United States v. Nwabardi ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 21, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20179
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
FRANK NWABARDI
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. H-03-CR-230-02
_________________________________________________________________
Before KING, Chief Judge, and DAVIS, Circuit Judge, and
ROSENTHAL,* District Judge.
PER CURIAM:**
Defendant-appellant Frank Nwabardi appeals his conviction
for participating in a conspiracy that involved stealing
vehicles, obtaining fraudulent titles for those vehicles,
transporting the vehicles across state lines, and selling them to
individuals or dealerships. For the following reasons, we AFFIRM
*
District Judge of the Southern District of Texas,
sitting by designation.
**
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that this opinion should not be published and is not precedent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.
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Nwabardi’s conviction and sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 3, 2003, a grand jury issued a ten-count
superceding indictment charging ten participants, one of whom was
Nwabardi, with crimes related to the conspiracy.1 Count One
charged Nwabardi with knowingly and willfully conspiring to
transport in interstate commerce at least three separate vehicles
he knew to be stolen in violation of 18 U.S.C. § 371.2 Counts
Two and Five charged Nwabardi with aiding and abetting in the
unlawful interstate transport of a 2000 Ford Excursion and a 2001
Lincoln Navigator, respectively, in violation of 18 U.S.C. §§ 2and 2312. Nwabardi pleaded not guilty to all counts against him.
1
Nwabardi was implicated in only three of the ten counts
of conspiracy listed in the indictment. The instant appeal was
originally consolidated with the lead case involving several
other defendants from this conspiracy. By oral direction, this
court severed Nwabardi’s appeal and ordered separate briefing by
the parties on July 19, 2005. The panel issued an unpublished
per curiam opinion affirming the convictions of some of
Nwabardi’s co-conspirators on July 21, 2005. United States v.
Mendoza-Alarcon, No. 04-20506, 140 F. App’x 529, 532 (5th Cir.
July 21, 2005).
2
Specifically, Count One charged Nwabardi with the
following overt acts in connection with the criminal scheme: (1)
conspiring with Roberto Herrerra, the purported leader of the
criminal enterprise, to cause Olefumi Ajai, another participant,
to generate a vehicle identification certificate, which was then
used to obtain a Texas certificate of title, for a 2000 Ford
Excursion; (2) conspiring with Herrera to cause an unknown person
to generate a vehicle identification certificate, which was then
used to obtain a Texas certificate of title, for a 2001 Lincoln
Navigator; and (3) obtaining a certified copy of the original
Texas title for a 1999 Lexus, which was later sold by Bruce
Dirzo, another member of the conspiracy, in California.
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The criminal scheme involved a large and complex auto-theft
ring. Some of the participants stole cars from Texas,
California, and Arkansas and altered the identification
information on the vehicles in order to obtain counterfeit out-
of-state titles. Once they obtained counterfeit titles for the
stolen out-of-state vehicles, other members of the conspiracy
would enlist the services of local businesses to register the
vehicles in Texas. One of the Texas businesses used was New
Millennium Title Transfer Service, which Nwabardi owned and
operated. Specifically, Nwabardi’s business completed auto title
applications for individuals seeking to transfer their titles or
obtain certified copies of their titles. Absent clean Texas
titles, the ultimate objective of the conspiracy to sell the
stolen vehicles at a profit would have been considerably
undermined.
Ordinarily, when a person seeks a title and registration for
an out-of-state vehicle in Texas, the individual must present the
out-of-state title along with a vehicle identification
certificate, proof of insurance, and a completed title
application to the county tax assessor. The tax office then
examines the documents and forwards them to an office in Austin,
which issues a new Texas title to the individual.
In order to understand Nwabardi’s precise role in the
conspiracy, it is necessary to examine how an individual obtains
a vehicle identification certificate. A safety inspection
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station issues a vehicle identification certificate, which
identifies the vehicle by its Vehicle Identification Number
(“VIN”). Unless the inspector falsifies the information on the
inspection documents, the vehicle must be physically present at
the inspection. An additional form called a VI-30-A must be
completed for out-of-state vehicles, which calls for the
inspector to identify the VIN of the vehicle. The inspector is
required to sign the form, swearing that he has personally
witnessed the VIN. The certificate is then relied upon by the
Texas Department of Transportation in issuing a fresh title.
At trial, the government introduced evidence that Olefumi
Ajai assisted Nwabardi by providing vehicle identification
certificates based only on the out-of-state titles. Ajai owned
an auto shop named Uni-Tech Automotive, which conducted safety
inspections and issued vehicle identification certificates.
According to the government’s theory, Nwabardi was aware that
Ajai was conducting the safety inspections without requiring the
presence of the vehicles.3 Nwabardi would then complete the
title application, assemble and send away the package of relevant
3
Nwabardi testified at trial that he never personally
visited Ajai to pick up the VI-30-A forms for the out-of-state
vehicles that he was completing the title applications for. The
title history packets on file with the Texas Department of
Transportation for all three vehicles connected to Nwabardi in
the indictment indicate that a California title was used to
obtain the Texas title. Without explaining this apparent
discrepancy, Nwabardi flatly denied that he needed the out-of-
state forms to process the title application.
