United States v. Nubuor, Enoch

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-3012 & 00-3228
United States of America,
Plaintiff-Appellee,
v.
Enoch Nubuor and Sulley Salami,
Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 98 CR 23--Robert W. Gettleman, Judge.
Argued October 22, 2001--Decided December 12, 2001
Before Flaum, Chief Judge, and Ripple and
Williams, Circuit Judges.
Flaum, Chief Judge. After a joint jury
trial, Enoch Nubuor was convicted of
engaging in a conspiracy to distribute
heroin and for possession of heroin with
an intent to distribute. At the same
trial, Sulley Salami was also convicted
of engaging in a conspiracy to distribute
heroin. Nubuor and Salami have filed the
instant appeal contesting the sufficiency
of the evidence presented against them,
several of the district court’s
evidentiary rulings, and the district
court’s sentencing procedures. For the
reasons stated herein, we affirm the
convictions of both Nubuor and Salami and
the sentences imposed by the district
court.
I. BACKGROUND
In 1997, in an effort to penetrate and
disband a heroin ring operating in
Chicago, the FBI used a paid informant to
infiltrate a suspected drug ring’s
distribution chain. This informant
established contact with an individual
named Seth Bonsu. Over the course of
several weeks, Bonsu made numerous heroin
sales to the FBI informant. Enoch Nubuor
was present during some of the
transactions between Bonsu and the FBI
informant. On one occasion, after
completing a sale of heroin to the
government’s agent, Bonsu met with Nubuor
and entered Nubuor’s automobile. On
another occasion, on November 20, 1997,
while Bonsu made an additional sale of
heroin to the informant, Nubuor was
waiting outside Bonsu’s apartment in his
automobile.
In December of 1997, the FBI informant
began negotiating a significantly larger
heroin deal with Bonsu. In devising this
transaction, the FBI hoped to expose the
members of Bonsu’s supply and
distribution chain. The FBI informant was
instructed to solicit the sale of six
kilograms of heroin from Bonsu. As the
deal for the larger quantity of heroin
began to take shape, Bonsu told the FBI
informant that he would be able to
provide four kilograms of heroin from
three different sources./1 Ultimately,
Bonsu and the FBI informant agreed that
the larger heroin transaction would take
place on January 14, 1998.
On January 13, 1998, Bonsu met with
Salami at a Chicago restaurant. During
this encounter, Salami provided Bonsu
with a sample dosage of heroin. The next
day, January 14, Bonsu called the FBI
informant at around 8:04 a.m. After this
telephone call, Bonsu immediately paged
Salami three times and called Nubuor
twice. The FBI informant and Bonsu then
met. At this meeting, Bonsu explained
that he had arranged to get four
kilograms of heroin from three separate
sources: one source would provide four
hundred grams of heroin, a second source
would supply six hundred grams, and a
third source would supply the balance.
After a request from the FBI informant,
Bonsu agreed to supply a sample dosage of
heroin.
FBI agents arrested Bonsu just after he
gave the informant the requested sample.
After his arrest, Bonsu agreed to
cooperate with the agents and made
several tape-recorded telephone calls.
Bonsu first called a distributor named
Oyesile. In that call, Bonsu told Oyesile
to call or page him, so that Bonsu could
pick up the drugs. Oyesile responded to
Bonsu by saying, "Okay, the same thing
like Enoch, Enoch." Bonsu then told
Oyesile that he would like to receive
"one" from Nubuor; Oyesile responded,
"[y]eah, I got the same thing just like
Enoch."
On the following day, Bonsu made a
recorded telephone call to Nubuor. In
that call, Bonsu told Nubuor that he had
been arrested and to "be careful with
yourself and the four that you said you
will give me, it is still in the foam,
remove it from there. And your friend, go
and talk to him well. They were watching
you all the while I was coming there."
Nubuor responded to these comments with
"Eh-heh." Nubuor gave the same response
when Bonsu referred to "that small thing
you gave me."/2
On January 16, 1998, FBI agents went to
Salami’s residence. With Salami’s
consent, the agents conducted a search of
the residence. After the search, Salami
agreed to make a statement to the FBI. In
that statement, which was later admitted
into evidence at trial, Salami admitted
to participating in the planning of the
January 14th transaction with two other
individuals, Bonsu and Biliki Brimah. In
addition, Salami admitted to having known
Bonsu for two years. However, Salami
stated that he had only discussed drug
transactions with Bonsu in the weeks
leading up to the January 14th
transaction.
