United States v. Onyejekwe ( 1995 )


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  • USCA1 Opinion








    July 6, 1995 [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT




    ____________________


    No. 94-1772

    UNITED STATES,

    Appellee,

    v.

    CHRISTOPHER ONYEJEKWE,

    Defendant, Appellant.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF RHODE ISLAND


    [Hon. Francis J. Boyle, Senior U.S. District Judge] __________________________

    ____________________

    Before

    Torruella, Chief Judge, ___________
    Selya and Stahl, Circuit Judges. ______________

    ____________________

    Christopher Onyejekwe on brief pro se. _____________________
    Sheldon Whitehouse, United States Attorney, and James H. Leavey, __________________ ________________
    Assistant United States Attorney, on brief for appellee.


    ____________________


    ____________________






















    Per Curiam. On May 2, 1994, appellant Christopher ___________

    Onyejekwe pled guilty to one count of credit card fraud.

    Sentence was imposed on July 8, 1994. This appeal followed.

    Appellant seeks to vacate his guilty plea and sentence on the

    ground of ineffective assistance of counsel. He also alleges

    various sentencing errors. In particular, he contends that

    the district court erred (1) in applying the obstruction-of-

    justice enhancement based on a finding that he lied about his

    residence at the suppression hearing; (2) in assessing him

    two criminal history points based on a finding that he

    committed the instant offense (i.e., relevant conduct) while

    serving a state sentence of probation; and (3) in determining

    the amount of restitution. For the following reasons, we

    affirm.

    BACKGROUND

    Because appellant's conviction resulted from a guilty

    plea, we derive the pertinent facts from the uncontested

    portion of the Presentence Investigation Report (PSR), as

    well as the remainder of the record.1 See United States v. ___ _____________


    ____________________

    1. This record includes transcripts of the arraignments,
    evidentiary hearing on the motion to suppress, and
    disposition hearing. We note that appellant's appendix
    includes many documents which were not filed in the district
    court--including transcripts of testimony before the grand
    jury--and are, thus, outside the record. See Fed. R. App. P. ___













    Tejada-Beltran, 50 F.3d 105, 107 (1st Cir. 1995). On October ______________

    15, 1993, appellant and his co-defendant, Elizabeth Mogaji,

    were secretly indicted with five counts of fraudulent use of

    access devices.2 18 U.S.C. 1029(a)(2), 2. Appellant was

    arrested on October 20, 1993. At the time of his arrest, he

    was carrying "a list of names, dates of birth, mothers'

    maiden names, etc." An arraignment and bail hearing were

    held on October 21, 1993. Appellant informed pre-trial

    services and the magistrate that he lived at 202 Bellevue

    Avenue, Providence. The government proffered that appellant

    actually resided at 10 Stamford Avenue, Providence.

    On October 22, 1993, Mogaji was arrested at 10 Stamford

    Avenue, where she was living under the name of Althea

    Medeiros. On October 25, 1993, federal agents executed a

    search warrant at 10 Stamford Avenue. Among the items seized

    were credit cards in the names of Althea Medeiros and John P.

    Medeiros and documents in the names of Onyejekwe and Mogaji.

    On October 29, 1993, a federal agent seized two plastic bags

    from the cellar of the Stamford property. These bags

    contained incriminating documents, including GM credit cards

    in the names of Althea and Leonard Medeiros; counterfeit

    drivers' licenses in various false names with a photograph of


    ____________________

    10(a). These latter documents, of course, cannot inform our
    decision.

    2. Elizabeth Mogaji is appellant's girlfriend.

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    appellant or Mogaji; a list of names and other data; and

    blank credit card applications.

