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D ock e t 98-5076

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" U nit e d S t a t e s v

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. e du/thir dc ir c uit_1998/246Filed October 14, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-5076

UNITED STATES OF AMERICA

v.

ISMOILA IDOWU, Appellant

On Appeal From the United States District Court For the District of New Jersey (D.C. Crim. No. 97-cr-00214-2)

Argued: July 17, 1998

Before: BECKER, Chief Judge, STAPLETON and WEIS, Circuit Judges.

(Filed October 14, 1998)

EDNA B. AXELROD, ESQUIRE (ARGUED)
443 Northfield Avenue West Orange, NJ 07052

Attorney for Appellant

FAITH S. HOCHBERG, ESQUIRE United States Attorney

GEORGE S. LEONE, ESQUIRE (ARGUED) Assistant United States Attorney

970 Broad Street - Room 502 Newark, NJ 07102 Chief of Appeals

Attorneys for AppelleeOPINION OF THE COURT

BECKER, Chief Judge.

The evidence at the trial of Ismoila Idowu on the c harge of conspiracy to possess with intent to distribute more than one kilogram of heroin, 21 U.S.C. S 846, made it cr ystal
clear that Idowu was -- and knew that he was -- inv olved
in an illicit transaction of some sort. There also is no question that the transaction that was the subject of the government's undercover investigation and surveilla nce, in which Idowu's co-defendant Monadu Ajao was the buye r, involved more than one kilogram of heroin. The sole question on Idowu's appeal, following his convictio n by a jury, is whether there was sufficient evidence that Idowu knew that the subject matter of the transaction was a controlled substance, rather than some other form o f contraband, such as stolen jewels or computer chips or currency, such proof being necessary to support Ido wu's
conviction.1

We have consistently held in cases of this genre th at,
even in situations where the defendant knew that he was engaged in illicit activity, and knew that "some fo rm of
contraband" was involved in the scheme in which he was participating, the government is obliged to prove b eyond a reasonable doubt that the defendant had knowledge o f the particular illegal objective contemplated by the co nspiracy. See, e.g., United States v. Thomas, 114 F.3d 403, 4 05 (3d Cir. 1997); United States v. Wexler, 838 F.2d 88, 9 0 (3d Cir. 1988). We also have consistently held that, in the absence of such proof, a guilty verdict on a conspiracy cha rge cannot be sustained. See Thomas, 114 F.3d at 406; W exler,
838 F.2d at 91. We think that the evidence that Ido wu knew that heroin or some other controlled substance was involved is lacking here. Accordingly, we will reve rse the judgment.

___________________________________________________ ______________

1. Idowu also challenged the admission of testimony regarding the money that was seized from him. Since we conclude that, e ven with the admission of this testimony, there was insufficient evidence to convict Idowu, we do not reach this argument.

2I.

The events leading up to Idowu's March 24, 1997, ar rest in Jersey City, New Jersey, began two months earlie r in Lahore, Pakistan. At that time, the United States D rug Enforcement Agency (the "DEA") in Pakistan seized o ver two kilograms of heroin in the course of an undercover operation. The agency used the seized heroin as par t of a sting operation that targeted prospective purchaser s in the United States. Pakistani drug dealers, believing th at their co-conspirators still possessed the heroin, were le d to contact Abdul Khaliq, who actually was a DEA inform ant. During a telephone call organized by another DEA operative, a man who identified himself as "Raja" t old Khaliq that someone would call him to arrange to pu rchase
the heroin.

Several weeks later, Monadu Ajao, who identified hi mself as Raja's friend, and who became Idowu's co-defenda nt, telephoned Khaliq. During the course of six telepho ne conversations, which were taped by Khaliq, Ajao neg otiated to buy the heroin. Khaliq and Ajao ultimately agree d to meet at a Quality Inn parking lot in Jersey City, N ew Jersey on March 24, 1997. Throughout the telephone negotia tions, Ajao never mentioned Idowu, nor did he specifically mention heroin. Ajao did indicate that he was actin g on behalf of others, and at one point implied that ano ther man was helping him to gather the money he was to pay t o Khaliq.

