On Appeal From the United States District Court For the District of New Jersey (D.C. Crim. No. 97-cr-00214-2)
Before: Becker, Chief Judge, Stapleton and Weis, Circuit Judges.
The opinion of the court was delivered by: Becker, Chief Judge.
The evidence at the trial of Ismoila Idowu on the charge of conspiracy to possess with intent to distribute more than one kilogram of heroin, 21 U.S.C. § 846, made it crystal clear that Idowu was -- and knew that he was -- involved in an illicit transaction of some sort. There also is no question that the transaction that was the subject of the government's undercover investigation and surveillance, in which Idowu's co-defendant Monadu Ajao was the buyer, involved more than one kilogram of heroin. The sole question on Idowu's appeal, following his conviction by a jury, is whether there was sufficient evidence that Idowu knew that the subject matter of the transaction was a controlled substance, rather than some other form of contraband, such as stolen jewels or computer chips or currency, such proof being necessary to support Idowu's conviction.*fn1
We have consistently held in cases of this genre that, even in situations where the defendant knew that he was engaged in illicit activity, and knew that "some form of contraband" was involved in the scheme in which he was participating, the government is obliged to prove beyond a reasonable doubt that the defendant had knowledge of the particular illegal objective contemplated by the conspiracy. See, e.g., United States v. Thomas, 114 F.3d 403, 405 (3d Cir. 1997); United States v. Wexler, 838 F.2d 88, 90 (3d Cir. 1988). We also have consistently held that, in the absence of such proof, a guilty verdict on a conspiracy charge cannot be sustained. See Thomas, 114 F.3d at 406; Wexler, 838 F.2d at 91. We think that the evidence that Idowu knew that heroin or some other controlled substance was involved is lacking here. Accordingly, we will reverse the judgment.
The events leading up to Idowu's March 24, 1997, arrest in Jersey City, New Jersey, began two months earlier in Lahore, Pakistan. At that time, the United States Drug Enforcement Agency (the "DEA") in Pakistan seized over two kilograms of heroin in the course of an undercover operation. The agency used the seized heroin as part of a sting operation that targeted prospective purchasers in the United States. Pakistani drug dealers, believing that their co-conspirators still possessed the heroin, were led to contact Abdul Khaliq, who actually was a DEA informant. During a telephone call organized by another DEA operative, a man who identified himself as "Raja" told Khaliq that someone would call him to arrange to purchase the heroin.
Several weeks later, Monadu Ajao, who identified himself as Raja's friend, and who became Idowu's co-defendant, telephoned Khaliq. During the course of six telephone conversations, which were taped by Khaliq, Ajao negotiated to buy the heroin. Khaliq and Ajao ultimately agreed to meet at a Quality Inn parking lot in Jersey City, New Jersey on March 24, 1997. Throughout the telephone negotiations, Ajao never mentioned Idowu, nor did he specifically mention heroin. Ajao did indicate that he was acting on behalf of others, and at one point implied that another man was helping him to gather the money he was to pay to Khaliq.
On March 24, DEA agents set up surveillance at the Quality Inn. They wired Khaliq with a concealed tape recorder and transmitter so that they could monitor the transaction from a nearby car. That afternoon, Ajao arrived at the Quality Inn in a black Lincoln Town Car driven by Idowu. Ajao and Idowu left the car and entered the hotel lobby, Idowu carrying a brown leather bag. The two men then exited the lobby, re-entered the sedan, and moved it to another location in the parking lot. Khaliq arrived in a Ford Explorer with a black suitcase in his trunk; the DEA had previously outfitted the suitcase to hold drugs in its lining.*fn2 Ajao got out of the Town Car and introduced himself to Khaliq. Idowu remained in the vehicle. Ajao and Khaliq discussed the payment, which was to have been $30,000. Ajao told Khaliq that he only had brought $20,000. Idowu was unable to hear their conversation. Ajao and Khaliq then returned to the Town Car. Ajao encouraged Khaliq to get into the car, but Khaliq declined Ajao's offer. Ajao, sitting in the front seat of the Town Car, continued to talk to Khaliq, who remained standing outside. Ajao and Idowu then exited the vehicle, at which point Khaliq met Idowu for the first time. When Khaliq asked who Idowu was, Ajao replied that "he is driver."
All three gathered near the trunk of the Town Car. Idowu opened the trunk, which contained the brown leather bag; he then opened the bag, displaying the money inside to Khaliq. As Khaliq counted the money, Khaliq stated that he would have to take the bag with him. Idowu had some documents in the bag, and Khaliq told Idowu, who wanted to get the bag back, that Idowu could "pull [the documents] out" and that he would return the bag to Idowu the next day. Idowu told Khaliq that he had checked the money himself, and that all $20,000 was there.
Khaliq took the bag of money to the Ford and opened the rear hatch. Idowu, who previously had pulled the Town Car into a spot next to the Ford, then removed the specially-outfitted black suitcase from Khaliq's car and placed it into the still-open trunk of the Town Car. Idowu unzipped the black suitcase and, on seeing nothing inside, told Ajao, "They didn't pack this thing." Ajao told Idowu to press the suitcase with his hands. Khaliq tried to reassure Ajao and Idowu by explaining that something was concealed in the frame of the suitcase. Moments later, the DEA arrested Ajao and Idowu.
The DEA agents recovered $3,000 in cash from Idowu's right front pocket, $495 from his back pocket, and $18,000 in ...