Salami also stated that he had met Bonsu
on January 13, 1998, and on that date he
provided Bonsu with a small plastic bag
containing a sample dosage of heroin.
According to Salami, he had received the
sample of heroin from Brimah. Salami also
admitted that he had recent contacts with
Brimah and that she had been making
efforts to contact him to receive payment
for a consignment of 50 grams of heroin
which she had provided him. After making
the above statement, Salami agreed to
cooperate with the government against
Brimah. Over the next several days,
Salami made numerous telephone calls to
Brimah and also met with her. Ultimately,
Salami was able to purchase 100 grams of
heroin from Brimah./3
On January 23, 1998, the FBI arrested
Nubuor and conducted a consent search of
his apartment. Nubuor admitted that he
had been selling heroin at his place of
employment; however, he refused to name
the individuals who supplied him with
heroin. After searching both Nubuor’s
apartment and person, FBI agents found
5.9 grams of heroin.
On March 3, 1999, both Nubuor and Salami
were indicted for offenses related to the
trafficking of heroin. Count I of the
indictment charged Nubuor and Salami with
conspiring with each other and others to
distribute heroin. Nubuor was also
charged with distribution of heroin and
possession of heroin with intent to
distribute.
During the course of the trial, after
Salami had withdrawn from cooperating
with the government’s case, the
government sought to admit Salami’s post-
confession transactions with Biliki
Brimah as evidence of his participation
in the conspiracy. The district court
admitted these transactions into
evidence. At trial, pursuant to Federal
Rule of Evidence 801(d)(2), Salami sought
to admit a statement made by a prosecutor
as an admission by a party opponent. The
district court denied Salami’s motion.
After the conclusion of the trial, both
Nubuor and Salami were found guilty of
engaging in a conspiracy to distribute
heroin. Nubuor was also found guilty of
possession of heroin with intent to
distribute. The district court then
commenced sentencing. After reviewing the
Federal Sentencing Guidelines and the
Apprendi v. New Jersey case, the district
court concluded that Nubuor was
responsible for 1.5509 kilograms of
heroin. Nubuor and Salami were then given
the respective sentences of 121 and 120
months in the penitentiary.
In the instant appeal, both Nubuor and
Salami contest the sufficiency of the
evidence presented at trial. Both claim
that the evidence admitted against them
fails to support their convictions on
conspiracy charges. Separately, Nubuor
appeals the sentencing determinations
reached by the district court. According
to Nubuor, the district court, in holding
him responsible for 1.5509 kilograms of
heroin, committed clear error.
Salami contends that the district court
abused its discretion in admitting
Salami’s post-confession drug purchases.
Those purchases were offered and admitted
as evidence of Salami’s participation in
a drug conspiracy. Lastly, Salami claims
that the district court committed clear
error when it denied his motion to admit
a prosecutor’s statements as a statement
against the government’s interest.
II. DISCUSSION
After considering the arguments raised
by both Nubuor and Salami, we find them
to be unavailing.
A. Sufficiency of Evidence
Both Salami and Nubuor contend that the
evidence adduced at trial was
insufficient to support their convictions
for engaging in a conspiracy to
distribute heroin. Recently, this court
set forth that a drug sale in and of
"itself cannot [form the basis of a]
conspiracy, for it has no criminal
object." United States v. Torres-Ramirez,
213 F.3d 978, 981 (7th Cir. 2000).
Instead, to establish the existence of a
conspiracy, there must be an "agreement
to commit some other crime beyond the
crime constituted by the sale agreement
itself." Id. According to Nubuor and
Salami, the government failed to present
evidence at trial that could prove that
they were involved in a scheme to commit
a crime that extended beyond the buyer-
seller agreement.
When examining an individual’s
participation in a conspiracy, proof of
additional crimes may be based entirely
upon circumstantial evidence. See, e.g.,
United States v. Pagan, 196 F.3d 884, 889
(7th Cir. 1999), cert. denied, 530 U.S.
1283 (2000). Factors that may be
considered, particularly in the area of
drug conspiracies, include: the length of
affiliation between the parties; the
existence of an established method of
payment; the extent to which transactions
between the parties are standardized; and
the demonstrated level of mutual trust
between the alleged participants. See
United States v. Contreras, 249 F.3d 595,
599 (7th Cir. 2000). No one
circumstantial factor will typically be
dispositive. Id. However, "[i]f enough
point in the direction of a concrete,
interlocked interest beyond the
consummation of the individual buy-sell
deals themselves, we will not disturb the
conclusion reached by the finder of fact
that at some point the association
blossomed into a cooperative venture."
Id.
