United States v. Anudu ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 92-5756
EMMANUEL IKECHUKWU ANUDU, a/k/a
Cletis, a/k/a Claytus,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 92-5772
EMMANUEL ODEMENA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 92-5783
CHIJIOKE CHUCKWUMA, a/k/a Mark,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 92-5784
CYRIACUS AKAS a/k/a Koots,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 92-5785
EMMANUEL OKOLI,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 92-5800
CHUKS EVARISTUS NWANERI,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 92-5839
CHARLES ONWUAZOMBE, a/k/a Ebele
Onwuazor,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 92-5864
JEROME OKOYE ONWUAZOR, a/k/a
Peter,
Defendant-Appellant.
2
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CR-91-305-HAR)
Argued: September 29, 1995
Decided: February 16, 1996
Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in
which Judge Murnaghan and Judge Wilkins joined.
_________________________________________________________________
COUNSEL
ARGUED: George Allan Epstein, Baltimore, Maryland; Paul Francis
Kemp, Rockville, Maryland, for Appellants. Jan Paul Miller, Assis-
tant United States Attorney, Robert Reeves Harding, Assistant United
States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:
James C. Savage, Rockville, Maryland, for Appellant Onwuazor;
Walter C. McCord, Jr., Baltimore, Maryland, for Appellant Anudu;
Robert L. Bloom, Baltimore, Maryland, for Appellant Odemena; Dar-
rel L. Longest, Germantown, Maryland, for Appellant Akas; Benja-
min F. Neil, Baltimore, Maryland, for Appellant Nwaneri; Alan C.
Drew, Upper Marlboro, Maryland, for Appellant Onwuazombe.
Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
3
OPINION
ERVIN, Circuit Judge:
Cyriacus Akas, Emmanuel Anudu, Chijioke Chuckwuma, Chuks E.
Nwaneri, Emmanuel Odemena, Emmanuel Okoli, Charles Onwua-
zombe, and Jerome Onwuazor were convicted in the District of Mary-
land of violating federal controlled-substances laws. They raise
various issues on appeal. We find no grounds for reversal among their
challenges to the admissibility of certain evidence, the sufficiency of
the evidence, the jury instructions, and the district court's application
of the United States Sentencing Guidelines.1 We agree, however, that
the government failed to properly establish venue for Counts XII and
XIII, which involved two instances of heroin distribution by Onwua-
zor and Okoli. Accordingly, we vacate the convictions under those
two counts and affirm on all remaining counts.
I.
Federal subject matter jurisdiction over this case is grounded in the
statutes defining the various offenses. It is not contested. Appellate
jurisdiction lies under 28 U.S.C. § 1291. We address particular facts
and standards of review in the portions of the opinion to which they
are relevant.
II.
A. Venue
Appellants Onwuazor and Okoli contend that venue in the District
of Maryland was improper for Counts XII and XIII. Count XII
charged Onwuazor with distribution of heroin on or about May 9,
1991. Count XIII charged Onwuazor and Okoli with distribution of
_________________________________________________________________
1 In addition to the defendants' joint brief, supplemental pro se briefs
were submitted by Chijioke, Okoli, and Onwuazombe. We have consid-
ered their arguments, and find them to be without merit.
4
heroin on or about May 15, 1991. Otherwise the Counts were identical.2
The prosecution must establish venue by a preponderance of the evi-
dence, and the trial court's decision is reviewed by this court de novo.
United States v. Newsom, 9 F.3d 337, 338 (4th Cir. 1993). Venue is
proper "in [any] district in which the offense was committed." Fed.
_________________________________________________________________
2 Both counts are replicated below:
COUNT XII
And the Grand Jury for the District of Maryland further
charges that:
On or about May 9, 1991, in the State of New York, the State
and District of Maryland, and elsewhere,
JEROME OKOYE ONWUAZOR
a/k/a Peter
the defendant herein, did knowingly, willfully and intentionally
distribute a quantity of a mixture or substance containing a
detectable amount of heroin, a Schedule I narcotic drug con-
trolled substance.
21 U.S.C. § 841(a)
18 U.S.C. § 2COUNT XIII
And the Grand Jury for the District of Maryland further
charges that:
On or about May 15, 1991, in the State of New York, the State
and District of Maryland, and elsewhere,
JEROME OKOYE ONWUAZOR
a/k/a Peter
AND
EMMANUEL OKOLI
the defendants herein, did knowingly, willfully and intentionally
distribute a quantity of a mixture or substance containing a
detectable amount of heroin, a Schedule I narcotic drug con-
trolled substance.
21 U.S.C. § 841(a)
18 U.S.C. § 25
R. Crim. P. 18. The acts constituting commission are determined by
the verbs used to define the crime. United States v. Walden, 464 F.2d
1015, 1018-19 (4th Cir.), cert. denied sub nom. , Ard v. United States,
409 U.S. 867 (1972), cert. denied sub nom., Cook v. United States,
410 U.S. 969 (1973). The operative verb in Counts XII and XIII is
"distribute."
