United States v. Henry Anekwu , 695 F.3d 967 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-50328
Plaintiff-Appellee, D.C. No.
v.  2:03-cr-01151-
HENRY ANEKWU, JFW-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
February 8, 2012—Pasadena, California
Filed September 20, 2012
Before: Dorothy W. Nelson, Diarmuid F. O’Scannlain, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
11489
UNITED STATES v. ANEKWU 11493
COUNSEL
Alexandra Wallace Yates, Federal Public Defender, Los
Angeles, California, for defendant-appellant Henry Anekwu.
Ellyn Marcus Lindsay, Assistant U.S. Attorney, Los Angeles,
California, for plaintiff-appellee United States of America.
OPINION
N.R. SMITH, Circuit Judge:
Appellant Henry Anekwu (Anekwu) appeals his conviction
and sentence for multiple counts of mail fraud, wire fraud,
and telemarketing fraud against the elderly in violation of 18
U.S.C. §§ 1341, 1343, 2326(1). On appeal, Anekwu argues
that numerous procedural and substantive errors occurred dur-
ing his trial, requiring a new trial. Anekwu also argues that his
sentence is unreasonable and re-sentencing is necessary. We
have jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm.
The primary question raised on appeal is whether the dis-
trict court committed plain error by admitting certificates of
authentication for foreign public and business records by
means of affidavit in violation of the Confrontation Clause.
We conclude that it did not.
The Supreme Court has not specifically addressed whether
admitting certificates of authentication for documents violates
11494 UNITED STATES v. ANEKWU
a defendant’s Confrontation Clause rights. Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 336-37 (2009) (Kennedy, J.,
dissenting). We have not previously dealt with the issue of
whether certifications of foreign public records are “testimo-
nial,” making the custodians who created the certifications
“witnesses” subject to the defendant’s Sixth Amendment right
of confrontation. However, we have concluded that routine
certifications of domestic public records are not testimonial.
United States v. Weiland, 420 F.3d 1062, 1077 (9th Cir.
2005). We have not addressed whether certificates of authen-
ticity for business records are testimonial. Because there is no
controlling authority on point, and because our cases indicate
that the admission of the certificates of authentication did not
violate the Confrontation Clause, we cannot conclude here
that the district court plainly erred.
Additionally, we cannot conclude that the district court
abused its discretion in (1) conducting voir dire, (2) admitting
both a chart summarizing bank records and the underlying
records into evidence, or (3) refusing to give the defendant’s
requested informant credibility instruction to the jury. We
also cannot conclude that the district court plainly erred in (1)
admitting allegedly improper comments by the prosecutor in
closing argument, or (2) re-reading the original jury instruc-
tions in response to a question posed by the jury. Because we
do not find any error, there can be no cumulative error.
Finally, the district court did not plainly err in (1) referenc-
ing the defendant’s inability to pay restitution to show that it
had considered imposing a lesser sentence to facilitate the
payment of restitution, or (2) using two Guidelines ranges.
I.
On November 12, 2003, a federal grand jury in the United
States District Court for the Central District of California
charged Henry Anekwu with numerous counts of mail fraud
and telemarketing fraud against the elderly in violation of 18
UNITED STATES v. ANEKWU 11495
U.S.C. §§ 1341, 1343, and 2326. The Government alleged
that, between 1998 and 2002, Anekwu owned and operated
lottery companies in Canada. Two relevant companies were
Platinum Award, Inc. (“Platinum”) and Capital Award, Inc.
(“Capital”). The Government also alleged that Anekwu and
his companies targeted elderly victims in the United States,
particularly in California. According to the Government,
Anekwu caused telemarketers to call victims and falsely rep-
resent that they had won lottery money, forcing them to pay
certain taxes and costs to Anekwu and his companies in order
to receive their money. The alleged victims were then told to
mail payments to the lottery companies at various commercial
mailbox addresses in Vancouver, Canada.
Anekwu was extradited to the United States and made his
initial court appearance on December 24, 2009. Anekwu’s
jury trial lasted three days. The jury found Anekwu guilty of
sixteen counts of mail fraud committed in connection with
telemarketing. On July 12, 2010, the district court sentenced
Anekwu to 108 months in prison and ordered a restitution
payment of $510,840.75. Anekwu filed a timely Notice of
Appeal.
II.
As part of the Government’s case against Anekwu, the
Government sought to introduce foreign business and public
records pursuant to 18 U.S.C. § 3505 and Federal Rules of
Evidence 803 and 902. The records consisted of incorporation
records for Capital and Platinum, Canadian bank records, and
mailbox applications, linked to Anekwu.
To comply with 18 U.S.C. § 3505 and the Federal Rules of
Evidence, the Government obtained certifications signed by
the respective record-keepers in Canada. The certifications for
the bank records and the mailbox applications set forth the
facts required by § 3505. The certifications for the documents
of incorporation state, for example:
11496 UNITED STATES v. ANEKWU
I Hereby Certify that the documents annexed hereto
and impressed with my Seal of Office and relating to
CAPITAL AWARD INC., which was dissolved
under section 257 of the Company Act on June 14,
2002, are true copies of the public documents
whereof they purport to be copies, and that I am the
proper custodian of the said documents.
Anekwu filed a motion in limine, objecting to the admis-
sion of the incorporation records and the mailbox records. He
argued that the foreign records were inadmissible hearsay and
did not meet the requirements of 18 U.S.C. § 3505, because
they were not trustworthy. The Government responded that
the requirements of § 3505 were met, and the records were
admissible through signed certificates of authentication by the
custodians of the records (compliant with § 3505) with no
need of an authenticating witness. The Government never
suggested that the record-keepers were unavailable. Anekwu
did not dispute that the records were what they purported to
be.
The district court denied Anekwu’s motion and admitted
the records and certifications into evidence. At the hearing on
the matter, Anekwu’s counsel stated that she did not object to
the authentication (based on the certificates of authentication)
of the mailbox applications, but instead she argued that the
source of the information or method of preparation lacked
trustworthiness. The court ruled that the mailbox applications
had “the requisite trustworthiness because they each contain
the driver’s license with a picture of the defendant, and for
that reason [it] . . . den[ied] the motion in limine with respect
to the mailbox applications.” As for the incorporation docu-
ments, the court ruled that the certificates of incorporation
were admissible as public records and the other incorporation
documents were admissible as defendant’s own statements
under Federal Rule of Evidence 801(d)(2)(A), and as state-
ments of a co-conspirator Emeka Ofor under Federal Rule of
Evidence 801(d)(2)(E).
UNITED STATES v. ANEKWU 11497
A.
Anekwu argues that the district court violated his Confron-
tation Clause rights by admitting evidence of foreign docu-
ments by means of written affidavit. We normally review
whether evidence was admitted in violation of the Confronta-
tion Clause de novo. United States v. Hagege, 437 F.3d 943,
956 (9th Cir. 2006). However, “[i]f the defendant failed to
object to the admission of evidence under the Confrontation
Clause, we review for plain error.” Id. Plain error occurs
when “(1) there is an error; (2) the error is clear or obvious,
rather than subject to reasonable dispute; (3) the error affected
the appellant’s substantial rights, which in the ordinary case
means it affected the outcome of the district court proceed-
ings; and (4) the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.” United States v.
Wright, 625 F.3d 583, 607-08 (9th Cir. 2010) (internal quota-
tion marks omitted). “To be plain, the error must be clear or
obvious, and an error cannot be plain where there is no con-
trolling authority on point and where the most closely analo-
gous precedent leads to conflicting results.” United States v.
Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011) (inter-
nal quotation marks omitted).
