On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Crim. No. 93-00012-01).
Before: Sloviter, Chief Judge, Alito, Circuit Judge and Parell,*fn* District Judge
Appellant Sunday Obialo challenges his conviction and sentence after a jury trial in which he was convicted of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846 (1988), and possession with intent to distribute heroin in violation of 21 U.S.C. § 841 (a)(1) (1988) and 18 U.S.C. § 2 (1988). Obialo's challenge to his conviction on the substantive count of possession centers on alleged trial errors, but we find no merit to his contention and we will affirm that conviction.*fn1
His other argument merits more attention. Obialo contends that the evidence was insufficient to sustain his conviction for conspiracy because there was no substantial evidence that he entered into a criminal agreement with any other person. This requires us to consider the minimum quantity of evidence the government must introduce to sustain a conspiracy conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1988).
In the spring of 1992, Obialo moved into an apartment on Griscom Street in Philadelphia and shortly thereafter began discussing with neighbor Jeffrey Bahamonde, an ex-convict recently arrested for a drug offense, the possibility of distributing heroin in Philadelphia. Obialo told Bahamonde that he had access to large amounts of heroin. Unknown to Obialo, Bahamonde was acting as a confidential informant for the Philadelphia police.
Obialo gave Bahamonde a matchbook of brown heroin to show to a prospective client. Later, Obialo showed Bahamonde a large flat quantity of heroin wrapped in a plastic sheet measuring approximately 8 1/2" x 10". Bahamonde testified about this as follows:
Q. Please continue. What did he say, if anything, regarding [heroin in plastic sheets]--
A. Okay. It was put in books and brought through customs very easily, like sometimes they posed as college students and exchange students, like that, and just come through with the books, no questions.
App. at 56-57 (emphasis added).
Bahamonde also testified to the following exchange with Obialo:
A. Well, see at one point when I was trying to establish this customer kind of relationship with him, I asked him how much he had if I needed ...