelry,
laundered money, stolen computer chips, and
counterfeiting plates. At no time did Idowu give any
indication that he knew what Ajao was purchasing with the
money.

The government's strongest argument is that Ajao's
invitation to Khaliq to get into the car, in which Idowu was
sitting, reflects such total confidence in Idowu that an
inference can be drawn that Idowu knew the full nature of
the transaction. "Inferences from established facts are
accepted methods of proof when no direct evidence is
available so long as there exists a logical and convincing
connection between the facts established and the
conclusion inferred." United States v. Clemmons, 892 F.2d
1153, 1159 (3d Cir. 1989). However, the government's
argument actually relies on two interdependent inferences,
at least one of which lacks a convincing connection between
the facts and the conclusion.

The first inference is that, by inviting Khaliq into the car
to talk, Ajao was willing to speak freely in front of Idowu.
While we can only speculate what they might have talked
about in the car, we think there are a number of more
viable explanations for Ajao's invitation to Khaliq. It might
have been merely a friendly, confidence-inspiring gesture.

                               6
Moreover, the record suggests that Ajao was apprehensive
that he was under surveillance, so he may have invited
Khaliq into the car because he wanted to drive somewhere
else to complete the deal. But even if we accept that a
reasonable jury could infer that Ajao felt comfortable
speaking in front of Idowu, the second inference-- that
because Ajao was willing to speak about the transaction in
the presence of Idowu, Idowu must already have been
aware of the deal's subject matter -- is entirely without
support in the record, regardless of how favorably to the
government the evidence is viewed.3 Because the
government has presented no evidence that would justify
the jury's inferential leap between the second inference and
the conclusion, and because we do not think the first
assumption alone, without the support of the necessary
second assumption, is a strong enough foundation on
which to ground the conviction, we cannot hold that the
government has presented evidence sufficient for the jury to
find that the government proved Idowu's knowledge beyond
a reasonable doubt.

Our case law supports the conclusion that it was
unreasonable for the jury to infer that Idowu knew of the
transaction's ultimate purpose. In United States v. Thomas,
114 F.3d 403 (3d Cir. 1997), a drug courier named Lynch,
after being arrested, agreed to cooperate with the DEA by
following through on a plan to drop off a suitcase in a motel
room. Defendant Thomas, acting on a communication from
someone named "Cliff," picked up the room key and entered
the room that contained the suitcase, in accordance with
the arrangements Lynch had made with her co-conspirator,
Petersen. Thomas then left the room without the suitcase
and without drugs. Upon being arrested, Thomas explained
that he had been offered $500 to check on the luggage. See
id. at 404-05.

Much like Idowu, Thomas conceded that there was
"evidence tending to show that he entered into some kind
_________________________________________________________________

3. We note in passing that it is not uncommon for managers of
clandestine illegal operations to keep their employees insulated from one
another and from the overall plan of operation so that they cannot
supply evidence against others involved.

                                7
of agreement," but he contended "that the evidence
presented at trial [was] insufficient to prove beyond a
reasonable doubt . . . that he knew that the purpose of the
agreement was the specific unlawful purpose charged in the
indictment, i.e., the possession of a controlled substance
with intent to distribute." 114 F.3d at 405. We agreed with
Thomas, noting that the government failed to prove the
substance of the phone calls made from "Cliff " to Thomas
and that it failed to offer evidence that Thomas ever spoke
to Lynch or Petersen at all. Finally, we pointed out that the
government's evidence failed to controvert Thomas's
proffered explanation for his actions, which was that he
had received a phone call from Cliff asking him simply to go
into the hotel room and to leave the door unlocked on the
way out. We concluded that "there is no evidence from
which a jury could permissibly infer that Thomas knew that
the object of the conspiracy was to possess cocaine," and
therefore that "the evidence cannot support Thomas'
conspiracy conviction." Id. at 406.

Like the prosecution in Thomas, the government here has
failed to prove that the defendant ever heard specific
reference to the subject matter of the transaction in which
he was involved. The government would have us distinguish
Thomas on the ground that Thomas had presented a
credible alternative explanation for his acts, where Idowu
did not offer an alternative explanation for his participation.
However, in refusing to uphold Thomas's conviction, we
relied not on the presence of a convincing alternative
explanation by the defendant but on the total absence of
evidence showing that Thomas knew that cocaine was
involved. Thomas, 114 F.3d at 406. Therefore, the
credibility of Idowu's explanation of his role in the
transaction is not a factor, and cannot make up for the lack
of specific evidence of Idowu's knowledge of the
transaction's subject matter.

