United States v. Okolo ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 5, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20188
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MORRIS BROWN OKOLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(No. H-01-765)
Before DAVIS, WIENER, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Morris Brown Okolo was convicted of one
count of conspiracy to commit bank fraud, one count of conspiracy
to launder funds, and thirty-five counts of aiding and abetting
bank fraud. On appeal, Okolo (1) challenges the sufficiency of the
evidence supporting his conviction, (2) contests the denial of his
motion for new trial, (3) asserts that the district court
erroneously admitted lay opinion testimony, and (4) disputes 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that this opinion should not be published and is not precedent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.
district court’s sentencing.1 For the reasons explained below, we
affirm Okolo’s conviction and sentencing.
I. BACKGROUND FACTS
A grand jury returned a thirty-seven count indictment against
Defendant-Appellant Okolo and several codefendants. Each defendant
was charged with one count of conspiracy to commit bank fraud in
violation of 18 U.S.C. § 371, one count of conspiracy to launder
funds in violation of 18 U.S.C. § 1956(h), and 35 counts of aiding
and abetting bank fraud in violation of 18 U.S.C. §§ 1344 and 2.
The charges were the culmination of an extensive investigation into
an elaborate check-fraud scheme involving Bank One and other banks.
In 1999, a fraud examiner at Bank One began researching
fraudulent activity relating to several line-of-credit accounts.
The examiner discovered that someone had accessed each account and
changed the address of record without the knowledge of the account
holder. Next, checks reflecting the false address had been ordered
specifying delivery to the false address. After the checks were
delivered to the bogus address, forged checks were drawn on the
account and subsequently deposited into various other bank
accounts. Then, after these checks cleared, the deposited funds
1
As we struggle to comprehend much of Okolo’s appellate
brief, to any extent that we misapprehend Okolo’s appellate
points, they have been inadequately argued and thus are abandoned
on appeal. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993).
2
were withdrawn. Bank One suffered approximately $3.7 million in
losses as a result of this scheme.
Postal Inspector Matthew Boyden assisted Bank One’s fraud
examiner. Inspector Boyden traced the checks and account activity,
which led him to a number of co-conspirators who then cooperated
with law enforcement. Eventually each such co-conspirator
“flipped” in exchange for a lighter sentence. Inspector Boyden
ultimately reached James Anderson who also agreed to cooperate.
Anderson divulged that, in the early 1990s, his sister,
Patricia Roebuck, dated Okolo, with whom Anderson became
acquainted. Although Okolo and Roebuck stopped dating after a few
years, Anderson remained friendly with Okolo. In 1999, Anderson
was suffering financial difficulties and approached Okolo to find
out if he knew of a way that Anderson could make money. Okolo
offered to pay Anderson for locating people who would agree to
deposit fraudulent checks into their bank accounts and withdraw the
funds after the checks cleared. From that time until he was
arrested, Anderson’s extensive involvement in the scheme included
recruiting depositors, acting as an intermediary between Okolo and
the depositors, and transmitting proceeds of the deposited
fraudulent checks to Okolo. Anderson was arrested after he
delivered checks from Okolo to one of the depositors. Anderson
later confessed to Inspector Boyden and agreed to cooperate by
3
recording conversations with Okolo and participating in a sting
operation.2
Roebuck was also involved in the scheme. She testified that
on three or four occasions in 2001, Okolo came to her apartment and
asked her for assistance. She stated that Okolo acknowledged to
her that he had ordered fraudulent checks while pretending to be
the account holder. Roebuck helped Okolo write checks,
occasionally filling out the names of the payees or amounts of the
checks, and signing the checks as Okolo directed. According to
her, Okolo sometimes filled out the checks himself and asked her to
sign them. For her assistance, Okolo paid Roebuck a few hundred
dollars for each check.3
In September 2001, Anderson set up a meeting with Okolo at the
direction of law enforcement agents, ostensibly to deliver pay-off
money that Anderson had purportedly received from another scheme
participant. When Okolo arrived at the scene, Anderson got out of
his car, unlocked its trunk, removed the funds, and got into
Okolo’s vehicle. When Anderson gave Okolo the pay-off money, law
enforcement officers —— wearing jackets identifying them as agents
from various federal and state agencies —— announced their presence
2
Anderson pleaded guilty to conspiracy and bank fraud and,
pursuant to a written plea agreement, agreed to testify about his
involvement in the check-fraud scheme. In return, Anderson hoped
to receive a lighter sentence.
