United States v. Valentine Balogun, I

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0136n.06
FILED
No. 10-1268
Feb 03, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
VALENTINE BALOGUN, I, a.k.a. )
Valentine Ifeoluwa Balogun, )
)
Defendant-Appellant. )
BEFORE: CLAY, ROGERS, and DONALD, Circuit Judges.
ROGERS, Circuit Judge. A jury convicted Valentine Balogun of possession with the intent
to distribute heroin. Balogun appeals his conviction, challenging the voir dire, the admission of
certain impeachment evidence, the Government’s closing argument, the district court’s jury
instruction on reasonable doubt, and the overall sufficiency of the evidence supporting his
conviction. Balogun also argues that the district court erred in applying a two-level sentencing
enhancement on the grounds that Balogun committed perjury during his trial testimony. All of
Balogun’s claims lack merit.
I.
On July 14, 2009, law enforcement officials at London’s Heathrow Airport intercepted and
searched a suspicious Federal Express (FedEx) package en route from “Pastor Mwema Atabu” in
Nairobi, Kenya, to “Pastor Mrs. Rita Smith” at 9939 Rutland in Detroit, Michigan. R. 38 at 5-13.
Inside the package, the officials found beaded earrings, necklaces, and gospel CDs. Within the
No. 10-1268
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CDs’s sleeves, the officials found hundreds of grams of heroin. Id. at 139. According to Drug
Enforcement Administration (DEA) Agent Nathan Fountain, this heroin had a street value of $100
per gram. Id. at 85.
DEA agents organized a controlled delivery of the package. Id. at 18-19. First, they removed
most of the heroin, leaving behind only a small representative sample. Id. at 41. Second, they
installed an electronic device inside the package, set to emit a signal to law enforcement when the
package was opened. Id. at 26. Third, they obtained an anticipatory search warrant allowing them
to search 9939 Rutland once the package was opened. Id. at 52-53.
The agents also had police officers Michael Moore and Joseph Marsh conduct surveillance
of 9939 Rutland. R. 38 at 19-20. During their surveillance, Officer Moore saw a white Kia Rio
parked in the driveway and Officer Marsh watched Balogun arrive at the house in a gray Dodge
Caliber and enter the house using a key. Id. at 21-22, 146.
On July 15, 2009, Agent Mike Brouillard disguised himself as a FedEx courier and arrived
at 9939 Rutland with the package. R. 44 at 16. As Agent Brouillard approached the house, Balogun
opened the door. Id. at 17. Agent Brouillard explained that he had a package for “Mrs. Rita Smith,”
and asked Balogun if he would accept the package. Id. at 18. Balogun said that he would, signed
for the package, and took it. Id. After Agent Brouillard left, Balogun carried the package to the
Dodge Caliber, opened the driver’s side door, and remained there for approximately 20 to 30
seconds, obstructed from view. R. 38 at 150. Balogun then went into the house with the package
and the electronic device inside the package went off, signaling that it had been opened. Id. at 27,
150.
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Officer Moore then instructed an arrest team to “move in.” Id. As the team drove into the
driveway and onto the lawn, Balogun exited the house carrying the package. Id. at 27-28. Upon
seeing the officers, Balogun ran across the porch, threw the package onto the ground, and hollered,
“that’s not mine. I don’t know what’s in there.” Id. at 28, 51. The officers arrested Balogun and
executed the search warrant. Id. at 53.
The officers seized several pieces of evidence from the house, including: (1) mail addressed
to Balogun at 9939 Rutland; (2) digital scales and small bags; (3) Balogun’s application for a visa
to visit Kenya; and (4) a piece of paper with a handwritten phone number for “K,” containing the
Kenyan country code “254.” R. 38 at 54, 55, 58, 60, 82. The officers also seized Kyocera and
Samsung cell phones, the latter of which was registered to Balogun at 9939 Rutland. Id. at 85.
Records from the Kyocera cell phone showed outgoing text messages to “K” with the address at
9939 Rutland and the FedEx tracking number from the controlled delivery package. R. 44 at 33-35.
Records from the Samsung cell phone showed multiple incoming calls from “K” on July 15, 2009,
as well as an outgoing text message to “Coco” with the FedEx tracking number from the controlled
delivery package. Id. at 25-31.