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documents to the county tax assessor, and await the issuance of
fresh title from Austin. Although the government presented no
direct evidence of Nwabardi’s voluntary involvement in the
criminal enterprise, the government bolstered the circumstantial
evidence of such irregular practices with live testimony from
other members of the conspiracy explaining Nwabardi’s active role
in the conspiracy.
On March 3, 2004, the jury found Nwabardi guilty on all
three counts. The district court sentenced Nwabardi to forty-two
months imprisonment and three years supervised release. The
court also imposed a $300 special assessment. Nwabardi filed a
timely appeal to this court on January 31, 2005. On appeal,
Nwabardi argues only that the evidence was insufficient to
sustain his convictions, and the district court therefore erred
in not granting his motion for a judgment of acquittal under FED.
R. CRIM. P. 29.
II. DISCUSSION
A. Standard of Review
We review de novo a district court’s denial of a motion for
acquittal. United States v. DeLeon, 170 F.3d 494, 496 (5th Cir.
1999). Our review of a jury’s verdict, however, is “tempered
with great deference,” and this court accordingly evaluates the
evidence in the light most favorable to the jury verdict. United
States v. Valuck, 286 F.3d 221, 224 (5th Cir. 2002); see also
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United States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (applying
a “rule of reason” that affords some latitude for the jury to
evaluate facts in light of natural human inclinations and common
knowledge). Therefore, in reviewing a challenge to the
sufficiency of the evidence to support a conviction, we will
uphold the verdict if a rational juror could have found each
element of the charged offense beyond a reasonable doubt. United
States v. McCauley, 253 F.3d 815, 818 (5th Cir. 2001); United
States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997) (“It is by
now well settled that a defendant seeking reversal on the basis
of insufficient evidence swims upstream.”). “The evidence need
not exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, and the
jury is free to choose among reasonable constructions of the
evidence.” United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.
1994). Our review does not depend on whether the jury in fact
made the correct determination of guilt or innocence but only
whether the jury’s decision to convict or acquit was rational in
light of the available evidence. See Burton v. United States,
237 F.3d 490, 497 (5th Cir. 2000).
B. Sufficiency of the Evidence
1. Count One: Conspiracy Under 18 U.S.C. § 371Nwabardi challenges the sufficiency of the evidence that the
government presented at trial to show that he knowingly and
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willfully conspired to transport in interstate commerce three
stolen vehicles, specifically a 2000 Ford Excursion, a 2001
Lincoln Navigator, and a 1999 Lexus.4 In particular, Nwabardi
questions the credibility of two key government witnesses, Juan
Beltran and Olefumi Ajai, and contends that their testimony
provided insufficient evidence of Nwabardi’s guilt on the
conspiracy charges. Nwabardi argues that the documents brought
to him contained falsified information and that he was unaware of
any possible criminal activity because there was a considerable
lapse of time between his title work and the actual theft of the
vehicles. In essence, he claims that he was not aware that the
vehicles were stolen and, therefore, did not knowingly
participate in the criminal activity. Under the circumstances,
Nwabardi argues that “it is possible” that he was unaware of his
contribution to the criminal enterprise. (Appellant’s Br. 10.)
In light of our deferential standard of review with respect to
jury verdicts, we decline to indulge Nwabardi’s alternative
theory of the evidence and find ample basis in the record for the
jury to conclude otherwise.
To prove a conspiracy in violation of 18 U.S.C. § 371, the
government must establish three separate elements beyond a
4
On this appeal, Nwabardi does not contest that a
criminal conspiracy existed but rather presents the narrower
legal issue of whether the government’s evidence against him was
sufficient to prove that Nwabardi was a voluntary member of the
criminal scheme or merely a business owner who unwittingly
rendered services that furthered a criminal conspiracy.
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reasonable doubt: (1) an agreement between two or more persons to
pursue an unlawful objective; (2) the defendant’s knowledge of
the unlawful objective and voluntary agreement to join the
conspiracy; and (3) an overt act by one or more members of the
conspiracy in furtherance of the objective. United States v.
Holmes, 406 F.3d 337, 351 (5th Cir. 2005). The government need
not produce direct evidence to convict the members of a
conspiracy under § 371 but rather “each element may be proven by
circumstantial evidence.” Mulderig, 120 F.3d at 547. The jury
may infer fraudulent intent from “circumstantial evidence that
one party arranged matters with another party in such a way as
would facilitate the commission of fraud.” Crowe v. Henry, 115
F.3d 294, 297 (5th Cir. 1997). In considering the evidence in
the light most favorable to the verdict, we find that a rational
trier of fact could have concluded that the evidence established
Nwabardi’s guilt beyond a reasonable doubt. McCauley, 253 F.3d
at 818.