3
The government solicited Roebuck’s cooperation and
testimony in exchange for an immunity agreement barring
prosecution for her involvement in the scheme.
4
and attempted to surround Okolo’s vehicle. In response, Okolo
accelerated, driving over a curb and sidewalk, cutting through a
parking lot, and racing away from the scene. After a brief chase,
however, officers arrested Okolo and recovered the pay-off money.
II. DISCUSSION
A. STANDARDS OF REVIEW
We apply different standards of review to the various issues
raised by Okolo. To Okolo’s challenge to the sufficiency of the
evidence supporting his conviction, we apply a reasonableness
standard; that is, we ask whether any reasonable trier of fact
could have found that the evidence established the essential
elements of the offense beyond a reasonable doubt.4 We apply the
deferential abuse-of-discretion standard in reviewing the district
court’s denial of Okolo’s motion for new trial based on newly
discovered evidence.5 We apply that same standard in reviewing
Okolo’s evidentiary complaint that the district court improperly
admitted lay opinion testimony.6 Finally, we review de novo the
district court’s application and interpretation of the sentencing
guidelines, and we review its findings of facts for clear error.7
4
United States v. Reyna, 148 F.3d 540, 543 (5th Cir. 1998).
5
United States v. Villarreal, 324 F.3d 319, 325 (5th Cir.
2003).
6
United States v. Sanchez-Sotelo, 8 F.3d 202, 210 (5th Cir.
1993).
7
United States v. Jimenez, 323 F.3d 320, 322 (5th Cir.
2003).
5
B. SUFFICIENCY OF THE EVIDENCE
After the government’s case-in-chief and again at the close of
evidence, Okolo moved for a judgment of acquittal on all counts,
pursuant to Federal Rule of Criminal Procedure 29(a). In both
instances, the district court denied Okolo’s motion.
1. Conspiracy to Defraud and Bank Fraud
Okolo’s challenge to the sufficiency of the evidence
supporting his conviction for conspiracy to commit bank fraud
(count 1) and aiding and abetting bank fraud (counts 3-37) amounts
to little more than a request that we reexamine the credibility of
the witnesses who testified against him. For example, Okolo points
to the bias of the government’s two principal witnesses, Anderson
and Roebuck, and complains that “Anderson testified that he wanted
leniency to avoid dying in prison. Patricia Roebuck testified that
she wanted to help her brother.”
It is universally recognized that we resolve all credibility
determinations and reasonable inferences in favor of the verdict.8
Beyond his conclusional assertion that Anderson’s and Roebuck’s
testimony cannot be considered reliable, Okolo’s appellate brief
fails to articulate why the evidence adduced at trial is not
sufficient to support his conviction on these counts. We cannot
8
United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.
1995).
6
re-weigh the evidence or independently assess the credibility of
the witnesses,9 so this argument is frivolous.
2. Conspiracy to Launder Money
In count 2, the government charged Okolo with engaging in a
conspiracy to launder money based on the manner in which he
conducted financial transactions with the proceeds of the check-
fraud scheme. The government proffered two alternative theories to
prove that Okolo had the requisite intent. First, the government
advanced a promotion theory under § 1956(a)(1)(A)(1), arguing that
Okolo managed the bank fraud scheme with the intent either to
promote or further the bank fraud.10 Second, the government alleged
a concealment-of-proceeds theory under § 1956(a)(1)(B)(i),
asserting that Okolo intended to conceal or disguise the nature,
location, source, or ownership of the funds derived from the check-
fraud scheme.11 We glean from Okolo’s appellate brief two distinct
challenges to the government’s alternative theories. Okolo asserts
that the government failed to prove that he had the necessary
specific intent to support a conviction under the promotion theory.
