12-4546-cr 

United States v. Akefe 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

 

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or 

after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and 

this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a 

party must cite either the Federal Appendix or an electronic database (with the notation “summary 

order”). A party citing a summary order must serve a copy of it on any party not represented by 

counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th 

day of May, two thousand fourteen. 

PRESENT: 

RALPH K. WINTER, 

JOHN M. WALKER, JR.,

JOSÉ A. CABRANES, 

Circuit Judges.

_____________________________________ 

UNITED STATES OF AMERICA, 

Appellee, 

 

 v. No. 12-4546-cr 

 

ADEREMI J. AKEFE, 

 Defendant-Appellant, 

NA HEEM TOKUMBO ALADE, 

 Defendant.

*

_____________________________________

FOR ADEREMI AKEFE: PETER J. TOMAO, Law Office of Peter J. 

Tomao, Garden City, NY. 

 * The Clerk of Court is directed to amend the caption in this case to conform to the listing of the parties above. 
2 

FOR UNITED STATES OF AMERICA: JANIS M. ECHENBERG (Justin S. Weddle, on the

brief), Assistant United States Attorneys, for

Preet Bharara, United States Attorney for the 

Southern District of New York, New York, 

NY.

Appeal from a judgment of conviction, entered November 8, 2012, of the United States 

District Court for the Southern District of New York (Robert P. Patterson, Jr., Judge). 

 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED. 

Defendant Aderemi Akefe appeals from the District Court’s judgment, sentencing him 

principally to 132 months’ imprisonment for conspiring to distribute at least one kilogram of heroin, 

in violation of 21 U.S.C. § 846, and for conspiring to import at least one kilogram of heroin, in 

violation of 21 U.S.C. § 963. Akefe also appeals from the District Court’s August 30, 2013 order 

denying his post-trial motion for a new trial. We assume the parties’ familiarity with the underlying 

facts and the procedural history of the case, to which we refer only as necessary to explain our 

decision to affirm. 

BACKGROUND 

 On February 18, 2009, Hafrida Saad was arrested at JFK airport while attempting to import 

over a kilogram of heroin packed in her suitcase, which she had obtained in India from her 

boyfriend Abraham Orji (“Abby”) and his friend Innocent (“Inno”). Saad agreed to cooperate with 

the federal agents, and, at the agents’ direction, called Abby for delivery instructions. Abby told 

Saad to travel to Detroit, and Saad provided Abby with her cellular phone number to give to the 

recipient of the heroin.

 The next day, after Saad had pretended to travel to Detroit, she received a text from Abby 

instructing her to go to the Travelers Motor Inn. In response to two missed calls the next morning 

from different telephone numbers, an agent, using Saad’s phone, sent a text message to both 

numbers that read “I going be at room 136 at 11:00,” without providing the name of the hotel or its 

address. At 11:15 a.m., Akefe arrived at the Travelers Motor Inn in a Jeep, and knocked on room 

136.

 Two agents arrested Akefe, while another retrieved his cellular phone from the ground, 

which had been registered in a fake name and contained the text message that the agents had sent. 

Agents then searched Akefe’s car and found a second cellular phone (registered in Akefe’s real 

name), a brown paper bag containing $9,980 in cash, and a lottery ticket with handwriting on the 

back listing details related to the narcotics transaction.

 On March 17, 2010, a jury found Akefe and co-defendant Na Heem Alade guilty of two 

counts of participating in narcotics-related conspiracies. The District Court sentenced Akefe 

principally to 132 months’ imprisonment. After an initial appeal, we remanded the case for 

resentencing to allow the District Court to make further factual findings. On October 4, 2012, the 

District Court made such findings, and again sentenced Akefe to 132 months’ imprisonment. Akefe 
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filed a second notice of appeal, which he amended on September 11, 2013 to include the denial of 

his post-trial motion for a new trial. 

DISCUSSION 

The parties dispute whether the first four arguments raised by Akefe on appeal were 

abandoned, insofar as they were not raised during his first appeal.1 We pretermit this question, and 

delve into each issue on the merits, assuming arguendo that they are ripe for review. 

 

I. Evidence Seized at the Time of Arrest 

 Akefe’s first argues that the search of his person was not a search incident to a lawful arrest 

because the agents lacked probable cause to arrest him, and that the agents had no reason to believe 

his car contained contraband. We disagree. 

 A search incident to arrest is fully justified if there is “probable cause when the defendant is 

put under arrest to believe that an offense has been or is being committed.” United States v. Cruz, 

834 F.2d 47, 50 (2d Cir. 1987). Probable cause exists “if the law enforcement official, on the basis 

of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information 

to justify a person of reasonable caution in believing that an offense has been or is being committed 

by the person to be arrested.” United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008). With regard 

to vehicular searches, the Supreme Court has stated that “circumstances unique to the vehicle 

context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant 

to the crime of arrest might be found in the vehicle.’” Arizona v. Gant, 556 U.S. 332, 343 (2009) 

(quoting Thornton v. United States, 541 U.S. 615, 632 (2004)). 

