United States v. Kone
Opinion of the Court
SUMMARY ORDER
Defendant-appellant Olabode Fajemilehin appeals from the judgment of conviction and sentence imposed by the United States District Court for the Southern District of New York (Baer, J.). We assume the parties’ familiarity with the facts, the proceedings below, and the specification of issues on appeal.
I. Evidentiary Rulings
Fajemilehin raises two sets of challenges to evidentiary rulings of the district court. The first challenges concern several statements allegedly made by a confidential informant (“Cl”) and admitted into evidence through the testimony of a case agent in violation of Fajemilehin’s rights under the Confrontation Clause. The second group of challenges concerns the admission of Fajemilehin’s own statements made after his arrest to his two co-defendants.
We review the unpreserved Confrontation Clause claims for plain error. United States v. Stewart, 433 F.3d 273, 290 (2d Cir. 2006). In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court “announced a per se bar on the admission of a class of out-of-court statements, denominated ‘testimonial,’ against an accused who had no prior opportunity to cross-examine the declarant.” Stewart, 433 F.3d at 290 (citing Crawford, 541 U.S. at 68-69, 124 S.Ct. 1354). The Court was clear, however, that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 60 n. 9, 124 S.Ct. 1354.
Any out-of-court statements made by the Cl and admitted at trial through the
We review the district court’s admission of Fajemilehin’s post-arrest statements for abuse of discretion. United States v. Madori, 419 F.3d 159, 168 (2d Cir. 2005). To find such abuse, we must conclude that the trial judge’s rulings were “arbitrary and irrational.” United States v. Paulino, 445 F.3d 211, 217 (2d Cir. 2006) (internal quotation marks omitted). Fajemilehin’s argument that his post-arrest statements were inadmissible hearsay because they were not statements in furtherance of the conspiracy or statements against penal interest misses the mark. His post-arrest statements, when offered against him by the government, were not within the definition of hearsay, see Fed. R.Evid. 801(d)(2)(A), and hence were not excludable as hearsay regardless of whether they would fall under another exclusion from the hearsay definition or under an exception to the hearsay rule. “Statements made by the defendant,” where relevant, “may be introduced by the government in a criminal trial to prove the truth of the facts stated in them because they are admissions of an adverse party.” United States v. Russo, 302 F.3d 37, 43 (2d Cir. 2002); see also United States v. Lieberman, 637 F.2d 95, 103 n. 11 (2d Cir. 1980) (‘We may ... uphold the admission on any theory which finds support in the record, regardless of the ground relied on by the trial court.”).
Fajemilehin’s argument that the statements should have been excluded under Rule 403, Fed.R.Evid., is also unpersuasive. His statement regarding the quantity of heroin seized and his request that Kone accept responsibility for the heroin are relevant evidence of his consciousness of guilt, and are not unfairly prejudicial. “The logical inferences resulting from proffered evidence do not engender the ‘unfair prejudice’ against which Rule 403 is directed.” United States v. Diaz, 878 F.2d 608, 615 (2d Cir. 1989) (internal quotation marks omitted). The potential for unfair prejudice is greater with respect to Fajemilehin’s statement about where he was from, but this statement was probative of his awareness that he was involved in an illegal business and its probative value was not so substantially outweighed by the potential for unfair prejudice that its admission was an abuse of discretion.
II. Violation of Sequestration Order
Fajemilehin contends that a sequestration order was violated by the collocation of two witnesses in the same bullpen and the opportunity this presented to them to discuss their testimony with each other. He concedes that we should review this claim for plain error.
III. Sentencing
The government consents to a remand for resentencing pursuant to United States v. Fagans, 406 F.3d 138 (2d Cir. 2005). We decline Fajemilehin’s invitation to make factual findings regarding the drug quantity involved in the offense or determine his Guidelines range more generally, and instead allow the district court to decide these issues in the first instance.
For the foregoing reasons, the judgment of conviction is AFFIRMED and the case is REMANDED to the district court with instructions to vacate the sentence and resentence in conformance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
. Although defense counsel represented at oral argument that the district court had entered a sequestration order, he concedes in a letter submitted pursuant to Federal Rule of Appellate Procedure 28(j) that he has been unable to locate the order in the record of proceedings below,
Reference
- Full Case Name
- UNITED STATES v. Falikou KONE and Serge Sitouok, Olabode Fajemilehin
- Cited By
- 2 cases
- Status
- Published