United States v. Moshoodi Ajijola ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3186
U NITED S TATES O F A MERICA,
Plaintiff-Appellee,
v.
M OSHOODI E MIOLA A JIJOLA,
also known as H AMSAT A YINDE,
also known as M ONSHU,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cr-00682-9–Samuel Der-Yeghiayan, Judge.
A RGUED S EPTEMBER 24, 2009—D ECIDED O CTOBER 21, 2009
Before B AUER, K ANNE and E VANS, Circuit Judges.
B AUER, Circuit Judge. A jury convicted Moshoodi Emiola
Ajijola of conspiracy to possess heroin with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C.
§ 846, and 18 U.S.C. § 2; and possession of heroin with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2. Ajijola challenges his conviction, claim-
ing the district court erred in permitting improper evi-
2 No. 08-3186
dence and argument at trial, and, in the alternative,
claiming that the district court erred in rejecting his guilty
plea. We affirm.
I. BACKGROUND
Prior to trial, the government filed a motion seeking to
introduce evidence that Ajijola attempted to flee, bare-
footed and half-dressed, from law enforcement on Septem-
ber 21, 2006, the date of his arrest. Although objecting to
other pre-trial government filings, Ajijola did not object to
this motion. The district court granted the government’s
motion, ruling that Ajijola’s flight from police was evidence
of consciousness of guilt.
On the day of trial, Ajijola informed the district court
that he and the government had reached a plea agreement,
whereby the government would drop one of the two
counts against him, in exchange for his pleading guilty to
the other count. Before accepting the plea, the district court
directed Ajijola to explain, in his own words, to what
conduct he was pleading guilty. During this colloquy,
the district court asked Ajijola whether he had done “what
the government says,” Ajijola stated, “I didn’t do it.” Tr.
43.1 The district court thereupon rejected the plea and the
case proceeded to a jury trial.
At trial, Letisha Kyles, who was at Ajijola’s apartment at
the time of his arrest, testified that Ajijola was in the
1
References to the transcript from the Federal Rule of Criminal
Procedure 11 (“Rule 11”) colloquy are designated as “Tr.”
No. 08-3186 3
bathroom and on the telephone when the law officers
entered the apartment, and that she heard “water running”
from the bathroom. During closing argument, the govern-
ment argued that the evidence could allow the jury to
infer that Ajijola received a “warning call,” which caused
him to “flush” whatever he had down the toilet, and
then he tried to flee from the officers. At no time did
defense counsel object to any of this argument.
On appeal, Ajijola argues that the evidence of flight
was improperly admitted and that the government made
improper remarks during closing argument, thereby
entitling him to a new trial. In the alternative, Ajijola
argues that the district court abused its discretion in
refusing to accept his guilty plea.
II. DISCUSSION
A. Flight Evidence and the Government’s Arguments
Ajijola failed to object to the pre-trial motion to introduce
evidence of his flight from law enforcement. Likewise,
Ajijola did not object during closing argument when the
government asserted that hearing “running water” in the
bathroom is synonymous to hearing “flushing.” So we
review the admission of the flight evidence and the
assertions made by the government for plain error. United
States v. Schalk, 515 F.3d 768, 776 (7th Cir. 2008);
United States v. Johnson, 437 F.3d 665, 671 (7th Cir. 2006).
Under the plain error standard, the party asserting the
error must establish (1) that there was in fact an error; (2)
that the error was plain; and (3) that the error “affects
4 No. 08-3186
substantial rights.” U.S. v. Van Allen, 524 F.3d 814, 819
(7th Cir. 2008) (citations omitted). Moreover, we will not
consider the error unless it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.(citations omitted).
Ajijola argues that it was plain error to admit the flight
evidence because the attempt to escape from police oc-
curred “more than three months after the relevant con-
duct” and there was a compelling alternative explanation
for his flight, i.e., he was not legally in the United States
on the date of his arrest.2 Further, Ajijola asserts that there
was no evidence that he believed he was being pursued
for the acts charged in the indictment.