Here, Anekwu failed to object to the admission of the for-
eign records under the Confrontation Clause. Rather, Anekwu
objected to the admission of the foreign records on hearsay
grounds. While the Government stated in its response that the
admission of records, without an authenticating witness,
“does not violate the Confrontation Clause,” that brief state-
ment by the Government does not substitute for a timely and
specific Confrontation Clause objection by Anekwu. See
United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir. 1989)
(recognizing that the “pointless formality” exception—“[a]
party need not properly object if doing so would be a ‘point-
less formality’ ”—is the “sole exception to the requirement of
a formal, timely, and distinctly stated objection”). Thus, plain
error review of Anekwu’s Confrontation Clause claim is
11498 UNITED STATES v. ANEKWU
appropriate. See United States v. Huber, 772 F.2d 585, 588
(9th Cir. 1985) (stating that where a defendant “objected on
hearsay grounds, [but] failed to make a [C]onfrontation
[C]lause objection at trial,” the court could review the defen-
dant’s Confrontation Clause claims “under the plain error
doctrine, [despite] the lack of a timely and specific objection
before the district court . . . .”).
B.
[1] We cannot conclude that the district court plainly erred
in admitting certificates of authentication for foreign public
and business records into evidence. “The Sixth Amendment to
the United States Constitution, made applicable to the States
via the Fourteenth Amendment, provides that ‘[i]n all crimi-
nal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.’ ” Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 309 (2009) (alterations in
original) (citation omitted). The Confrontation Clause “guar-
antees a defendant’s right to confront those who ‘bear testi-
mony’ against him. A witness’s testimony against a defendant
is thus inadmissible unless the witness appears at trial or, if
the witness is unavailable, the defendant had a prior opportu-
nity for cross-examination.” Id. (internal quotation marks and
citation omitted). “To rank as ‘testimonial,’ a statement must
have a ‘primary purpose’ of ‘establish[ing] or prov[ing] past
events potentially relevant to later criminal prosecution.”
Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011)
(quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).
The “core class of testimonial statements” identified by the
Supreme Court includes: (1) “ex parte in-court testimony or
its functional equivalent—that is, material such as affidavits,
custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements
that declarants would reasonably expect to be used prosecu-
torially;” (2) “extrajudicial statements . . . contained in for-
malized testimonial materials, such as affidavits, depositions,
UNITED STATES v. ANEKWU 11499
prior testimony, or confessions;” and (3) “statements that
were made under circumstances which would lead an objec-
tive witness reasonably to believe that the statement would be
available for use at a later trial . . . .” Crawford v. Washington,
541 U.S. 36, 51-52 (2004) (internal quotation marks and cita-
tions omitted).
In Melendez-Diaz, the Supreme Court decided that “certifi-
cates of analysis,” showing the results of forensic analysis
performed on a seized substance that turned out to be cocaine,
were testimonial “affidavits ‘made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.’ ” 557
U.S. at 311 (quoting Crawford, 541 U.S. at 52). Similarly, in
Bullcoming the Supreme Court decided that a certified blood-
alcohol forensic report was testimonial in character. 131 S. Ct.
at 2714-15. Melendez-Diaz and Bullcoming stand for the
proposition that “[a] document created solely for an ‘evidenti-
ary purpose,’ . . . made in aid of a police investigation, ranks
as testimonial.” Bullcoming, 128 S. Ct. at 2717.
[2] However, the Supreme Court has not specifically
addressed whether “[t]he long-accepted practice of authenti-
cating copies of documents by means of a certificate from the
document’s custodian stating the copy is accurate” violates
the Confrontation Clause. Melendez-Diaz, 557 U.S. 305, 336-
37 (Kennedy, J., dissenting). The Supreme Court in
Melendez-Diaz did state that “[a] clerk could by affidavit
authenticate or provide a copy of an otherwise admissible
record, but could not . . . create a record for the sole purpose
of providing evidence against a defendant.” Id. at 322-23
(majority opinion). Additionally, a clerk could “certify to the
correctness of a copy of a record kept in his office, but had
no authority to furnish, as evidence for the trial of a lawsuit,
his interpretation of what the record contains or shows, or to
certify to its substance or effect.” Id. at 322 (internal quotation
marks omitted).
11500 UNITED STATES v. ANEKWU
C.
[3] We have previously concluded that “a routine certifica-
tion by the custodian of a domestic public record . . . and a
routine attestation to authority and signature . . . are not testi-
monial in nature.” United States v. Weiland, 420 F.3d 1062,
1077 (9th Cir. 2005) (citing United States v. Rueda-Rivera,
396 F.3d 678, 680 (5th Cir. 2005) (per curiam)).
[4] Here, the incorporation documents are foreign public
records. The certificates of the incorporation documents cer-
tify that the documents are true copies and that the person cer-
tifying the documents is the custodian. The certificates name
the company and the date dissolved in order to specify the
company to which the certificate applies. This information
does not interpret what the records contain or certify their
substance or effect. The certificates do not “create a record
for the sole purpose of providing evidence against a defen-
dant.” Melendez-Diaz, 557 U.S. at 323. Weiland seems to
indicate that a routine certification by the custodian of a for-
eign public record would not be testimonial in nature. If so,
the certificates for the incorporation documents would not
violate the Confrontation Clause. Thus, we cannot conclude
that the district court plainly erred by admitting the certifi-
cates for the incorporation documents.1
1
Our recent decision in United States v. Bustamante, ___ F.3d ___,
2012 WL 3181269 (9th Cir. Aug. 7, 2012), does not impact this determi-
nation. In Bustamante, the Government introduced into evidence several
documents to prove that the defendant Bustamante was born in the Philip-
pines and is not a United States citizen. Id. at *1. One of the documents,
Exhibit 1, “purported to be a ‘copy’ of Bustamante’s Philippine birth cer-
tificate.” Id. Exhibit 1 was obtained by the Government as part of an ear-
lier Government investigation into Bustamante’s citizenship. Id. The
document was not a photocopy or duplicate. Id. Exhibit 1 stated that:
“This is to certify that according to the record of births in this office, the
following is the copy of the birth certificate of: Napoleon Bustamante.” Id.
It then transcribed the information contained in the office’s birth records
regarding Bustamante, including his birth in the Philippines in 1939. Id.
UNITED STATES v. ANEKWU 11501
Anekwu argues that the statements in Melendez-Diaz
regarding a clerk’s authentication were dicta. We have “de-
scribed discussions that are unnecessary to a decision as
dicta.” Barapind v. Enomoto, 400 F.3d 744, 759 (9th Cir.
2005) (en banc) (per curiam). In Melendez-Diaz, the Govern-
ment argued that the certificates of analysis were admissible
because they were akin to business and public records. 557
The document stated that it was issued in 1975, and was signed by a civil
registrar. Id.
On appeal, we concluded that “Exhibit 1 is a testimonial statement,”
and that its admission “violated Bustamante’s confrontation rights because
Bustamante did not have a prior opportunity to examine” the civil regis-
trar. Id. at *3. “In essence, Exhibit 1 is an affidavit testifying to the con-
tents of the [Philippine] birth records . . . and is ‘functionally identical to
[the] live, in-court testimony’ that an employee of the Civil Registrar’s
office might have provided.” Id. (quoting Melendez-Diaz, 557 U.S. at 310-
11). “It was also created for the purpose of the [earlier Government] inves-
tigation into Bustamante’s citizenship and was ‘made under circumstances
which would lead an objective witness reasonably to believe that the state-
ment would be available for use at a later trial.’ ” Id. (quoting Melendez-
Diaz, 557 U.S. at 310).
While we acknowledged that birth certificates and official copies of
them are non-testimonial public records, we emphasized that “Exhibit 1 is
not a copy or duplicate of a birth certificate.” Id. at *4. Instead, Exhibit
1 was “quite plainly an affidavit.” Id. (internal quotation marks omitted).
“It is a typewritten document in which [the civil registrar] testifies that he
has gone to the birth records . . . , looked up the information on Napoleon
Bustamante, and summarized that information at the request of the U.S.
government for the purpose of its investigation into Bustamante’s citizen-
ship.” Id. “Rather than simply authenticating an existing non-testimonial
record, [the civil registrar] created a new record for the purpose of provid-
ing evidence against Bustamante.” Id.