On March 24, DEA agents set up surveillance at the Quality Inn. They wired Khaliq with a concealed tap e recorder and transmitter so that they could monitor the transaction from a nearby car. That afternoon, Ajao arrived at the Quality Inn in a black Lincoln Town Car driv en by Idowu. Ajao and Idowu left the car and entered the hotel lobby, Idowu carrying a brown leather bag. The two men then exited the lobby, re-entered the sedan, and mo ved it to another location in the parking lot. Khaliq arrived in a Ford Explorer with a black suitcase in his trunk; the DE A had previously outfitted the suitcase to hold drugs in its lining.2

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2. This was the same suitcase that the DEA seized i n Pakistan in its undercover operation there.

3Ajao got out of the Town Car and introduced himself to

Khaliq. Idowu remained in the vehicle. Ajao and Kha liq discussed the payment, which was to have been $30,0 00. Ajao told Khaliq that he only had brought $20,000. Idowu was unable to hear their conversation. Ajao and Kha liq then returned to the Town Car. Ajao encouraged Khal iq to get into the car, but Khaliq declined Ajao's offer. Ajao, sitting in the front seat of the Town Car, continue d to talk to Khaliq, who remained standing outside. Ajao and Idowu then exited the vehicle, at which point Khaliq met Idowu for the first time. When Khaliq asked who Idowu was, Aj ao replied that "he is driver."

All three gathered near the trunk of the Town Car. Idowu opened the trunk, which contained the brown leather bag; he then opened the bag, displaying the money inside to Khaliq. As Khaliq counted the money, Khaliq stated that he would have to take the bag with him. Idowu had some documents in the bag, and Khaliq told Idowu, who wa nted to get the bag back, that Idowu could "pull [the do cuments] out" and that he would return the bag to Idowu the next day. Idowu told Khaliq that he had checked the mone y himself, and that all $20,000 was there.

Khaliq took the bag of money to the Ford and opened the rear hatch. Idowu, who previously had pulled the To wn Car into a spot next to the Ford, then removed the spec iallyoutfitted black suitcase from Khaliq's car and plac ed it into the still-open trunk of the Town Car. Idowu unzippe d the black suitcase and, on seeing nothing inside, told Ajao, "They didn't pack this thing." Ajao told Idowu to p ress the suitcase with his hands. Khaliq tried to reassure A jao and Idowu by explaining that something was concealed in the frame of the suitcase. Moments later, the DEA arres ted Ajao and Idowu.

The DEA agents recovered $3,000 in cash from Idowu' s right front pocket, $495 from his back pocket, and $18,000 in cash from the brown leather bag.

II.

As both Idowu and the government correctly point ou t, we "must determine whether, viewing the evidence mo st

4favorably to the government, there is substantial e vidence

to support the jury's guilty verdict." Wexler, 838 F.2d at 90 (citing Glasser v. United States, 315 U.S. 60, 80 ( 1942)). "The elements of a conspiracy may be proven entirel y by circumstantial evidence, but each element of the of fense must be proved beyond a reasonable doubt." 838 F.2d at 90 (citations omitted). One element the government must show in a conspiracy case is that "the alleged cons pirators shared a `unity of purpose', the intent to achieve a common goal, and an agreement to work together toward the goal."
Id. at 90-91. In order for us to sustain a defendan t's conviction for conspiracy, the government must have put forth evidence "tending to prove that defendant ent ered into an agreement and knew that the agreement had the sp ecific unlawful purpose charged in the indictment." Id. at 91. See also United States v. Scanzello, 832 F.2d 18, 20 (3 d Cir. 1987).