Regarding the concealment-of-proceeds theory, Okolo advances that
it is an “unwarranted reaching” to infer that concealment occurred
9
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
10
See United States v. Rivera, 295 F.3d 461, 467 (5th Cir.
2002).
11
See United States v. Pipkin, 114 F.3d 528, 533-34 (5th
Cir. 1997).
7
just because some of the fraudulently obtained checks were payable
to cash.
Again, we need not engage in an extended discussion of these
contentions as our review of the record confirms that there is more
than ample evidence to support the jury’s conviction verdict under
either theory. The jury easily could have inferred from the
evidence that Okolo used proceeds from the check-fraud scheme to
pay various participants in the operation —— Roebuck and Anderson,
for example —— to perpetuate the scam and ensure its success. The
jury just as easily could have concluded that Okolo and the other
conspirators conducted the financial transactions to conceal his
ownership of and control over the unlawful proceeds. From the
scheme’s very nature —— Okolo’s employment of third parties to
forge and deposit the checks rather than doing so himself —— the
jury could have deduced that the scheme was designed to avoid
Okolo’s being detected. His challenge to the sufficiency of the
evidence supporting his conviction for conspiracy to launder money
is without merit.
C. DENIAL OF MOTION FOR NEW TRIAL BASED ON NEW EVIDENCE
A district court may grant a motion for new trial based on
newly discovered evidence “if the interests of justice so
require.”12 To prevail on such a motion, Okolo had to show that:
(1) The evidence was newly discovered and was unknown to him at the
12
FED. R. CRIM. P. 33.
8
time of trial; (2) his failure to detect the new evidence earlier
was not the result of a lack of diligence on his part; (3) the new
evidence was not merely cumulative or impeaching; (4) the new
evidence was material; and (5) the new evidence, if introduced at
a new trial, would probably produce an acquittal.13
Okolo contends that, after trial, he learned of evidence that
three Bank One employees had supplied confidential account
information of Bank One customers —— individuals whose lines-of-
credit were tapped —— directly to Anderson. At trial, though, the
evidence had shown that Okolo received the account information and
subsequently provided the completed checks to Anderson. Okolo
argues that this “new” evidence controverts Anderson’s testimony
and demonstrates that Anderson’s involvement with the scheme was
far deeper than he led the jury to believe. Okolo argues further
that this evidence supports his defense theory that he had no
involvement with the scheme whatsoever and that it was orchestrated
by Anderson and the other defendants.
The district court correctly ruled that Okolo was not entitled
to a new trial. In ruling against Okolo, the district court
determined that, even though this information was new to the
government, it was not new to Okolo because he had dealt directly
with one of the Bank One employees to obtain confidential bank
customer information. But even if we were to assume arguendo that
13
See Villarreal, 324 F.3d at 325 (citations omitted).
9
this information was newly discovered, it was essentially
impeachment evidence to undermine Anderson’s credibility.
Furthermore, we are not convinced that this “new” evidence could
raise a reasonable doubt about Okolo’s guilt, and, if introduced at
a new trial, would probably produce an acquittal. Okolo has failed
to carry his burden of showing that the district court abused its
discretion when it denied his motion for new trial, so Okolo is not
entitled to relief on this issue.
D. IMPROPER ADMISSION OF LAY OPINION TESTIMONY
Over an objection by Okolo, the district court allowed Roebuck
to testify about whether the handwriting on some of the forged
checks was that of Okolo. He contends that this was error because
the government did not lay a predict qualifying Roebuck as an
expert on handwriting.