The certificates of authentication for the incorporation documents in
this case are distinguishable from Exhibit 1 in Bustamante. While the civil
registrar in Bustamante “created a new record for the purpose of providing
evidence against Bustamante,” the custodian here “simply autheticat[ed]
. . . existing non-testimonial record[s].” See id. Thus, we cannot conclude
that Bustamante means that the district court in this case plainly erred by
admitting the certificates for the incorporation documents.
11502 UNITED STATES v. ANEKWU
U.S. at 321. To rebut that argument, the Supreme Court had
to clarify the clerk’s authentication issue. Thus, the statements
in Melendez-Diaz were not dicta, because they were not
unnecessary to the decision.
Anekwu also argues that Melendez-Diaz and Bullcoming
abrogated our conclusion in Weiland. However, Melendez-
Diaz and Bullcoming dealt with certificates from personnel
who specifically performed tests to be used as evidence at
trial, rather than an authenticating certificate from a custodian
as seen in Weiland. Melendez-Diaz further stated that clerks
may authenticate public records, which supports the conclu-
sion in Weiland. Thus, the Supreme Court has not abrogated
Weiland.
D.
[5] Whether certifications of business records violate the
Confrontation Clause is an issue of first impression for this
Court. See, e.g., Weiland, 420 F.3d at 1076 n.13 (“[W]e need
express no opinion on whether the Confrontation Clause
requires the government to make the custodian of business
records available for cross-examination.”).
After the Supreme Court decided Melendez-Diaz and Bull-
coming, the Tenth Circuit addressed this very issue in United
States v. Yeley-Davis, 632 F.3d 673 (10th Cir.), cert. denied,
131 S. Ct. 2712 (2011). In Yeley-Davis, the Tenth Circuit
dealt with certificates of authentication of cell phone records.
Id. at 680. The Tenth Circuit held that “certificates of authen-
ticity presented under [Federal Rule of Evidence] 902(11) are
not testimonial.” Id. (citing United States v. Ellis, 460 F.3d
920, 927 (7th Cir. 2006)). “Because the phone records here
were ‘created for the administration of [Verizon’s] affairs and
not for the purpose of establishing or proving some fact at
trial’ we conclude that they were not testimonial and thus, not
subject to confrontation.” Id. at 679 (quoting Melendez-Diaz,
557 U.S. at 324). The Tenth Circuit invoked the Supreme
UNITED STATES v. ANEKWU 11503
Court’s distinction “between affidavits created to provide evi-
dence against a defendant and an affidavit created to authenti-
cate an admissible record.” Id. at 680 (citing Melendez-Diaz,
557 U.S. at 322-23).
[6] Federal Rule of Evidence 902(11) provides that domes-
tic records that meet the requirements of Rule 803(6)(A)-(C),
as shown by the certification of a custodian, are self-
authenticating. Similarly, 18 U.S.C. § 3505 provides that, to
authenticate foreign business records, the custodian of the
record must attest that:
(A) such record was made, at or near the time of the
occurrence of the matters set forth, by (or from infor-
mation transmitted by) a person with knowledge of
those matters;
(B) such record was kept in the course of a regularly
conducted business activity;
(C) the business activity made such a record as a reg-
ular practice; and
(D) if such record is not the original, such record is
a duplicate of the original . . . .
18 U.S.C. § 3505(a)(1). These requirements are substantially
similar to the requirements of Federal Rules of Evidence
803(6) and 902(11). Without any controlling authority on
point, it is arguable that certificates of authentication for for-
eign records presented under 18 U.S.C. § 3505(a)(1) are anal-
ogous to certificates of authentication for domestic records
presented under Federal Rules of Evidence 803(6) and
902(11).
[7] Here, the certifications of the foreign business records
(mailbox applications and bank records) stated that the
records were: (1) created at or near the time of the events they
11504 UNITED STATES v. ANEKWU
purported to establish, by someone with knowledge of those
events; (2) kept in the course of regularly conducted business;
(3) made as part of that business’s regular practice; and (4)
true and correct copies. The certificates satisfy the require-
ments of 18 U.S.C. § 3505(a)(1) in substance. See United
States v. Jawara, 474 F.3d 565, 584 (9th Cir. 2007). Follow-
ing the reasoning of Yeley-Davis, the certificates authenticated
otherwise admissible records. See Melendez-Diaz, 557 U.S. at
324. If so, then the admission of the authenticating certificates
for the mailbox applications and bank records would not have
violated the Confrontation Clause. Thus, we cannot conclude
that the district court plainly erred by admitting the certifi-
cates for the foreign business records.
Anekwu argues that the certificates are testimonial affida-
vits used as “solemn declaration[s] or affirmation[s] made for
the purpose of establishing or proving some fact.” Id. at 310
(internal quotation marks omitted). However, “the purpose of
the certificates here was merely to authenticate the . . . records
—and not to establish or prove some fact at trial . . . .” Yeley-
Davis, 632 F.3d at 680.
Anekwu also argues that the certificates are testimonial,
because they are similar to certificates of the nonexistence of
a record, since they are the result of the examination of
records. However, a certificate of nonexistence of records is
testimonial, because it is “substantive evidence against the
defendant whose guilt depend[s] on the nonexistence of the
record for which the clerk searched.” Melendez-Diaz, 557
U.S. at 323. The certifications of the mailbox applications and
bank records were not substantive evidence against Anekwu.
Rather, they were used to authenticate records.
Finally, Anekwu argues that the certificates are “represen-
tations, relating to past events and human actions not revealed
in raw, machine-produced data, . . . meet for cross-
examination.” Bullcoming, 131 S. Ct. at 2714. However, in
Bullcoming, the analyst certified to more than the legal
UNITED STATES v. ANEKWU 11505
requirements for authenticating a record created for an admin-
istrative purpose. Unlike the custodian here, the analyst in
Bullcoming certified to the procedures used in a test specifi-
cally done to establish or prove past events relevant to a crim-
inal prosecution. See id. at 2713, 2714 n.6.
[8] In sum, we cannot conclude that the district court
plainly erred in admitting the certificates of authentication for
the foreign public and business records into evidence.
III.
Anekwu’s defense counsel asked for, but was denied,
attorney-conducted voir dire. The district court, however,
invited the parties to submit potential voir dire questions.
Because of Anekwu’s race and ethnicity (black and Nigerian),
defense counsel proposed the following questions:
41. Do you think individuals of certain racial or eth-
nic backgrounds are more likely to commit crimes
than others?
42. Do you have any assumptions, opinions, or feel-
ings about Henry Anekwu based on his race or
nationality?
43. Does Mr. Anekwu’s race/nationality affect your
ability to be fair or impartial to him in any way?
44. The indictment alleges that the charges took
place in and from Canada. Do you have any opinions
or feelings about this any way or the other?
The district court rejected all of these questions, because
the court was worried that the questions would prompt the
jurors to learn Anekwu is Nigerian, which Anekwu told the
court he did not want the jurors to know. The Government
indicated that Anekwu’s Nigerian nationality may be brought
11506 UNITED STATES v. ANEKWU
up during trial. Anekwu did not object to the Government’s
response or the court’s proposed questionnaire. The judge
replaced Anekwu’s proposed questions with one question:
“Are you a member of a club, organization or association that
by policy or practice has ever been prohibited or limited its
membership on the basis of race, color, religion, sexual orien-
tation, gender, disability or national origin?” The court also
asked: “Do you know of any reason at all as to why you can-
not be a completely fair and impartial juror in this case?”
On appeal Anekwu cited multiple news articles and cases
suggesting this type of fraud is often perpetrated by Nigerians.
During trial, the jury learned that Anekwu is Nigerian and that
another Nigerian man, Wilson Okkiki, had been convicted of
telemarketing fraud targeting Americans.