The government presented evidence that Onwuazor made a transfer
of heroin to DEA Special Agent Dwayne M. Dodds on May 9 at
Onwuazor's apartment in Queens, New York, and that Onwuazor and
Okoli delivered two samples to Dodds and Special Agent Will Plum-
mer on May 15 at a diner in Queens. Despite the correlation of that
evidence with Counts XII and XIII, the government claims on appeal
that the counts "relate not only to the New York samples but also to
the larger quantities of drugs from which the samples came," quanti-
ties that "ultimately w[ere] distributed" in Maryland on or about the
same dates. But it neither claims nor points to any evidence indicating
that Onwuazor and Okoli personally delivered any heroin in Mary-
land on or about the dates in question. Instead it claims, under three
theories,3 that these appellants' actions in New York were sufficiently
related to the deliveries in Maryland to support venue in the District
of Maryland.
1.
The government's first theory is that distribution is a "continuing
crime," and thus may be prosecuted in any district where it was
"begun, continued, or completed." 18 U.S.C.§ 3237(a) (1988). These
appellants' actions in New York, it contends, were part of a continu-
ing crime of distribution that culminated in deliveries in Maryland.
The trial judge agreed, stating: "I think distribution can be a continu-
ous thing."
Circuits that have addressed this issue are divided. The Second Cir-
cuit has held that distribution is not a continuing crime, see United
States v. Lartey, 716 F.2d 955, 967 (2nd Cir. 1983), but the First and
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3 The district court instructed the jury on all three theories. We discuss
the first theory in part II.A.1, infra, and the two alternative theories in
part II.A.2, infra.
6
Eleventh Circuits have held that it is. United States v. Georgacarakos,
988 F.2d 1289, 1293 (1st Cir. 1993); United States v. Brunty, 701
F.2d 1375, 1380-82 (11th Cir.), cert. denied, 464 U.S. 848 (1983). In
Georgacarakos, the First Circuit did not adequately distinguish distri-
bution from the separate crime of possession with intent to distribute,
which undisputedly is a continuing offense. Cf. United States v.
Bruce, 939 F.2d 1053, 1055 (D.C. Cir. 1991) (noting that "the actual
distribution is a separate crime"). It stated only that "[d]istribution and
possession with intent to distribute are continuing crimes," 988 F.2d
at 1293; moreover, the cases it cited for support do not deal at all with
the separate crime of distribution, but hold merely that "possession of
drugs with intent to distribute [is] a continuing crime." United States
v. Kiser, 948 F.2d 418, 425 (8th Cir. 1991), cert. denied, 503 U.S. 983(1992); accord United States v. Uribe, 890 F.2d 554, 559 (1st Cir.
1989). The Eleventh Circuit focused more particularly on distribution.
It supported its conclusion with cases that, while not directly on point,
affirmed distribution convictions of defendants who were involved in
the transactions in question but were not present when the substances
actually changed hands. Brunty, 701 F.2d at 1380-82 (citing, e.g.,
United States v. Wilson, 657 F.2d 755, 761-62 (5th Cir. 1981)
("``Activities in furtherance of the ultimate sale--such as vouching for
the quality of the drugs, negotiating for or receiving the price, and
supplying or delivering the drug[s]--are sufficient to establish distri-
bution'" (quoting United States v. Wigley, 627 F.2d 224, 225-26 (10th
Cir. 1980))), cert. denied, 455 U.S. 951 (1982); United States v.
Davis, 564 F.2d 840, 844-45 (9th Cir. 1977) (upholding distribution
conviction of doctor who improperly issued prescriptions), cert.
denied, 434 U.S. 1015 (1978)).
Neither Georgacarakos nor Brunty acknowledged Blockburger v.
United States, in which the Supreme Court addressed the issue under
the now-superseded Harrison Narcotics Act. 284 U.S. 299, 302-03
(1932) (holding that a defendant may be charged separately for each
of multiple deliveries). The Blockburger Court stated that a continu-
ing crime is not one defined by a single occurrence:
A distinction is laid down in adjudged cases and in text-
writers between an offence continuous in its character . . .
and a case where the statute is aimed at an offence that can
be committed uno ictu.
7
284 U.S. at 302 (quoting In re Snow, 120 U.S. 274, 286 (1887)). The
Court interpreted distribution to mean a distinct event, not an ongoing
enterprise. Id. It held, therefore, that distribution is not a continuing
offense. Id. at 302-03.
The Harrison Narcotics Act has been replaced, but Blockburger's
reasoning is equally applicable to the current statute. Congress now
defines "distribute" as "to deliver," which in turn means "the actual,
constructive, or attempted transfer of a controlled substance." 21
U.S.C. § 802(8), (11) (1988). Delivery is a single event, not a continu-
ing operation, so distribution is not a continuing crime.
2.
The government argues in the alternative that we should sustain
these appellants' convictions under either an aiding and abetting or a
Pinkerton theory of liability, without regard to the events in New
York. Aiding and abetting is implied by indictment for any crime, and
need not be separately specified. E.g., United States v. Duke, 409 F.2d
669, 671 (4th Cir. 1969), cert. denied, 397 U.S. 1062 (1970). The
Pinkerton theory allows a coconspirator to be convicted of a substan-
tive offense that he neither participated in nor aided and abetted if the
offense was committed in furtherance of the conspiracy. Pinkerton v.
United States, 328 U.S. 640, 646-47 (1946). Thus Onwuazor and
Okoli could be held liable for distributions in which they did not par-
ticipate if it were proven that the distributions (1) actually occurred,
and (2) either were aided and abetted by Onwuazor and Okoli or were
in furtherance of a conspiracy of which they were members. There is
sufficient evidence in the record to support a verdict based on either
theory.
