## Facts

- Florence Abieyuwa Obayagbona, a Nigerian citizen, traveled to the United States with co-defendant Ehimwema (“Clara”) Onaiwu.
- A confidential informant arranged for Onaiwu to meet a purported heroin buyer, an undercover FBI agent using a pseudonym and a concealed recorder, at a Brooklyn restaurant used for undercover operations.
- During the first meeting, the agent and Onaiwu negotiated a sale of 100 grams of heroin; the agent requested a small sample before completing the deal.
- At a second meeting, the agent testified that both women went to the ladies’ room and, upon returning, Obayagbona removed a folded paper towel from a small purse and handed it to him; he then tested it and determined it contained heroin.
- Obayagbona denied going to the restroom with Onaiwu and denied handing any heroin sample to the agent.
- After the arrests, the recorder captured the agent stating, within minutes, that Obayagbona had handed him the sample.
- Searches of the women did not reveal heroin; a larger parcel of heroin was later found in the vehicle used to transport them, near where Onaiwu had been seated, and Onaiwu testified she had concealed and then discarded it in the car.

## Issues

1. Whether the agent’s taped post-arrest statement identifying Obayagbona as the person who handed over the heroin sample was properly admitted, including under Federal Rule of Evidence 801(d)(1)(B) as a prior consistent statement.
2. Whether the court erred by refusing to give a missing-witness instruction regarding the confidential informant.
3. Whether a conspiracy conviction could stand given acquittals on substantive distribution and possession-with-intent counts.

## Decision

- The court denied the motion for a new trial under Federal Rule of Criminal Procedure 33.
- The court denied the motion for judgment of acquittal on the conspiracy count.
- The court held the taped statement was admissible as a prior consistent statement to rebut an attack on the agent’s credibility and identification.
- The court declined to require a missing-witness instruction because the informant was not shown to be peculiarly within the government’s control.
- The court held the verdicts were not legally inconsistent and the evidence was sufficient to support conspiracy under 21 U.S.C. § 846.

## Legal Principles

- A prior consistent statement is nonhearsay under Federal Rule of Evidence 801(d)(1)(B) when offered to rebut an express or implied charge of recent fabrication or improper influence or motive, and when made before the claimed fabrication or motive arose.
- Near-contemporaneous statements may also qualify for admission under hearsay exceptions such as present sense impression and excited utterance when made close in time to the event and under continuing stress.
- A missing-witness instruction is generally unwarranted unless the absent witness is peculiarly within one party’s control and not reasonably available to the other side.
- A conviction for narcotics conspiracy under 21 U.S.C. § 846 does not require proof of an overt act; an agreement and knowing participation can support conviction even if the jury acquits on related substantive counts.
- Allegedly inconsistent verdicts do not require reversal where the evidence supports the conviction on the count of conviction.

## Conclusion

The court upheld the jury’s conspiracy verdict and rejected post-trial challenges, concluding that the agent’s near-immediate taped identification was properly admitted to counter a fabrication attack, that no adverse inference instruction was justified for the informant, and that acquittals on substantive counts did not bar conviction for a narcotics conspiracy supported by sufficient evidence of agreement and participation.


United States v. Obayagbona, 627 F. Supp. 329 (E.D.N.Y. 1985)