Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-90-00262-CD. Carolyn R. Dimmick, District Judge, Presiding.
Before: Wright, Canby and Wiggins, Circuit Judges.
Ogidi appeals his convictions for importation of heroin, conspiracy to import heroin, smuggling, possession with intent to distribute and making a false statement. We affirm.
In October 1990, Ogidi and Dianne Jones arrived at the Seattle-Tacoma International Airport on a flight from Singapore. After they left the plane, both were questioned separately about the trip. During the customs inspection, Ogidi was asked whether he was traveling alone. He answered affirmatively and said he met Jones on the flight. The Customs official found pictures of Ogidi and Jones together in Ogidi's luggage
Another Customs official questioned Jones. She denied traveling with Ogidi even though her purse contained documents bearing his name. The official then discovered over 9,000 grams of heroin in Jones' suitcase liner. Jones and Ogidi were arrested.
Jones pleaded guilty and testified against Ogidi at trial. A jury convicted him on all five charges. He appeals.
Ogidi asserts that the evidence presented at trial established two separate conspiracies, prejudicing his substantive rights. See Kotteakos v. United States, 328 U.S. 750, 776-77 (1946). He contends that the incidents involving Nwabuko's importation of heroin into New Jersey constitute a conspiracy independent of this crime.
To establish the existence of a single conspiracy, rather than multiple conspiracies, the government must prove that an overall agreement existed among the conspirators. United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir. 1980), cert. denied sub nom., Carbone v. United States, 450 U.S. 916 (1981). A formal agreement is not necessary; rather one may be inferred from the defendants' acts pursuant to the scheme, or from other circumstantial evidence. United States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984), cert. denied, 471 U.S. 1103 (1985). A single conspiracy may involve several subagreements or subgroups of conspirators. United States v. Lujan, 936 F.2d 406, 411 (9th Cir. 1991).
To distinguish single from multiple conspiracies, this court applies a factors analysis. Bibbero, 749 F.2d at 587. The relevant factors include the nature of the scheme; the identity of the participants; the quality, frequency and duration of each coconspirator's transactions; and the commonality of times and goals. Id.
The evidence established that Ogidi and Nwabuko were members of a single conspiracy to import and distribute heroin. They knew each other before traveling to Singapore. Both were Nigerians and members of the Ibo tribe. Once in Singapore they stayed at the same hotel and were in contact with each other.
Likewise the method of operation remained relatively constant. Both travelled with women who were United States citizens and who had recently applied for passports. These women brought the heroin into this country in identical Miracle brand suitcases. The heroin was packaged in the same manner and was secreted in the same parts in the suitcases. At inspection, both men attempted to disassociate themselves from the women.
These facts provided the jury with sufficient evidence to determine that the Seattle seizure and the Newark seizure were ...