Defendant-Appellent Olawale Lateef Oluwanisola appeals from a September 8, 2008 judgment convicting him, following a jury trial, of conspiring to import heroin into the United States, in violation of 21 U.S.C. §§ 963, 952(a) and 960(b)(1)(A), conspiring to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and possessing heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(C). Because we agree that the district court (Cogan, J.) erred in applying United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), to whether certain evidence elicited at trial would open the door to admission of the proffer statements, we vacate the judgment of conviction, and remand to the district court for further proceedings consistent with this opinion.
The opinion of the court was delivered by: Pooler, Circuit Judge
LEVAL, POOLER, and PARKER, Circuit Judges.
Defendant-Appellent Olawale Lateef Oluwanisola appeals from a September 8, 2008 judgment convicting him, following a jury trial, of conspiring to import heroin into the United States, in violation of 21 U.S.C. §§ 963, 952(a) and 960(b)(1)(A), conspiring to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and possessing heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(C). Oluwanisola argues (1) that the district court's rulings with respect to whether certain evidence elicited at trial would open the door to admission of statements he had made at a proffer session improperly restricted his counsel's effectiveness and deprived him of the effective assistance of counsel in violation of the Sixth Amendment, and (2) that there was insufficient evidence to establish the requisite quantity of heroin to support his convictions under 21 U.S.C. §§ 841(b)(1)(A) and 960(b)(1)(A). We agree that the district court incorrectly applied United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), to the question of whether certain evidence elicited at trial would open the door to admission of the proffer statements. However, because we conclude that the evidence presented at trial was legally sufficient to support the verdict, we vacate - but do not reverse - the judgment of conviction, and remand for further proceedings consistent with this opinion.
Beginning in the summer of 2005, customs personnel screening for narcotics at the mail processing facility at JFK airport found hundreds of envelopes, each containing approximately forty grams of heroin, similarly packaged, sent from India, and bound for eight addresses in Queens, New York. The envelopes were addressed to various names, but none of the named individuals resided at any of the designated addresses. The buildings were all two-story commercial buildings with first-floor store fronts and second-floor apartments and each had an unlocked mailbox, accessible to any passerby.
To catch the heroin importer, the government arranged a controlled delivery of three of the envelopes bound for one of the addresses on July 7, 2006. The government replaced the heroin in the envelopes with a substance that appeared similar to the drug. About ten minutes after the postal carrier delivered the envelopes, a surveillance team observed Oluwanisola retrieve one of the envelopes and get into his car. Oluwanisola then proceeded to another of the addresses at which packages containing heroin had been intercepted. Oluwanisola checked the mailbox there and returned to his car empty-handed. He then opened the planted envelope, activating an electronic beeper that had been placed inside by law enforcement officers. At that point, the officers moved in. In Oluwanisola's car, they found another unopened envelope containing heroin addressed to a third address that was also a destination for heroin-laden envelopes intercepted by customs. At the time of apprehension, Oluwanisola was carrying $3,295 in cash and a cell phone, which the records showed had been used to make multiple calls to India. He was arrested and charged with conspiring to possess with intent to distribute more than one kilogram of heroin.
Oluwanisola did not admit to any heroin-related activity at the time of his arrest. At trial, Special Agent Michael Kim testified that Oluwanisola told officers that his brother, Yike, had asked him to pick up the envelopes and would pay him $200 per envelope. Oluwanisola said he thought the envelopes contained documents. At trial, a postal carrier testified that for at least six months during the first half of 2006, he observed Oluwanisola watching mail deliveries at one of the addresses, each time taking the mail out of the box, looking through it, and then putting it back in the box. According to the government, over one kilogram of heroin had been destined for that address alone. At the time of his arrest, Oluwanisola also admitted that he had "handpicked" the three addresses at which officers had observed him, as well as a fourth address, at the request of individuals he knew in India. This fourth address, like the others, had been the intended destination for heroin-laden envelopes from India intercepted by customs. According to the government, between 2005 and 2006, law enforcement authorities seized at least two and a half net kilograms of heroin destined for the four addresses Oluwanisola admitted he "handpicked."
After his arraignment, Oluwanisola's retained counsel, Leonard Levenson, informed the government that Oluwanisola wanted to participate in a proffer session in the hopes of obtaining a cooperation agreement. A proffer agreement was executed, which provided that the government would not use any of Oluwanisola's statements against him, except:
[T]he Office may use any statements made by [Oluwanisola] . . . as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [Oluwanisola] at any stage of a criminal prosecution . . .
Oluwanisola participated in two proffer sessions, one on September 13, 2006, and one on October 19, 2006. During the proffer sessions, he admitted that he knew the envelopes contained heroin and that he was part of a heroin smuggling operation. With respect to the quantity of heroin, Oluwanisola admitted to receiving envelopes containing heroin well in excess of one kilogram.
The government determined that Oluwanisola was not fully truthful regarding the scope of his involvement with the conspiracy and did not offer him a cooperation agreement. As a result, Oluwanisola declined to plead guilty and the case proceeded to trial.
The government raised the possible admission of the proffer statements prior to trial in a letter to the court, which stated that "[s]hould an appropriate triggering assertion be made by defense counsel or a defense witness, the government will seek to introduce the defendant's proffer statements which fairly rebut that statement." When the government raised the issue again prior to counsels' opening statements, Oluwanisola's newly appointed counsel, Daniel Nobel, stated that he intended to open with the argument that the government could "not prove beyond a reasonable doubt each and every element to this crime." The government responded that "if it were those words alone spoken by counsel without alluding to specific facts or specific pieces of evidence that may come in, I think that would be ...