239 F.3d 662 (4th Cir.

2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.
KINGSLEY OBI, a/k/a Obi Kingsley, Defendant-Appellant.
No. 00-4263.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH

CIRCUIT.
Argued: December 8, 2000.
Decided: February 8, 2001.

Appeal from the United States District Court for the District of Maryland,
at Greenbelt.
Deborah K. Chasanow, District Judge. (CR-99-235-DKC)COUNSEL:
ARGUED: Fred Warren Bennett, BENNETT & NATHANS, L.L.P.,
Greenbelt, Maryland, for Appellant. Ronald Jay Tenpas, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Jason C.
Tulley, BENNETT & NATHANS, L.L.P., Greenbelt, Maryland, for
Appellant. Lynne A. Battaglia, United States Attorney, Sandra Wilkinson,
Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
Before NIEMEYER and MOTZ, Circuit Judges, and James C.
CACHERIS, Senior United States District Judge for the Eastern District
of Virginia, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in
which Judge Motz and Senior Judge Cacheris joined.
OPINION
NIEMEYER, Circuit Judge:

Kingsley Obi appeals his convictions on four counts charging him with heroin
distribution, in violation of 21 U.S.C. S 841(a)(1), and one count charging him
with conspiracy to distribute heroin, in violation of 21 U.S.C. S 846. In his
appeal, he challenges: (1) the district court's decision to give a jury instruction

on the significance of his attempted flight while being arrested; (2) the
indictment's failure to charge him with the amount of drugs for which he was
sentenced; and (3) two evidentiary rulings. Because we conclude that no
reversible error was committed, we affirm.
2

* During the period from May 1998 to May 1999, Obi allegedly participated in
a conspiracy to distribute heroin in Maryland. In May 1998, he was arrested
when attempting to pick up a Federal Express package containing 1.4
kilograms of heroin at his former girlfriend's apartment in Wheaton, Maryland.
After he was released from custody, he allegedly supplied heroin to
Mohammed Sallah, a coconspirator, who in turn sold the heroin to an
undercover police officer on October 14, 1998 (97.8 grams), October 27, 1998
(97 grams), May 4, 1999 (47.4 grams), and May 7, 1999 (248 grams). Obi was
indicted for conspiracy to distribute heroin and for distributing heroin on the
dates when heroin was sold to the undercover police officer.

At trial, the government presented evidence that Obi arranged to have heroin
shipped in May 1998 to the apartment of his former girlfriend, Nkumu
Ilongoyi. The package, shipped via Federal Express from the Philippines to a
fictitious name at Ilongoyi's address, contained pots with false bottoms
concealing 1.4 kilograms of heroin. After U.S. Customs Service agents
intercepted the package, they removed all but a small amount of the heroin
from the pots and resealed the package. They then made a "controlled delivery"
of the package in which a federal agent posed as a Federal Express delivery
person and other law enforcement officials conducted surveillance. Ilongoyi's
sister accepted the package and departed almost immediately thereafter, leaving
the package unopened inside Ilongoyi's apartment. The sister met Ilongoyi
outside the apartment building and the two drove off together, at which point
the federal agents stopped and questioned them. Ilongoyi told the agents that
Obi had arranged to have the package sent to her apartment and was coming
soon to pick it up. The agents then took Ilongoyi and her sister back to
Ilongoyi's apartment and waited for Obi to arrive. When he did, they arrested
him.

Following his arrest, Obi was incarcerated in a Montgomery County, Maryland,

holding facility with Mohammed Sallah, where the two became friends.
Following their respective releases, Obi returned to his home in Chicago, while
Sallah remained in Maryland.

A few months later, Sallah sold heroin to undercover detective Tom Roberts of
the Montgomery County Police Department on four separate occasions between
October 1998 and May 1999. During this period, Officer Roberts recorded

conversations with Sallah in which Sallah provided indications that Obi was
Sallah's supplier for the heroin. Sallah told Roberts that his supplier was from
Chicago, where Obi was living at the time; that his source did not like to use
the mail to send drugs; and that his source "just got caught here in Wheaton," a
possible reference to Obi's May 1998 arrest following his attempt to pick up the
Federal Express package. There was also evidence that between May 4 and
May 7, 1999 -the period between two of the transactions -Obi and Sallah
exchanged 50 telephone calls. One of these calls was recorded when Sallah,
then cooperating with police, called Obi and told him that undercover detective
Roberts had not brought all the money for the May 7 deal. Obi responded,
"How much did he bring?" indicating his familiarity with the drug deal. Finally,
approximately half of the marked government funds used by Officer Roberts to
make the May 4 purchase were found in Obi's possession when he was arrested
on May 7, 1999.
6

Obi was convicted on all five counts, and on May 20, 2000, the district court
sentenced him to 200 months imprisonment and five years supervised release.
This appeal followed.

