United States v. Chukwuezi ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4129
KINGSLEY CHUKWUEZI,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-97-229-PJM)
Submitted: February 16, 1999
Decided: March 18, 1999
Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Kenneth Shepherd, Washington, D.C., for Appellant. Lynne A. Bat-
taglia, United States Attorney, Steven M. Dettelbach, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
A jury found Kingsley Chukwuezi guilty of one count of knowing
receipt and possession of counterfeit alien registration receipt cards
and social security cards, in violation of 18 U.S.C.A. § 1546(a) (West
Supp. 1998). On appeal, Chukwuezi makes several challenges to the
sufficiency of the evidence. He also contends the district court erred
by admitting into evidence handwritten notes prepared by government
agents. Finding no reversible error, we affirm.
Taken in the light most favorable to the Government, see United
States v. Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.
96-6868), the evidence at Chukwuezi's trial established the following
facts. In March 1995, United States Postal Inspectors, working in con-
junction with Special Agents of the Immigration and Naturalization
Service and the United States Secret Service, intercepted a suspicious
express mail package being sent from Los Angeles to a Maryland res-
idence. The package was addressed to King Nmadu at 4310 Jefferson
Street, # 202, Hyattsville, Maryland. Chukwuezi was the only male
adult residing at that address, and he used the first name "King." The
package contained several counterfeit alien registration receipt cards
("green cards") and social security cards.
On March 30, 1995, a government agent dressed as a postman
made a controlled delivery of the package to Chukwuezi's address. A
juvenile accepted the package and took it inside the apartment. Imme-
diately thereafter, a search warrant was issued and executed on the
apartment. The unopened package was found in the front room of the
apartment on a couch which Chukwuezi used as his bed.
A short time before the controlled delivery, Secret Service Agent
Martin Mullholland saw a black male leaving the Jefferson Street
apartment complex driving a blue Isuzu Rodeo. After the package
was delivered and the search warrant was executed, Mullholland
observed the same Isuzu Rodeo driving slowly past the apartment
complex. When he tried to stop the vehicle, the driver evaded him at
a high rate of speed, running stop signs, jumping curbs, and driving
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through a neighbor's yard. However, a few minutes later other agents
stopped the vehicle and took Chukwuezi into custody. He was
arrested and taken back to his apartment.
At the apartment, Tony Chase, a United States Postal Inspector,
interviewed Chukwuezi. While Chase was getting biographical infor-
mation, Chukwuezi asked "[I]s this about the package?" He then
asked "[I]s this about the green cards?" (J.A. at 23-24). Up to this
point, Chukwuezi was not told that his arrest concerned the package
or false green cards.
The next day, Chukwuezi was again interviewed by Special Agent
Cole of the INS and Special Agent Buzzeo of the United States Cus-
toms Service. After being given Miranda warnings, Chukwuezi
signed a written waiver form. He stated that he knew he was to
receive a package containing green cards. According to Chukwuezi,
a person in Los Angeles named Anthony contacted Chukwuezi and
told him that the package was being sent to him. Anthony told Chuk-
wuezi to call Anthony when he received the package. Anthony would
then contact a man in Virginia named Alfonse, who in turn would
contact Chukwuezi in order to get the package. Alfonse was to pay
Chukwuezi for his participation.
During cross-examination at trial, defense counsel implied that
Cole fabricated all or part of the incriminating statements attributed
to Chukwuezi, as shown by the following colloquy:
Defense counsel: Well, so you did not take a statement
from Mr. Chukwuezi, which you
allowed him to review; is that correct?
Cole: No. We did not take a written statement
from Mr. Chukwuezi, no.
*****
Defense counsel: . . . [d]id you let him review the notes
that you said you had taken?
Cole: No. I don't believe we did.
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*****
Defense counsel: Did you give him a copy of the notes
you say you had taken?
Cole: No.
Defense counsel: Did you allow them [sic] to review what
you had written down to see whether he
disagreed with or agreed with it?
Cole: No, but we went over it orally . . . every-
thing was basically reviewed . . . .
Defense counsel: Did Mr. Chukwuezi sign your notes or
initial them in any way?
Cole: No.
*****
Defense counsel: Did you have access to a recording
device? Did you record this statement
you say you received?
Cole: No, we did not record.
Defense counsel: Did you have a stenographer present?
Cole: No.
(J.A. at 133-35). On redirect examination, the Government offered as
evidence contemporaneous notes taken during the interview by Cole
and Buzzeo. Buzzeo's notes were a more complete reflection of the
interview because Cole was the agent conducting the interview. Cole
reviewed and adopted Buzzeo's notes as accurate after the interview.
The notes corroborated Cole's testimony. Over defense counsel's
objection, the court admitted the notes as a prior consistent statement
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rebutting the inference of fabrication. (J.A. at 160, 162); see Fed. R.
Evid. 801(d)(1)(B).1
Chukwuezi makes the following challenges to the sufficiency of
the evidence: (1) the evidence was insufficient to show that he had
knowledge that Anthony was sending him counterfeit green cards or
any social security cards or that he knew the package contained coun-
terfeit green cards; (2) Cole's testimony regarding incriminating state-
ments did not provide a basis for finding any specific admissions; (3)
the delivery of the package to the apartment and receipt by a juvenile
did not constitute constructive possession; (4) there was no evidence
that the counterfeit material entered at trial was the same material
contained in the package; and (5) the Government's case was based
entirely on circumstantial evidence that equally supported an infer-
ence of non-criminal behavior.
The jury's verdict must be upheld "if there is substantial evidence,
taking the view most favorable to the Government, to support it."