United States v. Wexler, 838 F.2d 88 (3d Cir. 1988),
further supports our conclusion. In Wexler, the court noted
that there was "ample circumstantial evidence . .. from
which the jury could have concluded that Wexler was
involved in a conspiracy" to transport some kind of
contraband in a Ryder truck. 838 F.2d at 91. Such

                               8
evidence included the fact that Wexler drove the car in a
manner that suggested he was a lookout for the truck, that
Wexler had a fraudulently-obtained CB radio in his car
when he was arrested, that he made a gesture that
appeared to signal one of the conspirators, and that he
spoke with another conspirator several times during the
operation. Id. However, we concluded, "What is missing is
any evidence that Wexler knew that a controlled substance
was couched behind the doors of the Ryder truck." Id.
Because "[t]hat knowledge is an essential element of the
conspiracy charged," and because "keeping bad company"
is not sufficient grounds on which to convict a defendant
for conspiracy, the conviction was overturned. Id.

The government tries to distinguish the facts in Wexler
from the facts in the present case. It argues that unlike
Wexler, who appeared to be on the outside edge of the
conspiracy, Idowu was a "trusted member" of the
conspiracy. In support of this argument, the government
points to the fact that Idowu was entrusted with a large
amount of cash, that he possessed the keys to his own car
trunk (where the cash was kept), that he knew $20,000 was
the correct amount of money, that he assured Khaliq that
it was all there, and that, upon finding nothing in the black
suitcase, he reacted as if he had expected to inspect the
contents. Taking all these points as true, the government --
as in Wexler -- still has failed to show that Idowu knew
what the deal was about. The fact patterns both in Wexler
and in the case at bar are consistent with transactions that
do not involve drugs of any sort. And because the
government failed to provide evidence that Idowu knew that
drugs were in fact the subject matter of the transaction, the
jury could not draw a permissible inference that Idowu had
knowledge of the nature of the deal.4
_________________________________________________________________

4. While not the basis for our decision, we note that there is evidence
that makes it quite possible that Idowu was someone quite different from
the "trusted confederate" the government would make him out to be. It
appears that Idowu had skimmed at least some of the $3,000 found in
his pocket from the stash of money in the brown leather bag. The bag
was supposed to have held $20,000, but instead held only $18,000. If
Idowu did skim money from the bag, this suggests that far from being a
co-conspirator playing an integral role in the exchange, Idowu was a

                                9
III.

In light of our case law and of the specific facts in this
case, we conclude that there was an absence of evidence
that Idowu knew the subject matter of the transaction was
the purchase of more than one kilogram of heroin. We
therefore hold that no reasonable jury could have
concluded that the government had met its burden of proof,
which requires proof beyond a reasonable doubt.
Accordingly, the judgment of the district court will be
reversed.
_________________________________________________________________

dishonest driver with his own agenda. If the government's theory is
correct, Idowu was about to become the partial owner of $165,000 worth
of heroin. The fact that Idowu may have felt it worth the risk to skim a
petty $3,000 suggests that Idowu was not involved in the heart of the
transaction and that the government is therefore incorrect.

                               10
STAPLETON, Circuit Judge, dissenting:

The court's majority opinion provides a fair account of
the evidence. Unlike my colleagues, I conclude that this
evidence supports the verdict against Mr. Idowu.

The evidence indisputably supports the proposition that
Ajao intended to purchase a large quantity of heroin from
Khaliq in the parking lot of the Quality Inn. The evidence
also indisputably supports the proposition that Idowu
committed himself to facilitate the anticipated parking lot
transaction. He drove Ajao to the site with the cash, he
transported the cash in his own suitcase, he represented to
the seller that he had counted the cash himself and it was
sufficient to cover the purchase price, and he attempted to
confirm that the merchandise being purchased was in
Khaliq's black suitcase. Finally, as the court acknowledges,
the evidence indisputably supports the proposition that
Idowu must have known that the transaction he committed
to facilitate was an illicit one. The only reasonable doubt to
which the court can point is the possibility that Idowu
committed himself to facilitate a $20,000 illicit transaction
either without knowing the unlawful objective to be
achieved or having been misled about that objective.

Given the inherent risk, it is an extremely rare
occurrence when a person commits himself to facilitating a
large illicit transaction without ascertaining the objective to
be achieved. Moreover, the evidence with respect to Idowu's
circumstances establishes that he was a trusted confidant
of Ajao. Ajao was comfortable negotiating the transaction in
Idowu's presence as well as with Idowu's having sole
custody of the cash in Ajao's absence. This makes it even
more unlikely that Idowu and Ajao failed to discuss why
they were going to the Quality Inn parking lot or that Ajao
misled Idowu into believing they were paying $20,000 for
explosives, diamonds or computer chips. Finally, the
evidence establishes that Idowu was at least tacitly
assigned the task of checking Khaliq's black bag to confirm
that Ajao was getting what was being paid for, an
assignment Idowu would not have received if he were
unaware of what he was looking for. Based on this common
sense approach to the evidence, I conclude that the jury

                               11
properly could conclude that Idowu was guilty as charged
beyond a reasonable doubt.

I would affirm the judgment of the district court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               12
