United States v. Fabuluje ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11278 c/w 98-10008
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMOTAYO TONY FABULJUE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CR-113-H-1
--------------------
January 27, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Omotayo Tony Fabuluje appeals his
convictions for conspiracy to transport stolen merchandise in
interstate commerce and for unlawfully procuring naturalization,
violations of 18 U.S.C. §§ 371, 659, and 1425(a). Fabuluje also
appeals the district court’s order revoking his citizenship
pursuant to 18 U.S.C. § 1451(e).
Fabuluje first argues that the Government withheld several
items of evidence favorable to his defense. Brady v. Maryland,
373 U.S. 83 (1963) requires the Government to disclose material
*
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that this opinion should not be published and is not precedent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. 97-11278 c/w 98-10008
-2-
evidence favorable to the defendant. A Brady violation occurs
when the Government suppresses evidence “if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” Kyles
v. Whitley, 514 U.S. 419, 433-34 (1995)(quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)). Assuming, arguendo, that the
Government was in possession of all items allegedly withheld and
that the Government failed to disclose such items to the defense,
Fabuluje cannot show a reasonable probability that disclosure of
such evidence would have made a difference in the result of the
proceeding. See Kyles, 514 U.S. at 433-34. Nor do we find that
Fabuluje has stated a claim under the Jencks Act. See United
States v. Ramirez, 174 F.3d 584, 587 (5th Cir. 1999).
Accordingly, we reject Fabuluje’s first argument.
Fabuluje next argues that the prosecutor engaged in several
instances of misconduct. Because Fabuluje did not preserve error
by objecting to the alleged instances of misconduct at trial, his
claims are reviewed for plain error only. See United States v.
Tomblin, 46 F.3d 1369, 1386 (5th Cir. 1995).
Applying the two-step analysis to charges of prosecutorial
misconduct, we first decide whether the prosecutor’s comments
were improper. See United States v. Gallardo-Trapero, 185 F.3d
307, 320 (5th Cir. 1999). If the comments are found to be
improper, the court must assess whether they prejudiced
Fabuluje’s substantive rights. Id.
Several of Fabuluje’s allegations of misconduct are based on
the unsupported assertion that the prosecutor elicited perjurious
No. 97-11278 c/w 98-10008
-3-
testimony. To establish a constitutional violation based on
perjured testimony, the defendant must show that the prosecutor
knowingly presented material false evidence, or that he
deliberately failed to correct perjured testimony. Spence v.
Johnson, 80 F.3d 989, 996-97 (5th Cir. 1996). Fabuluje provides
this court with nothing to suggest that the prosecutor solicited
the false testimony or knowingly failed to correct the testimony.
Nor has he established that various comments by the
prosecutor were improper. Assuming, arguendo, that the
prosecutor acted improperly by suggesting during closing argument
that Fabuluje illegally assisted a friend in obtaining a
chauffeur’s license, Fabuluje has not shown that the comment
prejudiced his substantive rights such that plain error resulted.
See Gallardo-Trapero, 185 F.3d at 320.
Fabuluje also argues that the superseding indictment was
defective because it improperly joined the conspiracy count with
the unlawful-naturalization count. However, Fabuluje failed to
move for a severance of the two counts prior to trial.
Objections based on defects in the indictment as well as requests
for severance of charges must be raised prior to trial. Fed. R.
Crim. P. 12(b)(2); see United States v. Mann, 161 F.3d 840, 861.
Failure by a party to make requests which must be made prior to
trial shall constitute waiver thereof, but the court for cause
shown may grant relief from that waiver. Fed. R. Crim. P. 12(f);
Mann, 161 F.3d at 861-62. This court has held that where the
appellant failed to show any cause for failing to move for a
severance prior to trial, the merits of the argument need not
No. 97-11278 c/w 98-10008
-4-
even be addressed. Mann, 161 F.3d at 862 & n.60. Alternatively,
this court has limited review in such circumstances to plain-
error review. Id. at 862 & n.61.
Under the plain-error standard, this court corrects
forfeited errors only where they are “clear” or “obvious” and
“affect substantial rights.” United States v. Clements, 73 F.3d
1330, 1337 (5th Cir. 1996). Fabuluje has not shown that joinder
of the counts resulted in plain error. See id.
Fabuluje also argues that even assuming that joinder was
proper, his trial was “procedurally defaulted” because he should
have been given a revocation hearing pursuant to 8 C.F.R. § 340.1
prior to criminal prosecution. Section 340.1, which provides for
the reopening of naturalization proceedings under certain
circumstances, provides that after being served with a notice of
intent to reopen the proceedings, the applicant may request a
hearing. Nowhere does it suggest that such hearing is a
prerequisite to criminal prosecution under 18 U.S.C. § 1425. Nor
does § 1425 provide that a hearing must be held prior to the
initiation of criminal proceedings.