    On November 3, 1993, a superseding indictment was

    returned which added a conspiracy count (Count 1), see 18 ___

    U.S.C. 371, to the five counts of credit card fraud (Counts

    2-6). Several months later, appellant filed a motion to

    suppress the evidence seized at the Stamford property on

    October 29, 1993. An evidentiary hearing was held on April

    8, 1994. At this hearing, appellant testified that he lived

    at 10 Stamford Avenue, and that he had placed the two plastic

    bags of documents in his own laundry dryer in the cellar at

    that address. He admitted that he told the magistrate that

    he lived at 202 Bellevue Avenue, but testified that he had

    two residences. The district court denied the motion to

    suppress on the ground that appellant lacked standing. The

    court stated in pertinent part:

    It further seems to me that insofar as
    Mr. Onyejekwe is concerned we're going to
    hold him to what he told the Magistrate
    Judge. That he lived at 202 Bellevue.
    That was his home. So that he would have
    no expectation of privacy in number 10
    Stanford Street [sic] in any event.

    Appellant pled guilty to Count 3 of the superseding

    indictment on May 2, 1994. The remaining counts were

    dismissed. Prior to sentencing, a PSR was prepared. The PSR

    identified appellant's legal address as 202 Bellevue Avenue.

    Appellant objected on the ground that the PSR should reflect



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    that he maintained a second address at 10 Stamford Avenue.

    The probation officer responded that during the course of his

    presentence interview, appellant advised that his legal

    address was 202 Bellevue Avenue, that Mogaji had moved to 10

    Stamford Avenue, and that appellant would periodically stay

    with her but maintained his legal residence as 202 Bellevue

    Avenue.

    A sentencing hearing was held on July 8, 1994. Based on

    a total offense level of 15 and a criminal history category

    of III, the court determined the guideline sentencing range

    to be 24-30 months. Appellant was sentenced to 28 months

    imprisonment, followed by a period of supervised release. He

    was also ordered to pay restitution to Chase Manhattan Bank

    in the amount of $7,036.17.

    DISCUSSION

    I. INEFFECTIVE ASSISTANCE OF COUNSEL

    Appellant, who was represented by three successive

    court-appointed attorneys, argues that each of his attorneys

    was inept and that their combined deficient performance

    rendered his guilty plea involuntary. He also contends that

    his third attorney's assistance at the sentencing hearing was

    incompetent. Ordinarily, we do not address ineffective

    assistance of counsel arguments on direct appeal. This case

    is no exception. Appellant alleges, inter alia, that his _____ ____

    attorneys failed to investigate his case, were ignorant and



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    ill-prepared, and provided him with misleading information.

    These charges depend upon evidentiary matters which are best

    considered by the district court in the first instance. See, ___

    e.g., United States v. McGill, 952 F.2d 16, 19 (1st Cir. ____ _____________ ______

    1991) (fact-specific claims of ineffective assistance must

    originally be presented to the district court). Accordingly,

    appellant's claim of ineffective assistance is not properly

    before us.

    II. SENTENCING

    A. Obstruction of Justice

    U.S.S.G. 3C1.1 directs the district court to increase

    a defendant's offense level by two levels "if the defendant

    willfully obstructed or impeded, or attempted to obstruct or

    impede, the administration of justice during the

    investigation, prosecution, or sentencing of the instant

    offense." The enhancement applies where a defendant commits

    perjury. See U.S.S.G. 3C1.1, comment. (n.3(b)); see also ___ _________

    United States v. Dunnigan, 113 S. Ct. 1111, 1116 (1993) ______________ ________

    (defining perjury). In the instant case, the district court

    found that appellant perjured himself at the suppression

    hearing. Accordingly, the court made a two level upward

    adjustment to appellant's offense level.

    Appellant contends that the district court failed to

    identify which portions of his testimony it believed to be

    false. This contention is misplaced. The district court



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    specifically found that appellant was not telling the truth

    when he testified that he lived at 10 Stamford Avenue, a fact

    material to the issue of his standing to bring the motion to

    suppress. The district court was not required to make

    further subsidiary findings or to explain its evaluation of

    appellant's testimony. See United States v. Tracy, 36 F.3d ___ _____________ _____

    199, 203 (1st Cir.), cert. denied, 115 S. Ct. 609 (1994). ____________

    Appellant also argues that there is insufficient

    evidence to support the court's finding that he testified

    falsely. We disagree. Although the location of his

    residence was an issue from the very beginning, appellant

    consistently maintained that he lived at 202 Bellevue Avenue

    until the suppression hearing where, for the first time, he

    stated to the district court that he maintained a second

    residence at 10 Stamford Avenue. The court was entitled to

    greet this conveniently-timed announcement with skepticism.