II
7

Obi contends first, based on the evidence presented at trial, that the district
court abused its discretion by giving a jury instruction that characterized Obi's
conduct when being arrested outside Ilongoyi's apartment in May 1998 as
attempted flight and that the giving of the flight instruction was prejudicial. The
government argues that the evidence presented at trial was sufficient to justify
giving the flight instruction.

The evidence shows that after Obi knocked on the door to Ilongoyi's apartment
in May 1998, apparently to pick up the Federal Express package, a man dressed
in shorts and a T-shirt with a police officer's badge around his neck "ran out of
the door [of the laundry room in which he was hiding] yelling police, get down
on the ground, get down on the ground." Obi's reaction was to"turn[ ] slightly
[and] start[ ] to take a couple of steps down the hallway," whereupon the
officer "jumped on his back." Obi "carried[the officer] for a couple more steps
before some of the other officers got there." Before being subdued, Obi
struggled with these officers for approximately 50 seconds, which they
characterized as "a long period for a struggle" of this nature.

In light of this evidence, the district court instructed the jury that it had heard
evidence that the defendant attempted to flee after he believed that he was
about to be arrested for the crime for which he is now on trial. The defendant

denies that he attempted to flee. If proved, the flight of a defendant after he

knows he is to be accused of a crime may tend to prove that the defendant
believed that he was guilty. It may be weighed by you in this connection,
together with all other evidence.
10

However, flight may not always reflect feelings of guilt[ ]. Moreover, feelings
of guilt which are present in many innocent people do not necessarily reflect
actual guilt. You are specifically cautioned that evidence of flight of a
defendant may not be used by you as substitute for proof of guilt. Flight does
not create a presumption of guilt. Whether or not evidence of flight does show
that the defendant believed that he was guilty and the significance, if any, to be
given to the defendant's feelings on this matter are for you to determine.

11

Obi challenges this jury instruction as unsupported by the evidence of his

conduct at the time of his arrest.

12

It cannot be doubted that in appropriate circumstances, a consciousness of guilt

may be deduced from evidence of flight and that a jury's finding of guilt may be
supported by consciousness of guilt. As Professor Wigmore aptly observes,
"The innocent man is without [consciousness of guilt]; the guilty man usually
has it. Its evidential value has never been doubted." 1 A Wigmore on Evidence
S 173 (Tillers rev. 1983).

13

But the jury's consideration of evidence of flight requires that it be able, from
the evidence, to link such flight to consciousness of guilt of the crime for which
the defendant is charged. This requires evidence supporting all the inferences in
the causative chain between flight and guilt. See United States v. Beahm, 664
F.2d 414, 420 (4th Cir. 1981) (noting that the evidence of flight must be
scrutinized to "ensure that each link in the chain of inferences leading to that
conclusion [of the defendant's guilt] is sturdily supported"). To establish this
causal chain, there must be evidence that the defendant fled or attempted to flee
and that supports inferences that (1) the defendant's flight was the product of
consciousness of guilt, and (2) his consciousness of guilt was in relation to the
crime with which he was ultimately charged and on which the evidence is
offered. See United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)
(articulating the chain of inferences in four deductive steps: "(1) from the
defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from
consciousness of guilt to consciousness of guilt concerning the crime charged;
and (4) from consciousness of guilt concerning the crime charged to actual guilt
of the crime charged"); United States v. Schepp, 746 F.2d 406, 409-10 (8th Cir.
1984) (same). In the absence of evidence to support any single link in the
causative chain, it is error to give a flight instruction. See United States v.

Hawkes, 753 F.2d 355, 358 (4th Cir. 1985) (reversing defendant's conviction
because there was "no direct evidence to indicate that[the defendant] was at the
farm and subsequently fled to avoid capture and arrest by the police"); Beahm,
664 F.2d at 420 ("The government's failure to substantiate adequately the
inference that defendant was aware he was wanted for the crime renders the
instruction given the jury in this case irretrievably erroneous").
14

In this case, substantial evidence was presented to indicate that the package at
Obi's ex-girlfriend's apartment contained contraband and that Obi intended to
pick the package up at the time he was arrested. There is also evidence to
indicate that at the time of his arrest, Obi was aware that the persons seeking to
arrest him were police officers. The step in the causal chain wherein the
adequacy of the evidence may be questioned most fruitfully is whether there
was sufficient evidence of flight.