Glasser v. United States, 315 U.S. 60, 80 (1942). The evidence need
"not exclude every reasonable hypothesis consistent with innocence."
See United States v. Jackson, 863 F.2d 1168, 1176 (4th Cir. 1989).
An appellate court does not review the credibility of witnesses. See
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
In order to convict Chukwuezi of the charged crime, the jurors
must have found beyond a reasonable doubt that: (1) he knowingly
possessed, obtained, accepted, or received any alien registration
receipt card, or other document prescribed by statute or regulation for
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1 The Government contends that the notes were admitted under the tra-
ditional rule permitting prior consistent statements for the sole and lim-
ited purpose of rehabilitating the witness and not for the truth of the
statements. See United States v. Ellis, 121 F.3d 908, 920 (4th Cir. 1997),
cert. denied, ___ U.S. ___, 65 U.S.L.W. 3457 (U.S. Jan. 12, 1998) (No.
97-7095). We find it is more likely that the notes were admitted under
Rule 801(d)(1)(B). Although the appellate record is not entirely clear, the
argument for admission concerned defense counsel's inference that Cole
fabricated Chukwuezi's statements. Furthermore, there was no limiting
instruction to the jury concerning the purpose for which it could consider
the notes.
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entry into or as evidence of authorized stay or employment in the
United States, and (2) he knew that such documents were forged,
counterfeited, falsely made, or otherwise procured by fraud or unlaw-
ful. See § 1546(a).
Chukwuezi's approach on appeal in attacking the sufficiency of the
evidence is to attack each piece of the Government's case in isolation.
However, our role is to "view the evidence together as a coordinated
and interrelated whole." United States v. Hughes, 716 F.2d 234, 240
(4th Cir. 1983).
We find the evidence sufficiently establishes that the jury could
properly have found that Chukwuezi possessed the green cards even
though he was not home when the package was delivered or the
search executed. Constructive possession exists when a defendant
may not have actual possession of contraband but has the power to
exercise dominion and control over it; constructive possession may be
proven by circumstantial evidence. See United States v. Wright, 991
F.2d 1182, 1187 (4th Cir. 1993). In the instant case, Chukwuezi was
the only male adult living at the address listed on the package. Fur-
thermore, the package's address used a variation of Chukwuezi's first
name. The package was recovered from Chukwuezi's sleeping area.
After his arrest, Chukwuezi asked if the arrest concerned the green
cards. This evidence clearly establishes constructive possession. See
United States v. Osborne, 935 F.2d 32, 34 n.2 (4th Cir. 1991) (defen-
dant was deemed to have constructive possession even though he was
not home when the contraband was delivered).
We also find there was sufficient evidence to establish that Chuk-
wuezi knew that the package contained counterfeit material. A defen-
dant's guilty knowledge may be proven by circumstantial evidence.
See, e.g., United States v. Heaps, 39 F.3d 479, 484 (4th Cir. 1994)
(circumstantial evidence can show that defendant had knowledge that
money was derived from illegal sources); United States v. Jones, 797
F.2d 184, 187 (4th Cir. 1986) (knowledge that airline tickets were
stolen can be proven by circumstantial evidence). The evidence
showed that Chukwuezi attempted to flee when government agents
tried to stop him. In addition to the circumstantial evidence, he made
a statement describing in detail what he was to do once he received
the counterfeit material.
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As for Chukwuezi's claim that there was no evidence that the
material admitted at trial was the same as that in the package, a gov-
ernment agent present during the search of Chukwuezi's residence
confirmed at trial that the material was the same. Furthermore,
another agent identified the material as counterfeit.2 In summary, we
find there was sufficient evidence to sustain the conviction.
Chukwuezi's challenge to the admissibility of the agents' notes
also fails. During cross-examination, defense counsel challenged
Cole's failure to record the interview, to obtain a written statement
from Chukwuezi, or to permit Chukwuezi to review the notes taken
by Cole or Buzzeo. We review the district court's evidentiary rulings
for an abuse of discretion. See United States v. Brooks, 111 F.3d 365,
371 (4th Cir. 1997).
Under Federal Rules of Evidence 801(d)(1)(B), a statement is not
hearsay if "[t]he declarant testifies at the trial or hearing and is subject
to cross-examination concerning the statement, and the statement is
. . . consistent with the declarant's testimony and is offered to rebut
an express or implied charge against the declarant of recent fabrica-
tion or improper influence or motive." The statement must have been
made before the declarant had a motive to fabricate. See United States
v. Henderson, 717 F.2d 135, 138 (4th Cir. 1983). An investigator's
notes regarding a defendant's statements may be admitted under this
rule. See United States v. Street, 66 F.3d 969, 976-77 (8th Cir. 1995)
(notes rebutted inference that witness fabricated statements allegedly
spoken by defendant).
In this instant case, the agents' notes were consistent with Cole's
testimony on direct examination and rebutted an inference that Cole
had fabricated Chukwuezi's statements. The notes were prepared dur-
ing the interview, over two years before Chukwuezi was charged with
a crime, and before Cole testified. Although Cole did not actually pre-
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2 To the extent that Chukwuezi may be challenging the admissibility of
the counterfeit material, our review is limited to plain error because he
did not raise a trial objection. See United States v. Ellis, 121 F.3d 908(4th Cir. 1997), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3457 (U.S. Jan.
12, 1998) (No. 97-7095). Because the material was authenticated by two
witnesses, we do not find any error.
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pare all the notes admitted into evidence, he reviewed Buzzeo's notes
immediately after the interview and adopted the notes as his own rec-
ollection of what occurred during the interview. Thus, we find that the
court did not abuse its discretion in admitting the notes.
We affirm Chukwuezi's conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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