    Moreover, the record discloses that appellant professes to be

    indigent. Under the circumstances, his testimony that he has

    two residences is implausible, at least without further

    explanation.

    We are, of course, mindful that, at the arraignment, the

    government proffered that appellant resided at 10 Stamford

    Avenue. The government stated that federal agents "staked

    out" that address and arrested appellant when he left the

    house. In addition, documents belonging to appellant were



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    seized from 10 Stamford Avenue. However, appellant told

    probation that he would periodically stay with Mogaji after

    she moved to 10 Stamford Avenue. This may explain why he was

    observed departing 10 Stamford Avenue and why some of his

    personal papers were found there, but the evidence also

    suggests that it was Mogaji, not appellant, who lived at the

    Stamford address. Given the conflicting inferences which may

    be drawn from the evidence, and with due deference to the

    sentencing court's superior opportunity to assess witness

    credibility, we cannot say that the district court clearly

    erred in finding that appellant lied at the suppression

    hearing.3 United States v. Brum, 948 F.2d 817, 819 (1st ______________ ____

    Cir. 1991) (finding of perjury reviewed for clear error);

    United States v. Martinez, 922 F.2d 914, 925 (1st Cir. 1991) ______________ ________

    (where there is more than one plausible view of the

    circumstances, a sentencing court's choice among supportable

    alternatives cannot be clearly erroneous).

    B. Criminal History



    ____________________

    3. We also reject appellant's contention that the district
    court erred in failing to evaluate his testimony "in a light
    most favorable to the defendant[,]" as required by U.S.S.G.
    3C1.1, commentary n.1. We have repeatedly stated that this
    "commentary" merely requires the district court to resolve in
    the defendant's favor "``those conflicts about which the
    judge, after weighing the evidence, has no firm conviction.'"
    Tracy, 36 F.3d at 204 (quoting United States v. Rojo-Alvarez, _____ _____________ ____________
    944 F.2d 959, 969 (1st Cir. 1991) (quoting other circuits)).
    In this case, the district court did have a firm conviction
    that perjury had been committed.

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    Appellant's criminal history includes a January 21, 1993

    state conviction for embezzlement and an April 2, 1993 state

    conviction for credit card fraud. In both cases, appellant

    was sentenced to probation. Acting pursuant to U.S.S.G.

    4A1.1(c), the district court assessed him two criminal

    history points for these prior sentences. The court then

    added two additional criminal history points under 4A1.1(d)

    on the ground that appellant committed the relevant conduct

    while serving a sentence of probation.4

    Appellant argues that the district court erred in

    assessing him the two additional points under 4A1.1(d). In

    particular, he contends that he should not be held

    accountable for the conduct involved in Count 6, namely,

    eighteen cash withdrawals made by Mogaji using a GM

    Mastercard between October 26, 1992 and June 13, 1993.

    Appellant claims that he was under immigration detention when

    these withdrawals were made and was facing prosecution for

    use of the same credit card. Under the circumstances, he

    argues, Mogaji's conduct was not foreseeable, and, so, not

    relevant conduct within the meaning of U.S.S.G. 1B.3.


    ____________________

    4. The commentary to U.S.S.G. 4A1.1 states that "[t]wo
    points are added if the defendant committed any part of the
    instant offense (i.e., any relevant conduct) while under any ____
    criminal justice sentence." U.S.S.G. 4A1.1, comment.
    (n.4). Relevant conduct is defined at U.S.S.G. 1B1.3. See ___
    United States v. Smith, 991 F.2d 1468, 1470-71 (9th Cir. ______________ _____
    1993) (holding that "instant offense" under 4A1.1(d)-(e)
    includes "relevant conduct" pursuant to 1B1.3).