3.
That the evidence could have supported an aiding and abetting or
Pinkerton verdict does not end the inquiry, however. It is likely that
the jury based its verdicts under Counts XII and XIII entirely on the
transactions in Queens, without deciding whether the alleged deliver-
ies in Maryland actually occurred. That would be permissible if distri-
bution were a continuing offense, because the ultimate deliveries in
Maryland would not be elements of the crime. This court could find
8
de novo and by a preponderance of the evidence that a chain of distri-
bution led to Maryland, so venue would be proper in Maryland over
prosecutions for transfers in Queens. Under the aiding and abetting
and Pinkerton theories, however, the ultimate deliveries in Maryland
are elements of the offense, so the jury must find beyond a reasonable
doubt that those deliveries occurred. Although the evidence is suffi-
cient that the jury could have made such a finding, we cannot be sure
that it actually did. A conviction cannot stand if it is unclear whether
the jury's verdict was based on a permissible or impermissible
ground:
a general verdict must be set aside if the jury was instructed
that it could rely on any of two or more independent
grounds, and one of those grounds is insufficient, because
the verdict may have rested exclusively on the insufficient
ground.
Zant v. Stephens, 462 U.S. 862, 881 (1983); Terminiello v. Chicago,
337 U.S. 1, 5-6 (1949); Cramer v. United States , 325 U.S. 1, 36 n.45
(1945); Williams v. North Carolina, 317 U.S. 287, 292 (1942)).
Because a verdict based solely on the events in New York would be
impermissible, we must reverse the convictions under Counts XII and
XIII.
B. Jury Instructions
The appellants contest several portions of the trial court's charge
to the jury. To determine whether a particular instruction was errone-
ous, we must view it "in the context of the overall charge." Cupp v.
Naughten, 414 U.S. 141, 146-47 (1973). Regarding most issues, we
reverse only if there is "a ``reasonable likelihood,' i.e., more than a
mere possibility, that the jury misconstrued the instruction," United
States v. Cobb, 905 F.2d 784, 789 n.8 (4th Cir. 1990) (quoting Boyde
v. California, 110 S. Ct. 1190, 1198 (1990)), cert. denied sub nom.,
Hatcher v. United States, 498 U.S. 1049 (1991), and the misconstruc-
tion "prejudice[d] the jury's consideration of the dispositive issue,"
United States v. Davis, 739 F.2d 172, 175 (4th Cir. 1984). If the error
involves the instruction on reasonable doubt, however, it can never be
harmless, so we must reverse if we find a "reasonable likelihood that
9
the jury applied the instruction in an unconstitutional manner." See
Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994).
1.
The appellants contend that the district court's instruction on rea-
sonable doubt was constitutionally deficient. The trial court stated:
Now, the fact that the defendant has been indicted by the
grand jury raises no presumption whatever of guilt on the
part of the defendant; that is, you should not assume that the
accused is guilty merely because he is being prosecuted and
because criminal charges have been filed against him. He
comes into court presumed to be innocent and that presump-
tion of innocence remains with him throughout his trial until
the government overcomes it by evidence of the defendant's
guilt beyond a reasonable doubt as to each and every ele-
ment of the offense.
The government has the burden of proof to show that the
defendant is guilty of the crime for which he is charged; and
the degree of proof that is necessary for the government to
produce is proof that the defendant is guilty beyond a rea-
sonable doubt.
Also, the concurrence of the twelve minds of the jury is
necessary to find the defendant guilty or not guilty. If, after
considering all of the evidence and circumstances in this
case, any one member of the jury has a reasonable doubt of
the guilt of any defendant, then that juror cannot consent to
a verdict of guilty. The burden is upon the government to
prove all elements of the alleged crime and to do so beyond
a reasonable doubt.
Now, while the burden is upon the government to estab-
lish by proof every material fact as to the guilt of the defen-
dants beyond a reasonable doubt, that does not mean that the
10
government must prove the defendants guilty to an absolute
or mathematical certainty.4
The appellants contend not that the alleged definition was inaccurate,
but that it was incomplete and misleading. They argue that it focused
only on "what the government did not have to prove," and thus failed
to emphasize the high level of proof required to eliminate reasonable
doubt. Without that emphasis, they conclude, the jury may have
applied a lesser burden of proof than that required by the constitution.
The Supreme Court addressed a nearly identical instruction in
Victor v. Nebraska. Petitioner Sandoval5 contested the trial judge's
instruction that "a reasonable doubt is ``not a mere possible doubt.'"
Victor, 114 S. Ct. at 1248. The Court rejected Sandoval's argument
because the high level of proof required is implicit in the term "rea-
sonable doubt": "[A] ``reasonable doubt,' at a minimum, is one based
upon ``reason.' A fanciful doubt is not a reasonable doubt." Id. (inter-
nal quotations and citations omitted).
We addressed an instruction even more similar to the instruction in
this case in United States v. Adkins. The Adkins trial court did not
specify the level of proof required to eliminate reasonable doubt, but
did state that "it is not necessary that a defendant's guilt be proved
beyond all possible doubt." 937 F.2d 947, 949 (4th Cir. 1991). We
affirmed, holding that the trial court accurately stated that the govern-
ment's burden is not "beyond all possible doubt," and properly left
reasonable doubt to its "self-evident meaning comprehensible to the
lay juror." Id. at 950 (quotation and citation omitted). In its instruc-
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4 The parties disagree about whether the final paragraph of the instruc-
tion was an "attempt to define" reasonable doubt or a mere "comment."
