United States v. Dikeocha, Ebenezer ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3235
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EBENEZER DIKEOCHA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 90 CR 654--James F. Holderman, Judge.
ARGUED APRIL 12, 2000--DECIDED JUNE 27, 2000
Before CUDAHY, COFFEY and KANNE, Circuit
Judges.
COFFEY, Circuit Judge. In October of
1990, Ebenezer Dikeocha, the defendant-
appellant in this case, was charged in a
superseding indictment in the Northern
District of Illinois, along with three
other individuals, with conspiracy to
distribute and distribution of heroin.
See 21 U.S.C. sec.sec. 846 and 841(a)(1).
Dikeocha and his co-conspirators, Vincent
Nwafor, Gibson Nwafor, and Charles
Emenogha were convicted following
separate jury trials./1 Dikeocha’s co-
conspirators were convicted in 1991, and
this court later affirmed each of their
convictions and sentences. See United
States v. Emenogha, 1 F.3d 473 (7th Cir.
1993). Dikeocha was not tried until March
of 1999 because he was a fugitive, but
after he was apprehended, and following a
jury trial, he was also convicted on all
three counts charged.
At Dikeocha’s sentencing, the district
court relied, in part, on the testimony
of Larry Palmer, an unindicted co-
conspirator, who testified on behalf of
the government at the 1991 trial of
Dikeocha’s co-conspirators. The court
sentenced Dikeocha to 188 months’
imprisonment, $2500 in restitution, a
$2500 fine, a $150 special assessment,
and five years’ supervised release.
Dikeocha appeals his conviction and his
sentence. We affirm.
I. BACKGROUND
In August of 1989, Sergeant Regina
Evans, an undercover officer of the
Chicago Police Department, purchased
heroin from co-conspirator Vincent Nwafor
during a meeting arranged by Nwafor’s
girlfriend, Darlene Sumpter, who was
acting as a confidential informant.
Sergeant Evans again purchased heroin
from Nwafor in September and December of
1989.
On January 25, 1990, Nwafor told
Sergeant Evans that he was leaving the
country to obtain heroin, but that his
associates would probably be able to
procure drugs for her while he was out of
the country if any became available. On
March 23, 1990, Sergeant Evans purchased
a total of 53.7 grams of heroin from the
defendant, Ebenezer Dikeocha, a/k/a
"Ebeny," a/k/a "Ahijo," during a meeting
in a parking lot in Chicago, Illinois. In
a taped conversation with the undercover
officer on that date, Ebeny stated that
he and Nwafor "work together," and that
"Vince is my cousin." A check of the
charges on Ebeny’s cell phone revealed
that the telephone was billed to the home
address of "Ebenezer Dikeocha."/2
In late March of 1990, Sumpter, who was
cooperating with the Drug Enforcement
Administration (DEA) at the time, advised
the DEA that she was planning a trip to
Nigeria to visit her boyfriend, Vincent
Nwafor. DEA officials advised Sumpter not
to travel to Nigeria and further that her
bags would be searched at the airport.
She disregarded this advice and arrived
at O’Hare International Airport on March
31, 1990, to effectuate her plan to
travel to Nigeria. The U.S. Customs
officials at O’Hare intercepted her and
questioned her once she had completed
checking four suitcases and two U-Haul
boxes. Although Sumpter told the Customs
officers that she had less than $1000
with her, a search of her checked luggage
and boxes revealed $99,940 concealed in
laundry detergent boxes. Forty of the
bills matched the serial numbers of those
used in the March 23, 1990, undercover
purchase from "Ebeny" and were found in a
box with "Ebenezer" written on the side.
Other items in her baggage seized at
O’Hare that day contained electronic
equipment bearing the names "Ebenezer
Dikeocha Ahijo" and "Ebenezer Dikeocha."
Still other boxes containing cash and
more equipment were labeled "Ebeny,"
"Vin," and "Vincent." Sumpter also was
found to be carrying a letter addressed
to co-conspirator Vincent Nwafor signed
by "Ahijo" which stated "it will be
better if we can pull all the resources
together to make a big buy," and "with
what (I) am enclosing . . . that will be
enough to purchase 5 for both of us."
Sumpter was in the custody of U.S.
Customs officials at O’Hare while her
bags were being searched, and after the
search was completed Customs agents
turned her over to the DEA. Sumpter
agreed to cooperate further with the DEA
so as not to be charged. Subsequently,
she made taped telephone calls to Ebeny
wherein they had a discussion concerning
the money she was carrying at the time of
her apprehension at O’Hare.