The testimony of Ajai and Beltran was central to the
government’s case against Nwabardi, as both men explained their
specific dealings with Nwabardi and how his efforts furthered the
unlawful goals of the conspiracy. Ajai testified that on
previous occasions unrelated to the conspiracy, Nwabardi would
present an actual vehicle to Ajai for inspection to procure the
vehicle identification certificate for a standard fee. With
respect to the vehicles listed in the indictment, however,
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Nwabardi simply brought Ajai the California titles and requested
that he issue the vehicle identifications certificates without
physical inspection. Ajai also testified that Nwabardi paid him
additional compensation above the normal fee for these inspection
services when no vehicle was present. Consistent with Ajai’s
account, Beltran testified that he brought only the California
titles–-never the vehicles themselves--to Nwabardi’s business.
Irregular business practices or an unexplained deviation
from the ordinary course of business can provide circumstantial
proof of one’s participation in the conspiracy itself. See
United States v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 2002)
(affirming conviction on conspiracy charges where circumstantial
evidence established the defendant’s actions “far exceeded the
limits of an ordinary professional relationship”); United States
v. Sutherland, 656 F.2d 1181, 1187-88 (5th Cir. 1981) (holding
that unexplained changes in the manner of processing traffic
violation tickets constituted “overwhelming circumstantial
evidence” of a criminal conspiracy). When viewed in this light,
the testimony of Beltran and Ajai tends to corroborate Nwabardi’s
complicity with the criminal scheme. In particular, the
conspicuous changes in Nwabardi’s course of dealing with Ajai–-
i.e. the failure to present an actual vehicle and additional
compensation for the inspection services on these occasions–-lend
credence to the jury’s finding on the evidence presented at
trial. At the very least, we find such circumstantial evidence
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more than sufficient to support an inference that Nwabardi was
guilty of the § 371 conspiracy.
Moreover, although both Beltran and Ajai were able to reach
favorable plea agreements based on their cooperation with the
government’s case,5 Nwabardi misapprehends the scope of our
review with respect to the credibility of incriminating testimony
of co-conspirators. “A guilty verdict may be sustained even if
supported only by the uncorroborated testimony of a co-
conspirator, and even if the witness is interested due to a plea
bargain, unless the testimony is incredible on its face.” Burton
v. United States, 237 F.3d 490, 498 (5th Cir. 2000); see also
United States v. Gadison, 8 F.3d 186, 190 (5th Cir. 1993); United
States v. Hernandez, 962 F.2d 1152, 1157 (5th Cir. 1992). In
this case, the testimony of both Beltran and Ajai supported the
inference that Nwabardi voluntarily joined the conspiracy. Given
our review of the record, we cannot find that the testimony was
facially implausible as a matter of law such that we should
disturb the credibility determinations of the jury. See United
States v. Dadi, 235 F.3d 945, 951 (5th Cir. 2000) (“The
credibility of witnesses is a matter for the jury and its
determinations demand deference.”).
5
The pending criminal charges against Beltran from Texas,
California, and New Mexico were all dismissed based upon his
cooperation, and he was never charged in any federal court for
involvement in the conspiracy. Ajai was originally listed as a
defendant on the superceding indictment but pleaded guilty to one
count in exchange for dismissal of six other charges.
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2. Counts Two and Five: Aiding and Abetting Under 18
U.S.C. §§ 2 and 2312
Nwabardi also disputes the sufficiency of the evidence to
support the aiding and abetting charges under 18 U.S.C. §§ 2 and
2312 with respect to the 2000 Ford Excursion and 2001 Lincoln
Navigator. To prove that a defendant aided and abetted the
commission of a criminal offense, the government must demonstrate
that the defendant “intentionally associated with, and
participated in, the criminal venture and acted to make the
venture succeed.” Id. Nwabardi concedes that he completed the
title applications for both vehicles. In challenging these
convictions, Nwabardi simply reiterates his argument that he was
unaware that the vehicles were stolen when he performed his
services and therefore lacked the specific intent to aid and abet
the conspiracy. As with his conviction on the conspiracy charge
under § 371, however, we find that his altered business practices
with respect to the stolen vehicles permitted the jury to reach
the reasonable inference that Nwabardi knowingly participated in
the criminal scheme. See Bieganowski, 313 F.3d at 277;
Sutherland, 656 F.2d at 1187-88; United States v. Cauble, 706
F.2d 1322, 1339 (5th Cir. 1983) (affirming a conviction for
aiding and abetting a drug smuggling conspiracy where
circumstantial evidence showed “significant changes in business
practices” during the years in which the illegal acts occurred).
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Nwabardi also contends that the lapse of time between the
actual theft of the vehicles and his involvement somehow supports
his argument that he was unaware that the vehicles were stolen.
We find no merit in this argument. The evidence was sufficient
for a jury to reasonably infer that Nwabardi knew the vehicles
were stolen when he performed the title work.
III. CONCLUSION
For the foregoing reasons, we find no reason to disturb the
jury’s verdict with respect to Nwabardi’s role in this criminal
conspiracy. Therefore, we AFFIRM the conviction and sentence of
Nwabardi.
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