United States v. Ifabiyi ( 1999 )

No. 97-60251
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60251
Summary Calendar
UNITES STATES OF AMERICA,
Plaintiff-Appellee,
versus
SUNDAY KAYODE IFABIYI, also known as John
DeBrown, also known as James X Bell, also
known as James Bello,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:93-CR-130-B
--------------------
September 1, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Sunday Kayode Ifabiyi appeals his conviction for six counts
of bank fraud, six counts of false representation of numbers as a
social security account, and conspiracy to commit the substantive
offenses.
Ifabiyi moves for leave to add to his record excerpts. IT
IS ORDERED that the motion is DENIED. One of the two items
sought to be added is not part of the record on appeal. The
other item, a copy of the PSR, has handwritten notations on it.
We determine this appeal based upon the appellate record.
Ifabiyi argues that his Sixth Amendment right to a speedy
trial was infringed by the thirty-five-month delay between the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 97-60251
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indictment and his arrest. Although the district court failed to
articulate its evaluation of the four factors enunciated in
Barker v. Wingo, 407 U.S. 514, 530-33 (1972), our independent
review of the record reveals that the district court did not err
in its conclusion that Ifabiyi’s Sixth Amendment right was not
infringed. See United States v. Lucien, 61 F.3d 366, 371 (5th
Cir. 1995); Robinson v. Whitley, 2 F.3d 562, 568-71 (5th Cir.
1993).
Ifabiyi challenges the sufficiency of the evidence.**
Although Ifabiyi moved for judgment of acquittal at the end of
the Government’s case-in-chief, he failed to renew the motion at
the close of all evidence. Thus, this court’s review is limited
to determining whether a manifest miscarriage of justice ensues
from Ifabiyi’s conviction on the thirteen counts. United States
v. Shannon, 21 F.3d 77, 83 (5th Cir. 1994). We conclude that no
miscarriage of justice ensues. See United States v. Jobe, 101
F.3d 1046, 1063 (5th Cir. 1996) (conspiracy to commit bank
fraud); United States v. Frydenlund, 990 F.2d 822, 824-25 (5th
Cir. 1993) (bank fraud); United States v. Shively, 927 F.2d 804,
809-10 (5th Cir. 1991) (intentional misrepresentation of social
security numbers).
Ifabiyi argues that the district court abused its discretion
under the Federal Rules of Evidence in denying the admission into
**
For the first time in his reply brief, Ifabiyi contends
that the Government’s chief witness falsely testified about being
employed by Nationwide Cab Company when he met Ifabiyi. Ifabiyi
alleges that he has recently determined that there is no such cab
company operating in Memphis, Tennessee. Matters raised for the
first time in a reply brief are not properly before this court.
See United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).
No. 97-60251
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evidence of D. exhs. 3 and 4.*** Blue brief, 11-12; reply brief,
6-7. We detect no abuse of discretion in the district court’s
ruling. See United States v. Jimenz Lopez, 873 F.2d 769, 771
(5th Cir. 1989). For the first time on appeal, Ifabiyi also
argues that the district court’s Fed. R. Evid. 902(3) ruling
denied him due process of law. No constitutional error is
detected. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973);
see also United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994) (en banc) (plain error standard).
For the first time on appeal, Ifabiyi argues that the
district court erred in denying the purported motion by the
Government to dismiss count twelve. The discrepancy between the
false social security number alleged in count twelve and the
false number proved at trial does not amount to a constructive
amendment to the indictment. See United States v. Munoz, 150
F.3d 401, 417 (5th Cir. 1998). Thus, no plain error is evident.
See Calverley, 37 F.3d at 162-64.
AFFIRMED.
***
Defense exhibit 3 is a photocopy of Ifabiyi’s passport,
the original which was purportedly stolen or misplaced, and
Defense exhibit 4 is a receipt, dated November 9, 1991, of the
payment in cash of Nigerian customs and excise tax on two
computers.