On July 25, 1990, co-conspirator Charles
Emenogha was arrested at O’Hare in
possession of 997 grams of heroin. In a
tape recorded conversation with Larry
Palmer, who was cooperating with law
enforcement, co-conspirator Gibson Nwafor
stated that the heroin carried by
Emenogha at the time of his arrest at
O’Hare belonged to four or five people,
including Dikeocha. Gibson Nwafor also
stated during the recorded conversation
that Dikeocha had met Emenogha in
Brussels, but that Dikeocha had flown
separately to New York while Emenogha
flew into Chicago.
Co-conspirators Emenogha and Gibson
Nwafor were arrested on drug charges on
September 9, 1990, and co-conspirator
Vincent Nwafor was arrested on September
10, 1990. Although a warrant had been
issued for Dikeocha’s arrest, United
States Marshals were unable to arrest him
contemporaneously with his co-
conspirators because he had departed for
Nigeria earlier in September of 1990.
On December 7, 1995, an individual using
the name "Mario Taylor" and the address
of Dikeocha’s girlfriend, Diedre Brown,
made application for and received a pass
port. The photograph accompanying the
application was that of the defendant,
Dikeocha. On March 20, 1997, Dikeocha
attempted to enter the United States
using the fraudulent passport bearing
Mario Taylor’s name with his (Dikeocha’s)
picture, but he was refused entry. After
questioning by Immigration and
Nationalization authorities, the
defendant admitted that he was not Mario
Taylor, and that his real name was Ebeny
Dikeocha.
On October 16, 1997, Dikeocha was
arrested, at Diedre Brown’s apartment, on
the drug charges referred to in the 1990
indictment. It was discovered at the time
of Dikeocha’s arrest that he had gained
entry into the United States using a
fraudulent passport bearing the name of
"Lawrence Taylor."/3
Like his co-conspirators who had been
found guilty years before, Dikeocha went
to trial before a jury and was found
guilty of two counts of distributing
heroin and one count of conspiring to
distribute heroin. On appeal, Dikeocha
challenges his conviction before the jury
and alleges that the jury was improperly
allowed to consider a document from the
INS files linking him to Vincent Nwafor.
He also challenges his sentence, arguing
that the trial judge improperly relied at
sentencing on the transcribed testimony
of Larry Palmer in determining Dikeocha’s
relevant conduct.
II. ISSUES
On appeal, we consider: 1) whether the
district court abused its discretion in
admitting in evidence an INS record
filled out by one of Dikeocha’s co-
conspirators when seeking entry into the
United States; and 2) whether it was
error for the trial court to rely on the
testimony of a government witness (Larry
Palmer), who had previously testified in
the trial of the defendant’s co-
conspirators regarding Dikeocha’s drug
smuggling and selling activities, at
sentencing because the testimony was
unreliable.
III. DISCUSSION
A. Admission at Trial of Nwafor’s INS
File
Dikeocha objects to the admission at
trial of a document from Vincent Nwafor’s
INS file. The document contained a
statement from Vincent Nwafor reciting
that he had a brother named Geoffrey
Nwafor; Dikeocha had told the INS that he
had a cousin by the same name. Thus,
Dikeocha argues that if the jury believed
that Vincent Nwafor had a brother named
Geoffrey Nwafor, and the defendant had a
cousin named Geoffrey Nwafor, then
Vincent and Dikeocha were in all
probability cousins (unless there were
two separate individuals with the same
rather unusual name of "Geoffrey Nwafor,"
both with relatives who sought entry into
the United States from Nigeria).
Dikeocha claims that the document from
the INS file is inadmissible hearsay and
also is unduly prejudicial because it
served to establish his identity as Ebeny
and his link to Vincent Nwafor for the
jury. He argues that there was evidence
offered at trial that one of the
individuals who had sold drugs to
Sergeant Evans was a cousin of Nwafor’s
and that the INS record tended to
establish that he in fact was Vincent’s
cousin. In short, Dikeocha argues that
the document from Vincent Nwafor’s INS
file was essential to establish that the
"Ebeny" who had sold drugs to Sgt. Evans
was, indeed, Ebenezer Dikeocha.
As we stated in United States v. Aldaco,
201 F.3d 979, 984 (7th Cir. 2000)
(internal quotations and citations
omitted):
We review a district court’s decision to
admit evidence for an abuse of
discretion, affording great deference to
the trial court’s determination of the
admissibility of evidence because of the
trial judge’s first-hand exposure to the
witnesses and the evidence as a whole,
and because of the judge’s familiarity
with the case and ability to gauge the
impact of the evidence in the context of
the entire proceeding.