A.
Anekwu argues that the district court erred by rejecting his
proposed voir dire questions. Anekwu did not waive his right
to appeal the voir dire questions, because he raised the issue
before the district court by submitting proposed voir dire
questions on race and nationality. Cf. United States v. Gay,
967 F.2d 322, 325 (9th Cir. 1992).
We review “[t]he sufficiency of voir dire questions asked
by the trial court . . . for abuse of discretion.” United States
v. Payne, 944 F.2d 1458, 1474 (9th Cir. 1991). An abuse of
discretion occurs (a) if the district court makes a legal error
by identifying the incorrect legal rule or (b) if the district
court’s application of the correct legal standard was “(1) illog-
ical, (2) implausible, or (3) without support in inferences that
may be drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)
(internal quotation marks omitted). “While it is an abuse of
discretion to fail to ask questions reasonably sufficient to test
jurors for bias or partiality, the trial court may refuse ques-
tions which are ‘tied to prejudice only speculatively.’ ”
UNITED STATES v. ANEKWU 11507
Payne, 944 F.2d at 1474 (quoting United States v. Jones, 722
F.2d 528, 529 (9th Cir. 1983)).
B.
Voir dire “plays a critical function in assuring the criminal
defendant that his Sixth Amendment right to an impartial jury
will be honored.” Rosales-Lopez v. United States, 451 U.S.
182, 188 (1981). “[F]ederal judges have been accorded ample
discretion in determining how best to conduct” voir dire. Id.
at 189.
[9] “[T]he Constitution requires a question on racial [or
ethnic] prejudice” in voir dire when racial or ethnic issues are
“inextricably bound up with the conduct of the trial . . . .” Id.
However, “[t]here is no constitutional presumption of juror
bias for or against members of any particular racial or ethnic
groups.” Id. at 190. “Only when there are more substantial
indications of the likelihood of racial or ethnic prejudice
affecting the jurors in a particular case does the trial court’s
denial of a defendant’s request to examine the jurors’ ability
to deal impartially with this subject amount to an unconstitu-
tional abuse of discretion.” Id.
In addition to the constitutional requirement, based on the
supervisory authority of the federal courts, inquiry into preju-
dice may still be required.
[I]t is usually best to allow the defendant to . . .
mak[e] the determination of whether or not he would
prefer to have the inquiry into racial or ethnic preju-
dice pursued. Failure to honor his request, however,
will be reversible error only where the circumstances
of the case indicate that there is a reasonable possi-
bility that racial or ethnic prejudice might have influ-
enced the jury.
Id. at 191 (footnote omitted).
11508 UNITED STATES v. ANEKWU
[10] Here, racial or ethnic issues were not “inextricably
bound up with the conduct of the trial.” Id. at 189. Thus, the
district court had no constitutional obligation to inquire into
racial or ethnic prejudice. In Rosales-Lopez, the Supreme
Court noted that “an alleged criminal confrontation between
a black assailant and a white victim” does not alone create a
constitutional requirement to question the jury on racial preju-
dice. Id. at 190. Conversely, racial issues were inextricably
bound up with the conduct of the trial in a case where a black
defendant’s defense was that law enforcement officers had
framed him because of his well-known participation in civil
rights activities. Id. at 189-90. The alleged bias of Americans
against Nigerians is similar to the potential biases involved in
an alleged criminal confrontation between an assailant and
victim of different races. Anekwu has not alleged any defense
that race or nationality caused, in any way, the charges against
him. In short, Anekwu’s race or nationality are not “inextrica-
bly bound up with the conduct of the trial.” See id. at 189.
Thus, we cannot conclude on this record that the district court
abused its discretion in denying Anekwu’s request to inquire
into the jury’s racial or ethnic prejudice.
C.
[11] If the defendant’s race or nationality are not inextrica-
bly bound up with the conduct of the trial, “[f]ailure to honor
[a defendant’s] request” for inquiry into the jury’s racial or
ethnic prejudice “will be reversible error only where the cir-
cumstances of the case indicate that there is a reasonable pos-
sibility that racial or ethnic prejudice might have influenced
the jury.” Id. at 191. We recognize “three instances in which
there is a real possibility of prejudice and a consequent need
for specific voir dire questioning.” United States v. Toomey,
764 F.2d 678, 682 (9th Cir. 1985) (quoting United States v.
Jones, 722 F.2d 528, 529-30 (9th Cir. 1983) (per curiam)).
Anekwu argues that this case falls into one such instance,
namely “when the case involves other matters concerning
which either the local community or the population at large is
UNITED STATES v. ANEKWU 11509
commonly known to harbor strong feelings that may stop
short of presumptive bias in law yet significantly skew delib-
erations in fact . . . .” Id. (internal quotation marks omitted).
Anekwu does not argue that the other two recognized
instances apply.
Anekwu argues that the district court erred, because the
American population harbors strong feelings that may skew
deliberations. Alternatively, Anekwu argues that there was a
potential (not speculative) source of prejudice that his ques-
tions were reasonably calculated to discover. He supports his
argument that the district court abused its discretion with the
following propositions: (1) Anekwu’s Nigerian background
would be mentioned, although it would not be the focus of the
Government’s case; (2) Anekwu was a black, foreign defen-
dant accused of targeting Americans; (3) Americans com-
monly associate Africans or Nigerians with fraud; and (4) the
court agreed that questions on potential racial bias were
needed.
Based on the totality of the circumstances, we cannot con-
clude that the district court abused its discretion here. See
Rosales-Lopez, 451 U.S. at 192. (“[T]he decision as to
whether the total circumstances suggest a reasonable possibil-
ity that racial or ethnic prejudice will affect the jury remains
primarily with the trial court, subject to case-by-case review
by the appellate courts.”).
First, although the district court recognized that race or eth-
nicity might be an issue, the district court never indicated that
it perceived a risk of racial, ethnic, or national origin bias.
Second, the district court asked the jurors whether there was
any reason they could not be fair and impartial. “The Supreme
Court has held that such questions reduce the possibility of
ethnic prejudice.” United States v. Sarkisian, 197 F.3d 966,
979 (9th Cir. 1999). Third, there is no presumption of preju-
dice simply because the defendant is of a different ethnic or
racial background. See Rosales-Lopez, 451 U.S. at 190.
11510 UNITED STATES v. ANEKWU
Fourth, Anekwu’s argument that Americans associate
Nigerians with fraudulent conduct is not a “matter[ ] concern-
ing which either the local community or the population at
large is commonly known to harbor strong feelings that may
stop short of presumptive bias in law yet significantly skew
deliberations in fact . . . .” Toomey, 764 F.2d at 682 (emphasis
added). The “matters” we have so recognized include child
sexual abuse, Payne, 944 F.2d at 1474, and the insanity
defense, United States v. Allsup, 566 F.2d 68, 70 (9th Cir.
1977). We found that the defense of coercion was not a matter
where the public is “commonly known to harbor strong feel-
ings.” Jones, 722 F.2d at 530. Our cases indicate that “mat-
ters” include substantive topics that many may have strong
feelings about, not a general impression or prejudice against
a group. Thus, whether the population at large thinks Nigeri-
ans are dishonest is not the type of matter meant by our case
law.
Fifth, even if there is a harbored prejudice that Nigerians
are dishonest (and it qualifies as a “matter”), the district court
did not abuse its discretion by refusing to ask Anekwu’s pro-
posed questions. See Payne, 944 F.2d at 1474. Anekwu’s
Nigerian nationality, or perhaps even his continent of origin
(Africa), was the characteristic allegedly creating potential
prejudice, not his race. Notwithstanding, defense counsel
stated that she did not want Anekwu’s nationality revealed,
and the district court thought the proposed questions required
revelation of Anekwu’s nationality. As such, the district court
substituted the question asking if any juror had been involved
in a group that discriminated based on nationality or race
(among other things) in order to avoid disclosing nationality.