Idowu acknowledges that the evidence tends to show that he reached some kind of agreement with Ajao and tha t he
knew that he was involved in some form of illicit a ctivity. Nevertheless, he contends that the evidence offered at trial is insufficient to prove beyond a reasonable doubt that he knew that the purpose of the illicit transaction wa s to obtain possession of a controlled substance.

The government points to a series of acts by Idowu that, in its opinion, prove that Idowu knew he was part o f a drug deal. First, Idowu carried the brown leather bag co ntaining the money. Second, Idowu apparently owned the bag, as evidenced by the fact that he kept personal documen ts in the bag. Third, Ajao was willing to leave Idowu alo ne with the money. Fourth, Ajao believed that it was safe t o talk to Khaliq in the presence of Idowu. Fifth, Idowu was t he one who showed Khaliq the money and who told Khaliq tha t he
had checked it to ensure that it was all there. Six th, Idowu opened the black suitcase to check the contents wit hout being prompted by Ajao. Seventh, the two defendants spoke Yoruban (a Nigerian dialect) together. Eighth, Ajao urged Idowu to feel around in the suitcase. Ninth, Idowu had $3,000 in his pocket at the time he was arrested, w hich he presumably had skimmed from the stash.

5From these facts, the government attempts to draw a

number of inferences about Idowu's behavior. Howeve r, only two inferences are proper: that Idowu had some kind of preexisting relationship with Ajao, and that Ido wu knew he was participating in some sort of illegal transa ction. But the evidence does not support the critical inferenc e on which the government's case depends -- that Idowu k new the transaction was a drug transaction. Neither Aja o nor Khaliq referred to the subject of their deal as "he roin" or "drugs" in Idowu's presence on the day of the trans action, or in their recorded phone conversations. Instead, they referred to the subject matter of the deal as "the stuff," which can describe a variety of contraband. Nor did Idowu take part in any of the recorded conversations with Khaliq that preceded the March 24 transaction. While Idowu may have known that the object of the sale was small en ough to be placed in a suitcase, a wide variety of contraba nd items can fit into a container of that size, including st olen jewelry, laundered money, stolen computer chips, and counterfeiting plates. At no time did Idowu give an y indication that he knew what Ajao was purchasing wi th the

money.

The government's strongest argument is that Ajao's invitation to Khaliq to get into the car, in which Idowu was sitting, reflects such total confidence in Idowu th at an
inference can be drawn that Idowu knew the full nat ure of
the transaction. "Inferences from established facts are accepted methods of proof when no direct evidence i s available so long as there exists a logical and con vincing
connection between the facts established and the conclusion inferred." United States v. Clemmons, 89 2 F.2d 1153, 1159 (3d Cir. 1989). However, the government' s argument actually relies on two interdependent infe rences, at least one of which lacks a convincing connection between
the facts and the conclusion.

The first inference is that, by inviting Khaliq int o the car to talk, Ajao was willing to speak freely in front of Idowu. While we can only speculate what they might have ta lked about in the car, we think there are a number of mo re viable explanations for Ajao's invitation to Khaliq . It might have been merely a friendly, confidence-inspiring g esture.

6Moreover, the record suggests that Ajao was apprehe nsive

that he was under surveillance, so he may have invi ted Khaliq into the car because he wanted to drive some where else to complete the deal. But even if we accept th at a reasonable jury could infer that Ajao felt comforta ble speaking in front of Idowu, the second inference-- that because Ajao was willing to speak about the transac tion in the presence of Idowu, Idowu must already have been aware of the deal's subject matter -- is entirely w ithout support in the record, regardless of how favorably to the government the evidence is viewed.3 Because the government has presented no evidence that would jus tify the jury's inferential leap between the second infe rence and the conclusion, and because we do not think the fir st assumption alone, without the support of the necess ary second assumption, is a strong enough foundation on which to ground the conviction, we cannot hold that the government has presented evidence sufficient for th e jury to find that the government proved Idowu's knowledge b eyond

a reasonable doubt.