The officers also seized several pieces of evidence from the cars parked at 9939 Rutland. R.
38 at 61-62. In the Kia Rio, the officers found $4,280 bundled in $1,000 increments, as well as
another FedEx package from “Pastor Mwema” to “Rita Smith” containing beaded necklaces and
gospel CDs. Id. at 69-71. In the Dodge Caliber, the officers found mail addressed to Balogun at
9939 Rutland, as well as more beaded necklaces similar to the ones in the controlled delivery
package. Id. at 79-81.
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The officers gathered even more evidence through a subsequent investigation. They combed
airline records and discovered that Balogun was scheduled to fly from Detroit to Kenya on April 7,
2009, and return on April 30, 2009. R. 44 at 44-46. The officers also searched FedEx records and
found that from April 27, 2009, to June 18, 2009, four packages were sent from Nairobi, Kenya, to
9939 Rutland, with two of these packages either sent to or signed for by Balogun. Id. at 36-40.
Less than two weeks later, a federal grand jury indicted Balogun, charging him with
conspiracy to possess with the intent to distribute heroin, in violation of 21 U.S.C. § 846, and
possession with the intent to distribute heroin, in violation of 21 U.S.C. § 841(a). R. 1. Balogun’s
case proceeded to trial.
Prior to trial, the district court conducted an extensive voir dire. R. 36 at 24. The district
court asked the jury pool many questions, including several related to drugs, such as the following:
Are there any of [you] who . . . have any personal experience with, or
secondhand through a close friend, experience with things relating to the charges that
we have here today? Drug distribution allegations, investigations, being questioned
about drug distribution. Having a friend or associate or even a family member, who
has been charged or accused or convicted of similar conduct, compared to what we
have here?
I’m asking the question in order to find out whether there is anything that
would likely interfere with your ability to be a fair and impartial juror in this case.
Id. at 62. After multiple potential jurors said that they had friends or relatives with drug problems,
the district court asked follow-up questions to determine whether those individuals could set aside
their experiences and decide the case impartially. Id. at 63-71; 82-83.
Toward the end of the voir dire, Balogun requested that the district court “inquire generally
if any of [the potential jurors] have any experiences through friends, relatives or themselves
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involving drugs that they feel may cause them to lack objectivity to where they could be fair to the
Government or the defense.” Id. at 87. The district court, confident that it had already covered that
subject, overruled Balogun’s request. Id. at 87-88. The parties then proceeded to jury selection.
Ultimately, none of the potential jurors who mentioned that they had friends or relatives with drug-
related issues was empaneled. Id. at 101-102.
At trial, the Government put on eight witnesses and introduced dozens of pieces of evidence.
R. 38; R. 44. In his defense, Balogun put on three witnesses, including himself. R. 44. Balogun’s
defense theory was that he had recently moved into the 9939 Rutland house, that his housemate had
asked him to accept a package on her behalf, and that he did not know what was in the package, nor
had he opened it. Balogun attributed the history of suspicious deliveries to another former
housemate, who had recently been incarcerated on drug charges. While explaining that he recently
moved into the 9939 Rutland house, Balogun testified that in May and June 2009, he lived with his
girlfriend and newborn son. R. 40 at 29. However, on cross-examination, the Government used an
inconsistent statement to impeach Balogun’s story. Over Balogun’s objection, the Government
introduced evidence that, in July 2009, Balogun told a pretrial services officer that he did not know
his son’s name. Id. at 4-6, 29-31.
After all of the evidence was presented, the parties made their closing arguments. Id. at 97,
115. During its closing argument, the Government stated that the Samsung cell phone records,
which were introduced into evidence, showed that Balogun received multiple “incoming calls from
Kenya.” Id. at 98. While Balogun did not object to this particular statement, he had previously
objected to a similar statement, arguing that there was “no evidence that those calls actually came
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from Kenya, only that [‘254’] is a Kenya code. I know that may be technical, but I’m not an expert
on phones and don’t know whether just because that ‘254’ is there, that means a call emanated from
Kenya.” Id. at 51-52. The district court, however, overruled that prior objection. R. 40 at 52.
