1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-14-1998

United States v. Idowu

Precedential or Non-Precedential:

Docket 98-5076

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Recommended Citation

"United States v. Idowu" (1998). 1998 Decisions. Paper 246.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/246
Filed 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 Appellee 
OPINION OF THE COURT 

BECKER, Chief Judge. 

The evidence at the trial of Ismoila Idowu on the charge 

of conspiracy to possess with intent to distribute more than 

one kilogram of heroin, 21 U.S.C. S 846, made it crystal 

clear that Idowu was -- and knew that he was -- involved 

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 surveillance, in 

which Idowu's co-defendant Monadu Ajao was the buyer, 

involved more than one kilogram of heroin. The sole

question on Idowu's appeal, following his conviction 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 of 

contraband, such as stolen jewels or computer chips or 

currency, such proof being necessary to support Idowu's 

conviction.1 

We have consistently held in cases of this genre that, 

even in situations where the defendant knew that he was 

engaged in illicit activity, and knew that "some form of 

contraband" was involved in the scheme in which he was 

participating, the government is obliged to prove beyond a 

reasonable doubt that the defendant had knowledge of the 

particular illegal objective contemplated by the conspiracy. 

See, e.g., United States v. Thomas, 114 F.3d 403, 405 (3d 

Cir. 1997); United States v. Wexler, 838 F.2d 88, 90 (3d Cir. 

1988). We also have consistently held that, in the absence 

of such proof, a guilty verdict on a conspiracy charge 

cannot be sustained. See Thomas, 114 F.3d at 406; Wexler, 

838 F.2d at 91. We think that the evidence that Idowu 

knew that heroin or some other controlled substance was 

involved is lacking here. Accordingly, we will reverse the 

judgment. 

_________________________________________________________________ 

1. Idowu also challenged the admission of testimony regarding the money 

that was seized from him. Since we conclude that, even with the 

admission of this testimony, there was insufficient evidence to convict 

Idowu, we do not reach this argument. 

 2 
I. 

The events leading up to Idowu's March 24, 1997, arrest 

in Jersey City, New Jersey, began two months earlier in 

Lahore, Pakistan. At that time, the United States Drug 

Enforcement Agency (the "DEA") in Pakistan seized over two 

kilograms of heroin in the course of an undercover 

operation. The agency used the seized heroin as part of a 

sting operation that targeted prospective purchasers in the 

United States. Pakistani drug dealers, believing that their 

co-conspirators still possessed the heroin, were led to 

contact Abdul Khaliq, who actually was a DEA informant. 

During a telephone call organized by another DEA 

operative, a man who identified himself as "Raja" told 

Khaliq that someone would call him to arrange to purchase 

the heroin. 

Several weeks later, Monadu Ajao, who identified himself 

as Raja's friend, and who became Idowu's co-defendant, 

telephoned Khaliq. During the course of six telephone 

conversations, which were taped by Khaliq, Ajao negotiated 

to buy the heroin. Khaliq and Ajao ultimately agreed to 

meet at a Quality Inn parking lot in Jersey City, New Jersey 

on March 24, 1997. Throughout the telephone negotiations, 

Ajao never mentioned Idowu, nor did he specifically

mention heroin. Ajao did indicate that he was acting on 

behalf of others, and at one point implied that another man 

was helping him to gather the money he was to pay to 

Khaliq. 

On March 24, DEA agents set up surveillance at the 

Quality Inn. They wired Khaliq with a concealed tape 

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 driven 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 moved it to 

another location in the parking lot. Khaliq arrived in a Ford 

Explorer with a black suitcase in his trunk; the DEA had 

previously outfitted the suitcase to hold drugs in its lining.2 

_________________________________________________________________ 

2. This was the same suitcase that the DEA seized in Pakistan in its 

undercover operation there. 

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

Khaliq. Idowu remained in the vehicle. Ajao and Khaliq 

discussed the payment, which was to have been $30,000. 