Their arguments are irrelevant, however, because the Supreme Court
recently clarified that "the Constitution neither prohibits trial courts from
defining reasonable doubt nor requires them to do so," if, "taken as a
whole," their instructions "impress[ ] upon the factfinder the need to
reach a subjective state of near certitude of the guilt of the accused."
Victor, 114 S. Ct. at 1243, 1247 (internal quotations and citations omit-
ted).
5 The Supreme Court paired Sandoval v. California with Victor v.
Nebraska.
11
tions in this case, the trial court repeated "reasonable doubt" five
times. Because the standard's meaning is self-evident, there is no
"reasonable likelihood that the jury applied it in an unconstitutional
manner." Victor, 114 S. Ct. at 1243.
2.
The appellants also contest the district court's instruction, to which
they objected at trial, that a witness ordinarily is assumed to speak
truthfully:
You, as jurors, are the sole judges of the credibility of the
witnesses and the weight their testimony deserves. Ordinar-
ily, it is assumed that a witness will speak the truth. But this
assumption may be dispelled by the appearance and conduct
of the witnesses, or by the manner in which the witnesses
testified, or by the character of the testimony given.
The government acknowledges that a "presumption of truthfulness"
instruction constitutes error, but argues that it was harmless in this
case.
The appellants cite United States v. Varner, in which we held that
a similar instruction was not harmless under the circumstances. 748
F.2d 925, 927 (4th Cir. 1984)). But the trial judge in Varner placed
great emphasis on a "presumption" of truthfulness. After stating the
existence of the presumption, he listed factors that could outweigh it.
He concluded: "[I]f you find the presumption of truthfulness to be
outweighed as to any witness you will give the testimony of that wit-
ness such credibility, if any, as you think it deserves." 748 F.2d at
926. In effect, the trial judge in Varner told the jury not to evaluate
the credibility of a witness directly without first finding that the pre-
sumption of truthfulness was outweighed by the factors he enumer-
ated. Further compounding the error, he did not instruct the jury to
apply the presumption of truthfulness to the defendant. Instead, he
instructed them to "give [the defendant's] testimony such credence
and belief as you may think it deserves," apparently without the need
to first overcome the presumption of truthfulness. Id. at 926-27.
12
The error in the instant case is not as egregious as that in Varner.
The district judge did not speak in terms of a "presumption" that must
be "outweighed" before a jury can evaluate directly the credibility of
a witness. He used the term "assumption," but only after stating that
"jurors . . . are the sole judges of the credibility of the witnesses and
the weight their testimony deserves." He then elaborated at length on
the jurors' responsibility to evaluate credibility, without mentioning
assumption or presumption.6 Finally, the instruction did not distin-
guish between the defendants and the government's witnesses.
The instruction in this case more closely resembles that in United
States v. Safley: "Ordinarily, it is assumed that a witness will speak
the truth, but this assumption may be dispelled . . . ." 408 F.2d 603,
605 (4th Cir.), cert. denied, 395 U.S. 983 (1969). The Safley court
held that the "assumption" language was harmless error. It noted that
the judge had instructed the jury properly that they were the sole
judges of the facts, that they should consider carefully the credibility
_________________________________________________________________
6 The district court continued:
You should carefully scrutinize all the testimony given, the cir-
cumstances under which each witness has testified, and every
matter in evidence which tends to indicate whether a witness is
worthy of belief. Consider each witness's intelligence, motive
and state of mind, and demeanor and manner while on the stand.
Consider also any relation each witness might have to or be
affected by the verdict, and the extent to which, if at all, each
witness is either supported or contradicted by the other evidence
in the case--contradicted by the evidence in the case. This
applies to a defendant who takes the stand on his own behalf.
Inconsistencies and discrepancies, even prior inconsistencies
in statements in the testimony of a witness, or between the testi-
mony of different witnesses, may or may not cause the jury to
discredit such testimony. In weighing the effect of a discrepancy,
always consider whether it is pertinent to the matter of impor-
tance or an unimportant detail, and whether or not intentional
falsehood. Credibility is not merely choosing between one wit-
ness and another. As to each witness, you are free to reject all
their testimony, accept all their testimony or as a third alterna-
tive reject some parts and accept some other parts of that
testimony.
13
of accomplices, and that the government had the burden to prove the
defendants' guilt beyond a reasonable doubt. Id. The Safley defen-
dants had failed to object to the instruction at trial, but the court nev-
ertheless decided the case on the merits, concluding that the jury was
"not likely to have been misled by the erroneous instruction concern-
ing the assumption of a witness' truthfulness." Id. at 605-06. Simi-
larly, in this case, the trial court used the "assumption" language only
briefly, and did so during a lengthy description of the jury's autonomy
in determining credibility. Thus it is not reasonably likely that the
error "prejudice[d] the jury's consideration of the dispositive issue."
3.
The appellants contest what they describe as the court's "missing
government evidence" instruction:
The law does not require the prosecution to call as witnesses
all who have been present at any time or place involved in
this case, or who may appear to have some knowledge of the
matters in issue in this trial. Nor does the law require the
prosecution to produce all exhibits, all papers and things
mentioned in the evidence.