With respect to both Nubuor and Salami,
we find that ample facts were adduced at
trial to support the jury’s verdict that
both individuals engaged in a conspiracy
to distribute heroin.
1. Enoch Nubuor
In its case against Nubuor, the
government presented the testimony of
Carla Evans, the girlfriend of FBI
informant, Bonsu. In her testimony, Evans
stated that she often saw Nubuor at
Bonsu’s apartment. Evans also testified
that Bonsu told her that Nubuor was his
regular supplier of drugs and that Nubuor
was to contribute quantities of heroin to
help complete the January 14 sale. This
testimony was bolstered by the fact that
Nubuor was seen (by government agents)
with Bonsu after numerous smaller drug
sales had taken place. The jury also
heard the recorded telephone calls that
Bonsu made when he was cooperating with
the government. On these tapes, in a
conversation between Bonsu and Oyesile,
Oyesile states, when speaking about the
quantity of drugs he was to furnish
Bonsu, "I got the same thing just like
Enoch." Similarly, the jury heard a
telephone call that occurred between
Bonsu and Nubuor. In that call, Nubuor
replied with an affirmative "Eh-heh" when
Bonsu told him to get rid of the "four
you said you will give me."/4 Lastly,
the jury was able to see and examine the
frequency of contacts between Nubuor and
Bonsu. Bonsu and Nubuor contacted each
other 97 times in the two months leading
up to the January 14 transaction.
All of the above facts, together, allow
a jury to find that Nubuor was a party to
a conspiracy. The testimony of Carla
Evans, the sightings of Nubuor at
multiple drug transactions, and the
significant amount of phone traffic
between Bonsu and Nubuor, establish that
Bonsu and Nubuor knew one another for
some time and that they worked together
comfortably. The duration of the
relationship between Bonsu and Nubuor and
the trust the two seemed to demonstrate
toward one another indicate something
more substantive and expansive than "an
arm’s length retail-type sale" of drugs.
United States v. Ferguson, 35 F.3d 327,
331 (7th Cir. 1994). When presented with
the above facts, it is clear that a
"rational trier of fact could have found
the essential elements of the crime
beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
2. Sulley Salami
The facts surrounding Salami’s
involvement in the January 14, 1998
heroin transaction also support his
conviction on conspiracy charges. First
and foremost, Salami admitted to federal
agents that he had known Bonsu for two
years and that he had discussed the
January 14, 1998 sale of heroin with
Bonsu. Although Salami argues that he
never discussed drugs with Bonsu prior to
the planning of the January 14
transaction, that assertion is
dramatically undercut by the facts
presented at trial. When viewed with a
critical eye, those facts indicate that
Salami and Bonsu operated with a distinct
level of trust. For example, before the
effectuation of the January 14 sale of
heroin, Salami provided Bonsu with a
sample dosage of heroin prior to receipt
of payment. Evidence of fronting, or
"providing drugs ’up front’ [and without
payment] may establish the existence of a
conspiracy because it indicates
cooperation and trust" between the
parties. Ferguson, 35 F.3d at 221.
Similarly, Bonsu used a special numerical
code when paging Salami. That code
indicated to Salami that Bonsu was
attempting to contact him. The use of
this special code indicates that both
Bonsu and Salami had a systematic way of
communicating and transacting business.
Salami’s post-confession drug
transactions also support the jury’s
verdict. After his arrest and confession,
Salami agreed to cooperate with
government to implicate Biliki Brimah in
the government’s investigation./5 During
the course of his cooperation, Salami
purchased up to 100 grams of heroin from
Biliki Brimah. These post-confession
transactions between Brimah and Salami
were standardized in the method of
transfer, with the drugs consistently
wrapped inside a napkin. Furthermore, the
facts support a conclusion that there was
a level of trust and familiarity between
Brimah and Salami. Brimah was willing to
"front" modest to large quantities of
drugs on Salami’s behalf, as evidenced by
her provision of a sample dosage to
Salami on January 13, 1998.
The above facts, standing alone, support
the jury’s conclusion that Salami
participated in a conspiracy to
distribute heroin.
B. Admission of Salami’s Post-Confession
Drug Transactions
Salami’s next contention is that the
district court abused its discretion when
it admitted Salami’s post-confession drug
transactions, which occurred while he was
working as a government agent, as
evidence of his participation in a
conspiracy to distribute heroin.
According to Salami, the district court
should have excluded those transactions
from evidence pursuant to Federal Rule of
Evidence 403. Salami’s principal argument
is that it is unfair for the government
to use evidence of his post-arrest and
post-confession actions against him
because those actions occurred while he
was cooperating with the government.
