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United States v. Obiora

United States Court of Appeals, First Circuit

December 11, 2018

UNITED STATES OF AMERICA, Appellee,
v.
OBINNA OBIORA, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. William G. Young, U.S. District Judge

          Benjamin Brooks, with whom Good Schneider Cormier & Fried was on brief, for appellant.

          Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          KAYATTA, CIRCUIT JUDGE.

         Following a jury trial, Obinna Obiora was convicted of conspiracy to possess with intent to distribute heroin, and was sentenced to 120 months' imprisonment, followed by 36 months of supervised release. On appeal, Obiora claims that a variety of alleged errors undermined the integrity of the jury's verdict and the appropriateness of his sentence. For the following reasons, we affirm.

         I.

         We first address Obiora's challenge to the sufficiency of the evidence against him. We describe the record relevant to such a challenge in the light most favorable to the jury verdict. See United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015).

         Federal law enforcement officers became aware of Obiora through their investigation of a Boston heroin dealer named Antoine. Agents obtained approval to wiretap six phones associated with Antoine's activities. In several of these intercepted calls, Chukwuma Obiora -- Obinna Obiora's brother -- arranged for Obinna Obiora to supply heroin to Antoine.x[1] On October 3, 2015, the day after one of these conversations, a law enforcement agent observed a car registered to Obiora arrive at Antoine's home. Pole camera footage showed a man who resembled Obiora exit the car, embrace Antoine, and then, with Antoine, disappear from view. Shortly thereafter, the man resembling Obiora returned to the car and drove off. Within about twenty minutes, Obiora called Antoine and complained, "What just happened today is not necessary . . . we don't need all that." For the next several weeks, Obiora unsuccessfully tried to obtain payment from Antoine, who apparently stiffed Obiora somehow in connection with their October 3 interaction.

         The federal government indicted Obiora for a single count of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. §§ 846 and 841. Several co-conspirators were indicted for additional drug and gun crimes. At trial, the government's theory was that Obiora and Chukwuma were Antoine's heroin suppliers until Antoine took their heroin without paying on October 3. The jury found Obiora guilty of conspiracy with intent to distribute heroin, and also found him responsible for at least one kilogram of heroin.

         On the first day of trial, the district judge informed the parties about "one other thing," as follows:

I read it in the most recent Harvard Law Review that the Sixth Circuit has just upheld one of my colleagues who after a trial goes back to the jury room and asks the jury individually to just write down what they think the sentence should be, and then he uses that as some advice as to how to impose a sentence . . . . I've been in touch with the judge who has sent me all his information and I propose to do that. You can read about it in the most recent Harvard Law Review.

         Nothing more appears to have been said about the matter until Obiora's sentencing hearing, at which the district court announced that it had conducted the jury poll:

I was interested to, in a procedure developed by my colleague, Judge Gwin, in the Northern District of Ohio, where after the verdict was received, he informally asked the jury privately to advise as to what sentences they would impose and then he announces an average and he takes that into account. That procedure has been expressly confirmed in United States v. Collins, 828 F.3d 386, a Sixth Circuit case, 2016, and it's been written up with approbation in the Harvard Law Review at a note in Volume 130 at Page 793. And I've resolved to follow that procedure and I followed it in this case.
The average of the jury's suggestion is that he should be sentenced to 19.4 years. That of course is higher than constitutionally this Court could sentence him, but I announce it.

         The court conducted the poll ex parte and off record. At no point did either party object to the court's administration of the ...


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