After the court suggested this change, it asked counsel: “Do
you agree?” Defense counsel did not object. Rather, counsel
gave a vague answer indicating that she did not say that the
court could not ask questions about race, but she worried
about the court disclosing nationality. The district court could
have reasonably interpreted the response, in the context, to be
a withdrawal of the request. Further, although the Govern-
UNITED STATES v. ANEKWU 11511
ment stated that Anekwu’s nationality would likely “come up
as a bit of a side issue,” the district court abuses its discretion
under its supervisory authority if it fails to honor the defen-
dant’s request. Rosales-Lopez, 51 U.S. at 191. Here, based on
the context, defense counsel’s actions are susceptible to a rea-
sonable interpretation that she withdrew her request for ques-
tions on nationality.
[12] Sixth, Anekwu’s Nigerian nationality, combined with
the allegations that he defrauded Americans, does not create
a likely source of prejudice. See United States v. Okoronkwo,
46 F.3d 426, 434 (5th Cir. 1995) (“[T]here is nothing in the
record to support [the defendant’s] contention that there is a
particular public bias in southern Texas against persons of
Nigerian origin which might have prejudiced the jury.”).
While Anekwu has offered evidence showing that the type of
fraud in question here frequently comes from Nigeria, this
evidence does not prove that the population at large has preju-
dice against Nigerians.
Lastly, the district court did not abuse its discretion by not
specifically inquiring about racial prejudice, because Anek-
wu’s race was not the characteristic that was the likely source
of prejudice. When a defendant is charged with a violent
crime and the victim is of a different race, then a court must
inquire as to racial prejudice. Rosales-Lopez, 451 U.S. at 192.
Otherwise, it is up to the trial court, subject to a case-by-case
review of the appellate court, to decide if racial prejudice
affected the jury. Id. Here, there is no indication that racial
prejudice affected the jury.
[13] In sum, we cannot conclude that the district court
abused its discretion when it conducted voir dire.
IV.
Anekwu objected to the admission of a summary chart of
Canadian bank records (prepared by FBI Financial Analyst
11512 UNITED STATES v. ANEKWU
Tammy Chapman), and Ms. Chapman’s testimony regarding
the summary chart. Anekwu argued that the summary chart
and Ms. Chapman’s testimony were inadmissible under Fed-
eral Rules of Evidence 1006 and 403. Specifically, Anekwu
argued that the bank records were not “voluminous” enough
to qualify under Rule 1006. The Government responded that
the individual bank records were voluminous enough, because
the jury would have a hard time calculating the amounts going
in and out of the accounts.
The district court found the bank documents too volumi-
nous to be conveniently examined in court. The court ruled
that the summary chart and the underlying bank records were
admissible. The summary chart was admitted under Rules
1006 and 611(a). As for the bank records, “the bank records
have additional probative value which is not captured by the
summary chart.” The summary chart would aid in understand-
ing the records and the bank records would be used to indicate
specific checks signed by Anekwu. Further, the district court
noted that, although summary charts are usually not admitted
if the underlying evidence is admitted, under Rule 611(a), the
court could exercise its discretion to admit summary charts
and the underlying bank records for the purpose of assisting
the jury in evaluating voluminous evidence. The district court
also found no risk of undue prejudice under Rule 403, espe-
cially since Anekwu did not object to the accuracy of the
summary chart. Additionally, the district court gave a limiting
instruction, explaining that the jury should only afford the
charts and summaries the weight that they would give to the
underlying materials.
A.
Anekwu argues that the district court erred in admitting the
chart summarizing the foreign bank records, because sum-
mary charts cannot be admitted as evidence if the underlying
records are admitted. We review a district court’s admission
UNITED STATES v. ANEKWU 11513
of summary evidence for an abuse of discretion. United States
v. Marchini, 797 F.2d 759, 766 (9th Cir. 1986).
B.
“[T]he proponent of a summary must demonstrate the
admissibility of the underlying writings or records summa-
rized, as a condition precedent to introduction of the summary
into evidence under [Federal Rule of Evidence] 1006.” United
States v. Johnson, 594 F.2d 1253, 1257 (9th Cir. 1979).
Because we cannot conclude that the district court plainly
erred in admitting the certificates authenticating the bank
records, the district court did not abuse its discretion in deter-
mining that the bank records were properly authenticated and
admissible.
[14] “Charts and summaries as evidence are governed by
Federal Rule of Evidence 1006 . . . .” United States v. Wood,
943 F.2d 1048, 1053 (9th Cir. 1991). “In contrast, charts or
summaries of testimony or documents already admitted into
evidence are merely pedagogical devices, and are not evi-
dence themselves.” Id. However, we have not “articulat[ed] a
bright-line rule against admission of summary charts as evi-
dence.” United States v. Boulware, 470 F.3d 931, 936 (9th
Cir. 2006), vacated and remanded on other grounds, Boul-
ware v. United States, 552 U.S. 421 (2008). Although “we do
not approve of receiving summary exhibits of material already
in evidence,” we have not “reverse[d] for that reason.” Id. We
have also “elsewhere recognized a district court’s discretion
under [Federal Rule of Evidence] 611(a) to admit summary
exhibits for the purpose of assisting the jury in evaluating
voluminous evidence.” Id.
[15] In Boulware, we saw no “need either to embrace or
condemn the procedure followed in this case because, even if
it were error to allow the summary exhibit into evidence, the
error is harmless given admissibility of the underlying data,
lack of objection to accuracy of the summary, and the limiting
11514 UNITED STATES v. ANEKWU
instruction.” Id. Here as well, we need not embrace or con-
demn the procedure followed by the district court. The bank
records were admissible. Anekwu had the opportunity to
cross-examine Tammy Chapman (the FBI analyst who pre-
pared the charts), Anekwu never objected to the accuracy of
the charts, and the district court gave a limiting instruction.2
Based on those circumstances, we cannot conclude that the
district court abused its discretion in admitting both the sum-
mary chart and underlying records into evidence.
V.
The district court informed the jury that they must decide
facts, which includes deciding which testimony to believe and
how much of that testimony to believe (i.e., all, part, or none).
The court further stated, “[i]n considering the testimony of
any witness, you may take into account . . . the witness’s
interest in the outcome of the case and any bias or prejudice
. . . .” The district court also gave the Ninth Circuit model jury
instruction for an accomplice witness, because of the testi-
mony of David Chipere (Anekwu’s employee).3
2
Further, under Federal Rule of Evidence 403, the district court did not
plainly err, because admitting the charts was helpful to the jury and the
underlying records were admissible. Thus, this case is not one of the rare
cases where the district court should be reversed. See United States v.
Rizk, 660 F.3d 1125, 1132 (9th Cir. 2011).
3
The accomplice jury instruction went as follows:
You have heard testimony from David Chipere, a witness who
admitted being an accomplice to the crime charged. An accom-
plice is one who voluntarily and intentionally joins with another
person in committing a crime.
For this reason, in evaluating Mr. Chipere’s testimony, you
should consider the extent to which or whether Mr. Chipere’s tes-
timony may have been influenced by this factor. In addition, you
should examine Mr. Chipere’s testimony with greater caution
than that of other witnesses.
See 9th Cir. Model Crim. Jury Instr. 4.9.
UNITED STATES v. ANEKWU 11515
Anekwu requested that the court also give an informant
credibility instruction regarding Chipere as follows:
The testimony of an informant, someone who pro-
vides evidence against someone else for money or to
escape punishment for his own misdeeds or crimes
or for other personal reason or advantage, must be
examined and weighed by the jury with greater care
than the testimony of a witness who is not so moti-
vated.
David Chipere may be considered to be an infor-
mant in this case.
The jury must determine whether the informer’s
testimony has been affected by self-interest, or by
the agreement he has with the government, or by his
own interest in the outcome of this case, or by preju-
dice against the defendant.
