United States v. Theophilus Akwei , 514 F. App'x 291 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4396
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
THEOPHILUS AKWEI,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:11-cr-00199-JCC-6)
Argued: February 1, 2013 Decided: March 14, 2013
Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Niemeyer and Judge Diaz joined.
ARGUED: Gregory E. Stambaugh, GREGORY E. STAMBAUGH LAW OFFICE,
Manassas, Virginia, for Appellant. James Philip Gillis, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Neil H. MacBride, United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
This appeal arises from Theophilus Akwei’s conviction on
three heroin-related counts. Akwei contests the sufficiency of
the evidence sustaining his convictions. He also challenges
aspects of his trial and sentencing, including the district
court’s evidentiary rulings, flight instruction, denial of his
motion for a minor role adjustment, and forfeiture order. For
the reasons that follow, we affirm the judgment of the district
court.
I.
A.
Akwei is a resident of Maryland and native of Ghana. His
convictions arise from his involvement with the “Macauley”
organization, a Ghanaian heroin smuggling operation commanded by
Edward Macauley. In 2010 and 2011, Macauley directed members of
the conspiracy based in Ghana, including Frank Ehiobu, to
arrange heroin shipments from Ghana to the United States.
In February 2011, Ehiobu and Macauley planned a shipment in
which Emmanuel 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
2
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 greeted 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.
On February 22, while Ehiobu remained unaware of Akwei’s
arrest, he and Annor discussed Akwei’s whereabouts in another
recorded phone call. Annor told Ehiobu that Akwei never
returned with money, and Ehiobu assured Annor that Akwei was
“our boy,” that he “kn[e]w him very well,” and that “[e]verybody
3
knows him. Director, everybody. . . . He’s one of his
[Director’s] boys.” 1 J.A. 84-85.
In another February 22 telephone call, Ehiobu talked with a
second confidential informant, Augustine Ani, to whom Ehiobu had
promised a “100-200” gram heroin sample. J.A. 611. Ehiobu
described the drug pick-up, referred to Akwei as “my boy,” and
told Ani that Akwei “is the guy” who “took money to New York for
me” “the last time.” Id. at 98. Ehiobu told Ani that “[w]hat
[Akwei] does is run errands for me,” including collecting and
delivering items such as the bag and money. Id. at 102. When
Ani expressed concern over Akwei’s trustworthiness, Ehiobu
explained that Akwei “has not done this [disappeared] to me
before.” Id. at 105.
On March 18, 2011, the government released Akwei to protect
the ongoing investigation of the larger conspiracy, dismissing
the charges against him without prejudice. On July 14, 2011,
federal agents began a series of coordinated global arrests
related to the Macauley organization. DEA agents arrived at
Akwei’s front door before six a.m. Akwei’s wife answered. She
led officers upstairs, where she said Akwei was sleeping.
Meanwhile, Special Agent Mark Murtha, who was positioned behind
1
“Director” is one of many names used to refer to Edward
Macauley.
4
the house, saw Akwei open the basement door, peer outside, and
exit the home. Agent Murtha arrested Akwei, who was wearing a
light shirt, sweat pants, gym shoes, and no underwear. Akwei
claimed he was on his way to work, but subsequently admitted he
began work later in the day. Agents searched his residence and
seized $3200 in cash.
B.
On August 24, 2011, a federal grand jury returned a six-
count superseding indictment against eight Macauley
coconspirators alleging involvement in a series of heroin
importation efforts. The three counts involving Akwei charged
him with conspiracy to import heroin, 21 U.S.C. § 963, (the
“conspiracy count”), distribution for the purpose of unlawful
importation of heroin, 21 U.S.C. §§ 959(a), 960, (the
“distribution count”), and possession with intent to distribute
heroin, 21 U.S.C. § 841(a)(1), (the “possession count”), based
on his involvement in the conspiracy and participation in the
February 21, 2011 transaction in particular. Ehiobu and several
alleged Macauley coconspirators pleaded guilty and testified for
the government at Akwei’s trial. The two confidential
informants, Annor and Ani, also testified.