The appellants argue that the quoted instruction unfairly favored the
government, because it did not convey to "the jury that it was entitled
to consider the government's failure to present any particular item of
relevant evidence in determining whether the government had met its
burden of proof." The appellants base their argument on model
instructions indicating that, if the trial court tells the jury that the
prosecution need not present all evidence, it also should state that the
jury may consider that failure to produce evidence. See 1 Edward J.
Devitt & Charles B. Blackmar, Federal Jury Practice and
Instructions § 17.18 (3d ed. 1977).
In fact, as pointed out by the government, the district court did
instruct the jury that it could consider the failure of the prosecution
to produce certain evidence. While discussing investigative tech-
niques, it stated that,
14
[f]or example, at some point fingerprints may not have been
taken, or some other type of technique, or some certain leads
might not have--not every possible lead pursued. You may
consider these facts in deciding whether the government has
met its burden of proof, because, as I told you, you should
look at all of the evidence or lack of evidence in deciding
whether the defendant is guilty. . . .
Your concern, as I have said, is to determine whether or
not, on the evidence or lack of evidence, a defendant's guilt
has been proven beyond a reasonable doubt.
The instruction on lack of evidence as an indication of innocence was
not given in tandem with the instruction to which the appellants
object, but it was given. If indeed there is an imbalance, it does not
rise to the level of error. Nor does it create "a reasonable likelihood
that the jury misconstrued the instruction." Craigo, 956 F.2d at 67.
4.
Finally, the appellants object to the instruction on circumstantial
evidence:
A defendant may be proved guilty by either direct or cir-
cumstantial evidence. Direct evidence is the testimony of
one who asserts actual knowledge of a fact, such as an eye-
witness; circumstantial evidence is proof of such facts or
circumstances connected with or surrounding the commis-
sion of the crime charged as tend to show the guilt or inno-
cence of the defendant. The law makes no distinction
between direct and circumstantial evidence; it requires only
that the jury, after weighing all the evidence, must be con-
vinced of the guilt of the defendant beyond a reasonable
doubt.
The necessity to resort to circumstantial evidence to
prove guilt is readily apparent since, by the nature of things,
crimes are generally committed in secret, beyond the range
of eyewitnesses. Guilty knowledge may be inferred from the
circumstances, even when there is a positive denial.
15
The appellants claim that the instruction implied both "that circum-
stantial evidence could operate only to prove guilt, not to establish
innocence," and "that appellants were in fact guilty." They argue also
that the instruction assumed a crime had been committed, leaving
open only the issue of whether the appellants were the perpetrators,
by defining circumstantial evidence as "proof of . . . facts or circum-
stances surrounding the commission of the crime."
a.
The court spoke three times in this instruction of using circumstan-
tial evidence to prove guilt, but only once of using it to prove "guilt
or innocence." Greater emphasis on use of evidence to prove guilt is
objectionable, but it is not without basis since only the prosecution is
required to prove anything. To a jury cognizant of the burden of
proof, and of its choice between "guilty" and"not guilty" rather than
"guilty" and "innocent," such emphasis does not alone seem reason-
ably likely to have prejudiced the jury's deliberations.
However, the second paragraph of the excerpt--involving the com-
mission of crimes in secret--makes the issue more problematic. The
appellants argue that the paragraph
did not instruct the jury as to any principle of law, but
instead offered a tactical rationale for the manner in which
the government had elected to present its case. Such a state-
ment might have been appropriate by the government in its
closing argument, but had no proper place in the court's
instructions to the jury.
We agree that the paragraph is imbalanced. As the appellants point
out, it explained only why the prosecution needed to use circumstan-
tial evidence. In effect, it invited the jury to give greater weight to cir-
cumstantial evidence offered by the prosecution than to circumstantial
evidence offered by the defense, based solely on the debatable, nonle-
gal premise that "crimes are generally committed in secret." Even the
government nearly admits that the paragraph was erroneous, acknowl-
edging that "the trial court did include some extraneous information
in this part of the charge." It responds only that the paragraph "did not
taint the entire instruction."
16
The appellants cite United States v. Dove, in which the Second Cir-
cuit examined instructions on circumstantial evidence. 916 F.2d 41,
45-46 (2d Cir. 1990). The Dove court found error in the trial judge's
use of a hypothetical in which the guilt of a defendant was assumed
"and the jury [was] merely instructed how to look for evidence of that
guilt." Id. at 46. The court held that the instruction was "unbalanced."
Id. at 45. Because the defendant's theory of the case depended heavily
on circumstantial evidence, the court concluded that the error war-
ranted reversal of the defendant's conviction. Id. at 46-47.
The error in this case is more egregious than that in Dove. The
Dove jury heard only "how" to find circumstantial evidence of guilt,
and at least could infer that it could use the same method to find evi-
dence of innocence. But the jury in the instant case was given a par-
ticular justification for the reliability of circumstantial evidence of
guilt, a justification that did not apply at all to evidence of innocence.
The question for this court, therefore, is whether there is a reasonable
likelihood that the error prejudiced the jury's consideration of the
appellants' guilt. As it did in Dove, that question turns on the role that
circumstantial evidence played in the trial. Unlike Dove, in this case
circumstantial evidence played only a minor role. As the appellants
themselves admit in another context, "the government presented the
testimony of dozens of purported eyewitnesses." Thus we find that,
on the facts of this case, the error was harmless.
b.