The Government objected, arguing that the facts did not
support a conclusion that Chipere was an informant, because
Chipere had not received a benefit and the accomplice
instruction was adequate. Specifically, Chipere received a let-
ter from the Government that Chipere was not a target or sub-
ject of investigation. Further, Chipere was not a target,
because the statute of limitations had run.
Anekwu responded that the informant credibility instruc-
tion was required, because Chipere was motivated to testify
for other personal reasons and the accomplice instruction
failed to account for testimony given for self-interest. Chipere
consulted with a lawyer, who presumably told him that there
is no statute of limitations in Canada for the telemarketing
fraud, and thus he may be testifying to gain favor with Cana-
dian authorities. During cross-examination by the defense,
Chipere’s relevant testimony went as follows:
11516 UNITED STATES v. ANEKWU
Q. [H]ave you been charged about your involve-
ment in this case in Canada?
A. No.
Q. Okay. And in Canada you can still be charged for
this, right?
A. I don’t know about that.
Q. You don’t know about that. Okay. You haven’t
been charged in the United States for this, correct?
A. That’s correct.
Q. You were never charged with this back when it
happened in 2002, 2003?
A. No.
Q. Okay. And obviously you don’t want to be prose-
cuted?
A. I thought about that, that’s why I’m here.
In addition to cross examining Chipere, in closing argu-
ments, the defense argued Chipere’s potential bias. The dis-
trict court denied the requested informant credibility
instruction. The court “concluded that, based upon the facts of
this case, that instruction is not supported by the facts of this
case.”
A.
Because the parties dispute the factual foundation for
Anekwu’s requested informant credibility instruction, we
review the district court’s refusal to give the requested jury
instruction for an abuse of discretion. United States v.
UNITED STATES v. ANEKWU 11517
Holmes, 229 F.3d 782, 786 (9th Cir. 2000); United States v.
Duran, 59 F.3d 938, 941 (9th Cir. 1995).
B.
“The courts have long recognized that the definition of an
informer includes persons who provide evidence against a
defendant for some personal advantage or vindication, as well
as for pay or immunity.” Guam v. Dela Rosa, 644 F.2d 1257,
1259 (9th Cir. 1980). In Dela Rosa, testimony by a police
lieutenant “undisputably show[ed] that [an informant’s] testi-
mony was secured by a promise not to prosecute him in
exchange for his cooperation.” Id. We decided that “this
promise could be construed as a form of ‘immunity;’ ” if not,
then “the promise must be construed as securing [the infor-
mant] a very significant personal advantage.” Id. Thus, we
found that the failure to give the informer instruction required
reversal. Id. at 1260.
Conversely, in United States v. Monzon-Valenzuela, we
found that the district court did not plainly err in not giving
an informant credibility instruction, because it was not clear
that the witness was an informant. 186 F.3d 1181, 1182-83
(9th Cir. 1999). The witness’s motivation for testifying was
unclear. Id. at 1183. Although the witness gathered informa-
tion while undercover for the government, the witness denied
receiving or expecting any benefit for his testimony. Id. How-
ever, the witness also admitted that he had previously traded
information for leniency and would not testify against another
“unless ‘its [sic] going to do you some good.’ ” Id. The wit-
ness was never asked to explain his motivation. Id.
This case falls somewhere in between Dela Rosa and
Monzon-Valenzuela. On the one hand, the authorities never
promised any advantage to Chipere. On the other hand,
Chipere stated that he was testifying, because he did not want
to be prosecuted.
11518 UNITED STATES v. ANEKWU
But even if we accept Anekwu’s characterization of
Chipere as an informant, “there is no error where . . . the other
instructions in their entirety covered the defense theory.”
United States v. Hernandez-Escarsega, 886 F.2d 1560, 1574
(9th Cir. 1989).
[T]here is no significant distinction between a cau-
tionary instruction on the testimony of an accom-
plice and a cautionary instruction on one granted
immunity. In both instances, the jury is instructed
that the testimony “be received with caution and
weighed with care.” Consequently, whether we treat
the government witnesses as accomplices or as per-
sons granted immunity, or both, is immaterial
because the instruction would be essentially the
same. . . . In any event, we are unable to detect any
prejudice as the appellant was allowed to fully
develop the immunity issue on cross-examination
and forcefully argue it in summation.
United States v. Morgan, 555 F.2d 238, 243 (9th Cir. 1977).
[16] Here, we cannot conclude that the district court
abused its discretion. The district court gave the accomplice
instruction warning jurors to be cautious of Chipere’s testi-
mony. Anekwu cross-examined Chipere regarding his poten-
tial charges and motivation and argued his potential bias in
closing argument. Further, Anekwu argues that Chipere
sought to prevent prosecution, because he potentially faced
prosecution through his role as an accomplice. Because of the
accomplice instruction, the cross-examination, and the closing
arguments, Anekwu was “allowed to fully develop the [infor-
mant credibility] issue on cross-examination and forcefully
argue it in summation.” See Morgan, 555 F.2d at 243. Thus,
we cannot conclude that the district court abused its discretion
in refusing Anekwu’s proposed informant credibility instruc-
tion.
UNITED STATES v. ANEKWU 11519
VI.
At trial, Anekwu argued that he operated a legitimate busi-
ness offering vacation packages, but was an absentee owner,
unaware that Chipere (his employee) was running a fraud
scheme. The Government’s main witness was Chipere, who
testified that he was involved but that Anekwu was the orga-
nizer. In addition, the Government called Sergeant Chun Ma,
who testified that Canadian authorities cannot easily share
information with U.S. authorities, because the process of get-
ting information to the U.S. from Canada is a lengthy one.
Then, when Ma was asked if extraditing someone to the U.S.
took a long time, Anekwu objected. The objection was sus-
tained.
In Anekwu’s closing argument, his defense counsel stated:
“At the end of the day, [Chipere is] not being charged either
in Canada or the United States, because he’s claiming he’s a
lower level employee, and he thinks as long as he tells the
government what they want to hear, he won’t be charged.”
Anekwu’s counsel also stated that Sergeant Ma could have
obtained a search warrant to Anekwu’s business, but he did
not. Sergeant Ma could have searched the business and, if
Anekwu was guilty, the Government would have lottery doc-
uments, phone lists, and mail and letters from victims. “They
don’t have any of that in this case.”
The Government’s rebuttal closing argument included the
following:
You may be thinking and wondering well, why
didn’t we charge Mr. Chipere? There he is on the
phone, there he is on tape. You know, what—why
isn’t the government just doing a clean sweep of
everybody? Why didn’t we charge Mr. Chipere?
Why didn’t we charge Stella Wells? Why didn’t we
charge Donald Craig? Why only Henry Anekwu?
11520 UNITED STATES v. ANEKWU
Think about this, possibly the government is
going after the heads of these organizations, the Wil-
son O[k]kikis, the Henry Anekwus, doing what it
can in the difficult situation of crimes that occur
across the border. You heard Chun Ma tell you it’s
not very easy to exchange evidence. You have to go
through a lengthy cumbersome process just to get
some bank records from Canada. Just to get some-
body arrested in Canada. It’s not an easy thing to do.
It’s not like just issuing a warrant and going outside
and grabbing the person.
Anekwu did not object.
A.
Anekwu argues that the Government committed prosecu-
torial misconduct, because the prosecutor in closing argument
improperly expressed opinions on Anekwu’s guilt and culpa-
bility. Anekwu also argues, but only in his reply brief, that the
prosecutor’s comments in closing argument improperly
vouched for the credibility of Chipere. However, an appellant
waives “arguments by failing to raise them in the district court
or in his opening brief filed in this appeal. Issues raised for
the first time in an appellant’s reply brief are generally
deemed waived.” United States v. Anderson, 472 F.3d 662,
668 (9th Cir. 2006) (citation omitted). To the extent that
Anekwu argues improper vouching, the argument is waived,
because it was not raised in his opening brief.