The government was not obligated to elicit expert testimony to
demonstrate that the handwriting on the forged checks was Okolo’s.14
14
In response, the government partly relies on Rule 901’s
recognition that a non-expert may give his opinion about the
genuineness of handwriting based on “familiarity not acquired for
the purpose of litigation.” FED. R. EVID. 901(b)(2). Rule 901
addresses what is necessary to authenticate a document before it
can be admitted into evidence. That rule does not short-circuit
the need for the underlying non-expert testimony to conform to
Rule 701. See United States v. Scott, 270 F.3d 30, 48-50 (1st
Cir. 2001) (explaining the relationship between Rules 901 and 701
in the authentication and admission of documents containing
handwriting). See also 31 WRIGHT & GOLD, FEDERAL PRACTICE AND
PROCEDURE: EVIDENCE § 7103, at 26 (2000) (noting that non-expert
opinions offered under Rule 901(b)(2) to authenticate handwriting
are still subject to the proscriptions of Rule 701). Here, Okolo
is not questioning the admission of the forged checks into
evidence.
10
Federal Rule of Evidence 701, which governs non-expert opinion
testimony, requires such testimony to be based on the witness’s own
perceptions. In this context, Roebuck could serve as a Rule 701
witness for the government and testify about whether the
handwriting was Okolo’s, as long as her testimony was based on her
own first-hand knowledge or observations.15 This requirement is
satisfied here. Roebuck said that she was familiar with Okolo’s
handwriting because she dated him for two years and because she
observed him writing his name and signing documents. The district
court did not abuse its discretion in allowing Roebuck to testify
about Okolo’s handwriting.
E. SENTENCING ISSUES
Okolo raises two separate sentencing issues, one challenging
a two-level increase under USSG § 3C1.2 and the other challenging
a four-level increase under USSG § 3B1.1(a). We are not persuaded
by either argument.
1. Two-Level Enhancement Under USSG § 3C1.2
First, Okolo challenges the district court’s two-level
increase under USSG § 3C1.2 for his speeding away from arresting
officers. Section 3C1.2 prescribes a two-level increase “[i]f the
defendant recklessly created a risk of death or serious bodily
15
FED. R. EVID. 701 advisory committee’s note to 1972
proposed rules. See also United States v. Rea, 958 F.2d 1206,
1215 (2d Cir. 1992).
11
injury to another person in the course of fleeing from a law
enforcement officer.”
The application notes to § 3C1.2 direct the court to the
definition of “reckless” found in § 2A1.4, the involuntary
manslaughter guideline.16 “Reckless” under § 2A1.4 “refers to a
situation in which the defendant was aware of the risk created by
his conduct and the risk was of such a nature and degree that to
disregard that risk constituted a gross deviation from the standard
of care that a reasonable person would exercise in such a
situation.”17
Okolo maintains that he could not have been “aware of the risk
created by his conduct” because he did not realize that he was
fleeing from law enforcement officers. Okolo notes that the
officers who attempted to apprehend him and subsequently gave chase
drove unmarked cars. Okolo adds that, because this incident
occurred on the afternoon of September 11, 2001 —— a day, as he
describes it, when “no one in the country knew who was who” —— his
act of fleeing does not support a § 3C1.2 enhancement. Okolo asks
us to adopt the reasoning of United States v. Hayes, in which the
Sixth Circuit held that “a § 3C1.2 enhancement is inapplicable if
16
USSG § 3C1.2, app. note 2.
17
USSG § 2A1.4, app. note 1. See also Jimenez, 323 F.3d at
323.
12
the defendant did not know it was a law enforcement officer from
whom he was fleeing.”18
In this case, we need neither adopt nor reject Hayes because
we review a district court’s factual findings for clear error,19 and
three facts foreclose Okolo’s argument. First, agents surrounded
Okolo’s car immediately after he accepted Anderson’s pay-off.