However, even if the admission of the
information from Nwafor’s INS file was an
abuse of discretion, this court would not
reverse if the admission of the evidence
was harmless error. See United States v.
Hardin, 209 F.3d 652, 664 (7th Cir. 2000)
(citation omitted).
Evidentiary errors are deemed harmless,
and thus not grounds "for reversing a
jury’s verdict," unless they had "’a
substantial and injurious effect or
influence on the jury’s verdict.’" United
States v. Jarrett, 133 F.3d 519, 529 (7th
Cir. 1998) (citations omitted). We are of
the opinion that the reception in
evidence of Vincent Nwafor’s INS file
linking him to the defendant through the
common relative Geoffrey Nwafor did not
have a "substantial or injurious" effect
on the jury’s ultimate decision that the
Ebenezer Dikeocha who was on trial was
the same person as "Ebeny" who had sold
drugs to the undercover Sergeant, Regina
Evans. A review of the record clearly
reveals that there was substantial other
evidence demonstrating that the defendant
was, in fact, "Ebeny."
First and foremost, Sergeant Regina
Evans, who had previously participated in
an undercover face-to-face heroin
transaction with Ebeny, made an in-court
identification of Ebenezer Dikeocha as
the same man from whom she had bought
heroin in a parking lot on March 23,
1990. Sergeant Evans testified that the
drug transaction with Ebeny was extremely
memorable because it was the largest drug
buy of her career, some $10,000 worth of
heroin. This in-court identification from
the officer alone would provide
sufficient grounds for a jury to conclude
that the defendant, Ebenezer Dikeocha,
was Ebeny, but the record reflects that
there was a wealth of additional evidence
in support of this conclusion: 1) Ebeny
acknowledged in a tape-recorded conversa
tion with Sergeant Evans in March of 1990
that he was Vincent Nwafor’s cousin, and
Ebenezer Dikeocha’s INS application
listed an individual with the same
unusual surname, Nwafor, as being his
cousin; 2) the drug dealer who sold
Sergeant Evans heroin in 1990 used the
name "Ebeny," and the government offered
testimony from an INS agent that the
defendant told the INS in 1997 that his
name was "Ebeny Dikeocha;" 3) boxes
seized during the search of Sumpter’s
baggage in 1990 at O’Hare airport were
labeled "Ebenezer Dikeocha," "Ebeny", and
"Ebenezer Dikeocha Ahijo;" and 4) the
cell phone used in some of the drug
transactions with Sergeant Evans in 1990
was registered to an individual residing
at Ebenezer Dikeocha’s home address. Thus
even without the information contained in
Vincent Nwafor’s INS file, the record
reflects that there was more than
sufficient evidence from which a
reasonable jury could have concluded that
the defendant Ebenezer Dikeocha was one-
in-the-same as Ebeny, the heroin dealer.
Therefore, even assuming that the trial
judge’s decision to admit Nwafor’s INS
document was improper, we hold that it
was harmless error.
B. Reliance on Palmer’s Testimony in
Determining Relevant Conduct
Dikeocha also argues on appeal that the
judge improperly relied on the
transcripts of statements made by Larry
Palmer, an unindicted co-conspirator, who
testified during the 1991 trial of
Dikeocha’s co-conspirators./4 Palmer’s
testimony from the previous trial
included accounts of several drug
smuggling expeditions involving himself,
Vincent and Gibson Nwafor, Charles
Emenogha, the defendant, Ebenezer
Dikeocha, and others. Dikeocha claims
that Palmer’s testimony linking him to
3.5 kilograms of heroin, an amount which
the trial judge found to be
"conservative," was untrustworthy.
"[I]t is the sentencing judge alone who,
based upon the evidence received, decides
the identity and quantity of the drug
distributed in an offense. . . . [I]n
making these findings, he consider[s] the
credibility, knowledge, and experience of
the witnesses and determine[s] the
reliability of a permissibly-broad range
of evidence, including hearsay." United
States v. Branch 195 F.3d 928, 934 (7th
Cir. 1999). Thus, "[w]e review
deferentially, looking only for clear er
ror, a district court’s calculation of
drug quantities under the guidelines."
United States v. Robinson, 164 F.3d 1068,
1070 (7th Cir.), cert. denied, 120 S. Ct.
628 (1999). Further, the information
relied upon by the district court for
purposes of determining relevant conduct
at sentencing need not be proven beyond a
reasonable doubt, but rather the
testimony relied upon by the court must
possess a "sufficient indicia of
reliability to support its probable
accuracy." Id. (citation omitted); see
also United States v. Jackson, 207 F.3d
910, 920-21 (7th Cir. 2000).