At trial, 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
5
understood Ehiobu’s description of Akwei as someone who “run[s]
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. J.A. 587.
After trial, Akwei moved for judgment of acquittal with
respect to his conspiracy conviction, challenging the
sufficiency of the evidence supporting the jury’s conclusion
that the conspiracy involved one or more kilograms of heroin.
Akwei also moved for a new trial, arguing that the evidence of
his behavior on the morning of his July 14 arrest insufficiently
supported the flight instruction the district court gave the
jury.
The district court found that sufficient evidence supported
the conclusion that Akwei could have foreseen that the
conspiracy involved a kilogram or more of heroin, considering
6
that the bag Akwei picked up contained 988.8 grams and that
recorded conversations revealed that he ran “errands” for
Ehiobu. With respect to the flight instruction, the court found
Akwei’s attempt to flee sufficiently related to his
consciousness of guilt of the heroin importation crimes at issue
to support the instruction.
Consistent with the forfeiture notice included in the
indictment, the government moved for a preliminary order of
forfeiture pursuant to 21 U.S.C. § 853(a) and Federal Rule of
Criminal Procedure 32.2. It sought a $5,000 judgment against
Akwei and forfeiture of the $3,200 seized during his arrest to
partially satisfy that judgment. 2 Akwei argued that he never
received proceeds from his participation in the conspiracy. The
court granted the forfeiture order after finding the requisite
nexus between the $5,000 judgment and Akwei’s offense and
applied the $3,200 to the judgment as “substitute property.”
J.A. 991; 21 U.S.C. § 853(p).
The district court denied Akwei’s motion for a minor role
adjustment and sentenced him to the mandatory minimum of ten
years’ imprisonment for his conspiracy conviction, as well as
2
Although trial testimony established the street value of a
kilogram of heroin at between $70,000 and $120,000, the
government sought only $5,000 from Akwei.
7
ninety-seven months each on the distribution and possession
convictions, to run concurrently. This appeal followed.
II.
On appeal, Akwei contends that the district court (1) erred
in holding that sufficient evidence supported his convictions,
particularly with regard to whether he could have foreseen that
the conspiracy involved a kilogram or more of heroin; (2) abused
its discretion in allowing evidence of Macauley’s phone contact
list; (3) abused its discretion in allowing evidence of flight
and giving a flight instruction; (4) erred in entering the
forfeiture order; and (5) erred in denying his motion for a
minor role adjustment. We consider each contention in turn.
A.
We review the denial of a motion for judgment of acquittal
de novo. United States v. Penniegraft, 641 F.3d 566, 571 (4th
Cir. 2011). In so doing, we “construe the evidence in the light
most favorable to the government, assuming its credibility, and
drawing all favorable inferences from it, and will sustain the
jury’s verdict if any rational trier of fact could have found
the essential elements of the crime charged beyond a reasonable
doubt.” Id. (citation omitted). Further, we “cannot make
[our] own credibility determinations but must assume that the
8
jury resolved all contradictions in testimony in favor of the
Government.” Id. at 572 (citation omitted).
1.
Akwei first challenges the sufficiency of the evidence
sustaining his conspiracy, distribution, and possession
convictions. In particular, he maintains that the district
court erred in denying his motion for judgment of acquittal
because the primary evidence connecting him to the conspiracy
and to the knowledge that the bag contained heroin came from
Ehiobu’s trial testimony, testimony he argues is “unworthy of
belief.” Appellant’s Br. at 13.
We have repeatedly recognized that “a fundamental rule of
the jury system is that ‘this court is bound by the credibility
choices of the jury.’” United States v. Lamarr, 75 F.3d 964,
973 (4th Cir. 1996) (citation omitted). Even if a witness
testifies hoping to receive favor for “substantial assistance,”
id., credibility evaluations remain the province of the jury.
Further, “the settled law of this circuit recognizes that the
testimony of a defendant’s accomplices, standing alone and
uncorroborated, can provide an adequate basis for conviction.”
United States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993)
(citation omitted).