Fabuluje next argues that the evidence was insufficient to
support his conviction. Fabuluje failed to renew his motion for
a judgment of acquittal after the close of the case.
Accordingly, review of his claim is limited to whether the
convictions resulted in a manifest miscarriage of justice. See
United States v. Inocencio, 40 F.3d 716, 724 (5th Cir. 1994).
Such a miscarriage would exist only if the record is devoid of
evidence pointing to guilt, or because the evidence on a key
No. 97-11278 c/w 98-10008
-5-
element of the offense is so tenuous that a conviction would be
shocking. Id.
To establish Fabuluje’s guilt, the Government must have
proved beyond a reasonable doubt that (1) Fabuluje conspired with
another person to steal chattels moving in interstate commerce
and of a value in excess of $1000; (2) Fabuluje voluntarily
agreed to the conspiracy; and (3) either Fabuluje or another
member of the conspiracy committed an overt act to further the
conspiracy. See 18 U.S.C. §§ 371, 659. The Government
introduced 13 false bills of lading which a CF employee verified
as corresponding to the items seized in California. Another CF
employee testified that the bills of lading had “pro numbers”
corresponding to the CF facility and section where Fabuluje
worked. The Government provided testimony indicating that the
signature on the false bills of lading was that of the same
person who signed Fabuluje’s time cards. The Government also
provided testimony indicating that a set of false invoices was
faxed from Fabuluje’s home telephone to investigators in a failed
attempt to legitimize the shipments. No manifest miscarriage of
justice has been shown as to the sufficiency of the evidence to
support the conspiracy conviction. See Inocencio, 40 F.3d at
724.
Fabuluje also argues that the evidence was insufficient to
revoke his citizenship. As noted by the Government, the
cancellation of Fabuluje’s certificate of naturalization was the
result of Fabuluje’s conviction for illegally obtaining such.
Fabuluje’s argument is thus in reality a challenge to his
No. 97-11278 c/w 98-10008
-6-
conviction under 18 U.S.C. § 1425, which forbids the knowing
procurement of naturalization contrary to the law.
Fabuluje argues that the Government failed to prove
knowledge and intent to conceal beyond a reasonable doubt. The
Government proved knowledge by proving that Fabuluje was engaged
in the conspiracy to steal merchandise from CF and by introducing
evidence that Fabuluje falsely denied having knowingly committed
any crime for which he had not been arrested in his application
for naturalization. Intent to conceal is not an element of the
offense. See § 1425. This argument is without merit.
Fabuluje challenges the trial court’s jury instructions on
several grounds. His first argument - that the instructions were
not given in open court - is completely without merit.
Similarly, his last argument - that he was entitled to attend the
charge conference - has been rejected by this court. See United
States v. Graves, 669 F.2d 964, 972 (5th Cir. 1982). With regard
to Fabuluje’s remaining challenges to the jury instruction - many
of which are raised for the first time on appeal - we find no
error, plain or otherwise, in the instruction.
Regarding sentencing, Fabuluje argues that the trial court
impermissibly him accountable for the “full loss” of all
shipments discovered to be fraudulent rather than only those
shipments alleged in the indictment. Although the presentence
report (PSR) found that the dollar amount of merchandise stolen
totaled $749,554, the district court accepted a loss figure of
only $390,499, which reflected only those shipments alleged in
the indictment. Fabuluje also argues that the Government failed
No. 97-11278 c/w 98-10008
-7-
to identify the underlying value of the alleged shipments;
however, the value of the stolen shipments was determined based
on documentation supplied by CF, and by comparison with prices
charged by local stores for corresponding items.
Fabuluje’s final argument is that the district court’s order
of restitution must be reversed because the “Declaration of
Victim Losses” is “fictitious, bogus, and/or, fraudulent.”
Fabuluje objected to the PSR recommendation that restitution be
imposed solely on the basis that he had no ability to pay. He
did not object to the PSR’s determination of the amount of
restitution owed. Review is thus for plain error only. See
United States v. Arce, 118 F.3d 335, 344 n.8 (5th Cir. 1997),
cert. denied, 118 S. Ct. 705 (1998). Questions of fact that the
sentencing court could have resolved upon proper objection at
sentencing can never constitute plain error. Id.
The judgment of the district court is AFFIRMED. Fabuluje’s
motion to supplement the record on appeal is DENIED.
AFFIRMED; MOTION DENIED.