Our case law supports the conclusion that it was unreasonable for the jury to infer that Idowu knew of the transaction's ultimate purpose. In United States v. Thomas, 114 F.3d 403 (3d Cir. 1997), a drug courier named L ynch, after being arrested, agreed to cooperate with the DEA by following through on a plan to drop off a suitcase in a motel room. Defendant Thomas, acting on a communication f rom someone named "Cliff," picked up the room key and e ntered the room that contained the suitcase, in accordance with the arrangements Lynch had made with her co-conspir ator,
Petersen. Thomas then left the room without the sui tcase and without drugs. Upon being arrested, Thomas expl ained that he had been offered $500 to check on the lugga ge. See
id. at 404-05.

Much like Idowu, Thomas conceded that there was "evidence tending to show that he entered into some kind

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3. We note in passing that it is not uncommon for m anagers of clandestine illegal operations to keep their employ ees insulated from one another and from the overall plan of operation so t hat they cannot supply evidence against others involved.

7of agreement," but he contended "that the evidence

presented at trial [was] insufficient to prove beyo nd a reasonable doubt . . . that he knew that the purpos e of the agreement was the specific unlawful purpose charged in the indictment, i.e., the possession of a controlled su bstance with intent to distribute." 114 F.3d at 405. We agr eed with Thomas, noting that the government failed to prove the substance of the phone calls made from "Cliff " to Thomas
and that it failed to offer evidence that Thomas ev er spoke to Lynch or Petersen at all. Finally, we pointed ou t that the government's evidence failed to controvert Thomas's proffered explanation for his actions, which was th at he had received a phone call from Cliff asking him sim ply to go
into the hotel room and to leave the door unlocked on the way out. We concluded that "there is no evidence fr om which a jury could permissibly infer that Thomas kn ew that the object of the conspiracy was to possess cocaine ," and therefore that "the evidence cannot support Thomas' conspiracy conviction." Id. at 406.

Like the prosecution in Thomas, the government here has failed to prove that the defendant ever heard speci fic reference to the subject matter of the transaction in which he was involved. The government would have us disti nguish Thomas on the ground that Thomas had presented a credible alternative explanation for his acts, wher e Idowu did not offer an alternative explanation for his pa rticipation. However, in refusing to uphold Thomas's conviction, we relied not on the presence of a convincing alternat ive explanation by the defendant but on the total absen ce of evidence showing that Thomas knew that cocaine was involved. Thomas, 114 F.3d at 406. Therefore, the credibility of Idowu's explanation of his role in t he transaction is not a factor, and cannot make up for the lack of specific evidence of Idowu's knowledge of the transaction's subject matter.

United States v. Wexler, 838 F.2d 88 (3d Cir. 1988)
, further supports our conclusion. In Wexler, the cou rt noted that there was "ample circumstantial evidence . .. from which the jury could have concluded that Wexler was involved in a conspiracy" to transport some kind of contraband in a Ryder truck. 838 F.2d at 91. Such

8evidence included the fact that Wexler drove the ca r in a

manner that suggested he was a lookout for the truc k, that Wexler had a fraudulently-obtained CB radio in his car when he was arrested, that he made a gesture that appeared to signal one of the conspirators, and tha t he spoke with another conspirator several times during the operation. Id. However, we concluded, "What is miss ing is any evidence that Wexler knew that a controlled sub stance was couched behind the doors of the Ryder truck." I d. Because "[t]hat knowledge is an essential element o f the conspiracy charged," and because "keeping bad compa ny" is not sufficient grounds on which to convict a def endant for conspiracy, the conviction was overturned. Id.