During his closing argument, Balogun noted that “the Government did not bring in anybody from
the phone company to tell you that that call, because it has ‘254’ on it, had to have been from
Kenya.” Id. at 131.
The district court then read the jury instructions. With respect to the concept of proof beyond
a reasonable doubt, Balogun requested that the district court instruct the jury in accordance with
Sixth Circuit Pattern Jury Instruction 1.03, ¶ 5, which states that “proof beyond a reasonable doubt
means proof which is so convincing that you would not hesitate to rely and act on it in making the
most important decisions in your own lives.” R. 36 at 5-6. The district court, however, explained
that it disagreed with that instruction and refused to give it to the jury. Id. at 6-9. Instead, after
instructing the jury that “[t]he Government must prove every element . . . of the crime charged
beyond a reasonable doubt,” the district court stated:
A reasonable doubt is a fair, honest doubt growing out of the evidence or lack
of evidence, or perhaps the nature of the evidence, and based upon reason and
common sense. Ultimately, although it’s a little bit circular, a reasonable doubt
would simply be a doubt that you find to be reasonable after you have carefully and
thoughtfully examined and discussed the facts and circumstances present in this case.
Proof beyond a reasonable doubt does not mean proof that amounts to
absolute certainty or beyond all possible doubt. It does not mean beyond a shadow
of a doubt, which is not a phrase that we use in court. Nor does it mean that the
Government must prove any fact or any crime with mathematical precision.
Doubts that are merely imaginary or that arise from nothing more than
speculative possibilities, or that are based only on sympathy or prejudice or guessing
are not what we think of as reasonable doubts. In addition, the law does not require
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that every particular fact that may happen to have been mentioned in the case be
proven beyond a reasonable doubt.
Rather, the law requires that enough facts be proved to convince you beyond
a reasonable doubt that the crime was committed in Count 1 and/or Count 2, and that
the defendant is in fact guilty, and has been proven such by that standard.
R. 40 at 72-73. The district court then concluded its instructions and the jury entered deliberations.
The jury found Balogun guilty of possession with the intent to distribute 100 grams or more
of heroin. R. 26. The jury, however, could not reach a unanimous decision on the conspiracy charge
and the district court granted the Government’s motion to dismiss that count. R. 29.
Prior to sentencing, a probation officer prepared a Presentence Report (PSR), which
recommended a total offense level of 26 and a criminal history category of I, resulting in a
recommended guidelines range of 63 to 78 months’ imprisonment. PSR ¶ 50. At the sentencing
hearing, however, the district court found that Balogun had committed perjury during his trial
testimony. R. 51 at 11-21. Therefore, pursuant to U.S.S.G. § 3C1.1, the district court assessed a
two-level sentencing enhancement, increasing Balogun’s offense level to 28 and establishing a new
guidelines range of 78 to 97 months’ imprisonment. Id. at 26. The district court then sentenced
Balogun to 80 months’ imprisonment. Id. at 33.
Balogun filed a timely notice of appeal. R. 34.
II.
On appeal, Balogun challenges (1) the voir dire, (2) the admission of certain impeachment
evidence, (3) the Government’s closing argument, (4) the district court’s jury instruction on
reasonable doubt, (5) the overall sufficiency of the evidence supporting his conviction, and (6) the
application of the two-level sentencing enhancement. All of Balogun’s claims lack merit.
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A.
The district court did not abuse its discretion in conducting the voir dire. Balogun argues that
the district court improperly denied him the opportunity to ask the jury pool about “general drug use
problems . . . that may not have led to criminal charges.” The district court, however, had “great
latitude in deciding what questions should be asked on voir dire,” Mu’Min v. Virginia, 500 U.S. 415,
424 (1991), and the court appropriately asked the potential jurors if they had any personal or
secondhand experience with allegations of drug distribution or conduct similar to that alleged in this
case. When four potential jurors stated that they had friends or relatives with drug problems, the
district court asked several follow-up questions to determine whether those individuals could set
aside their experiences and decide the case impartially. While the district court did not ask the
precise question requested by Balogun, there is no evidence that its failure to do so rendered
Balogun’s trial fundamentally unfair. See id. at 425–26. Ultimately, the district court’s questions
sufficiently probed the issue of drugs to ensure that Balogun received a fair trial by a panel of
impartial jurors. See United States v. Middleton, 246 F.3d 825, 834–35 (6th Cir. 2001).