The appellants' second argument regarding this instruction, that the
judge's choice of words indicates an assumption that a crime has been
committed, is without merit. The instruction's definition of circum-
stantial evidence--"facts or circumstances surrounding the commis-
sion of a crime"--implies such an assumption. But the trial court
made very clear that each element of each count, including the fact
that a crime occurred, must be proven beyond a reasonable doubt.
Exemplary is the conspiracy instruction: "If you are satisfied that the
conspiracy charged in the indictment existed, you must next ask your-
self who the members are." We hold, therefore, that the instructions
as a whole did not assume that a crime had been committed.
17
C. Sufficiency of Evidence
The appellants contend that the evidence was insufficient to sup-
port several of the charges. A conviction may be reversed for insuffi-
ciency of evidence only if, from the perspective most favorable to the
government, Hamling v. United States, 418 U.S. 87, 124 (1974), the
evidence was so insubstantial that no "rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt,"
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
1.
The appellants argue first that there was insufficient evidence to
support Counts IX and XI, involving importation of heroin. The
indictments state that, on two different occasions,"the defendants
. . . did knowingly willfully and unlawfully import and attempt to
import into the customs territory of the United States," quantities of
heroin "in violation of 21 U.S.C. § 952(a)." In addition to section
952(a), both Counts cite 18 U.S.C. § 2, which governs aiding and
abetting. The appellants contend that the indictments effectively
charged them only with importation, not attempt to import, because
neither of the statutes cited criminalizes attempt. The government's
evidence, they assert, indicates that the heroin in question was seized
by foreign authorities before it could be brought to the United States.
Thus, they argue, there is no evidence in the record to support the first
element of importation under 21 U.S.C. § 952(a)--that the substance
actually was imported. United States v. Samad , 754 F.2d 1091, 1096
(4th Cir. 1984).
The government acknowledges that it did not prove actual importa-
tion. It points out, however, that the appellants' argument ignores
both the language of the indictment and the charges that the govern-
ment actually presented to the jury. The appellants properly were
charged with attempt, it concludes, and there is sufficient evidence to
support their convictions on those charges.
The government's argument is compelling. Where an indictment's
text provides sufficient notice of a charge, failure to cite the appropri-
ate statute does not render it ineffective:
18
Error in the citation or its omission shall not be ground for
dismissal of the indictment or information or for reversal of
a conviction if the error or omission did not mislead the
defendant to the defendant's prejudice.
Fed. R. Crim. P. 7(c)(3). The counts in question both include the word
"attempt." Attempt to import heroin is punishable under 21 U.S.C.
§ 963. The appellants do not contest the sufficiency of evidence of
attempt to import. We affirm, therefore, the convictions under Counts
IX and XI.
2.
Akas argues that there was insufficient evidence to support his con-
viction for money laundering. To support a conviction for money
laundering, the government must prove that a defendant "knowingly
conducted a financial transaction which involved the proceeds of drug
distribution and that he did so either with the intent to promote his
drug business or with knowledge that the transaction was designed to
disguise the nature or source of those proceeds." United States v.
Blackman, 904 F.2d 1250, 1256 (8th Cir. 1990); see also United
States v. Campbell, 977 F.2d 854, 857 (4th Cir. 1992), cert. denied
113 S. Ct. 1331 (1993). The prosecution alleged that Onwuazor and
Akas used drug proceeds to purchase Nissan Pathfinders, which they
shipped to Nigeria to pay suppliers. Akas acknowledges that the pros-
ecution presented evidence that he knew the Pathfinders were bought
with proceeds of illegal activity, but contends that the government
failed to prove that he knew the sale was designed to conceal the ille-
gal nature of the proceeds.
It is true that the government introduced no direct evidence that
Akas knew the transactions' purpose, but direct evidence is not neces-
sary. Prosecutors presented evidence that Akas knew the funds were
drug proceeds, and that he knew the Pathfinders were shipped to over-
seas heroin suppliers. That evidence is sufficient for a rational jury to
have found beyond a reasonable doubt that Akas knew the purpose of
the transactions. Thus we affirm his conviction for money laundering.
19
3.
Anudu argues that there was insufficient evidence to convict him
under Counts I, II, and VI.7 Regarding Count I, which charged con-
spiracy to import heroin, he claims that the government presented no
evidence of an agreement between Anudu and his alleged coconspira-
tor, Onwuazor. The government's evidence was merely circumstan-
tial, Anudu contends; he cites our holding in United States v. Guinta
that
circumstantial evidence that proves nothing more than asso-
ciation between two persons, even if one has a fixed intent
known to the other to commit an unlawful act, is not suffi-
cient to permit the inference of the requisite agreement
between the two to act in concert to commit the act.
925 F.2d 758, 764 (4th Cir. 1991). In fact, the"circumstantial evi-
dence" of which Anudu complains includes testimony and audio tapes
of conversations indicating that he was involved in the planning of,
and was to receive a kilogram of heroin from, an attempted importa-
tion from Singapore. That evidence is sufficient to support the jury's
finding of an agreement to import.
Count II charged Anudu with conspiracy to distribute heroin.
Anudu contends that the evidence showed no more than a buyer-seller
relationship in which he was the buyer. In fact, the record contains
evidence that Anudu's role was not so limited. One coconspirator
described him as a partner in the operation with Onwuazor. If a ratio-
nal trier of fact were to deem that testimony credible, it could find
Anudu guilty of conspiracy to distribute heroin. Thus we affirm the
conviction.