Because Anekwu did not object at trial to the prosecutor’s
allegedly improper comments in closing argument, we review
his remaining prosecutorial misconduct objections for plain
error. Wright, 625 F.3d at 610.
B.
A defendant must show both misconduct and prejudice to
obtain reversal based on prosecutorial misconduct. Wright,
UNITED STATES v. ANEKWU 11521
625 F.3d at 609-10. “[A] prosecutor may not express his per-
sonal opinion of the defendant’s guilt . . . .” United States v.
McKoy, 771 F.2d 1207, 1211 (9th Cir. 1985). Further, a pros-
ecutor may not express his or her view of the relative culpa-
bility of the defendant. Id. at 1211-12.
In McKoy, a testifying prosecutor “noted that he ‘was inter-
ested in finding the ultimate source for the goods that were
stolen.’ ” Id. at 1211. The prosecutor also said that one of the
conspirators, who testified against the defendant, “was the
least culpable.” Id. We found “[t]he unmistakable message of
this testimony was that, in the opinion of the former prosecu-
tor, [the defendant] was the most culpable . . . .” Id. Thus, the
conduct was improper. Id.
[17] On this record, we cannot conclude that the district
court plainly erred. The unmistakable message of the prosecu-
tor’s comments here was not regarding the culpability of
Anekwu. Rather, the prosecutor’s comments supported the
Government’s theory that Anekwu was the head of the orga-
nization the Government was targeting. The prosecutor fur-
ther suggested that the authorities had limited resources and
therefore chose to go after the heads of such organizations,
which is not obviously and necessarily about culpability.
Additionally, Anekwu’s counsel made comments in closing
argument regarding Chipere, inviting the Government to
respond. Even if the prosecutor’s comments were improper,
“where a prosecutor’s improper arguments respond to the
arguments of the defense, they may serve to ‘right the scale’
of justice.” McKoy, 771 F.2d at 1212. Thus, we cannot con-
clude that the district court plainly erred in admitting the
allegedly improper comments by the prosecutor.
VII.
During deliberations, the jury asked the district court, “If
someone other than the defendant takes contacts from Plati-
num Awards and continues the fraudulent activity, on his
11522 UNITED STATES v. ANEKWU
own, is the defendant liable?” The court conferred with the
parties’ attorneys. Anekwu’s defense counsel thought “the
clear answer is no.” The Government wanted to review
United States v. Lothian, 976 F.2d 1257 (9th Cir. 1992),
before giving an opinion. The court responded that it did not
usually answer specific factual questions unless the answer is
clear. The court recommended reading Instruction 30 (the co-
schemer instruction).4 Defense counsel agreed with reading
Instruction 30, but she asked that Instruction 26 (the intent
instruction) also be read.5 The Government agreed, and the
district court read the two instructions to the jury. The jury
went back to deliberating. The court then asked each party to
send Lothian to the court and for counsel to read the case. The
court did not discuss the note further.
A.
Because Anekwu did not object to the district court’s
response to the jury question, we review this issue for plain
error. See United States v. Ramirez, 537 F.3d 1075, 1081 (9th
Cir. 2008).
4
The co-schemer instruction states:
Each member of a scheme to defraud is responsible for other
coschemers’ actions during the course of and in furtherance of
the scheme.
If you decide that the defendant was a member of a scheme to
defraud and that the defendant had the intent to defraud, the
defendant is responsible for what other coschemers said or did to
carry out the scheme even if the defendant did not know what
they said or did.
For a defendant to be found guilty of an offense committed by
a coschemer as part of the scheme, the offense must be one that
could reasonably be foreseen as a necessary and natural conse-
quence of the scheme to defraud.
5
The intent instruction states: “An intent to defraud is an intent to
deceive or cheat.”
UNITED STATES v. ANEKWU 11523
B.
“The Supreme Court has clearly stated that it is reversible
error for a trial judge to give an answer to a jury’s question
that is misleading, unresponsive, or legally incorrect.” United
States v. Frega, 179 F.3d 793, 810 (9th Cir. 1999). “When a
jury makes explicit its difficulties a trial judge should clear
them away with concrete accuracy.” Id. at 809 (quoting Bol-
lenbach v. United States, 326 U.S. 607, 612-13 (1946) (inter-
nal quotation marks omitted)). But “the precise manner by
which the court fulfills this obligation is a matter committed
to its discretion.” Arizona v. Johnson, 351 F.3d 988, 994 (9th
Cir. 2003).
Our principles regarding co-schemer liability in the mail
fraud context are as follows:
• A knowing participant in a scheme to defraud is
vicariously liable for substantive acts of mail fraud
or wire fraud committed by co-schemers.
• The acts for which a defendant is vicariously liable
must have occurred during the defendant’s knowing
participation or must be an inevitable consequence
of actions taken while the defendant was a knowing
participant.
• Vicarious liability for substantive counts of mail
fraud or wire fraud does not require that a conspiracy
be charged or proved.
United States v. Stapleton, 293 F.3d 1111, 1117 (9th Cir.
2002). In Stapleton, we found the jury instructions at issue
were sufficiently compatible with these principles, because
“[t]he instructions limited vicarious liability to acts of co-
schemers during the life of the scheme and acts that were rea-
sonably foreseeable as a necessary and natural consequence of
the fraudulent scheme.” Id. at 1118.
11524 UNITED STATES v. ANEKWU
Here, the jury asked: “If someone other than the defendant
takes contacts from Platinum Awards and continues the fraud-
ulent activity, on his own, is the defendant liable?” The ques-
tion was phrased to elicit a “yes” or “no” answer, and such an
answer may have favored one side over the other. Thus, the
court had discretion on how to clear up the ambiguity. See
Arizona, 351 F.3d at 994-95.
The co-schemer instruction here states that a “member of
a scheme to defraud is responsible for co-schemes’ actions
during the course of and in furtherance of the scheme.” Fur-
ther, “[f]or a defendant to be found guilty of an offense com-
mitted by a co-schemer as part of the scheme, the offense
must be one that could reasonably be foreseen as a necessary
and natural consequence of the scheme to defraud.” The co-
schemer instruction is substantially similar to the instruction
that we approved in Stapleton. See 293 F.3d at 1117-18.
Therefore, without deciding whether the answer to the
instruction is definitively yes or no, we conclude that the dis-
trict court’s response to the jury question was not plainly erro-
neous.
[18] While Anekwu argues that our case law requires
reversal, the cases that Anekwu cites are distinguishable. In
United States v. Warren, the district court abused its discre-
tion in referring the jury back to the original instructions,
because the jury indicated that it was confused by the original
instructions and those instructions did not cover the point of
confusion. 984 F.2d 325, 330 (9th Cir. 1993). In United States
v. Frega, the district court’s response to a jury question was
substantively erroneous and the original jury instructions
lacked needed information. See 179 F.3d at 808-10. Here, as
Stapleton indicates, the jury instruction accurately stated the
law. See 293 F.3d at 1118. In McDowell v. Calderon, we rec-
ognized that in death penalty cases, doubts about jury requests
for guidance “should be resolved in favor of the accused.”
130 F.3d 833, 840 (9th Cir. 1997) (en banc), overruled in part
on other grounds by Weeks v. Angelone, 528 U.S. 225 (2000).
UNITED STATES v. ANEKWU 11525
Additionally, “[t]he plain language of the jury’s request for
guidance demonstrate[d] that eleven jurors were confused
about the law and erroneously believed they could not con-
sider eight aspects of [the defendant’s] background as mitigat-
ing evidence.” Id. at 837. Here, Anekwu’s case is not a death
penalty case, and the plain language of the jury’s note did not
demonstrate that the jurors were affirmatively interpreting the
law incorrectly. Thus, we cannot conclude that the district
court plainly erred in re-reading the correct jury instructions
to the jury. See Arizona, 351 F.3d at 995.
