United States v. Djibo

UNITED STATES OF AMERICA, v. ADAMOU DJIBO, Defendant.

15 CR 00088 (RJD)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

April 8, 2019

MEMORANDUM & ORDER

DEARIE, District Judge

Defendant Adamou Djibo was convicted by a jury of conspiring to import heroin and related substantive charges. Throughout his nine-day trial in early 2016, the government endeavored to paint a picture of Djibo as the leader of a heroin trafficking conspiracy, responsible for orchestrating and funding numerous drug smuggling trips between Africa and the United States. To prove its case, the government relied principally on the testimony of a single cooperating witness, Stanley Walden, who was picked up by federal agents at JFK airport in the possession of 6.4 kilograms of heroin at the end of an alleged Djibo-arranged drug trip. Walden testified at trial that he was one of Djibo's drug couriers and provided details of the drug trips he took on Djibo's behalf.

More than six months before trial, the government produced to defense counsel approximately 50 pages of partially redacted cell phone communications between Walden and Djibo, and represented it had produced "all portions [of Walden's telephone records] it considers to be relevant." Jan. 8, 2016 Letter, ECF No. 96. Following numerous informal requests by defense counsel, culminating in a motion to compel made two weeks before trial, the government produced "a complete version" of Walden's cell phone records a mere three days before trial. The government's production consisted of thousands of pages of cell phone communications, much of which were in Swahili and required translation. Defense counsel secured a single-day trial adjournment, enough to make a dent in its review of the government's voluminous production. A jury convicted Djibo on all counts and Djibo was sentenced to 293 months incarceration followed by five years of supervised release. Djibo's post-trial motions were denied. Djibo appealed his conviction and the District Court's denial of his post-trial motions. The Second Circuit vacated the District Court's denial of Djibo's motion for a new trial and remanded with instructions to provide defense counsel adequate time and resources to translate the government's production and then, if appropriate, renew post-trial motions. Djibo renews his motion under Federal Rule of Criminal Procedure 33 for a new trial, now with the benefit of translated versions of Walden's cell phone records. For the reasons that follow, Djibo's motion for a new trial is granted.

BACKGROUND

A. Arrest and Indictment

On January 11, 2015 federal agents arrested Stanley Walden at JFK Airport while he was attempting to smuggle approximately 6.4 kilograms of heroin in his suitcase on a return flight from Togo. Almost immediately Walden waived his Miranda rights and began cooperating with the government. Walden told his arresting agents that he "received the heroin from an individual in Togo" and that he planned to deliver the heroin to "Adam" in the United States in return for approximately $50,000. Complaint, ECF No. 1. Walden also told the arresting agents that "Adam" organized his trip to Togo, as well as at least one previous drug smuggling trip. Id.

Following leads provided by Walden, on February 3, 2015 federal agents arrested Djibo on the basis of a criminal complaint charging him with conspiracy to import heroin as he was boarding a plane at JFK Airport departing for England. Id. On March 5, 2015, a grand jury returned a four-count indictment charging Djibo with conspiring to import heroin, importing heroin, conspiring to possess heroin with intent to distribute and possessing heroin with intent to distribute it. ECF No. 6. On July 1, 2015, following additional cooperation from Walden, a grand jury returned a superseding indictment expanding the timeframe of the alleged conspiracy considerably from September 2014 - January 2015 to April 2008 - January 2015. ECF No. 22. On December 17, 2015 a grand jury returned a second superseding indictment including a Criminal Forfeiture Allegation. ECF No. 90.

B. Relevant Pre-Trial Proceedings

On April 7, 2015, the government disclosed to defense counsel it had Walden's cell phone and that it had executed a forensic search of the cell phone.¹ ECF No. 11. Defense counsel promptly made a series of informal requests via letter seeking "any relevant items seized from [Walden], including but not limited to his WhatsApp records (some are mentioned in the Complaint but not found in Djibo's Cellebrite² report) and anything else from his phone." Def. Br., ECF No. 228, at 4. The government did not respond to defense counsel's requests, at which point defense counsel publicly filed a letter via ECF again requesting all information from Walden's cell phone, specifically including "any exculpatory material, and anything relating to the co-conspirator's drug trafficking with others." June 24, 2015 Letter, ECF No. 20.