Count VI alleged that Anudu distributed heroin to Raymond Obilo
on or about September 29, 1990. Anudu contends that the evidence
supporting this charge was insufficient, because it consisted entirely
of statements made by Onwuazor to Plummer, statements that Plum-
_________________________________________________________________
7 Anudu also challenges his conviction under Count IX. We address the
appellants' joint challenge to Count IX in part II.C.1, supra, so we do not
discuss Count IX separately here.
20
mer embellished to bolster their impact. It is not our role to determine
Plummer's credibility. The jury believed his testimony, and Anudu's
allegations do not convince us that a rational trier of fact could not
have found the elements of this offense beyond a reasonable doubt.
D. Sentencing Guidelines
All of the appellants argue that they were not reasonably capable,
individually or as a group, of producing the quantities of heroin attri-
buted to each of them and to the conspiracy under the Sentencing
Guidelines. The district court's application of the Guidelines to the
facts is reversible only if clearly erroneous. 18 U.S.C. § 3742(e)
(1988). Questions of law, however, are reviewed de novo. United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
1.
The appellants contend that the district court erred in its assignment
of Base Offense Levels under the Guidelines. The court found a level
of thirty-six for Okoli, and thirty-eight for the remaining appellants.
A defendant's Base Offense Level is determined not according to the
quantity of drugs actually seized, but according to the amount "rea-
sonably foreseeable" to the defendant within the scope of the conspir-
acy. United States v. Irvin, 2 F.3d 72, 77 (4th Cir. 1993), cert. denied
sub nom., Gonzalez v. United States, 114 S. Ct. 1086 (1994). The sen-
tencing judge must make individualized findings, estimating the
amount reasonably foreseeable to each coconspirator. USSG § 1B1.3
application note 2. The appellants argue that the district court both
interpreted the Guidelines incorrectly and estimated inaccurately the
amounts of drugs.
In their brief, the appellants assert that the trial court misinterpreted
the Guidelines by automatically attributing liability for all drugs
involved in the conspiracy to any defendant who performed three or
more acts in furtherance of the conspiracy:
The trial court interpreted the Commentary to mean that an
individual who performs one, or possibly two, acts in con-
nection with a drug conspiracy need not be held responsible
21
for all of the drugs involved in the entire conspiracy, but that
anyone who does more than two acts is automatically
responsible for all the drugs.
In fact, the district court does not appear to have applied such a
bright-line rule. The judge's words indicate only the correct proposi-
tion that a person who engages in several activities in furtherance of
a conspiracy is likely to foresee its scope:
That guideline says that one time you can pick if that's all
you've done. But it doesn't say you can pick and choose and
pick and choose. As a matter of fact, you can't jump in and
out of a conspiracy. . . . [Y]ou're going to be charged with
everything it does and then is it foreseeable that you can see
that all these drugs are coming in?
Because the trial judge was using the correct "reasonable foreseea-
bility" standard, this court may reverse his application of the standard
to the facts only if it is clearly erroneous. It is not clearly erroneous
to infer from the extent of a defendant's activities that he reasonably
foresaw the entire scope of the conspiracy.
A Base Offense Level of thirty-eight applies where the amount of
heroin involved is between thirty and fifty kilograms. In their brief,
the appellants offer amounts different than those calculated by the dis-
trict court, but each individual's recalculation considers only the
quantities actually accounted for in the transactions in which he par-
ticipated. Nowhere do the appellants even suggest what this court
must find to reverse--clear error in the trial court's finding that each
could reasonably foresee an amount larger than that which he person-
ally handled. The appellants also argue that the entire conspiracy
involved less than thirty kilograms, even though the evidence at trial
included statements by Onwuazor that he delivered more than fifty
kilograms of heroin to buyers in Baltimore. The appellants contend
that Onwuazor's statements were mere bragging: "He simply could
not have done the things he claimed to have done." But we will not
second-guess the credibility determinations of the trial judge. The dis-
trict court did not clearly err in finding that the conspiracy included
at least 30 kilograms of heroin.
22
2.
Okoli contends that he should have received a two-level downward
adjustment for a minor role in the conspiracy, because he was only
a courier. The presentencing report recommended such an adjustment.
We have held previously that a mere courier is not automatically enti-
tled to a downward adjustment. United States v. Gordon, 895 F.2d
932, 935 (4th Cir.), cert. denied 498 U.S. 846 (1990). The controlling
factor is the individual's degree of involvement in the conspiracy, not
the nature of his duties. A defendant has the burden to prove, by a
preponderance of the evidence, that he is entitled to a downward
adjustment. Id. Evidence at trial indicated that coconspirators relied
heavily on Okoli as a courier. That evidence is sufficient to preclude
a finding that the district court clearly erred.
3.