Ajao told Khaliq that he only had brought $20,000. Idowu 

was unable to hear their conversation. Ajao and Khaliq 

then returned to the Town Car. Ajao encouraged Khaliq to 

get into the car, but Khaliq declined Ajao's offer. Ajao, 

sitting in the front seat of the Town Car, continued 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, Ajao 

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 wanted 

to get the bag back, that Idowu could "pull [the documents] 

out" and that he would return the bag to Idowu the next 

day. Idowu told Khaliq that he had checked the money 

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 Town Car 

into a spot next to the Ford, then removed the speciallyoutfitted black suitcase from Khaliq's car and placed it into 

the still-open trunk of the Town Car. Idowu unzipped the 

black suitcase and, on seeing nothing inside, told Ajao, 

"They didn't pack this thing." Ajao told Idowu to press the 

suitcase with his hands. Khaliq tried to reassure Ajao and 

Idowu by explaining that something was concealed in the 

frame of the suitcase. Moments later, the DEA arrested 

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 out, 

we "must determine whether, viewing the evidence most 

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favorably to the government, there is substantial evidence 

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 entirely by 

circumstantial evidence, but each element of the offense 

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 conspirators 

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 defendant's 

conviction for conspiracy, the government must have put 

forth evidence "tending to prove that defendant entered into 

an agreement and knew that the agreement had the specific 

unlawful purpose charged in the indictment." Id. at 91. See 

also United States v. Scanzello, 832 F.2d 18, 20 (3d Cir. 

1987). 

Idowu acknowledges that the evidence tends to show that 

he reached some kind of agreement with Ajao and that he 

knew that he was involved in some form of illicit activity. 

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 was 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 of a drug 

deal. First, Idowu carried the brown leather bag containing 

the money. Second, Idowu apparently owned the bag, as 

evidenced by the fact that he kept personal documents in 

the bag. Third, Ajao was willing to leave Idowu alone with 

the money. Fourth, Ajao believed that it was safe to talk to 

Khaliq in the presence of Idowu. Fifth, Idowu was the one 

who showed Khaliq the money and who told Khaliq that he 

had checked it to ensure that it was all there. Sixth, Idowu 

opened the black suitcase to check the contents without 

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, which he 

presumably had skimmed from the stash. 

 5 
From these facts, the government attempts to draw a

number of inferences about Idowu's behavior. However, 

only two inferences are proper: that Idowu had some kind 

of preexisting relationship with Ajao, and that Idowu knew 

he was participating in some sort of illegal transaction. But 

the evidence does not support the critical inference on 

which the government's case depends -- that Idowu knew 

the transaction was a drug transaction. Neither Ajao nor 

Khaliq referred to the subject of their deal as "heroin" or 

"drugs" in Idowu's presence on the day of the transaction, 

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 enough to 

be placed in a suitcase, a wide variety of contraband items 

can fit into a container of that size, including stolen jewelry, 

laundered money, stolen computer chips, and 

counterfeiting plates. At no time did Idowu give any 

indication that he knew what Ajao was purchasing with 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 that an 

inference can be drawn that Idowu knew the full nature of 

the transaction. "Inferences from established facts are 

accepted methods of proof when no direct evidence is 

available so long as there exists a logical and convincing 

connection between the facts established and the 

conclusion inferred." United States v. Clemmons, 892 F.2d 

1153, 1159 (3d Cir. 1989). However, the government's 

argument actually relies on two interdependent inferences, 

at least one of which lacks a convincing connection between 

the facts and the conclusion. 

The first inference is that, by inviting Khaliq into the car 

to talk, Ajao was willing to speak freely in front of Idowu. 

While we can only speculate what they might have talked 

about in the car, we think there are a number of more 

viable explanations for Ajao's invitation to Khaliq. It might 

have been merely a friendly, confidence-inspiring gesture. 

 6 
Moreover, the record suggests that Ajao was apprehensive 

that he was under surveillance, so he may have invited 

Khaliq into the car because he wanted to drive somewhere 

else to complete the deal. But even if we accept that a 

reasonable jury could infer that Ajao felt comfortable 

speaking in front of Idowu, the second inference-- that 

because Ajao was willing to speak about the transaction in 

the presence of Idowu, Idowu must already have been

aware of the deal's subject matter -- is entirely without 

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 justify 

the jury's inferential leap between the second inference and 

the conclusion, and because we do not think the first 

assumption alone, without the support of the necessary 

second assumption, is a strong enough foundation on

which to ground the conviction, we cannot hold that the 

government has presented evidence sufficient for the jury to 

find that the government proved Idowu's knowledge beyond 

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 Lynch, 

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 from 

someone named "Cliff," picked up the room key and entered 

the room that contained the suitcase, in accordance with 

the arrangements Lynch had made with her co-conspirator, 

Petersen. Thomas then left the room without the suitcase 

and without drugs. Upon being arrested, Thomas explained 

that he had been offered $500 to check on the luggage. See 

id. at 404-05. 

Much like Idowu, Thomas conceded that there was 

"evidence tending to show that he entered into some kind 

_________________________________________________________________ 

3. We note in passing that it is not uncommon for managers of 

clandestine illegal operations to keep their employees insulated from one 

another and from the overall plan of operation so that they cannot 

supply evidence against others involved. 