The government tries to distinguish the facts in We xler from the facts in the present case. It argues that unlike Wexler, who appeared to be on the outside edge of t he conspiracy, Idowu was a "trusted member" of the conspiracy. In support of this argument, the govern ment points to the fact that Idowu was entrusted with a large amount of cash, that he possessed the keys to his o wn car trunk (where the cash was kept), that he knew $20,0 00 was the correct amount of money, that he assured Khaliq that it was all there, and that, upon finding nothing in the black suitcase, he reacted as if he had expected to inspe ct the contents. Taking all these points as true, the gove rnment --
as in Wexler -- still has failed to show that Idowu knew what the deal was about. The fact patterns both in Wexler
and in the case at bar are consistent with transact ions that do not involve drugs of any sort. And because the government failed to provide evidence that Idowu kn ew that drugs were in fact the subject matter of the transa ction, the jury could not draw a permissible inference that Id owu had knowledge of the nature of the deal.4

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4. While not the basis for our decision, we note th at there is evidence that makes it quite possible that Idowu was someone quite different from the "trusted confederate" the government would make him out to be. It appears that Idowu had skimmed at least some of the $3,000 found in his pocket from the stash of money in the brown lea ther bag. The bag was supposed to have held $20,000, but instead held only $18,000. If Idowu did skim money from the bag, this suggests th at far from being a co-conspirator playing an integral role in the exch ange, Idowu was a

9III.

In light of our case law and of the specific facts in this case, we conclude that there was an absence of evid ence that Idowu knew the subject matter of the transacti on was the purchase of more than one kilogram of heroin. W e therefore hold that no reasonable jury could have concluded that the government had met its burden of proof, which requires proof beyond a reasonable doubt. Accordingly, the judgment of the district court wil l be

reversed.

___________________________________________________ ______________

dishonest driver with his own agenda. If the govern ment's theory is correct, Idowu was about to become the partial owne r of $165,000 worth of heroin. The fact that Idowu may have felt it wor th the risk to skim a petty $3,000 suggests that Idowu was not involved i n the heart of the transaction and that the government is therefore in correct.

10STAPLETON, Circuit Judge, dissenting:

The court's majority opinion provides a fair accoun t of the evidence. Unlike my colleagues, I conclude that this evidence supports the verdict against Mr. Idowu.

The evidence indisputably supports the proposition that Ajao intended to purchase a large quantity of heroi n from Khaliq in the parking lot of the Quality Inn. The e vidence also indisputably supports the proposition that Ido wu committed himself to facilitate the anticipated par king lot transaction. He drove Ajao to the site with the cas h, he transported the cash in his own suitcase, he repres ented to
the seller that he had counted the cash himself and it was sufficient to cover the purchase price, and he atte mpted to confirm that the merchandise being purchased was in Khaliq's black suitcase. Finally, as the court ackn owledges, the evidence indisputably supports the proposition that
Idowu must have known that the transaction he commi tted to facilitate was an illicit one. The only reasonab le doubt to which the court can point is the possibility that I dowu committed himself to facilitate a $20,000 illicit t ransaction either without knowing the unlawful objective to be achieved or having been misled about that objective

.

Given the inherent risk, it is an extremely rare occurrence when a person commits himself to facilit ating a large illicit transaction without ascertaining the objective to be achieved. Moreover, the evidence with respect to Idowu's
circumstances establishes that he was a trusted con fidant of Ajao. Ajao was comfortable negotiating the trans action in Idowu's presence as well as with Idowu's having sol e custody of the cash in Ajao's absence. This makes i t even more unlikely that Idowu and Ajao failed to discuss why they were going to the Quality Inn parking lot or t hat Ajao misled Idowu into believing they were paying $20,00 0 for explosives, diamonds or computer chips. Finally, th e evidence establishes that Idowu was at least tacitl y assigned the task of checking Khaliq's black bag to confirm that Ajao was getting what was being paid for, an assignment Idowu would not have received if he were unaware of what he was looking for. Based on this c ommon sense approach to the evidence, I conclude that the jury

11properly could conclude that Idowu was guilty as ch arged

beyond a reasonable doubt.

I would affirm the judgment of the district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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