United States v. Ugbaja ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4113
CHRISTOPHER CHUCK UGBAJA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-95-172-DKC)
Submitted: August 12, 1997
Decided: September 10, 1997
Before MURNAGHAN, WILLIAMS, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
George A. Epstein, Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Deborah A. Johnston, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Christopher Ugbaja appeals from concurrent twenty-
seven month sentences imposed after a jury convicted him of one
count each of conspiracy to produce, use, or traffic in counterfeit and
unauthorized access devices, see 18 U.S.C.§ 1029(b)(2) (1994), and
theft of United States mail and aiding and abetting in the same, see
18 U.S.C. §§ 2, 1708 (1994). On appeal, he asserts that the district
court committed plain error when it failed to instruct on the elements
of the substantive offenses that were the objects of the conspiracy,
that the court erred in its calculation of the amount of loss attributable
to him, and that his defense counsel rendered ineffective assistance by
failing to argue for a mitigating adjustment to his sentence because he
was a minor participant. Finding no error, we affirm.
Ugbaja was part of a conspiracy that stole credit cards and credit
card applications from mailboxes in the apartment complex in which
he lived. The conspirators, one of whom was the mail carrier for the
complex ("Thompson"), would either alter existing credit cards or
apply for credit in the victims' names. The conspirators gained access
to the mailboxes by using a master key provided by Thompson.
Thompson also ensured that the falsely obtained credit cards and the
bills were delivered to the conspirators. The conspirators used the
credit cards to obtain office and computer equipment for shipment to
Nigeria, to obtain cash advances, and to purchase other goods and ser-
vices. The total loss attributable to the conspiracy exceeded $70,000.
Ugbaja was apprehended after a resident of the complex observed
him and another conspirator ("Ifeancho") stealing mail from the boxes
and called the police. Several items of financial mail, stolen from the
complex and containing the fingerprints of both men, were seized
from Ifeancho's vehicle. A subsequent search of Ugbaja's apartment
resulted in the seizure of two unopened laser jet printers, a handwrit-
ten list of addresses in the complex, and a credit card statement with
the return address changed so that the conspirators would receive
future statements. An additional search was conducted on a storage
unit rented by Ifeancho under an alias. Investigators recovered several
brand new televisions and four more printers identical to those seized
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from Ugbaja's apartment. The printers were also identical to those
purchased by Ifeancho and an individual generally matching Ugbaja's
description from local stores using unauthorized/counterfeit credit
cards.
It is undisputed that the district court properly instructed the jury
on the elements of conspiracy. Ugbaja asserts, however, that the court
erred by failing to also instruct the jury on the elements of the sub-
stantive offenses that were the objects of the conspiracy. We find this
assertion to be without merit.
Ugbaja did not challenge the instructions at trial. Therefore, this
issue is waived absent plain error. See United States v. Reedy, 990
F.2d 167, 168 n.2 (4th Cir. 1993); see also Fed. R. Crim. P. 52(b). For
error to be plain, it must be an obvious violation that is prejudicial to
the appellant. See United States v. Olano, 507 U.S. 725, 732-35
(1993). Although the district court in the present case was required to
instruct on the essential elements of the offense, it is undisputed that
it did so. Ugbaja cites no authority supporting his assertion that the
district court was also required to instruct on the elements of offenses
which, though related, were distinct from the offense of conviction,
and we decline his invitation to adopt such a rule. Accordingly, we
find that the district court's instructions, taken as a whole, were not
plainly erroneous.
We also reject Ugbaja's assertion that the district court erred in its
calculation of the amount of loss attributable to him. We review the
district court's determination of the amount of loss, a factual finding,
for clear error. United States v. Chatterji, 46 F.3d 1336, 1340 (4th Cir.
1995). In the present case, we find that the record supports the district
court's determination that Ugbaja was responsible for over $70,000
in losses. Ifeancho admitted to investigators that the loss amount was
over $79,000, and investigators testified in detail about additional
losses. In addition, we find that there was ample evidence to show
that Ugbaja, who was a member of the three-man conspiracy from its
inception, was aware of the group's activities and could reasonably
foresee that the credit cards would be used to obtain goods and ser-
vices. Moreover, contrary to Ugbaja's claims, we find there was evi-
dence suggesting that he was directly involved in some of the losses.
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Finally, we review claims of ineffective assistance of counsel on
direct appeal only when the ineffectiveness "conclusively appears" on
the record. See United States v. Smith, 62 F.3d 641, 651 (4th Cir.
1995). Otherwise, such claims should be raised in the district court in
a habeas corpus proceeding rather than in this court on direct appeal.
Id. In the present case, we find that the record does not support Ugba-
ja's contention that his counsel was ineffective. The record clearly
shows that counsel argued that Ugbaja played only a minor role in the
offense. Because no ineffectiveness conclusively appears on the
record, this claim is not cognizable on direct appeal.
We therefore affirm Ugbaja's convictions and sentences. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the material before the court and argument
would not aid the decisional process.
AFFIRMED
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