United States v. Anthony Akiti , 701 F.3d 883 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 11-3399
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Anthony Akiti
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 17, 2012
Filed: December 20, 2012
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Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
A jury found Anthony Akiti guilty of one count of aiding and abetting the
armed robbery of a credit union in violation of 18 U.S.C. §§ 2113(a) and (d), and one
count of obstruction of justice in violation of 18 U.S.C. § 1512(c)(1). The district
court1 sentenced him to 97 months imprisonment with five years of supervised release
and ordered him to pay $17,078.51 in restitution and a $200 special assessment.
Through counsel, Akiti filed a brief challenging the sufficiency of the evidence on
both counts. Akiti also filed a pro se brief challenging the sufficiency of the evidence
and raising numerous additional challenges. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
I.
Anthony Akiti and Chop Nguot Tang each were indicted on one count of armed
credit-union robbery in connection with the December 16, 2010, armed robbery of the
Affinity Plus Federal Credit Union (“APFCU”) in the student union building on the
campus of Minnesota State University (“MSU”) in Mankato, Minnesota. Akiti also
was indicted on one related count of obstruction of justice. Tang pled guilty to the
armed robbery charge, but Akiti pled not guilty and proceeded to trial.
At trial, the government presented evidence that Akiti was a customer of
APFCU and went there approximately once a week, including the day before the
robbery. On the afternoon of the robbery, Tang and Akiti spent time together at
Akiti’s apartment. Tang left the apartment around 4 p.m., and Akiti left shortly
thereafter. Akiti’s apartment was approximately one mile from MSU’s campus.
At 4:09 p.m., security cameras recorded a white Cadillac with a tan top enter
the MSU campus. The vehicle drove past the student union twice and then left
campus approximately four minutes later. The government presented evidence that
Akiti owns a Cadillac matching the description of the vehicle in the surveillance
video.
1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
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Security footage presented at trial showed that at approximately 4:23 p.m.,
Tang entered the APFCU, pulled out a gun, and demanded the tellers give him the
cash from their drawers. He left the credit union less than a minute later with over
$17,000 in cash and ran about a mile towards an apartment complex on Ahlstrom
Road. A witness in the apartment complex saw a white Cadillac, which had been
sitting in the complex’s parking lot for about eight minutes, pick up Tang and drive
away.
A witness testified that Tang arrived at a relative’s house wearing the clothing
he wore during the robbery. Akiti entered the home a couple minutes later. Akiti and
Tang went to the basement, where Tang changed clothes, and the two men left shortly
afterwards. The government presented evidence that the day after the robbery, Akiti
made a cash purchase at Best Buy. Law enforcement officers later recovered from
Best Buy two $20 “bait bills” that had been stolen from APFCU. Akiti was one of
only two people who made cash purchases at that particular Best Buy register that
morning. Authorities arrested Akiti later that day.
The government also presented recorded phone conversations showing that on
December 26, 2010, while Akiti was in jail, he called his wife three times and told her
to find something near the heater in his apartment. He alternately told her that she
was looking for a “red shirt,” a “white shirt,” a “key,” and “incense,” expressing
anger and concern when she initially could not find anything. When she told him she
found the “key,” Akiti asked, “All of it? . . . So you know what’s up right?” Then he
repeatedly told her to “do laundry,” asking several times if she understood what he
meant and insulting her when she seemed confused. Akiti warned her, “Don’t get
setup like I got setup, remember, I got setup from Best Buy.” When Akiti and his
wife spoke again later that day, she referred to a lighter and told Akiti, “I used that.
And I just torn all of it, and I just ah, just got rid of those shirts that you don’t want
anymore.”
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After the government rested its case, Akiti moved for a judgment of acquittal
on both counts. The district court denied his motion.2 Akiti did not present any
witnesses, so the district court submitted the case to the jury, which found him guilty
both of aiding and abetting an armed credit-union robbery and of obstruction of
justice. Akiti now appeals.
II.
We review a district court’s denial of a motion for judgment of acquittal de
novo. United States v. Johnson, 639 F.3d 433, 437 (8th Cir. 2011). Under this
standard, “[w]e review the evidence in the light most favorable to the government,
resolving evidentiary conflicts in favor of the government, and accepting all
reasonable inferences drawn from the evidence that support the jury’s verdict.”
United States v. Bell, 477 F.3d 607, 613 (8th Cir. 2007) (internal quotation marks
omitted). “The evidence need not exclude every reasonable hypothesis of innocence,
and we may not disturb the conviction if the evidence rationally supports two
conflicting hypotheses.” United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996).
We will reverse a conviction “only if no reasonable jury could have found [the
defendant] guilty beyond a reasonable doubt.” Bell, 477 F.3d at 613. Moreover,
either “[d]irect or circumstantial evidence can provide the basis for a conviction.”
United States v. Wesseh, 531 F.3d 633, 636 (8th Cir. 2008).
A.
Akiti first argues the evidence was insufficient to convict him of aiding and
abetting armed credit-union robbery under 18 U.S.C. §§ 2113(a) and (d). Akiti
2
The district court denied Akiti’s motion with respect to the armed robbery
charge before submitting the case to the jury. With respect to the obstruction of
justice charge, the district court initially reserved judgment and then denied the
motion after the jury returned its guilty verdict.