VIII.
[19] “Cumulative error applies where, ‘although no single
trial error examined in isolation is sufficiently prejudicial to
warrant reversal, the cumulative effect of multiple errors may
still prejudice a defendant.’ ” Mancuso v. Olivarez, 292 F.3d
939, 957 (9th Cir. 2002) (quoting United States v. Frederick,
78 F.3d 1370, 1381 (9th Cir. 1996)). Here, the only potential
error by the district court was the refusal to give Anekwu’s
proposed informant credibility instruction. However, we can-
not conclude that the district court plainly erred, because an
accomplice instruction was given (warning the jury to be cau-
tious about Chipere’s testimony), and Anekwu’s defense
counsel was allowed to fully develop Chipere’s potential
motivations in cross-examination and in closing argument.
Because there are no other potential errors, we conclude that
reversal for cumulative error is not warranted.
IX.
The U.S. Probation Office calculated two advisory Guide-
lines ranges for Anekwu’s sentencing proceedings, because
the applicable conduct occurred before and after November
2001. For the pre-November 2001 conduct, the offense level
was 28 with a criminal history category of I, yielding a sen-
tence range of 78 to 97 months. For the post-November 2001
11526 UNITED STATES v. ANEKWU
conduct, the offense level was 32 with a criminal history cate-
gory of I, yielding a sentence range of 121 to 151 months.
In the Government’s Position Re: Sentencing Factors,
under the category for factor (7) of 18 U.S.C. § 3553(a), the
Government stated: “Defendant has no significant assets and
will be deported to Nigeria following his incarceration in the
United States. Thus it is highly unlikely that defendant will
ever pay restitution to his victims. This is an aggravating fac-
tor.”
The district court adopted the Probation Office’s calcula-
tions. Then the court considered the factors in 18 U.S.C.
§ 3553(a). In the discussion of employment, the court recog-
nized that Anekwu had no job, no assets, and his wife made
approximately $2,000 per month, which was used to support
their family. “As a result, the defendant will be unable to
make any restitution payments, and it’s painfully obvious to
the Court, that the victims will not receive a penny of the
money that was stolen from them.” A moment later, the court
stated:
I also have considered restitution, and will enter
an order of restitution in the amount of $510,840.75.
I recognize that the lengthy period of incarceration
that I will impose will mean that the defendant will
be unable to repay the victims who lost money in
this case, but I doubt that imposing a lesser sentence
would impose a corresponding greater recovery for
the victims. I realize that these victims would rather
have their money returned to them, but unfortu-
nately, although I will order the defendant to pay res-
titution, they should realize in these cases it’s highly
unlikely that there will be any recovery from this
defendant.
The district court concluded that the advisory ranges suffi-
ciently satisfy the purposes of sentencing. “Finally, . . . the
UNITED STATES v. ANEKWU 11527
[c]ourt . . . considered the goals of sentencing and conclude[d]
that the [c]ourt’s sentence [was] sufficient, but not greater
than necessary to meet the four purposes of sentencing.”
Anekwu did not object to the sentence at the hearing.
A.
Sentencing is reviewed for an abuse of discretion. United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
“[O]nly a procedurally erroneous or substantively unreason-
able sentence will be set aside.” Id. “Procedural sentencing
errors raised for the first time on appeal are generally
reviewed for plain error.” United States v. Burgum, 633 F.3d
810, 812 (9th Cir. 2011). Because Anekwu did not raise any
objections to his sentence before the district court, we apply
plain error review.
B.
[20] “[I]t is well established that the Constitution forbids
imposing a longer term of imprisonment based on a defen-
dant’s inability to pay restitution.” Burgum, 633 F.3d at 814.
Even so, there is no “absolute constitutional bar to consider-
ation of a defendant’s financial status. . . . [A] sentencing
court [may] consider the defendant’s ability to pay restitution
in deciding to impose a more lenient sentence.” Id. at 815. “In
sum, . . . the Constitution prohibits imposition of a longer
prison term based on the defendant’s poverty, although it does
not forbid all consideration of the defendant’s financial
resources.” Id.
In Burgum, the district court stated:
One additional aggravating factor that I didn’t men-
tion is I just think realistically the chances of restitu-
tion in this case are probably slim, maybe even null
in light of the amount of restitution being $258,280,
11528 UNITED STATES v. ANEKWU
Mr. Burgum not really having the finances or the
financial condition to even pay a fine.
Id. at 814. We concluded that, “[b]ecause the district court
cited Burgum’s inability to pay restitution as one of the aggra-
vating factors on which its sentence calculation was based, the
error” was plain. Id. at 816.
This case is distinguishable from Burgum, because the dis-
trict court did not explicitly reference or cite Anekwu’s inabil-
ity to pay restitution as an aggravating factor. Although the
Government cited Anekwu’s inability to pay as an aggravat-
ing factor in its Position Re: Sentencing Factors, the district
court did not reference that document.
[21] More importantly, the record actually implies that the
district court referenced Anekwu’s inability to pay restitution
to show that the court had considered imposing a lesser sen-
tence to facilitate the payment of restitution. The court noted
that Anekwu “will be unable to repay the victims who lost
money in this case, but I doubt that imposing a lesser sentence
would impose a corresponding greater recovery for the vic-
tims.” See also United States v. Rangel, ___ F.3d ___, 2012
WL 2948544, at *5 (9th Cir. July 20, 2012) (“The district
court in this case did not consider [the defendant’s] inability
to pay restitution itself as an aggravating factor in imposing
a longer sentence, but focused instead on the impact on the
victims of [the defendant’s] crimes.”). Additionally, the refer-
ences to the inability to pay restitution seem to explain to the
victims (some of whom were at the hearing) that they should
not expect to receive any of the $510,840.75 ordered. In sum,
the district court did not plainly err, because it is proper for
a court “to consider the defendant’s inability to pay restitution
in deciding to impose a more lenient sentence,” Burgum, 633
F.3d at 815, and the error, if any, “is [not] clear or obvious,”
Wright, 625 F.3d at 607.
UNITED STATES v. ANEKWU 11529
C.
Anekwu argues that the district court erred in sentencing
him to 108 month and 78 month concurrent sentences,
because the court found that the guideline ranges were “suffi-
cient to satisfy the purposes of sentencing.” He claims that if
a 97 month sentence was sufficient, then a 108 month sen-
tence must be excessive. When different counts apply to peri-
ods with different Guidelines manuals, different Guidelines
ranges for those counts are appropriate. United States v. Ort-
land, 109 F.3d 539, 546 (9th Cir. 1997). Further, a sentence
outside a Guidelines range is allowed and reviewed for rea-
sonableness. United States v. Hilgers, 560 F.3d 944, 947 (9th
Cir. 2009).
[22] Here, the district court considered and consulted the
advisory Guidelines ranges, “find[ing] that the ranges ade-
quately take into consideration the specific facts and circum-
stances of this case, and the ranges established by the
guidelines are sufficient to satisfy the purposes of sentenc-
ing.” The court ultimately sentenced Anekwu to 78 months
imprisonment for the pre-November 2001 conduct (the lower
end of the range) and to 108 months for the post-November
2001 conduct (a variance downward from the range of 121-
151 months). The sentences were ordered to be served con-
currently. When asked by the Government why the court var-
ied downward from the post-November 2001 range, the court
stated, “I have applied the 3553(a) factors in phase two, and
looking at all of those factors, I conclude that that was the
appropriate sentence to be imposed in this case.” Thus, the
district court did not err, because it sentenced Anekwu sepa-
rately, using the appropriate separate Guidelines ranges.
Further, the sentence for the post-November conduct was a
downward variance, which is allowed if reasonable. Anekwu
did not challenge the reasonableness of the sentence, so we
need not decide whether the 108-month sentence was reason-
11530 UNITED STATES v. ANEKWU
able.
AFFIRMED.