 In the circumstances presented here, both searches were justified. Akefe initiated contact 

with Saad, a known narcotics courier, and he knew where to pick up the heroin after receiving only a 

vague message that Saad would be in room 136 at 11:00 a.m., clearly indicating that he had been 

communicating with someone else about the deal. The agents also had a reasonable belief that 

evidence of Akefe’s drug crimes, such as additional cellular phones and large amounts of cash, 

would be found in his vehicle.

II. Confrontation Clause 

 Akefe’s also contends that the District Court violated his rights under the Confrontation 

Clause. At trial, the government elicited testimony from Agent Galu that co-defendant Alade, while 

being transported for processing, had stated “oh man, I didn’t know you guys got him too, man, I 

can help you out, I can help you out.” Agent Galu testified that this statement referred to “[a]nother 

 1 As the government notes, we are generally foreclosed from reviewing so-called “abandoned” issues on appeal 

pursuant to the “law of the case” doctrine, under which “a court of appeals must usually adhere to its own decision at an 

earlier stage of the litigation.” United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000); see also United States v. Ben Zvi, 242 

F.3d 89, 96 (2d Cir. 2001) (stating that “a decision made at a previous stage of litigation, which could have been 

challenged in the ensuing appeal but was not, becomes the law of the case” (internal quotation marks omitted)). Yet 

Akefe advised this Court during his first appeal that he wanted to make additional arguments in a supplemental pro se 

brief, which his attorney had purportedly refused to raise, but was never given the chance to do so prior to the remand 

for resentencing. 
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person arrested in this case.” Akefe argues that the jury would infer that this statement referred to 

Akefe since he was the only other person arrested that day in that location. 

 In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that admission of a 

nontestifying co-defendant’s confession naming the defendant as a perpetrator at their joint trial 

violates the defendant’s Sixth Amendment right to cross-examination. Id. at 135-36. Because the 

statements at issue here neither manifested “obvious indications of alteration,” Gray v. Maryland, 523 

U.S. 185, 192, 118 S.Ct. 1151, nor otherwise signaled to the jury that the statements had originally 

“contained actual names,” United States v. Tutino, 883 F.2d 1125 1135 (2d. Cir 1989), the relevant 

issue is whether the inference the jury would have had to make to connect Akefe to Alade’s 

statement was sufficiently attenuated to place the statement outside Bruton’s scope. See Gray v. 

Maryland, 523 U.S. at 195-96. 

 After careful review, we conclude that Akefe’s right to confrontation was not jeopardized. 

In order to make the rather attenuated inference that Alade’s statement referred to Akefe, the jury 

would have had to rely on other trial evidence rather than the statement itself. See United States v. 

Jass, 569 F.3d 47, 62 (2d Cir. 2009) (noting that “we view the redacted statement in isolation to 

evaluate its likely impact on a jury”). Moreover, the other evidence of Akefe’s guilt was so 

overwhelming that, even if we had identified Bruton error, it would be harmless beyond a reasonable 

doubt. See id. 

III. Prior Narcotics Transactions 

 The next issue on appeal is whether the District Court “abused its discretion” in denying 

Akefe’s Rule 404(b) motion to preclude evidence of a co-conspirator’s prior delivery of drugs to 

Akefe. We reject this argument, however, because such a motion was never made, and, in any event, 

would have been misplaced because the conduct at issue was part of the charged conspiracy—a drug 

conspiracy spanning from 2005 to 2009—not a prior bad act covered by Rule 404(b). 

IV. Cross Examination of Agent Galu 

Akefe also argues that the District Court “abused its discretion” in granting the 

government’s motion to preclude Akefe from cross examining Agent Galu about a closed Office of 

Professional Responsibility investigation. We conclude that this limitation was appropriate given 

that the allegations against Agent Galu were wholly unrelated to the instant case and, in any event, 

found to be unsubstantiated. 

V. Motion for a New Trial 

 Akefe’s final argument on appeal is that the District Court “abused its discretion” in denying 

his Rule 33 motion for a new trial, which was based on (1) purported inconsistencies between Saad’s 

testimony at Akefe’s trial and Saad’s testimony at the subsequent trial of a co-conspirator, and 

(2) the Government’s purported violation of Brady v. Maryland, 373 U.S. 83 (1963), in not turning 

over transcripts of proceedings in the Eastern District of Michigan relating to Akefe’s pretrial 

detention. 

 

 After careful review, we conclude that there was nothing “newly discovered” about Saad’s 

testimony at the subsequent trial, insofar as it tracked the Jencks Act material that was already in 
5 

Akefe’s possession during his own trial. We also conclude that there was no Brady violation because 

Akefe’s trial counsel was present during the Michigan proceedings, which, in any event, did not 

reveal Brady material. 

CONCLUSION 

 We have considered all of the arguments raised by Akefe on appeal and find them to be 

without merit.2 For the reasons stated above, we AFFIRM the District Court’s November 8, 2012 

judgment and its August 30, 2013 order. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk 

 2 Because these claims were meritless, we also reject Akefe’s argument that his prior counsel was deficient in 

not raising these issues during the prior appeal.