Second, when they did this, the agents shouted “Police! Stop!
Freeze!” And, third, as he drove away, Okolo yelled to Anderson,
“You set me up!” These facts demonstrate that Okolo realized full
well that he was fleeing from law enforcement officers. We find no
error in the district court’s factual findings or in its
application of the § 3C1.2 enhancement.
2. Four-Level Enhancement Under § 3B1.1(a)
Okolo’s final challenge is directed at the district court’s
four-level increase under USSG § 3B1.1(a) for his leadership role
in the offense. On this point, he includes a request that we hold
that the district court’s application of § 3B1.1(a) violates
Apprendi v. New Jersey.20
a. Factual Support for Concluding that
Okolo had a Leadership Role
18
49 F.3d 178, 183-84 (6th Cir. 1995). See also United
States v. Moore, 242 F.3d 1080, 1082 (8th Cir. 2001); United
States v. Sawyer, 115 F.3d 857, 859 (11th Cir. 1997).
19
Jimenez, 323 F.3d at 322.
20
530 U.S. 466 (2000).
13
In this circuit, “[t]he application of § 3B1.1 is a factual
finding reviewed only for clear error.”21 The Sentencing Guidelines
direct a court to increase a defendant’s offense level by four
“[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive.”22 According to § 3B1.1’s application notes, the
sentencing court should consider:
the exercise of decision making authority, the nature of
the participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree
of control and authority exercise over others.23
The probation officer recommended the enhancement because the
evidence showed that most of the fraudulently obtained checks were
delivered to bogus addresses under Okolo’s control. In addition,
Okolo caused the signatures of Bank One account holders to be
forged on the checks, and he arranged for recruited depositors to
be listed as the payees on the checks. The checks passed from
Okolo to Anderson and from him to the scheme’s participants who
deposited the forged checks into their accounts. Once the cashed
21
United States v. Fullwood, 342 F.3d 409, 415 (5th Cir.
2003). Okolo contends that our review should be de novo,
pursuant to United State v. McGregor, 11 F.3d 1133, 1138 (2d Cir.
1993), but here, the exercise of de novo review would not affect
the outcome.
22
USSG § 3B1.1(a).
23
USSG § 3B1.1, app. note 4.
14
funds were withdrawn, the proceeds were sent back up the line,
through Anderson, to Okolo. Including Okolo, seven defendants
participated in the check-fraud scheme. These facts undeniably
support the district court’s assessment of § 3B1.1(a)’s four-level
enhancement.
b. Apprendi and Leadership Enhancement
The last argument that Okolo advances in his effort to avoid
enhancement under § 3B1.1(a) is that the issue of leadership should
have been charged as an element in the indictment and submitted to
the jury under Apprendi. He reasons that such a role increase
could have elevated his sentence above the prescribed statutory
maximum.24 We have read Apprendi to hold that “a fact used in
sentencing that does not increase a penalty beyond the statutory
maximum need not be alleged in the indictment and proved to a jury
beyond a reasonable doubt.”25 The application of § 3B1.1(a)
enhancement did not therefore violate Apprendi, because Okolo’s
sentence was below the statutory maximum applicable to each count.
Okolo’s Apprendi challenge is without merit.
24
Okolo’s reliance on United States v. Fields, 251 F.3d
1041 (D.C. Cir. 2001), is misplaced. The Fields Court held that
Apprendi does not apply because “a leadership enhancement based
on a role-in-offense finding is not a fact that increases the
penalty for a crime beyond the prescribed statutory maximum.”
Id. at 1046 (quotations omitted).
25
United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000)
(emphasis added). Accord United States v. Moreno, 289 F.3d 371,
372 (5th Cir. 2002); United States v. McIntosh, 280 F.3d 479, 484
(5th Cir. 2002).
15
III. CONCLUSION
For the foregoing reasons, Okolo’s conviction and sentence are
AFFIRMED.
16