15

On being confronted by the police officers at the apartment, the evidence

reveals only that Obi "turned slightly, started to take a couple steps down the
hallway," and that after a policeman jumped on Obi's back, "he carried [the
officer] for a couple more steps" before being brought down. Obi notes that
this conduct could reasonably be interpreted as evidence that Obi was startled
at having been pounced upon unexpectedly by a man dressed in street clothing
who burst from a hiding place.

16

We agree with Obi that the evidence is thin and may be ambiguous. But even if
we were to conclude that the district court erred in instructing the jury on flight,
we are satisfied, beyond a reasonable doubt, that the error was harmless. See
United States v. Hastings, 134 F.3d 235, 241 (4th Cir. 1998). In making such a
determination, we "consider . . . what effect the . . . error had . . . upon the
guilty verdict" by looking "to the basis on which `the jury actually rested its
verdict.'" Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (quoting Yates v.
Evatt, 500 U.S. 391, 404 (1991)).

17

In this case, we are satisfied, beyond a reasonable doubt, that the jury based its
conspiracy conviction on the evidence linking Obi to the illegal parcel provided
by the circumstances of his coming to the apartment and by the unrelated facts
involving the four acts of heroin distribution that occurred several months later.
Indeed, it is beyond all doubt that the jury did not consider any consciousness
of guilt manifested in May 1998 when it convicted Obi on four distribution
counts relating to transactions that occurred months later. Obi could not have
attempted to escape from police because of criminal behavior that had not yet
occurred or, presumably, even been contemplated at the time the proposed
flight occurred.

18

Accordingly, we find that if the giving of the flight instruction was erroneous,
it was harmless. See Sullivan, 508 U.S. at 279 ("The inquiry, in other words, is
not whether, in a trial that occurred without the error, a guilty verdict would
surely have been rendered, but whether the guilty verdict actually rendered in
this trial was surely unattributable to the error").

III
19

Obi next contends that his indictment, charging him with distribution of a
"detectible amount" of heroin, was fatally defective under United States v.
Hooker, 841 F.2d 1225, 1232-33 (4th Cir. 1988) (en banc), because it failed to
charge him with the offense for which he was sentenced -distribution of 1-3
kilograms of heroin. He cites several cases for the proposition that a district
court lacks jurisdiction to try a defendant when the underlying indictment fails
to include an essential element of the offense, thus requiring that his subsequent
conviction be vacated. See e.g., id. at 1232; see also United States v. Tran, 234
F.3d 798 2000 WL 1701651 (2d Cir. Nov. 15, 2000). In support of the
proposition that the drug amount used to sentence Obi is an essential element of
the offense, Obi relies upon the Supreme Court's recent decision in Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000). Based on his claim of defect, Obi asserts
that he is entitled to have his convictions reversed.

20

If we were to assume for the sake of discussion that drug quantity is indeed an
essential element of Obi's drug trafficking offense, the indictment in this case
nevertheless charged Obi with that element, as well as every other element of
the offense. The amount charged in the indictment -a "detectable amount" of
heroin -fulfills the language of 21 U.S.C. S 841 prohibiting the distribution of
"a controlled substance." Accordingly, Obi's indictment properly charged him
with every element of a crime for which he was subsequently found guilty by a
jury beyond a reasonable doubt. Obi's assignment of error therefore cannot
relate to the indictment or jury finding of guilt on that indictment, but must
relate to sentencing, during which the district court found that Obi was involved
in the distribution of 1-3 kilograms of heroin by a preponderance of the
evidence and relied on that amount in fixing the final sentence.

21

This argument, however, is foreclosed by our recent decision in United States v.