Thus, the jury was entitled to evaluate Ehiobu’s testimony
and could have concluded that Akwei agreed to engage in the
9
conspiracy with knowledge that the scheme involved the
importation and distribution of heroin. This is so even though
Ehiobu testified pursuant to his plea agreement with the hope of
earning a recommendation for a reduced sentence. We defer to
the jury’s credibility determinations with respect to Ehiobu,
including consideration of his motives. Accordingly, we find
that sufficient evidence supports Akwei’s conspiracy,
distribution, and possession convictions.
2.
With respect to the conspiracy conviction, Akwei argues
that the government failed to present sufficient evidence that
he could have reasonably foreseen that the conspiracy involved
more than one kilogram of heroin. The government responds that
the sheer amount of heroin involved in the February 21
transaction, as well as testimony identifying Akwei as someone
who ran “errands” for Ehiobu in other instances, suffice to meet
the weight threshold.
We agree. We have recognized that “in a drug conspiracy
case, the jury must determine that the threshold drug amount was
reasonably foreseeable to the individual defendant.” United
States v. Brooks, 524 F.3d 549, 558 (4th Cir. 2008) (citation
omitted); see United States v. Collins, 415 F.3d 304, 314 (4th
Cir. 2008) (holding that district court must instruct jury to
use Pinkerton principles when determining the drug quantity
10
attributable to a particular defendant in a conspiracy).
Although the government cannot establish the one kilogram
threshold by “reasoning so attenuated” it borders on
“mathematical impossibility,” we continue to draw “the available
reasonable inferences in favor of the government.” United
States v. Hickman, 626 F.3d 756, 764 (4th Cir. 2010). The
government may aggregate transactions within a conspiracy to
establish the weight threshold, as long as they are reasonably
foreseeable to the defendant. See id. at 765 (aggregating
heroin transactions to determine weight threshold for purposes
of evaluating conspiracy conviction).
Like Akwei, the defendant in Hickman challenged the
sufficiency of evidence that the conspiracy in which he took
part involved more than one kilogram of heroin. There, officers
had recovered only 176 grams of high-purity heroin, 3 and the
government presented “meager” evidence of other “unknown
transactions” which “offered virtually no guide as to the
amounts that may have been involved.” Id. at 770. Even giving
the government credit for the maximum conceivable amount of
heroin in those unknown transactions, the evidence still fell
3
The high-purity heroin seized in Hickman would have
yielded 681 street-ready grams. 626 F.3d at 765. Although the
dilution evidence was unique to testimony elicited at Hickman’s
trial, we note that the 988.8 grams recovered in this case were
high-purity, undiluted grams by Hickman standards.
11
short of the one kilogram threshold. Id. at 766. We therefore
reversed the jury’s one kilogram finding as unsupported by the
evidence.
Despite Akwei’s attempts to analogize his case to Hickman,
here, the government presented sufficient evidence to sustain
the one kilogram threshold. The court properly instructed the
jury that “a defendant is accountable for the quantity of
controlled substance of heroin that he personally distributed or
imported or aided and abetted others in distributing or
importing or could reasonably foresee that others would
distribute or import during and in furtherance of a conspiracy.”
J.A. 863. The evidence clearly showed that Akwei picked up a
bag containing 988.8 grams of heroin at Ehiobu’s direction.
Additionally, the government introduced ample evidence that
Akwei knew about, and participated in, the distribution of other
amounts of heroin in furtherance of the conspiracy. In Ehiobu’s
recorded telephone conversations, he stated that Akwei: is “not
the one who sells” but the one who “run[s] errands for me,” id.
at 620; is “his boy” and known to Macauley, id. at 381; is
willing “to take it [the heroin] to the other boy, the boy who
will sell it . . . . Then if it is to collect money, I will
send him [Akwei]. He will collect money from that person if he
is told,” id. at 620; “has not done this [disappeared] to me
before,” id. at 624; and had taken money to New York for Ehiobu
12
prior to February 2011, id. at 617. The jury justifiably
concluded that Akwei could have foreseen the conspiracy
involving one kilogram of heroin. The fact that Ehiobu planned
to send a “100-200 gram[]” heroin sample to Ani, id. at 611,
further supports this conclusion. As distinguished from
Hickman, the amount of heroin recovered here combined with the
specificity of evidence of Akwei’s involvement in the conspiracy
lead us to conclude that sufficient evidence supported the
jury’s weight determination.