B.
The district court also did not abuse its discretion in allowing the Government to impeach
Balogun’s credibility with a statement he made to the pretrial services officer. Balogun’s suggestion
that 18 U.S.C. § 3153(c) bars the Government from cross-examining a defendant concerning any
statements he made to a pretrial services officer is without merit.
Balogun is correct that § 3153(c)(1) provides that “[i]nformation obtained in the course of
performing pretrial services functions in relation to a particular accused shall be used only for the
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purposes of a bail determination and shall otherwise be confidential.” But it is § 3153(c)(3) that
speaks to the admissibility of this confidential information at trial, and (c)(3) provides that such
information
is not admissible on the issue of guilt in a criminal judicial proceeding unless such
proceeding is a prosecution for a crime committed in the course of obtaining pretrial
release or a prosecution for failure to appear for the criminal judicial proceeding with
respect to which pretrial services were provided.
18 U.S.C. § 3153(c)(3) (emphasis added). Section 3153(c)(3) does not, however, restrict the
Government from using statements made to a pretrial services officer to impeach a defendant’s trial
testimony. Indeed, after considering the plain language of § 3153(c)(3), several other circuits have
explicitly held that statements made to pretrial services officers are admissible for impeachment
purposes. The reasoning of United States v. Stevens, 935 F.2d 1380, 1395-97 (3d Cir. 1991), is
particularly compelling. See also United States v. Griffith, 385 F.3d 124, 126 (2d Cir. 2004); United
States v. Wilson, 930 F.2d 616, 619 (8th Cir. 1991); United States v. De La Torre, 599 F.3d 1198,
1205 (10th Cir. 2010). Thus, the district court did not err in allowing the Government to impeach
Balogun’s credibility with his statement to the pretrial services officer.
C.
Balogun’s argument that his conviction should be reversed because of statements made by
the Government during its closing argument is also without merit. The statements at issue—that
Balogun received calls from Kenya, as opposed to calls from a Kenyan country code—were not
improper because these statements were reasonable inferences drawn from the evidence introduced
at trial. See United States v. Crosgrove, 637 F.3d 646, 664 (6th Cir. 2011). Given the extensive
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evidence linking Balogun to Kenya—including but not limited to his application for a Kenyan visa,
the airline records showing that Balogun was scheduled to fly to and from Kenya, and the FedEx
records indicating that other packages were sent from Kenya to Balogun—it was reasonable for the
Government to infer, and therefore argue, that Balogun was receiving calls from Kenya, rather than
calls from someone who simply had a phone with a Kenyan country code. Since this court’s
precedent clearly supports a determination that the suggested inference does not amount to
prosecutorial misconduct, Balogun’s claim fails. See, e.g., Cristini v. McKee, 526 F.3d 888, 901–02
(6th Cir. 2008); Byrd v. Collins, 209 F.3d 486, 535–36 (6th Cir. 2000). For the same reasons,
Balogun’s claim that the district court erred in overruling his objection to this inference during
testimony also lacks merit.
In addition, even if the Government’s comments about calls from Kenya were improper, this
court has held that the district court can generally correct such improprieties by instructing the jury
that closing arguments are not evidence. United States v. Emuegbunam, 268 F.3d 377, 406 (6th Cir.
2001). Here, the district court clearly instructed the jury that the lawyers’ arguments were not
evidence. R. 40 at 74. Therefore, even if the statements had been improper, that impropriety was
cured by the jury instruction.
Finally, Balogun’s claim that he was “highly prejudiced” by the Government’s comments is
also undercut by the fact that he was able to argue, in his own closing, that “the Government did not
bring in anybody from the phone company to tell you that that call, because it has ‘254’ on it, had
to have been from Kenya.” Since Balogun was able to challenge specifically the Government’s
argument that he received calls from Kenya, his allegation of prejudice is unavailing.