On July 5, 2015, the government produced an approximately 50-page excerpt from Walden's cell phone. ECF No. 26. The excerpt was partially redacted and contained only communications between Walden and Djibo. On January 13, 2016, a week before trial, the Court directed the government to produce the excerpt in unredacted form. Five days prior, on January 8, 2016, defense counsel moved to compel production of "a complete record" of Walden's cell phone communications. ECF No. 96. The Court ordered those records be produced for in camera review by January 14, 2016—less than a week before the trial's scheduled start date. After the government made its in camera production on Friday, January 15, 2016, the Court ordered it "to produce to defense counsel by close of business today a complete copy of the records delivered to the Court this morning." Jan. 15, 2016 Order. Defense counsel represents that the material was not made available until after 7 p.m. and that in light of technical difficulties associated with loading that volume of material, it was not available for review until late morning the following day—a Saturday. Def. Br., Case No. 16-3956, 2017 WL 2418211, at *13 (2d Cir. June 2, 2017). At this point, defense counsel had, after some deduplication, approximately 8,000 pages of new material, about half of which was in Swahili and required translation. Defense counsel requested the Court either (i) preclude the government from using any information from Walden's cell phone at trial or (ii) a "short" adjournment of trial to permit translation and review of the government's eleventh-hour production. Jan. 18, 2016 Letter, ECF No. 122. The government opposed Djibo's request, asserting that defense counsel had "all relevant portions" of Walden's cell phone records since July 2015. Jan. 12, 2016 Letter, ECF No. 105. The Court, crediting the government's representation, granted a single-day adjournment. Jan. 19, 2016 Tr. 8:6-10.

C. Trial

Trial began on January 19, 2016. The government initially intended to prove its case through the testimony of three of Djibo's alleged drug couriers: Walden, Columbus Amankona and Emmanuel Boahene. Before trial Djibo moved to strike testimony and other evidence related to Amankona and Boahene's participation in the alleged conspiracy on the grounds that the government had not sufficiently connected those individuals to Djibo. The Court permitted Amankona and Boahene to testify "subject to connection" to Djibo. After Amankona and Boahene testified, defense counsel renewed its motion to strike, which the Court granted. To that end, the Court provided the jury with a limiting instruction, stating, in relevant part:

On Monday I instructed that some evidence that was presented to you was admitted subject to connection to this defendant, Adamou Djibo. The Court has determined that some evidence shown to you and some testimony that you heard from some witnesses was not connected to this defendant, Adamou Djibo.

I now specifically instruct you that evidence relating to two individuals, Columbus Amankona and Emmanuel Boahene was not connected to this defendant, Adamou Djibo. You should disregard any evidence you heard about Columbus Amankona and Emmanuel Boahene and [you will] not have any evidence about these two individuals with you during your deliberation.

Feb. 3, 2016, Tr. 1108:6-18.

Accordingly, Walden was the government's key witness. He testified that he went on approximately nine or ten drug trips arranged by Djibo and on Djibo's behalf. Walden explained that over the course of seven or eight years he and Djibo communicated about upcoming drug trips over phone and email using code words like "surgery" to obscure any reference to drugs, Djibo made travel arrangements for each drug trip on Walden's behalf, and Djibo facilitated Walden's travel by coordinating with his personal and familial contacts in Africa. Through Walden, the government endeavored to establish a pattern: Djibo booked flights for and instructed his couriers to fly to Togo where they were greeted and escorted by one of Djibo'scontacts. The courier, with the help of Djibo's contacts, was clandestinely transported across the border to Ghana, where he would spend a couple of weeks socializing before returning to Togo. The purpose of the Ghana leg of the trip was to extend the courier's time away from New York in an English-speaking, "civilized . . . beautiful city" to make the number of heroin-filled suitcases the courier carried back to New York appear more believable to U.S. customs officials. Jan. 26, 2016 Tr. 634:21-23. After returning to Togo from Ghana one of Djibo's contacts would fill the courier's luggage with heroin, the courier would return to JFK and meet Djibo either at airport arrivals or at the Best Western airport hotel. At that point, the courier would unload the heroin and receive payment from Djibo. Crucial to Djibo's motion, Walden testified, and the government represented, that Djibo was his only contact in the drug smuggling world and that he...