United States v. Doris Anyanwu , 490 F. App'x 859 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10287
Plaintiff - Appellee, D.C. No. 3:10-cr-00422-CRB-3
v.
MEMORANDUM *
DORIS AKUYOMA ANYANWU,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-10299
Plaintiff - Appellee, D.C. No. 3:10-cr-00422-CRB-1
v.
HYACINTH UDEH,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted June 13, 2012
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.
Doris Anyanwu and Hyacinth Udeh appeal convictions resulting from their
involvement in a mortgage fraud scheme. Anyanwu also appeals the fine imposed
on her at sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.1
Both Anyanwu and Udeh argue that there was no evidence of deliberate
ignorance and that the district court therefore erred when it provided the jury with a
deliberate ignorance instruction. The district court did not abuse its discretion
when it provided the instruction because the jury rationally could have found that
both Anyanwu and Udeh were deliberately ignorant even if it rejected the
government’s evidence of actual knowledge.2 See United States v. Heredia, 483
F.3d 913, 922 (9th Cir. 2007) (en banc).
Anyanwu contends that the deliberate ignorance jury instruction improperly
shifted the burden of proof to her by requiring her to disprove deliberate ignorance,
1
Because the parties are familiar with the facts underlying this appeal, we do
not recount the facts here.
2
Anyanwu makes a very conclusory argument that there was insufficient
evidence to prove the element of knowledge for each of her convictions.
Examining the evidence in the light most favorable to the government, see United
States v. Freter, 31 F.3d 783, 785 (9th Cir. 1994), we hold that there was sufficient
evidence of knowledge for all the counts requiring knowledge.
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and she further contends that this alleged error constituted a due process violation.
The deliberate ignorance instruction did not shift the burden of proof to Anyanwu.
It merely clarified the circumstances under which the jury was not permitted to
find deliberate ignorance. Such an instruction is permissible. See, e.g., id. at 917,
920.
Anyanwu argues that, in response to a question from the jury, the district
court provided a legally incorrect supplemental jury instruction for the charges of
making false claims of citizenship in violation of 18 U.S.C. § 911. If a jury
requests clarification on an issue, the district court is obligated to clear away the
confusion with accuracy. United States v. McIver, 186 F.3d 1119, 1130 (9th Cir.
1999). Anyanwu contends that the district court’s supplemental instruction
improperly stated the elements of § 911 because it twisted the plain statutory
meaning of the word “directly” to mean “indirectly.” This argument lacks merit
because the statutory language does not include the word “directly.” See 18 U.S.C.
§ 911. The district court’s instruction is consistent with § 911 and our case law.
See id.; Chow Bing Kew v. United States, 248 F.2d 466, 469-71 (9th Cir. 1957). In
addition, the district court properly understood that the jury was confused about
whether the law required the defendant herself to physically check the box stating
that she was a United States citizen, and the court accurately informed the jury that
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she was not required to do so. See Chow Bing Kew, 248 F.2d at 469-71; cf. United
States v. Bellucci, 995 F.2d 157, 159 (9th Cir. 1993); United States v. Olano, 934
F.2d 1425, 1435-36 (9th Cir. 1991), rev’d on other grounds, 507 U.S. 725 (1993).
Moreover, the district court properly instructed the jury on the requisite mens rea
element, instructing the jury that the government was required to prove that the
defendant made the false representation wilfully. See 18 U.S.C. § 911; United
States v. Karaouni, 379 F.3d 1139, 1142 (9th Cir. 2004). The supplemental jury
instruction did not change this “wilfully” instruction.
Anyanwu next argues that the district court violated the Sixth Amendment’s
Confrontation Clause by refusing to permit her attorney to conduct a full cross-
examination of one of the special agents during the government’s case-in-chief and
requiring instead that Anyanwu’s counsel recall the witness and examine her during
the defendants’ case-in-chief. We reject this argument because a limitation on
cross-examination does not violate the Confrontation Clause unless it limits
relevant testimony and prejudices the defendant. See United States v. Bensimon,
172 F.3d 1121, 1128 (9th Cir. 1999). The district court’s ruling here neither limited
relevant testimony nor prejudiced Anyanwu; the court merely determined when
Anyanwu was permitted to elicit the testimony.
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Both Anyanwu and Udeh contend that the district court should have
dismissed the indictment based on a presumption of vindictiveness because they
were indicted in the instant case after Anyanwu exercised her rights to trial and
appeal in a previous case involving different conduct and different charges. We
reject this contention because such routine procedural actions are not sufficient to
warrant a presumption of vindictiveness, especially because the investigation in the
instant case did not begin until after Anyanwu was indicted in the previous case and
because that investigation was still ongoing during the prosecution of the previous
case. See United States v. Goodwin, 457 U.S. 368, 373, 381-83 (1982); United
States v. Gallegos-Curiel, 681 F.2d 1164, 1168-71 (9th Cir. 1982).
Anyanwu argues that the $75,000 fine imposed on her at sentencing is
unreasonable because she is unable to pay the fine. Given the evidence of
Anyanwu’s assets and her failure to provide requested financial documentation to
the Probation Office, the district court did not clearly err by holding that Anyanwu
failed to meet her burden of proving that she was unable to pay the fine. See
U.S.S.G. § 5E1.2(a); United States v. Orlando, 553 F.3d 1235, 1239-40 (9th Cir.
2009). Moreover, the $75,000 fine was not unreasonable. See Orlando, 553 F.3d at
1239-40.
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Finally, when the district court imposed the fine, it provided an explanation
that was sufficient to permit meaningful appellate review. See id. at 1239; United
States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
AFFIRMED.
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