B.
We next consider Akwei’s argument that the district court
abused its discretion by admitting evidence that Macauley’s cell
phone contact list contained Akwei’s name and phone number,
which Akwei contends is irrelevant. We review evidentiary
rulings for abuse of discretion. United States v. Blake, 571
F.3d 331, 346 (4th Cir. 2009).
Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable.”
Fed. R. Evid. 401. Although relevant evidence “‘may be excluded
if its probative value is substantially outweighed by the danger
of unfair prejudice,’” we “review the lower court’s application
of this balancing test with the broad deference that the abuse
13
of discretion standard requires.” United States v. Myers, 280
F.3d 407, 413 (4th Cir. 2002) (quoting Fed. R. Evid. 403).
The cell phone contact list is relevant because it tends to
show a connection between Macauley, the undisputed kingpin of
the importation operation, and Akwei. The government needed to
prove at least “a slight connection between the defendant and
the conspiracy” to make its case. United States v. Burgos, 94
F.3d 849, 861 (4th Cir. 1996) (citation omitted). Macauley’s
contact list was one way in which the government sought to
connect Akwei to the conspiracy. Therefore, the district court
did not abuse its discretion in admitting the relevant phone
contact list.
C.
Next, Akwei argues that the district court erred by (1)
admitting evidence of his attempted flight during arrest and (2)
giving a flight instruction. Essentially, Akwei contends that
his July 14 flight was too minor and temporally attenuated from
his initial February 21 arrest to justify a flight instruction.
In response, the government argues that because Akwei knew he
was under investigation for involvement in the instant offense
at the time of his July 14 flight, the district court properly
admitted the evidence and accordingly instructed the jury.
We review admission of evidence of flight as well as “[t]he
decision to give or not give a jury instruction” for abuse of
14
discretion. United States v. Allen, 491 F.3d 178, 186 (4th Cir.
2007) (citation omitted). We will not vacate a conviction on
the basis of an erroneous jury charge if, in light of the above
inquiry, the charge contained an adequate statement of the law
and was not misleading. Id. at 187.
Evidence of an accused’s flight is generally admissible as
an indication of guilt. United States v. Obi, 239 F. 3d 662,
665 (4th Cir. 2001) (“It cannot be doubted that in appropriate
circumstances, a consciousness of guilt may be deduced from
evidence of flight.”). However, evidence of flight as proof of
consciousness of guilt “would be completely unfounded where a
defendant flees after commencement of an investigation unrelated
to the crime charged, or of which the defendant was unaware.”
United States v. Beahm, 664 F.2d 414, 420 (4th Cir. 1981)
(internal quotation omitted). Therefore, a flight instruction
alerting the jury that it may infer the defendant’s
consciousness of guilt from his flight is only warranted when
evidence supports each link in the causative chain such that the
jury can draw inferences “(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.” Obi,
239 F.3d at 665-66 (citation omitted).
15
Evidence of Akwei’s flight was properly admitted at trial
and supported the flight instruction. First, although Akwei
correctly asserts that he did not run from the house, the
evidence supports the conclusion that he fled. Agent Murtha’s
testimony revealed that while officers entered Akwei’s home
through the front door and followed his wife upstairs to conduct
their early morning arrest, Akwei opened the back basement door,
peered outside, and exited. The fact that Akwei sought to leave
the house in sweatpants, a t-shirt, and no underwear at six in
the morning after climbing over a large volume of clothing and
debris obstructing the path to the basement exit further
supports a finding of flight, as does the fact that Akwei first
claimed to be on his way to work, then on the way to pick up his
mother-in-law, neither of which was substantiated by the facts.