Anudu argues that the trial court erred in increasing his Base
Offense Level by three levels. He received the adjustment for his role
as a supervisor over Chuckwuma, Jeff Owunna, Emmanuel Bangura-
Lee, and Yaw Osei. See USSG § 3B1.1. Anudu contends that he can-
not be charged with a supervisory role in the Onwuazor conspiracy
because his relationship with the alleged supervisees (1) was not that
of a supervisor, and (2) constituted a conspiracy independent of the
Onwuazor conspiracy. But there is evidence to the contrary. Owunna
testified that Chuckwuma acted as a manager and courier for Anudu's
drug business. That alone is sufficient to support the court's finding
that Anudu was a supervisor. Owunna also testified that Anudu con-
sidered Onwuazor his business partner, indicating that the operations
Anudu supervised were part of the Onwuazor conspiracy. Thus the
court did not clearly err by including in that conspiracy Anudu's deal-
ings with Chuckwuma, Owunna, Bangura-Lee, and Osei.
4.
Anudu also argues that he should have received a two-level down-
ward adjustment of his Base Offense Level for accepting responsibil-
ity for his crimes. See USSG § 3E1.1. It is true that he acknowledged
involvement in the heroin trade. However, as the government points
out, he denied being involved with any of his codefendants, and thus
23
denied responsibility for the conspiracy charges. The district court did
not clearly err, therefore, by denying him a downward adjustment for
acceptance of responsibility.
E.
The appellants argue that there was a material variance between the
indictment and the evidence at trial. They contend that the indictment
charged an overall conspiracy but the proof at trial indicated multiple
conspiracies. The parties disagree about the standard of review. The
appellants urge us to reverse "if proof of multiple conspiracies preju-
diced the substantial rights of the appellants, i.e., if the jury would
have been confused into imputing guilt to members of one conspiracy
because of the illegal activities of the members of another conspir-
acy." However, as we decided in Barsanti v. United States, we reach
the issue of confusion between conspiracies only if we first find that
the evidence, viewed in the light most favorable to the prosecution,
cannot support the conclusion that there was a single conspiracy:
The government bears the burden of proving the single con-
spiracy it charged in the indictment. On appeal, this court
must determine whether the evidence, when viewed in the
light most favorable to the government, supports the jury's
finding of a single conspiracy. If the evidence shows that
there was more than one conspiracy, we must reverse the
verdict only where proof of the multiple conspiracies preju-
diced substantial rights of appellants. A defendant's rights
would be infringed if the jury would have been confused
into imputing guilt to members of one conspiracy because
of the illegal activities of the other conspiracy.
943 F.2d 428, 439 (4th Cir.), cert. denied, 112 S. Ct. 1474 (1991)
(internal quotations and citations omitted); accord United States v.
Urbanik, 801 F.2d 692, 695-96 (4th Cir. 1986) (holding that verdict
can be overturned only if a reasonable fact-finder could not have
found single conspiracy).
Even when there are several small, more tightly woven groups of
coconspirators, the groups may be deemed a single conspiracy if they
constitute "one general business venture." United States v. Leavis, 853
24
F.2d 215, 218 (4th Cir. 1988). The record contains ample evidence of
interwoven business relationships among the appellants, such as
Owunna's statement that Anudu and Onwuazor were partners. See
supra part III.D.3. That evidence is sufficient to support the jury's
finding of a single conspiracy.
F.
Finally, the appellants argue that the trial court repeatedly admitted
testimony without requiring a foundation of personal knowledge, in
violation of Fed. R. Evid. 602. Evidentiary rulings of the trial court
are reversible only for abuse of discretion. Distaff, Inc. v. Springfield
Contracting Corp., 984 F.2d 108, 111 (4th Cir. 1993). The appellants
cite only one example from the record--testimony by Special Agent
Plummer about a conversation he had "with an individual named
Koots." "Koots" told Plummer about an earlier conversation with
Okoli and Onwuazombe. Because Plummer was relating the state-
ments of others, the appellants contend, his testimony was not based
on personal knowledge and thus violated Rule 602.
Rule 602 does not apply to the portions of Plummer's testimony
that the appellants contest. "Koots" is a nickname for Akas, and was
used so commonly that the government included it in his indictments.
Thus both Koots's own statements and the words of Okoli and
Onwuazombe that Koots repeated were statements of coconspirators.
Rule 801(d)(2) deems statements of coconspirators to be nonhearsay,
and the Advisory Committee Notes state that Rule 602 does not apply
where Rule 801 applies, so Rule 602 does not apply to the evidence
that appellants contest. United States v. Ammar , 714 F.2d 238, 254
(3rd Cir.), cert. denied sub nom., 464 U.S. 936 (1983). The district
court properly admitted Koots's statements under Rule 801.
III.
The government failed to properly prove venue for Counts XII and
XIII. Thus we vacate Onwuazor and Okoli's convictions and sen-
tences on those charges. However, Onwuazor was convicted of eleven
other counts, for each of which he received a prison term and a period
of supervised release equal to or greater than those he received for
Counts XII and XIII. All thirteen of his prison terms were to run con-
25
currently, as were all of his periods of supervised release. Similarly,
Okoli was convicted of two other counts, and received for each a
prison sentence equal to the term he received for Count XIII. His sen-
tences, also, were to run concurrently. Finally, both Onwuazor and
Okoli received a special assessment of fifty dollars for every count.
Because sentences for Counts XII and XIII run concurrently with
terms of equal or greater length, we conclude that our vacation of
those convictions and sentences does not necessitate reconsideration
by the trial court of either appellant's overall sentence. Thus we
remand only for vacation of the special assessments for Counts XII
and XIII. Finding no other reversible error, we affirm on all remain-
ing counts.
AFFIRMED IN PART AND VACATED IN PART
26