Appeal from a judgment of the District Court for the Eastern District of New York, Thomas C. Platt, Judge, convicting appellant, after a jury trial, of importing heroin into the United States in violation of 21 U.S.C. § 952 and possession of heroin with intent to distribute it, in violation of 21 U.S.C. § 841. Appellant challenges the exclusion of evidence as admissible under Fed. R. Evid. 803(3). Exclusion held harmless error. Affirmed.
Feinberg, Chief Judge, Oakes, Circuit Judge, and Pollack, District Judge.*fn*
Appellant Bolanle Lawal was convicted in the Eastern District of New York, after a jury trial before Judge Thomas C. Platt, on both counts of a two-count indictment charging, respectively, importation of heroin into the United States, in violation of 21 U.S.C. § 952, and possession of heroin with intent to distribute it, in violation of 21 U.S.C. § 841. He was sentenced to concurrent terms of seven years imprisonment on each count, followed by a lifetime special parole term, and fined $5,000.
Lawal's defense was that he did not know that the substance he was importing was heroin and that he was therefore not guilty of the offenses charged. He contends that the trial court committed reversible error by barring questions to a government witness concerning what Lawal said, and, in one instance, how he appeared, during a period of detention shortly after he entered the United States. According to Lawal, the answers to these questions, if allowed, would have bolstered his defense.
On May 11, 1983, Lawal arrived at Kennedy International Airport, in New York City, on a Nigerian Airlines flight from Lagos, Nigeria. Shortly after he cleared an initial customs inspection at the terminal, he was observed by plain-clothed United States Customs Patrol Officer Ronald Palmieri. Palmieri noticed several suspicious aspects of Lawal's appearance: he was perspiring profusely, seemed in a "big hurry" to get out of the terminal, and had a bulge in his torso area.
Lawal ignored Palmieri's initial efforts to stop him for questioning, but finally complied and gave Palmieri a Nigerian passport and his customs declaration. The latter listed a Brooklyn, New York, address as the place where Lawal would be staying in the United States. In response to initial questioning, Lawal told Palmieri that he was in some type of trading business and that he would be staying in the United States for about a day.
Lawal was then escorted to a private room for further examination. A search of Lawal's clothing and person revealed that he was carrying fourteen small packages, some in the pockets of his suit coat and vest, and many stuffed inside his shirt near his stomach. Palmieri testified that as the packages were being removed from inside his shirt, and upon being asked what they contained, Lawal said it was "nothing, nothing," and attempted to stuff a package back into his shirt. When asked again what the packages contained, Lawal said he did not know and repeated that it was "nothing." Palmieri testified that it was obvious that Lawal was smuggling simply from the way he had concealed the packages on his person. Palmieri further testified that during his detention, Lawal told the agents that a friend had given him the packages for delivery to another friend.
An examination of the fourteen packages by the customs agents revealed that some consisted of more than one packet and that there were in all twenty-one packets wrapped in opaque tape. The agents conducted on-site narcotics tests of samples of the contents of several of the packets; the results thereof did not give a positive indication for narcotics.
Special Agent Brian Noone, of the Federal Drug Enforcement Agency ("DEA"), arrived shortly thereafter and conducted additional tests on the packages. Again there was no positive reaction showing the presence of narcotics. Noone then took Lawal to the nearby DEA office at the airport. Further tests were conducted there, again without positive results. A decision was made to release Lawal. He was given his passport, open-return airline ticket, and personal effects, and allowed to leave. The packets were retained for further testing.
Before leaving the DEA office, Lawal told Noone that he was going to the LaGuardia Airport Holiday Inn. Noone asked Lawal to call when he arrived at the hotel to inform the DEA of his whereabouts. Lawal did call immediately upon his arrival to give Noone his room number. Later, Lawal telephoned again to say he was switching rooms.
Further chemical analysis conducted overnight on the contents of the packages indicated that some contained heroin.Analysis revealed that eleven of the twenty-one packets contained heroin, having in total a wholesale value of at least $50,000.
Upon learning that the packets contained heroin, a DEA agent telephoned the Holiday Inn to confirm that Lawal was still there and told Lawal that agents were coming to speak to him. Lawal ...