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D.
The district court also did not err in instructing the jury. Balogun argues that the district court
improperly gave the jury a modified instruction on the concept of proof beyond a reasonable doubt
instead of instructing the jury in accordance with Sixth Circuit Pattern Jury Instruction 1.03, ¶ 5, as
he requested. Balogun claims that this was reversible error because (1) his proposed instruction was
not substantially covered by the instruction that was ultimately given, and (2) the district court’s
instruction diminished the Government’s burden of proof, substantially impairing his defense.
Neither of these arguments has merit.
First, Balogun’s proposed instruction was substantially covered by the district court’s
instruction. This court was confronted with a nearly identical issue last year, in an appeal from the
same district court involved in this case. See United States v. Kish, 424 F. App’x 398 (6th Cir.
2011). In Kish, this court held that Sixth Circuit Pattern Jury Instruction 1.03, ¶ 5 was substantially
covered by an instruction that was very similar to the one given in this case and that also compared
a reasonable doubt to “a fair, honest doubt.” Id. at 407. Indeed, Balogun’s counsel told the district
court, “I can’t tell you that your proposed instruction is not accurate, because there’s nothing in there
that is inaccurate or wrong under the law.”1 Accordingly, Balogun’s argument that his proposed
instruction was not substantially covered by the district court’s instruction is without merit.
Second, the district court’s instruction did not diminish the Government’s burden of proof.
This court has repeatedly held that “‘comparing a reasonable doubt to a ‘fair, honest doubt’ . . . does
1
In fact, by making this statement, Balogun arguably waived his right to challenge the district
court’s jury instruction on appeal. See United States v. Budd, 496 F.3d 517, 529 (6th Cir. 2007).
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not suggest to the jury a lowering of the government’s burden of proof.’” Id. (quoting Binder v.
Stegall, 198 F.3d 177, 179 (6th Cir. 1999)). Moreover, the district court told the jury, in other parts
of the charge, that the Government had the burden of proving each element of the crimes charged
beyond a reasonable doubt and that Balogun had no obligation to present any evidence at all. These
statements further prove that the district court’s instructions did not lessen the Government’s burden
of proof or somehow shift the burden to Balogun, as he suggests. See United States v. Hart, 640
F.2d 856, 860 (6th Cir. 1981). Balogun’s claim that the district court erred in instructing the jury
is unfounded.
E.
Balogun also challenges the sufficiency of the evidence supporting the jury’s finding that he
possessed heroin with the intent to distribute it. While Balogun moved for a judgment of acquittal
at the end of the Government’s case-in-chief, he failed to renew his motion at the close of all of the
evidence. Therefore, Balogun forfeited his objection to the sufficiency of the evidence, and this
court’s review is limited to whether there was a “manifest miscarriage of justice.” United States v.
Kuehne, 547 F.3d 667, 696-97 (6th Cir. 2008). There was not. Viewed in the light most favorable
to the Government, the evidence was sufficient to establish that Balogun violated each of the
elements of 21 U.S.C. § 841(a): (1) knowingly (2) possessing heroin (3) with the intent to distribute
it. See United States v. Russell, 595 F.3d 633, 645 (6th Cir. 2010).
First, there was sufficient evidence that Balogun knew that the package contained a
controlled substance. It is true that mere evidence that Balogun accepted delivery of and assumed
control over the package would not have been sufficient in itself to support a finding that he knew
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of the package’s true contents, particularly since the heroin was concealed within the CDs’s sleeves.
See United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995). This court has recognized that
“[i]n ‘hidden compartment’ cases, courts have generally required additional evidence indicating
knowledge—‘circumstances evidencing a consciousness of guilt on the part of the defendant.’” Id.
(internal citations omitted). Here, however, the Government introduced this additional evidence.
Balogun’s numerous connections to Kenya, the several incoming calls from “K,” and the outgoing
text message with the FedEx tracking number from the controlled delivery package all support an
inference that Balogun had a keen interest in the arrival of the package and thus, knew of its true
contents. See id. Moreover, Officer Fountain’s testimony that upon seeing the officers, Balogun ran
across the porch, threw the package on the ground, and hollered “that’s not mine. I don’t know
what’s in there,” also supported an inference that Balogun had a guilty conscience. See id.
