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Akwei v. United States

United States District Court, E.D. Virginia, Alexandria Division

December 17, 2014



JAMES C. CACHERIS, District Judge.

This matter is before the Court on Petitioner Theophilus Akwei's ("Petitioner" or "Akwei") Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (the "Motion"). [Dkt. 353.] For the following reasons, the Court will deny Petitioner's Motion.

I. Background

On August 24, 2011, a federal grand jury returned a superseding indictment charging Petitioner and eight other individuals (collectively "the Macauley organization") with a conspiracy involving the importation of large quantities of heroin from Ghana to the United States. [Dkt. 63.] Petitioner was charged with three counts: (1) conspiracy to import heroin, in violation of 21 U.S.C. § 963; (2) distribution for the purpose of unlawful importation of heroin, in violation of 21 U.S.C. §§ 959(a), 960; and (3) possession with intent to distribute heroin, in violation of 21 U.S.C. § 841. (Id.) These three counts were based primarily on Petitioner's involvement in a drug transaction that occurred on February 21, 2011.

Petitioner proceeded to a three-day trial by jury. As described by the Fourth Circuit in affirming Petitioner's conviction and sentence:

In February 2011, [co-conspirators] Ehiobu and Macauley planned a shipment in which Emmanuael Annor, a courier who was working as an undercover Drug Enforcement Agency ("DEA") informant, took a carry-on bag containing heroin from Accra, Ghana to Washington, D.C. There, a second courier was supposed to pick the bag up and transport it to the appropriate seller. When Annor arrived in Washington on February 21, however, the second courier failed to appear, and Annor proceeded to an Alexandria, Virginia hotel with the heroin-laden bag. Ehiobu promised to send someone else to collect the drugs.
On the evening of February 21, Akwei had Joseph Duodo, an associate familiar with northern Virginia, drive him to the Alexandria hotel to meet Annor. Akwei and Annor verified each others' identities by telephoning Ehiobu in Ghana; Annor recorded the calls. Akwei greated Ehiobu as "Uncle Frank" and Ehiobu told Annor, "[i]t's him." J.A. 74. The pair discussed how Annor would transfer the bag to Akwei, who promised to "pay [Annor] the money later." Id . After several more phone calls to Ehiobu, Annor placed the bag in the back of Duodo's car.
Shortly after the pick-up, the DEA directed local officers to stop Akwei and Duodo and arrest them. The arresting officers recovered the bag, which contained 988.8 grams of heroin.

United States v. Akwei, 514 F.Appx. 291, 292-93 (4th Cir. 2013). At Petitioner's trial his co-conspirators and the Government's confidential informants testified against Petitioner. Specifically,

Ehiobu affirmed that Akwei had agreed to pick up the bag and knew it contained heroin. Annor and Ani testified to the recorded phone conversations. Ani explained that he understood Ehiobu's description of Akwei as someone who runs errands to mean that Akwei performed drug-related messenger and courier work for Ehiobu. Evidence further revealed that the Macauley organization had orchestrated three other heroin importation efforts in 2010 and 2011, each involving a courier transporting over one kilogram of heroin from Ghana to the United States. The government presented evidence that Akwei and Macauley knew each other by submitting Macauley's phone contact list, which, at the time of Macauley's arrest, contained Akwei's name and phone number. Agent Murtha testified to Akwei's behavior on the morning of his July 14 arrest, describing how "mounds of clothes" and "other debris" blocked the path through the basement to the back door where Akwei exited [and fled from officers].

Id. at 294. On February 2, 2012, the jury found Petitioner guilty of all three counts. [Dkt. 190.]

On May 11, 2012, Petitioner was sentenced to the mandatory minimum one hundred and twenty (120) months as to the conspiracy conviction, ninety-seven (97) months as to the distribution conviction, and ninety-seven (97) months as to the possession conviction, all to run concurrently, meaning Petitioner had one hundred twenty (120) months to serve with credit for time served. [Dkt. 275.] After his conviction and sentence were affirmed by the Fourth Circuit, see United States v. Akwei, 514 F.Appx. 291 (4th Cir. 2013), Petitioner filed a petition for certiorari, which the United States Supreme Court denied on October 7, 2013. (Gov't Opp'n [Dkt. 374] at 1.)

As grounds for relief in the Motion now before the Court, Petitioner claims that defense counsel provided ineffective assistance before and during his trial. (Mot. to Vacate at 2-3.) Specifically, Petitioner raises five claims, and contends that counsel was ineffective by:

(1) failing to file a suppression motion for the evidence obtained as a result of the warrantless search of the car, (id. at 2, 7-19);

(2) failing to request fingerprint analysis of the suitcase that contained the ...

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