841 F.2d 1123
Unpublished Disposition
UNITED STATES of America, Plaintiff-Appellee,
v.
Herbert OFOHA, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Pauline NWABUZOR, Defendant-Appellant.
Nos. 87-5055, 87-5056.
United States Court of Appeals, Fourth Circuit.
Argued: Jan. 7, 1988.
Decided: Feb. 22, 1988.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Harry Levy (Robert B. Schulman; Schulman & Treem, P.A., on brief), and William Franklin Gosnell for appellants.
Martin Himeles, Jr., Assistant United States Attorney (Breckinridge L. Willcox, United States Attorney, on brief), for appellee.
Before HARRISON L. WINTER, Chief Judge, and SPROUSE and WILKINS, Circuit Judges.
PER CURIAM:
Herbert Ofoha and Pauline Nwabuzor appeal their convictions for conspiracy to distribute heroin in violation of 21 U.S.C.A. Sec. 846 (West 1981). Nwabuzor also challenges her conviction for distribution of heroin in violation of 21 U.S.C.A. Sec. 841(a)(1) (West 1981). We affirm.
While facts were in dispute and testimony in conflict, we are required to view the evidence adduced at trial in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80 (1942). Adhering to this principle, the testimony shows that in August 1986, Nwabuzor, a Nigerian citizen attending Southeastern University in Washington, D.C., approached her friend Hans Iduma and told him that she was planning to visit her native country and return with a quantity of heroin. She asked for his assistance in distributing the drugs upon her return.
Iduma was arrested on unrelated heroin charges while Nwabuzor was in Nigeria. He agreed to cooperate with the government. On September 26, after Nwabuzor had returned from Nigeria, Iduma placed a telephone call to her inquiring whether she had brought back the drugs. The call was made and recorded under the supervision of the Drug Enforcement Administration.
Iduma, together with undercover DEA agent Livia Adams, met with Nwabuzor on October 3 at Iduma's apartment where Nwabuzor provided Iduma with a sample of heroin. Approximately one hour later, Iduma telephoned Nwabuzor and negotiated a price for the heroin. Later that day, the three met again at Iduma's apartment where Nwabuzor gave Iduma three packages of heroin.
Iduma and Nwabuzor agreed to meet on October 6 in the lobby of Southeastern University. At that time Agent Adams paid Nwabuzor $6,000.00 and Adams received another small sample of heroin. Nwabuzor agreed to meet with her source and contact them later that day. She did so, telling Iduma that "the man" would have the drugs later that evening.
At the scheduled time, Iduma and Adams arrived at the university. Nwabuzor was not present at that time, but Ofoha approached Iduma and said he was the person Nwabuzor was there to meet. Ofoha and Iduma walked to a courtyard, where Ofoha gave Iduma 150 grams of heroin. Nwabuzor arrived subsequent to the transaction and was disturbed that the transaction had taken place without her.
Iduma had several recorded telephone conversations with Ofoha in the weeks following the October 6 transaction and two more agents, posing as buyers, met with Ofoha. Ofoha and Nwabuzor were arrested after additional meetings and recorded telephone calls.
Ofoha contends that the district court erred in two particulars. He argues that the court should have dismissed the indictment against him due to governmental misconduct, contending that one of the detectives made a false statement to the grand jury. The detective testified that the October 6 exchange in the courtyard occurred in the eyesight of Agent Adams. Adams testified at trial that she did not actually observe a transfer of drugs because the men turned their backs toward her. She did state that Iduma and Ofoha were in her view at all times and that Iduma had been searched prior to the meeting with Ofoha. Following the meeting, Iduma gave the heroin to Adams. Even if the testimony of the detective is viewed as inconsistent with the events described by Adams, at most the testimony was inaccurate and not deliberately misleading or perjurious. United States v. Cathey, 591 F.2d 268, 271-72 (5th Cir.1979).
Ofoha also asserts error in the court's refusal to grant a new trial based upon an alleged fatal variance that existed between the single conspiracy charged and the existence of two conspiracies he claims the government's evidence showed. The indictment charged a conspiracy existed between Nwabuzor and Ofoha from the Fall of 1986 through October 22, 1986. Ofoha contends that the evidence at trial revealed two separate conspiracies, one involving the October 3 transaction between Nwabuzor and Iduma, and a second involving the October 6 transaction between Ofoha and Iduma. Sufficient evidence was introduced to support the jury's finding of a single conspiracy. It is well settled that Ofoha could be found guilty by a showing that he joined an existing conspiracy. United States v. Spoone, 741 F.2d 680, 688 (4th Cir.1984), cert. denied, 469 U.S. 1162 (1985). Furthermore, assuming a variance existed, proof of multiple conspiracies did not prejudice Ofoha. Each transaction was listed in the indictment as a separate overt act, clearly informing him of the conduct the government contended was unlawful.
Nwabuzor's sole contention on appeal is that the district court erred in refusing to give an entrapment instruction. We find this claim is also without merit.
AFFIRMED.