Unpublished Dispositionunited States of America, Appellee, v. Peter Ogoejiofo Akudigwe, Appellant.united States of America, Appellee, v. Christopher Chidue Chukwarah, Appellant, 814 F.2d 655 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 814 F.2d 655 (4th Cir. 1987) Argued Nov. 14, 1986. Decided March 17, 1987

Before WINTER, Chief Judge, RUSSELL, Circuit Judge, and McMILLAN, Senior United States District Judge for the Western District of North Carolina, sitting by designation.

Garland L. Stith (Richard E. Cassell, on brief), for appellants.

Thomas E. Booth, Department of Justice (Henry E. Hudson, United States Attorney, on brief), for appellee.

PER CURIAM:


Peter Ogoejiofo Akudigwe and Christopher Chidue Chukwarah appeal their convictions for conspiracy to distribute heroin, a schedule I narcotic controlled substance, in violation of 21 U.S.C. § 846; and distribution of heroin, a schedule I narcotic controlled substance, in violation of 21 U.S.C. § 841(a) (1). We affirm.

In early 1985 Chijoke Ofo informed Detective Rawls, a Washington, D.C. police officer, on special assignment with the Drug Enforcement Agency (DEA), that appellant Akudigwe wanted to sell some heroin for $5,500 per ounce. Ofo, a Nigerian national, had previously been convicted of conspiracy to distribute heroin, and had then entered into an agreement with the DEA under which he would not be deported so long as he cooperated with the DEA and his cooperation remained valuable to them.

Following the telephone call from Ofo, Detective Rawls negotiated by telephone the purchase of four ounces of heroin from Akudigwe. On July 17, 1985, Rawls, Ofo, and Akudigwe met at a Washington restaurant along with a fourth person (codefendant Chike). Akudigwe gave Rawls a sample of his product, which field tested positive for opiates. Rawls, Ofo, and Akudigwe then drove to the Sheraton Hotel in Arlington, Virginia, with Chike and appellant Chukwarah following part of the way in another vehicle. After they arrived at the hotel Akudigwe left in a taxi, and Chukwarah arrived a half hour later in the same taxi.

In the lobby of the hotel Chukwarah gave two small packages to Ofo. Chukwarah and Ofo went to a nearby men's room momentarily and then returned to the lobby, where Ofo gave the packages to Rawls. Rawls asked Chukwarah "What is this? and Chukwarah said "That's it." Rawls asked "That's the four ounces?" and Chukwarah said "Yes." Chukwarah then accompanied Rawls to his car where Rawls field-tested the powder in the packages. It tested positive for opiates. Chukwarah then asked Rawls for the money. At that point, by prior arrangement, the police arrested Chike and Chukwarah; a short time later they also arrested Akudigwe.

Appellants first challenge the admission of Ofo's testimony at their trial on the ground that the nature of the agreement between Ofo and the DEA violated the due process clause of the fifth amendment by giving Ofo an incentive to commit perjury in order to give the appearance of cooperation. This incentive was allegedly heightened by Ofo's fear of summary execution if he was returned to Nigeria.

Although testimony tainted by certain contingency agreements may violate the fifth amendment right of due process, the agreement here is not of that species. In United States v. Waterman, 732 F.2d 1527 (8th Cir. 1984), cert. denied, 105 S. Ct. 2138, 85 L. Ed. 2d 496 (1985), for example, favorable treatment of the witness was contingent on successful prosecution. In the present case, by contrast, favorable treatment of the witness did not depend on the disposition of the case. Similarly in Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), payment of a bounty was contingent on the witness procuring the arrest of certain named individuals who had been selected by the government. In the present case, by contrast, the government did not select Akudigwe and Chukwarah as targets and then ask Ofo to procure their arrest. The agreement between Ofo and the DEA required only Ofo's cooperation. Ofo's incentive to commit perjury, if any, was sufficiently small that his testimony did not violate the appellants' fifth amendment rights. The jury, moreover, was fully informed about the agreement and could consider the risk of perjury in weighing Ofo's credibility. We find no error in the admission of Ofo's testimony.

The appellants next contend that the court erred in permitting Detective Rawls to identify the speakers in a tape-recorded telephone conversation played to the jury. Fed. R. Evid. 901(b) (5) allows for lay authentication of another person's voice if the lay witness has previously heard that voice under circumstances connecting the voice to the speaker. Rawls had placed the telephone calls himself and had participated in the recorded conversations. He was competent, therefore, to identify the speakers in the tape-recorded conversations.

Next, the appellants challenge the admission of the physical evidence on the ground that the government failed to show the chain of custody. After the arrest Detective Rawls placed the powder in a sealed and initialed bag which he delivered to Richard Moore, a DEA chemist. Moore later gave the bag to Maria Barba for analysis. Although Barba testified at trial, Moore did not.