We find that Salami’s arguments on this
issue lack merit. This circuit’s caselaw
supports the entry of a defendant’s post-
arrest cooperation as evidence against a
defendant, particularly after that
defendant has withdrawn from his
cooperation with the government./6 See,
e.g., United States v. Hubbard, 22 F.3d
1410, 1416-17 (7th Cir. 1994). Lastly, we
find that any prejudicial effect
attendant upon the admission of Salami’s
post-arrest actions was blunted by the
fact that Salami was afforded ample
opportunity to highlight (in both cross-
examination and in closing argument) that
the disputed purchases occurred at the
direction of the government.
C. Denial of Salami’s Motion to Admit
Prosecutor’s Statements
Salami’s next claim is that the district
court erred in excluding statements made
by a prosecutor during Bonsu’s plea
hearing. Salami offered those statements
into evidence pursuant to Federal Rule of
Evidence 801(d)(2). During the plea
hearing of Bonsu, the prosecutor stated
that Bonsu received sample dosages of
heroin from three suppliers: Oyesile,
Nubuor, and Salami. The prosecutor then
stated that Bonsu gave the sample dosages
received from Oyesile and Nubuor to the
FBI’s agent, in anticipation of the Janu
ary 14 deal. The prosecutor did not
mention what Bonsu did with the sample
dosage provided by Salami. At trial, the
government introduced evidence that
Salami admitted to providing Bonsu with a
sample dosage of heroin on January 13,
1998. In addition, Salami, in cross-
examination, elicited testimony from an
FBI agent indicating that Bonsu also
passed the sample dosage received from
Salami onto the FBI informant.
After this alleged inconsistency was
exposed, Salami attempted to introduce
the prosecutor’s statements at the Bonsu
plea hearing as a judicial admission,
pursuant to 801(d)(2). The district court
denied Salami’s motion, noting that the
prosecutor’s statements were based upon
information gleaned from Bonsu and that
it "could hardly hold what [Bonsu] said
and what the government was willing to
stipulate with Mr. Bonsu about as a
judicial admission[,] given that Mr.
Bonsu was not competent at the time." In
his appeal, Salami argues that the
district court should have admitted the
prosecutor’s statements as admissions of
a party opponent.
We need not address Salami’s contention
that a government prosecutor’s statements
may be admitted into evidence as a
statement of a party opponent to conclude
that, even under the most searching
review, the district court’s ruling would
amount to harmless error./7 Salami
admitted to engaging in fulsome
discussion with Bonsu regarding the
January 14 heroin transaction and
admitted that he supplied Bonsu with a
sample dosage of heroin. It would strain
the bounds of reason and logic to assume
that a jury would change its
determinations about Salami’s involvement
in the drug conspiracy, in the face of a
minor misunderstanding over what happened
to the sample dosage of heroin he
supplied to the government’s informant.
Furthermore, this is not a case where the
alleged erroneous exclusion of evidence
precluded Salami from presenting his
defense. See, e.g., United States v.
Peak, 856 F.2d 825, 834-35 (7th Cir.
1988). Therefore, we find Salami’s
arguments on this matter to be
unavailing.
D. The District Court’s Sentencing
Determinations
Nubuor argues that the district court
erred in determining the amount of heroin
that he was responsible for at his
sentencing. We review the district
court’s determination of drug quantity
for clear error. See United States v.
Magana, 118 F.3d 1173, 1205 (7th Cir.
1997).
Nubuor was sentenced pursuant to USSG
sec.1B1.3(a)(1)(B). In sentencing
pursuant to that provision, a district
court is to consider "reasonably
foreseeable acts and omissions of others
in the jointly undertaken criminal
activity." USSG sec.1B1.3(a)(1)(B).
Furthermore, in the context of drug
distribution cases, we have held that a
defendant who has conspired with others
may be sentenced for drug quantities that
he did not handle, so long as he could
reasonable foresee that the drug
transactions would occur. See United
States v. McEntire, 153 F.3d 424, 438
(7th Cir. 1998). In reviewing the
district court’s sentencing
determinations under the above standards,
we find that the district court did not
commit clear error.
At the sentencing hearing, the district
court determined that Nubuor was
responsible for 1.5509 kilograms of
heroin. The district court reached this
figure by first concluding that Nubuor
was responsible for the amount of heroin
found on his premises and on his person:
5.9 grams. Next, the district court
determined that Nubuor was responsible
for an additional 400 grams of heroin.