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

presented at trial [was] insufficient to prove beyond a 

reasonable doubt . . . that he knew that the purpose of the 

agreement was the specific unlawful purpose charged in the 

indictment, i.e., the possession of a controlled substance 

with intent to distribute." 114 F.3d at 405. We agreed 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 ever spoke 

to Lynch or Petersen at all. Finally, we pointed out that the 

government's evidence failed to controvert Thomas's

proffered explanation for his actions, which was that he 

had received a phone call from Cliff asking him simply to go 

into the hotel room and to leave the door unlocked on the 

way out. We concluded that "there is no evidence from 

which a jury could permissibly infer that Thomas knew 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 specific 

reference to the subject matter of the transaction in which 

he was involved. The government would have us distinguish 

Thomas on the ground that Thomas had presented a 

credible alternative explanation for his acts, where Idowu 

did not offer an alternative explanation for his participation. 

However, in refusing to uphold Thomas's conviction, we 

relied not on the presence of a convincing alternative 

explanation by the defendant but on the total absence 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 the 

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 court 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 

 8 
evidence included the fact that Wexler drove the car in a 

manner that suggested he was a lookout for the truck, 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 that he 

spoke with another conspirator several times during the 

operation. Id. However, we concluded, "What is missing is 

any evidence that Wexler knew that a controlled substance 

was couched behind the doors of the Ryder truck." Id. 

Because "[t]hat knowledge is an essential element of the 

conspiracy charged," and because "keeping bad company" 

is not sufficient grounds on which to convict a defendant 

for conspiracy, the conviction was overturned. Id. 

The government tries to distinguish the facts in Wexler 

from the facts in the present case. It argues that unlike 

Wexler, who appeared to be on the outside edge of the 

conspiracy, Idowu was a "trusted member" of the 

conspiracy. In support of this argument, the government 

points to the fact that Idowu was entrusted with a large 

amount of cash, that he possessed the keys to his own car 

trunk (where the cash was kept), that he knew $20,000 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 inspect the 

contents. Taking all these points as true, the government -- 

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 transactions that 

do not involve drugs of any sort. And because the 

government failed to provide evidence that Idowu knew that 

drugs were in fact the subject matter of the transaction, the 

jury could not draw a permissible inference that Idowu had 

knowledge of the nature of the deal.4 

_________________________________________________________________ 

4. While not the basis for our decision, we note that 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 leather 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 that far from being a 

co-conspirator playing an integral role in the exchange, Idowu was a 

 9 
III. 

In light of our case law and of the specific facts in this 

case, we conclude that there was an absence of evidence 

that Idowu knew the subject matter of the transaction was 

the purchase of more than one kilogram of heroin. We 

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 will be 

reversed. 

_________________________________________________________________ 

dishonest driver with his own agenda. If the government's theory is 

correct, Idowu was about to become the partial owner of $165,000 worth 

of heroin. The fact that Idowu may have felt it worth the risk to skim a 

petty $3,000 suggests that Idowu was not involved in the heart of the 

transaction and that the government is therefore incorrect. 

 10 
STAPLETON, Circuit Judge, dissenting: 

The court's majority opinion provides a fair account 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 heroin from 

Khaliq in the parking lot of the Quality Inn. The evidence 

also indisputably supports the proposition that Idowu 

committed himself to facilitate the anticipated parking lot 

transaction. He drove Ajao to the site with the cash, he 

transported the cash in his own suitcase, he represented to 

the seller that he had counted the cash himself and it was 

sufficient to cover the purchase price, and he attempted to 

confirm that the merchandise being purchased was in

Khaliq's black suitcase. Finally, as the court acknowledges, 

the evidence indisputably supports the proposition that 

Idowu must have known that the transaction he committed 

to facilitate was an illicit one. The only reasonable doubt to 

which the court can point is the possibility that Idowu 

committed himself to facilitate a $20,000 illicit transaction 

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 facilitating 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 confidant 

of Ajao. Ajao was comfortable negotiating the transaction in 

Idowu's presence as well as with Idowu's having sole 

custody of the cash in Ajao's absence. This makes it even 

more unlikely that Idowu and Ajao failed to discuss why 

they were going to the Quality Inn parking lot or that Ajao 

misled Idowu into believing they were paying $20,000 for 

explosives, diamonds or computer chips. Finally, the 

evidence establishes that Idowu was at least tacitly 

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 common 

sense approach to the evidence, I conclude that the jury 

 11 
properly could conclude that Idowu was guilty as charged 

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 

 12