Before physical evidence of this sort can be admitted there must be a reasonable probability that the evidence remained in its original condition. See United States v. Howard-Arias, 679 F.2d 363 (4th Cir.), cert. denied, 459 U.S. 874 (1982). Absent a defense showing of irregular handling of the exhibit, the government need not present testimony of every custodian. Id. at 366. In this case Barba testified that there were no signs of tampering, and the use of a sealed and initialed bag makes tampering highly unlikely. The field test, showing the presence of opiates, further establishes that the physical evidence remained in its original condition. The admission of the physical evidence was therefore proper.

Appellant Chukwarah contests his conviction on several grounds unique to his case. He argues first that the government offered insufficient evidence of his knowledge of a conspiracy. He maintains that he was merely a courier performing a single act without knowledge of any other acts or agreements, and was not a member of the conspiracy. See United States v. Torres, 503 F.2d 1120, 1123 (2d Cir. 1974). A review of the evidence, however, shows that Chukwarah performed more than the single act of delivering the heroin. He followed Rawls and Akudigwe part of the way to the hotel, he used the same taxi as Akudigwe, and he talked to Chike before he asked Rawls for the money. Based on this evidence, a reasonable jury could find that Chukwarah acted in concert with Chike and Akudigwe on the day of the sale. Chukwarah would not have delivered the heroin as he did, nor would he have been entrusted to receive Rawls' money, unless codefendants had agreed on that procedure before the sale.

Chukwarah next alleges error in the trial court's refusal to admit Detective Rawls' allegedly inconsistent prior statement. Shortly after Chukwarah's arrest, Detective Rawls made an affidavit describing the events precipitating the arrest. The affidavit omitted any reference to statements by Chukwarah that showed Chukwarah's knowledge of the contents of the packages. When Rawls testified at trial about his conversation with Chukwarah, which allegedly showed Chukwarah's knowledge of the contents, Chukwarah attempted to impeach Rawls by showing an inconsistency between the affidavit and the in-court testimony. The trial court refused to admit the affidavit.

The trial judge ruled, and we agree, that the affidavit was never intended to be a detailed description of the event. The sole purpose of the affidavit was to show probable cause to hold the defendants until their cases were presented to the grand jury. For this purpose an abbreviated description was adequate, and the omission of certain details did not make the affidavit inconsistent with the in-court testimony. Therefore, its exclusion from evidence was proper.

Finally, the defendant Chukwarah complains of the jury instructions on the elements of the offense of distribution of a controlled substance and the proof necessary to establish such elements. The actual part of the jury instructions to which the defendant objects consists of a single sentence. That sentence occurs at the very end of the instruction.1  It is settled, however, that a single sentence in a jury instruction is not to be examined for prejudicial error "in artificial isolation" but is to be reviewed in the context of the overall charge and particularly the paragraph of which it is a part. The Supreme Court stated this rule quite clearly in United States v. Park, 421 U.S. 658, 674 (1976).

Turning to the jury charge in this case, it is of course arguable that isolated parts can be read as intimating that a finding of guilt could be predicated solely on respondent's corporate position. But this is not the way we review jury instructions, because "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-147 (1973). See Boyd v. United States, 271 U.S. 104, 107 (1926).2 

The paragraph in which the allegedly erroneous sentence in the instruction appears begins with a clear statement of the elements of the offense charged and of the proof necessary to establish those elements: "The essential elements of the offense of distribution, each of which the government must prove beyond a reasonable doubt are, first, the defendants distributed heroin, a Schedule I narcotic substance. And second, that the defendants did so knowingly and intentionally." The district judge apparently assumed that the statement of the second element of the offense was sufficiently clear and definite to render any elaboration or explanation unnecessary and he did not further refer to this second element of the offense in his instructions. However, because he assumed that the first element included matters which might not be entirely clear to the jury from his initial statement, the district judge added certain clarifying language immediately after the instruction stating the elements of the offense and the proof required to establish them. In such clarification he first defined the term "distribution of a controlled substance" in the first requirement of the offense to mean "to deliver a controlled substance to the possession of another person, which in turn means the actual constructive or attempted transfer of a controlled substance." He then instructed the jury that, in connection with this element of the offense it was not necessary for the government to prove the exact amount or quantity as alleged in the indictment but only that a measurable amount of heroin was proven. He followed this language by telling the jury that, in proving that the material involved was within the statute, "the Government is not required to show that the defendants knew that the substance involved was heroin. It is sufficient if the evidence establishes beyond a reasonable doubt that the defendants distributed some controlled substance." It is this last sentence which the defendant asserts was erroneous.