This finding was based upon Nubuor’s
recorded telephone conversation with
Bonsu, in which he acknowledged Bonsu’s
remark (the "four that you said you will
give me") with an "Eh-heh." This
conversation, coupled with the fact that
Bonsu, in his settlement proffer, stated
that Nubuor had agreed to furnish 400
grams of heroin to the January 14 heroin
deal, support the district court’s
findings.
The district court then determined that
Nubuor and Salami "knew about each other
and their roles in the conspiracy" and
were accountable for all the heroin that
their counterpart could have foreseeably
delivered. Therefore, the district court
concluded that because Salami intended to
deliver one kilogram of heroin to Bonsu,
Nubuor should be found responsible for
that additional kilogram. Evidence
submitted at trial established that
Nubuor was aware that various parties
would contribute drug quantities to the
January 14, 1998 transaction. Nubuor’s
awareness, coupled with the fact that
"reasonable forseeability does not
require that the co-conspirator be aware
of the precise quantity in each of an
ongoing series of illegal transactions,"
support the district court’s
determinations as to the additional kilo
gram of heroin. United States v.
Scroggins, 939 F.2d 416, 423 (7th Cir.
1991).
To reach the final sum, the district
court determined that Nubuor should be
held responsible for the quantities of
heroin that Bonsu sold to the FBI
informant, prior to the January 14th
transaction. The total quantity of drugs
sold in these transactions equals 115
grams. Evidence presented at trial
established that Nubuor was present, and
indeed was often consulted by Bonsu, when
some of these transactions were executed.
In this instance, we agree with the
district court and find that it was
reasonably foreseeable to Nubuor that
these smaller transactions would be
required to further the overall
conspiracy to sell a far larger quantity
of drugs.
E. Apprendi
Lastly, pursuant to Apprendi v. New
Jersey, 530 U.S. 466 (2000), both Nubuor
and Salami claim that the district court
should not have been allowed to find drug
quantities by a preponderance of the
evidence, in determining base offense
levels under the Sentencing Guidelines.
This court has recently rejected the
appellants’ arguments. United States v.
Jones, 248 F.3d 671, 676-77 (7th Cir.
2001) (when ascertaining base offense
levels, a district court may determine
drug quantities by a preponderance of the
evidence). Similarly, both Nubuor and
Salami claim that Apprendi requirements
should apply to mandatory minimum
sentences. This court has expressly
rejected such an argument. United States
v. Sandoval, 241 F.3d 549, 551 (7th Cir.
2001).
III. CONCLUSION
For the foregoing reasons, we Affirm both
the convictions and the sentences of the
appellants in the instant case.
FOOTNOTES
/1 While negotiating this larger transaction, Bonsu
had numerous phone conversations with both Nubuor
and Sulley Salami. From November 2, 1997 to
January 14, 1998, there were 97 contacts between
Bonsu and Nubuor’s telephones. Similarly, between
December 27, 1997 and January 14, 1998, Bonsu
contacted Salami’s pager 29 times. When Bonsu
paged Salami, he would use a special numerical
code.
/2 Carla Evans, Bonsu’s girlfriend at the time of
the drug transactions, later testified that
Nubuor was a regular presence at Bonsu’s apart-
ment and that Bonsu had told her that Nubuor
regularly supplied him with heroin. Evans also
testified that Bonsu told her he was going to get
drugs from both Nubuor and Salami in order to
complete the January 14 transaction.
/3 Salami later stopped cooperating with the govern-
ment.
/4 Nubuor’s statements on the recorded telephone
calls do not provide great detail into his in-
volvement in the conspiracy to sell drugs. Howev-
er, Nubuor did not demur when asked about the
heroin to be sold or when the details of the
transaction were mentioned with great specifici-
ty.
/5 In his confession, Salami admitted to receiving
50 grams of heroin from Brimah on previous drug
transactions.
/6 It should also be noted that the government did
not attempt to use Salami’s post-arrest actions
to charge him with the substantive crimes commit-
ted at the government’s behest. Rather, the
cooperative purchases of heroin were offered to
show that Salami operated with a level of trust
and comfort with heroin distributors and was,
therefore, likely to have been part of the con-
spiracy to distribute heroin.
/7 We note that in several other contexts this
court, in criminal cases, excludes the statements
of government agents and officers from admission
under Rule 801(d)(2). The theory behind these ex-
clusions is that those government agents do not
have the authority to bind the United States and
are generally disinterested in the outcome of the
trial. See United States v. Zizzo, 120 F.3d 1338,
1352 n.4 (7th Cir. 1997).