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concedes the evidence was sufficient to show Tang committed armed credit-union
robbery, but he contends the evidence was insufficient to show he aided and abetted
Tang. Akiti further argues that even if the evidence was sufficient to prove he aided
and abetted Tang in a credit-union robbery under section 2113(a), the evidence was
not sufficient to show he knew Tang was armed as required to convict him under
section 2113(d). We hold the evidence was sufficient to convict Tang of armed
credit-union robbery under sections 2113(a) and (d).
To be guilty of armed credit-union robbery under an aiding-and-abetting
theory, the defendant must “[1], have known that an armed credit-union robbery was
being committed or going to be committed; and [2], have knowingly acted in some
way for the purpose of aiding the armed credit-union robbery.” Jury Instruction No.
15. Viewed in the light most favorable to the government, the evidence shows that
Akiti and Tang met at Akiti’s apartment the day of the robbery and that Akiti drove
Tang to the MSU campus, dropped him off, and then waited for him at the Ahlstrom
Road apartment complex. The evidence shows that Akiti picked up Tang as Tang
was running toward the apartment complex after the robbery and then drove Tang to
a relative’s house to change clothes. Based on Akiti’s use of the bait bills at Best Buy
and his conversations with his wife while in prison, a reasonable jury could have
inferred that at some point during the evening, Akiti and Tang split the money from
the robbery. Because the evidence shows that Akiti met with Tang before the
robbery, drove him to and from the robbery, and split the money from the robbery, a
reasonable jury also could have concluded beyond a reasonable doubt that Akiti knew
a credit-union robbery was being committed and knowingly acted in some way for the
purpose of aiding the robbery.
Whether the evidence is sufficient to show Akiti knew Tang would be armed
is a closer question. However, we must view the evidence in the light most favorable
to the government, Bell, 477 F.3d at 613, and “[w]here a reasonable-minded jury
could have found evidence sufficient to convict, we will not disturb the verdict just
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because a different jury might have reached a different conclusion,” United States v.
Peters, 462 F.3d 953, 958-59 (8th Cir. 2006). Here, the evidence shows that Akiti
was a regular customer of APFCU and visited the branch the day before the robbery.
Along with the evidence discussed above, and viewed in the light most favorable to
the government, a reasonable jury could have inferred that Akiti was very familiar
with the APFCU and played a major role in planning the robbery. Moreover, this
plan involved robbing a bank during business hours with multiple bank employees
present. Because the evidence shows that Akiti was intimately involved with
planning and executing the robbery, and because Akiti and Tang were together in
Akiti’s apartment immediately before the robbery, a reasonable jury could have
concluded Akiti knew Tang would be armed during the robbery. See United States
v. Spinney, 65 F.3d 231, 237 (1st Cir. 1995) (holding evidence sufficient to show
aider-and-abetter defendant knew principal would be armed when defendant helped
plan bank robbery and “scheme called for a lone robber to enter a bank during
business hours with the intent of looting it”); United States v. Weaver, 565 F.2d 129,
136-37 (8th Cir. 1977) (affirming defendant’s conviction of aiding and abetting
armed robbery when evidence showed defendant was closely involved with principal
both before and after robbery). Therefore, we affirm Akiti’s armed credit-union
robbery conviction.
B.
Akiti next argues the evidence was insufficient for the jury to convict him of
obstruction of justice under 18 U.S.C. § 1512(c)(1). He asserts that because he
referred to shirts, keys, and incense during the three conversations with his wife, and
because a federal agent testified at trial that he did not know exactly what Akiti and
his wife were talking about, no evidence showed he intended his wife to do anything
illegal. We hold the evidence was sufficient to support his conviction.
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To convict Akiti of obstruction of justice, the jury had to find that Akiti
(1) “willfully caused [his wife] to destroy or conceal United States currency,”
(2) “acted with the intent to impair the currency’s availability for use in an official
proceeding,” and (3) acted “with the purpose of wrongfully impeding the due
administration of justice.” Jury Instruction No. 22. During the three recorded phone
conversations with his wife, Akiti vacillated between asking his wife to find a “red
shirt,” a “white shirt,” a “key,” and “incense.” He repeatedly asked her whether she
understood what he meant, expressed anger when she seemed confused or could not
find anything, told her to “do laundry,” and warned her not to “get setup like I got
setup . . . from Best Buy.” In the final phone conversation, Akiti’s wife told him she
used a lighter to “g[e]t rid of those shirts that you don’t want anymore.” Although the
calls are cryptic, a reasonable jury could have concluded Akiti was directing his wife
to destroy currency from the robbery in order to prevent the government from using
the currency as evidence against him in the robbery prosecution. Cf. United States
v. Adipietro, 983 F.2d 1468, 1479 (8th Cir. 1993) (holding district court did not
clearly err in applying obstruction-of-justice sentencing enhancement based on “the
nature of what [the defendant] said in his jailhouse communications, his tone of voice
in saying it, and the roundabout way he said it” (internal footnote omitted)).
III.
In addition to the sufficiency of the evidence challenge that Akiti raised both
through counsel and pro se, Akiti raised numerous other challenges in two pro se
briefs.3 “[A]lthough generally we do not consider pro se briefs when a party is
represented by counsel,” Wayne v. Benson, 89 F.3d 530, 535 (8th Cir. 1996), we
granted Akiti leave to file these briefs with the condition that we would determine
3
Akiti tried to file a third pro se brief, but we denied his request and have not
considered the arguments in that brief.
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what weight, if any, to give to them. We have considered Akiti’s additional pro se
arguments and have determined that they are either waived, moot, or without merit.
Accordingly, we affirm the district court’s judgment.
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