The defendant's argument rests on the contention that, taking the challenged sentence alone and without considering the other language in the instruction in which the sentence appeared, the questioned sentence indicated to the jury that a conviction of the charged offense could rest solely on proof of distribution of a controlled substance without respect to whether the defendant knew or intended distribution. In so arguing, he would have us consider the questioned language in isolation and out of context, and to find that, so considered, it requires reversal. We do not agree.

The language objected to occurred at the very end of that part of the instruction in which the district court correctly stated the elements of the offense. Manifestly, he assumed, as we have said, that the second element of the offense (i.e., knowledge and intention) was sufficiently clear and needed no elaboration for the jury's understanding. That assumption was clearly justified. However, he thought the first element of the offense required some elaboration. And it was in connection with that attempt at clarification of the first element of the offense and not in relation to the second element of the offense that the challenged sentence was used. There was absolutely nothing in the challenged statement that can be fairly said to weaken or contradict the earlier categorical statement of the requirement of knowledge as an element of the offense. The very context of the instruction showed that it related solely to the first element in the offense. The jury in its opinion could not have been misled to the prejudice of the defendant or to assuming knowledge was unnecessary. Whether this is true or not, as we view the record, the evidence of the defendant's knowledge that the substance being distributed was heroin, is overwhelming--in fact, so much so that any claim to the contrary by the defendant might well be regarded as frivolous--that any error in the instruction would be harmless and without prejudice to the defendant's rights.

The evidence is undisputed that it was the defendant Chukwarah who brought the package of heroin to the meeting and in large part conducted the final sale of the heroin to the undercover officer Rawls. Rawls, however, expressed some surprise to Chukwarah and Ofo that the package was so small and indicated some doubt that he was being given what he had ordered, i.e., four ounces of heroin. He accordingly asked Chukwarah, apparently since he was the one who had bought the heroin and to whom payment was to be made, not once but twice, "That's the four ounces?" Chukwarah affirmed in both instances, "That's it." Before accepting the package which Chukwarah had just affirmed was the four ounces of heroin Rawls had agreed to purchase and before paying for it, Rawls wanted to be assured that the package was actually heroin. He accordingly demanded the right to test the substance. With Chukwarah's permission he proceeded to test the substance. Chukwarah accompanied Rawls while the latter was testing the substance and observed throughout the test itself. When the test proved positive for heroin, Rawls agreed with Chukwarah that the substance was heroin. At that point, Chukwarah asked for the money which was to be paid for the four ounces of heroin.3  At that point Rawls went over to his car and opened the trunk of his car as if to get the money to pay for the heroin ($22,000). The opening of the trunk by Rawls was a signal to the other officers who had the meeting under surveillance to move in and to arrest Churwarah and the other participants in the transaction. In the face of this positive evidence of knowledge on Chukwarah's part, any possible error in the instruction would have been, as we have said, harmless beyond any reasonable doubt.

Having considered all the exceptions by the appellants and found them to be without merit, we affirm the judgments of conviction below.

AFFIRMED.

 1

The full instruction from which the the challenged sentence is taken is as follows:

The essential elements of the offense of distribution, each of which the Government must prove beyond a reasonable doubt are, first that the defendants distributed heroin, a Schedule I narcotic controlled substance. And second, that the defendants did so knowingly and intentionally.

The term distribute means to deliver a controlled substance to the possession of another person, which in turn means the actual constructive or attempted transfer of a controlled substance.

In the indictment it is alleged that a particular amount or quantity of heroin was involved. The evidence in this case need not establish that the amount or quantity of heroin as was alleged in the indictment, but only that a measurable amount of heroin was in fact the subject of the acts charged in the indictment.

The Government is not required to show that the defendants knew that the substance involved was heroin. It is sufficient if the evidence established beyond a reasonable doubt that the defendants distributed some controlled substance.

 2

Reeves v. Reed, 596 F.2d 628, 629 (4th Cir. 1979). See also. Johnson v. United States, 318 U.S. 189, 202 (1942) (Justice Frankfurter concurring):

In reviewing criminal cases, it is particularly important for appellate courts to re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal appeal into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.

 3

The testimony of Rawls on this point, testimony that was not contradicted, was:

When I got in the car I basically talked to him (referring to Chukwarah) about the package. I complained about the size because, I said, it doesn't really look like four ounces to me. He assured me that it was four ounces. I told him, okay. In his presence I field tested it, showed him the field test, that it was satisfactory, that I agreed that it was heroin. I continued to complain about the size. Again he asked me for the money. I told him, okay. I got out of the car, walked around and went into the trunk of the car to remove the gym bag which contained the money, which contained some money. As I opened the trunk of the car, I took the gym bag, that was prearranged arrest signal. At that time in the area of the, near the trunk of the Government car, Mr. Chukwarah was arrested by other agents who were on surveillance in the basement.

None of the defendants denied this testimony of Rawls.