United States v. Obayagbona

627 F. Supp. 329 (E.D.N.Y. 1985)

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Nature of the Case

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Facts

D is a 27-year-old citizen of Nigeria. She entered the United States with Ehimwema (Clara) Onaiwu, who admitted her guilt of various drug charges. D asserts that she came to the United States solely to buy cosmetics for her store in Benin City, Nigeria. FBI Special Agent Michael Turner (Joe) was introduced to Clara by an informant for the purpose of purchasing heroin. Joe and Clara negotiated the terms of a sale of 100 grams of heroin. D remained demurely silent except as she responded by appreciative murmurs to compliments. Joe asked for a sample, and another meeting was arranged. At the second meeting, Joe suggested to Clara that she go to the ladies' restroom to put the heroin sample in a piece of paper towel. Joe's microphone recorded a conversation between him and the informant. Neither woman's voice appears on the tape during those ensuing two-and-a-half minutes. At trial, Joe testified that Clara and d left the table together after the agent suggested the trip to the ladies' room. D vigorously disputed this contention. Joe testified that the two women returned from the ladies' room together. Joe said D and not Clara reached into a small black purse, took out a folded piece of paper towel and handed it to him. Joe testified that he took the paper to the men's room and tested the sample. It was heroin. Joe returned to the table. All four were arrested by FBI agents were waiting outside. Joe was unable to touch the controls of his tape recorder. He fingered D who was dressed in black and white as handing over the heroin. There was also boasting about the fact that the ladies had arranged for hotel rooms where they would all remain together after the deal was consummated. Ds were handcuffed. A subsequent body search of the two ladies uncovered no heroin. The agents then went back to the car. There they found the parcel of heroin near where Clara had sat. Clara testified that she had had the heroin in her girdle. Since her hands were relatively free (she was handcuffed in the front), she had been able to remove the parcel and push it under the litter in the car with her foot. D testified that she had observed Clara remove and conceal the heroin. Ds were indicted for conspiracy to violate the federal narcotics laws, distribution of heroin, and possession of heroin with intent to distribute. Clara pleaded guilty to all three counts and was awaiting sentence at the time of D's trial. D was acquitted of the possession and distribution counts and convicted of the conspiracy count. The confidential informant who had participated in the restaurant meetings was available as a witness but was called by neither side. Joe was vigorously cross-examined for the purpose of showing that he was lying or mistaken when he testified that it was D who handed him the sample. D and Clara gave an account different from Joe's. P sought to introduce the tape of Joe's statement made contemporaneously with the arrest. The recording was admitted on the issue of credibility, both of Joe and the two ladies, as well as evidence-in-chief. The jury was told the recording was hearsay. D was convicted and appealed.