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    Accordingly, he further argues, the district court should not

    have considered this conduct in calculating his criminal

    history under 4A1.1(d).

    We need not resolve this issue of foreseeability or the

    question, raised in appellant's reply brief, whether

    4A1.1(d) permits a sentencing court to consider relevant

    conduct committed by a co-defendant in calculating a

    defendant's criminal history. Count 1 of the superseding

    indictment alleged a conspiracy between appellant and Mogaji.

    Based on the undisputed facts in the PSR, we think there is

    ample evidence that appellant conspired to commit credit card

    fraud and that his involvement in the conspiracy continued at

    least until the date of his arrest, October 20, 1993, when he

    was found to be carrying "a list of names, dates of birth,

    mothers' maiden names, etc." See United States v. Pinnick, ___ _____________ _______

    47 F.3d 434, 437 (D.C. Cir. 1995) (district court may rely on

    undisputed facts in PSR to conclude that defendant committed

    any extraneous acts offered as relevant conduct). Indeed,

    appellant's possession of the list of names and other data on

    October 20, 1993 was an overt act in furtherance of the

    conspiracy. This was relevant conduct committed by the

    defendant, himself, while serving a state sentence of









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    probation. Accordingly, there was no error in adding two

    criminal history points under 4A1.1(d).5





    C. Restitution

    Appellant contends that the district court erred in

    ordering him to pay restitution to Chase Manhattan Bank in

    the amount of $7,036.17 for the loss involved in Count 3.

    The dollar amount was apparently based on credit card charges

    made by appellant and Mogaji on two separate occasions at

    Lechmere using a Chase Manhattan Mastercard. Appellant

    contends that the amount owed to the bank should be offset by

    the value of certain goods which they did not succeed in

    carrying away from Lechmere. We decline to entertain this







    ____________________

    5. We also reject appellant's argument that the district
    court failed to resolve disputed issues of fact as required
    by former Fed. R. Crim. P. 32(c)(3)(D) (current version at
    Rule 32(c)(1)). The PSR assessed appellant two criminal
    history points under 4A1.1(d). In his objections to the
    PSR and at sentencing, defense counsel argued that this was
    error because the specific offense to which Onyejekwe pled
    guilty (Count 3) occurred before Onyejekwe was placed on
    probation. This objection to the PSR's legal conclusion did
    not dispute a factual assertion. We add that in the addendum
    to the PSR, the probation officer clarified that the criminal
    history points under 4A1.1(d) were based on relevant
    conduct. Defense counsel never took issue with the
    conclusion that the conduct involved in the dismissed counts
    was relevant conduct.

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    claim since it was never raised below. See United States v. ___ _____________

    Alzanki, 1995 WL 319028 at *12 (1st Cir. June 1, 1995).6 _______

    Affirmed.7 ________
























    ____________________

    6. Appellant also argues that Chase Manhattan Bank will
    receive a windfall since he and Mogaji were each ordered to
    pay $7,036.17 in restitution. We think it plain that
    appellant will receive credit for restitution paid by Mogaji
    towards the loss involved in Count 3, and vice versa.

    7. We also deny appellant's request that we order the
    district court to produce the audio recording of the
    suppression hearing. Appellant contends that the court
    reporter prepared two transcripts of his testimony at that
    hearing, that the transcripts differ, and that it cannot be
    determined which of the two is accurate without comparing
    them to the audio recording. He also suggests that the
    district court may have relied on an inaccurate transcript of
    his testimony when it determined that he perjured himself.
    Appellant has not followed the proper procedure for
    clarifying the record. See Fed. R. App. P. 10(e). In any ___
    event, we see nothing to be gained by remanding the matter to
    the district court. The differences between the two
    transcripts are insignificant.

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