We reject Dikeocha’s assertion that the
trial court improperly relied upon Larry
Palmer’s testimony. The court’s ruling
that Palmer’s testimony at the previous
trial possessed sufficient indicia of
reliability was proper in that his
testimony implicating Dikeocha was
detailed, based upon personal knowledge,
and subject to a thorough cross-
examination by three attorneys acting on
behalf of Dikeocha’s co-conspirators,
resulting in what amounts to almost 100
pages of trial transcript. The three
different attorneys representing
Dikeocha’s co-conspirators vigorously
cross-examined Palmer at trial, grilling
him extensively on topics like his
potential bias, his deal with the
government, his own heroin dealing, his
involvement in insurance fraud, and so
on./5 Furthermore, Palmer’s testimony
regarding Dikeocha’s participation in the
conspiracy was consistent with, and
supported by, other testimony presented
at Dikeocha’s trial. Finally, Dikeocha
never saw fit to present any evidence to
contradict Palmer’s testimony that he was
responsible for 3.5 kilograms of heroin.
See United States v. Amerson, 185 F.3d
676, 689 (7th Cir. 1998) (A defendant’s
self-serving assertions may be
discredited by the court when they find
no support in "any facts, any exhibits,
evidence, and/or logical reasoning.").
A trial judge’s determination of the
amount of drugs constituting the
defendant’s relevant conduct will not be
set aside unless we were to find clear
error in the court’s findings upon review
or it was established that it was based
upon unreliable information. See
Robinson, 164 F.3d at 1070. We hold that
the trial court’s determination of the
drug quantity constituting Dikeocha’s
relevant conduct for sentencing purposes
was not clearly erroneous because there
is far more than a sufficient indicia of
reliability to support the probable
accuracy of the 1991 trial testimony of
the absent witness, Palmer.
The defendant’s conviction and sentence
are
AFFIRMED.
/1 In United States v. Emenogha, 1 F.3d 473, 476 (7th
Cir. 1993), this court described the key players
in the conspiracy as follows:
Vincent Nwafor, the prime mover in the
enterprise, organized the purchases and the
subsequent distributions. Gibson Nwafor,
Vincent’s brother, handled the
financialarrangements. Gibson Nwafor held the
profits at his own apartment, converted the
proceeds to larger bills for easier handling at
various Chicago banks, and wire-transferred money
out of the country on Vincent Nwafor’s behalf.
Mr. Emenogha, who is the Nwafors’ cousin, acted
as a courier and brought heroin to Chicago from
Nigeria on at least three occasions.
The operation was assisted by [the defendant in
the instant case] Ebenezer Dikeocha, who smuggled
heroin into the United States and distributed it
at least once in conjunction with Vincent Nwafor.
Additional distributors were Andy Uwazoke and Ike
Agu. Larry Palmer, a/k/a Lawrence Ofuokwu
(hereinafter "Palmer"), an uncharged member of
the conspiracy, traveled to Nigeria to purchase
heroin; he pled guilty to a drug charge in
Maryland and agreed to cooperate with the United
States in investigating other members of the
conspiracy. Other couriers for the conspiracy
were Tracy Ousley, Beverly (last name not known),
and Darlene Sumpter, Vincent Nwafor’s girlfriend,
who contacted the Drug Enforcement Administration
(DEA) in 1989 and agreed to cooperate in
arranging an undercover purchase of heroin
between Vincent Nwafor and Chicago police officer
Regina Joanes.
/2 The cell phone was subscribed to by an "Andy
Okoro" with a billing address at 1415 West Pratt,
Chicago, Illinois. At the same time in 1990,
Ameritech billed "Ebenezer Dikeocha" for home
telephone service at the same address.
/3 The record does not reflect when Dikeocha was
able to re-enter the United States.
/4 The judge relied on transcripts of Palmer’s
testimony when sentencing Dikeocha in 1999
because Palmer was unavailable to testify as he
was out of the country in Nigeria at the time of
Dikeocha’s trial and sentencing.
/5 Dikeocha asserts that it was unfair for the
district court to rely on Larry Palmer’s
testimony because his counsel did not have the
opportunity to cross-examine him, as Palmer was
in Nigeria and therefore unavailable to testify
at Dikeocha’s trial. However, the fact that
Dikeocha did not have the opportunity to cross-
examine Palmer is a problem of his own making for
he had departed from the country at the time of
the scheduled trial. Had Dikeocha not been a
fugitive until 1997, he more than likely would
have been tried with his co-conspirators in 1991,
and would have had the opportunity to personally
cross-examine Palmer at that time.