In support of this argument, Ajijola cites to United States
v. Jackson, 572 F.2d 636 (7th Cir. 1978), where this Court
held that evidence of flight should have been excluded
because three and one-half months had elapsed between
the time that the defendant committed the crime charged
and his flight from authorities. Jackson held that the more
remote in time the flight is from the commission or accusa-
tion of an offense, the greater the likelihood that the
flight was the result of something other than a sense of
guilt concerning that offense. Id. at 641. Conversely, the
importance of the immediacy factor is greatly diminished,
if not rendered irrelevant, when there is evidence that
2
Ajijola concedes that the indictment states that the conspiracy
continued “until on or about September 21, 2006” but contends
that the government offered no evidence that the conspiracy
existed for three months prior to his flight.
No. 08-3186 5
the defendant knows that he is accused of and sought
for the commission of the crime charged. Id. Accordingly,
Jackson concluded that when a defendant’s flight occurs a
substantial time after the crime, “we will place significance
on a defendant’s knowledge that he is accused of or sought
for the crime charged.” Id.The government counters that the conspiracy in which
Ajijola was charged occurred from the late summer 2003
through the date of his arrest. And, co-defendant
Chief Nuamah (“Chief”) testified at trial that co-conspira-
tor James U. Nduribe (“Rasta”) (who was never appre-
hended) telephoned Ajijola on the morning of Ajijola’s
arrest to tell him that police were looking for Chief and
Rasta. Therefore, the government maintains that at a
minimum, on the morning of his arrest, Ajijola knew that
law enforcement was looking for two of his co-conspira-
tors. In addition, there was testimony at trial that police
were, in fact, looking for Ajijola on the date of his arrest.
Nor did Ajijola present any testimony or evidence to
support a contention that he was fleeing law enforcement
because of his immigration status. The government main-
tains that the proximity of time between the telephone
call and Ajijola’s back-door exit from his apartment
shows a strong connection between his criminal behavior
and the flight and, accordingly, his flight to avoid appre-
hension supports a strong inference of a consciousness
of guilt concerning the crimes charged.
Nor does it appear that the evidence complained of
seriously affected the outcome of the case. Schalk, 515 F.3d
at 777. The government presented evidence that Rasta told
6 No. 08-3186
Ajijola that the police were looking for Rasta and Chief
on the date of his arrest; hours later when police arrived
at his apartment, Ajijola tried to flee from the premises.
The flight evidence was admissible to support an inference
of consciousness of guilt of the crimes charged. And even
if the flight evidence had been excluded, the remaining
evidence was sufficient to establish beyond a reasonable
doubt that Ajijola was involved in a conspiracy to distrib-
ute heroin. We therefore find no error, plain or otherwise.
Nor was it error to allow the government to argue
the reasonable inferences during closing argument. There
is nothing in the record that would warrant a new trial.
B. Guilty Plea
A defendant has no absolute right to have a court accept
a guilty plea, and a court may reject such a plea in
the exercise of sound judicial discretion. United States
v. Hernandez-Rivas, 513 F.3d 753, 759 (7th Cir. 2008). We
review the district court’s rejection of Ajijola’s offered
guilty plea for an abuse of discretion. Id.The following exchange took place during the Rule 11
colloquy:
THE COURT: As to Count Ten . . . I want you to
tell me in your own words as to what you did.
THE DEFENDANT: On the 6th—on the 2nd—June
2006, on the 2nd, Rasta asked me for my key to my
No. 08-3186 7
house. He said he wanted to store some drugs in
there and I give him my key.
THE COURT: The charge against you, sir: It says
on or about June 6th, 2006—it would have been a
few days earlier, few days later, ten days earlier,
ten days later. On or about June 6th. It says you
possessed with intent to distribute heroin approxi-
mately 417 grams. Did you do so, sir?
THE DEFENDANT: No, your honor.
***
THE COURT: Okay, I’m going to one more time
ask you, sir, are you in fact—did you, in fact, do
what the government says in Count Ten?
THE DEFENDANT: I didn’t do it.
Tr. 40-41, 43.
Ajijola’s denials provided sound reasoning for the
district court to reject Ajijola’s attempted plea; the district
court did not abuse its discretion in doing so.
8 No. 08-3186
III. CONCLUSION
For the reasons stated above, we A FFIRM .
10-21-09