Second, evidence supported a link between Akwei’s flight
and consciousness of guilt of the instant offense; Akwei does
not dispute that he knew he was under investigation for the
February incident and that his prior charges had been dismissed
without prejudice, nor does he contend that an alternate or
intervening incident explains his behavior. Although several
months had passed between Akwei’s February arrest and his
flight, the facts here support the conclusion that his attempt
to flee from police on July 14 related to that prior arrest--the
only pending criminal investigation of which he was aware. We
16
can therefore distinguish Beahm, in which we found that the
district court erred by giving a flight instruction when the
government presented “no evidence that [the defendant] was aware
that he was the subject of a criminal investigation” at the time
he fled. 664 F.2d at 420. Therefore, the district court did
not abuse its discretion in admitting evidence of Akwei’s flight
and instructing the jury accordingly.
D.
Finally, Akwei contests the forfeiture order entered
against him. He argues that he never received proceeds from the
February 21 transaction and that coconspirators may not be held
jointly and severally liable for conspiracy proceeds, such that
the district court erred in accepting the $3,200 seized during
the search as substitute property to satisfy the judgment.
In the criminal forfeiture context, we review a district
court’s findings of fact for clear error and its legal
interpretations de novo. United States v. Oregon, 671 F.3d 484,
490 (4th Cir. 2012). In order to obtain a forfeiture order
after conviction, “the government must establish a nexus between
the property for which it is seeking forfeiture and the crime by
a preponderance of the evidence.” United States v. Martin, 662
F.3d 301, 307 (4th Cir. 2011) (citing Fed. R. Crim. P.
32.2(b)(1)(A)). Conspirators “are responsible at sentencing for
co-conspirators’ reasonably foreseeable acts and omissions . . .
17
in furtherance of the jointly undertaken criminal activity.”
United States v. McHan, 101 F.3d 1027, 1043 (4th Cir. 1996)
(internal quotation and citation omitted). As forfeiture is an
element of the defendant’s sentence, “[w]e have therefore held
conspirators jointly and severally liable for the forfeiture of
proceeds from a conspiracy.” United States v. Jalaram, 599 F.3d
347, 351 (4th Cir. 2010) (citing McHan, 101 F.3d at 1043).
Further, the criminal forfeiture statute allows for forfeiture
of “any other property of the defendant” as substitute property
when conspiracy proceeds cannot be located. United States v.
McHan, 345 F.3d 262, 271 (4th Cir. 2003) (citing 21 U.S.C. §
853(p)).
Applying these principles, Akwei’s arguments fail.
Evidence introduced at trial revealed that Macauley
coconspirators were offered thousands of dollars to work as
couriers, and that the street value of just one kilogram of
heroin ranged from $70,000 to $120,000. Insofar as Akwei
challenges the establishment of the nexus between the $5,000
order entered against him and the February 21 transaction, his
argument fails because coconspirators are jointly and severally
liable for the forfeiture of conspiracy property. Thus, the
$5,000 order was proper even if Akwei did not receive payment
for his participation in the February 21 transaction, as
evidence at trial supported the conclusion that the Macauley
18
coconspirators obtained at least that amount. As Akwei had no
other assets, the government properly applied the seized $3,200
to the judgment, because “[i]f any of the forfeitable property
cannot be located by the government . . . the court must,
pursuant to [21 U.S.C.] § 853(p), order the forfeiture of
‘substitute property’ of the defendant up to the value of the
forfeitable property.” McHan, 345 F.3d at 268. We thus affirm
the district court’s forfeiture order. 4
III.
For the foregoing reasons, Akwei’s conviction and sentence
are
AFFIRMED.
4
Finally, we reject Akwei’s argument that the district
court erred in denying his motion for a minor role adjustment at
sentencing. As Akwei himself concedes, his sentence “would not
have been affected by the court’s ruling on this issue,”
Appellant’s Br. at 29, rendering any error harmless. Akwei
received the mandatory minimum 120-month sentence for his
conspiracy conviction; the district court explicitly recognized,
as does Akwei, that a two-level minor role adjustment would not
impact the mandatory minimum.
19