Second, there was clearly sufficient evidence that Balogun possessed the heroin. At trial,
Agent Brouillard testified that Balogun agreed to accept the controlled delivery package, signed for
it, and took it. Officer Marsh testified that he saw Balogun walk on the porch with the package and
eventually go into the house. Officer Moore testified that after the electronic device inside the
package went off, signaling that the package had been opened, he saw Balogun exit the house
carrying the package. All of this evidence strongly indicated that Balogun possessed the heroin.
Third, there was sufficient evidence that Balogun intended to distribute the heroin. Since the
jurors heard testimony that the controlled delivery package initially contained hundreds of grams of
heroin, it was reasonable for them to infer Balogun’s intent to distribute the heroin. See United
States v. Hill, 142 F.3d 305, 311 (6th Cir. 1998). In addition, the large street value of heroin—over
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$100 per gram, according to Agent Fountain—also supported an inference that Balogun intended to
distribute the heroin. See Jackson, 55 F.3d at 1226. Finally, the presence of digital scales and small
bags at 9939 Rutland, where Balogun was arrested, further supported this inference. See Hill, 142
F.3d at 312.
In sum, there was sufficient evidence for a reasonable jury to find that Balogun violated 21
U.S.C. § 841(a). The district court, therefore, did not err in denying Balogun’s solitary mid-trial
motion for a judgment of acquittal.
F.
Finally, the district court did not err in applying a two-level sentencing enhancement on the
grounds that Balogun committed perjury during his trial testimony. In order to apply the
enhancement, the district court was required to (1) identify perjurious statements Balogun made on
the stand, (2) find that these false statements were material, and (3) find that Balogun made these
statements willfully. See United States v. May, 568 F.3d 597, 607 (6th Cir. 2009); United States v.
Ellison, 336 F. App’x 483, 486–87 (6th Cir. 2009). The district court followed this procedure and
reasonably found that the enhancement applied.
First, the district court identified several specific perjurious statements Balogun made on the
stand, including but not limited to his statements that after he accepted the controlled delivery
package, he did not walk to the Dodge Caliber, did not take the package into the house, and did not
open the package. R. 51 at 10-21. The district court accurately noted that Balogun’s testimony was
not supported by any other evidence in the case. Id. at 11. In fact, the testimony of multiple law
enforcement officials directly contradicted each of these statements. We have previous upheld
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perjury enhancements based on a “mountain” of contradictory testimony. May, 568 F.3d at 607. The
district court also suggested that Balogun testified falsely when he said that he thought the package
contained a bomb because Balogun admitted that he threw the package onto the ground. R. 51 at
15. The district court rationally explained that
it’s inconsistent with a stated belief that he was holding a bomb . . . that he would
. . . throw it forcefully so that it would land with some impact on the ground or on the
porch. It would seem to me . . . that a sensible person’s reaction, if he truly believed
that he was holding something that was an explosive, [would be] to be very delicate
with it. To put it down very quietly and gently and to get away from it as soon as
possible, rather than throwing it.
Id. at 15. In short, the district court understandably found that Balogun’s testimony was “infused
with falsehoods.” Id. at 21.
Second, the district court reasonably found that Balogun’s false statements were material.
Id. at 21. As the district court recognized, the jurors could have come to a different determination
with respect to Balogun’s knowledge and intent had they believed these statements. Since
“‘material’ evidence” is defined to include statements “that, if believed, would tend to influence or
affect the issue under determination,” the district court properly found that the materiality element
was established. U.S.S.G. § 3C1.1 cmt. n. 6; see United States v. Day, 89 F. App’x 986, 991 (6th
Cir. 2004).
Lastly, the district court reasonably found that Balogun made the statements in question with
the requisite intent. R. 51 at 11. The district court described Balogun’s testimony as “intentional
and knowing,” “a fabrication,” and “designed to attempt to mislead the jury.” Id. Since there is no
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evidence to refute these findings, this court will not disturb the district court’s enhancement for
obstruction of justice.
III.
For the foregoing reasons, we affirm Balogun’s conviction and sentence.
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