Kinter, 235 F.3d 192, 201 (4th Cir. 2000), which instructs that factual
determinations that increase a defendant's sentence under the sentencing
guidelines do not implicate Apprendi and may be made by the sentencing judge
as long as the sentence imposed is less than the maximum permitted by statute
for the offense for which the defendant was convicted. Kinter emphasizes that
Apprendi held specifically only that factual findings that "increase[ ] the

penalty for a crime beyond the prescribed statutory maximum" must be found
by a jury beyond a reasonable doubt. Id. at 199 (quoting Apprendi, 120 S. Ct. at
2362-63 (internal quotation marks omitted)).
22

In this case, Obi was convicted of distributing, or of having an intent to

distribute, "a detectable amount of heroin, a . . . controlled substance," in
violation of 21 U.S.C. S 841(a)(1). The sentence for this crime, when it
involves an unspecified, detectable amount of a controlled substance, may not
exceed 20 years' imprisonment. Similarly, a conviction under 21 U.S.C. S 846,
which criminalizes conspiracy, tracks the underlying offense and may not be
penalized for more than 20 years. While 21 U.S.C. S 841 indicates that
penalties exceeding 20 years may be imposed if greater amounts of a controlled
substance are involved, Obi's sentence was only 200 months.

23

In this case, therefore, pursuant to Kinter, Obi's sentence does not offend the
standards set forth in Apprendi, despite the fact that his sentence is based, in
part, on factual findings of drug quantity made by the sentencing judge by a
preponderance of the evidence.

IV
24

Finally, Obi challenges two evidentiary rulings made during trial permitting the
admission of (1) evidence that Obi had previously been incarcerated, and (2)
hearsay testimony that linked Obi to known drug dealers. When an objection to
the admission of evidence has been made, we review the district court's
evidentiary rulings for an abuse of discretion. See United States v. Queen, 132
F.3d 991, 993 (4th Cir. 1997).

25

Obi argues that the evidence of his incarceration during May and June of 1988,
when he met Sallah, was so prejudicial that admitting it constituted an abuse of
the district court's discretion under Federal Rule of Evidence 403. We reject this
argument for the same reasons given by the district court, which pointed out
that it is not tenable to claim that the probative value of highly material
evidence -that which linked Obi to his alleged co-conspirator Sallah -was
"substantially outweighed by the danger of unfair prejudice" to Obi. In fact, the
likelihood of additional prejudice to the jury was slight. The jury learned only
that Obi was incarcerated following his arrest for shipping heroin to his
girlfriend's apartment -an arrest about which they had already heard evidence
that was not itself contested as having been improperly admitted. Moreover,
Obi himself testified to meeting Sallah while incarcerated.

26

Obi also challenges the admission of hearsay testimony elicited from Detective

26

Obi also challenges the admission of hearsay testimony elicited from Detective
Roberts to explain how he began investigating Sallah and Obi. Detective
Roberts testified that he was introduced to Sallah by Adrian Eskridge, who was
cooperating following a cocaine distribution arrest, and Sallah is reported to
have stated he "knew some dude named Obi." Obi now contends that the
evidence should not have been admitted because it prejudiced him unduly by
connecting him in the mind of the jury to "known, incarcerated drug dealers."
Our review of the record reveals that Obi did not preserve this objection for
appeal. At most, he requested an instruction limiting the government's inquiry,
which the government apparently followed to his satisfaction at trial.

27

But even if his objection had been preserved by his request for a limiting
instruction and the government's compliance with his request, we have
permitted the admission of hearsay testimony "offered for the limited purpose
of explaining why a government investigation was undertaken." United States
v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985).

28

Obi relies heavily upon United States v. Williams, 133 F.3d 1048, 1052 (7th
Cir. 1998), in which the court found a "strong possibility that the jury made
improper use of the evidence introduced through [the FBI agent's] testimony,
i.e., as concrete proof that Williams did indeed participate in the bank robbery."
However, in that case, unlike here, there was "no corroboration offered as to
the reliability or truthfulness of the informant's declaration. The identifications
of Williams [were] weak at best, and it [was] obvious that the minimal
evidence the government did have was bolstered by inadmissible hearsay and
opinion testimony." Id. at 1053.

29

Here, in contrast, it cannot be said that the hearsay testimony was the de facto
basis for Obi's convictions. The government introduced a substantial amount of
evidence linking Obi and Sallah, including their meeting in the Montgomery
County holding facility; Obi's admissions that he visited Sallah and vice versa;
the many phone calls made between their phones over the course of the relevant
time period; and the marked bills given to Sallah during the fourth drug deal
and found on Obi's person at the time of his arrest.

30

Given that the hearsay testimony in this case was used for a purpose recognized
as legitimate in this circuit and that there was strong evidence linking Obi to
Sallah in this conspiracy, it was well within the discretion of the district court to
have admitted the evidence.

31

Accordingly, we affirm Obi's conviction.

AFFIRMED