United States v. Adenodi

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 7, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30117
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADEDIPUPO ADENODI, also known as Felix,
doing business as AAA Used Auto Sales,
doing business as AAA Used Cars,
doing business as AAA Used Auto's,
doing business as Triple AAA,
doing business as Triple A Used Cars;
SUNDAY ADEOSHUN, also known as Sunny,
doing business as AAA Used Auto Sales,
doing business as AAA Used Cars,
doing business as AAA Used Auto's,
doing business as Triple AAA,
doing business as Triple A Used Cars,
Defendants-Appellants.
--------------------
Appeals from the United States District Court
for the Eastern District of Louisiana
(01-CR-13-3)
--------------------
Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Following a jury trial, Adedipupo Adenodi and Sunday Adeoshun
were convicted of conspiracy to sell stolen vehicles that crossed
*
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opinion should not be published and is not precedent except under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.
state lines, to commit mail fraud, and to alter vehicle
identification numbers; mail fraud; and selling stolen vehicles.
The district court sentenced Adenodi to 24 months in prison and
Adeoshun to 27 months in prison. Each defendant was also sentenced
to a three-year term of supervised release. Adenodi and Adeoshun
now challenge their convictions and sentences.
Adeoshun and Adenodi contend that the district court
reversibly erred by informing the venire that they were not United
States citizens. Because Adeoshun and Adenodi did not object to
the disputed remark, we review this claim for plain error only.
See United States v. Taylor, 513 F.2d 70, 72 (5th Cir. 1975). Far
from being improper, the apparent purpose of this statement to the
venire was to ensure that any jurors who did hold the defendants’
citizenship, or lack thereof, against them did not sit on the jury.
This remark was thus proper. See United States v. Garcia, 86 F.3d
394, 402 (5th Cir. 1991); see also United States v.
Quiroz-Hernandez, 48 F.3d 858, 868 (5th Cir. 1995).
The appellants also challenge the sufficiency of the evidence.
They argue that the Government failed to prove that they knowingly
engaged in activities involving stolen cars. When considering a
sufficiency challenge, the pertinent inquiry is “whether any
reasonable trier of fact could have found that the evidence
established the essential elements of the crime beyond a reasonable
doubt.” United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.
1998). In conducting this analysis, we “consider[s] the evidence
2
in the light most favorable to the government, drawing all
reasonable inferences and credibility choices made in support of
the verdict.” Id.
When viewed in the light most favorable to the Government, the
extensive documentary and testimonial evidence adduced at trial was
sufficient to prove the appellants’ knowing participation in a
conspiracy to alter vehicle identification numbers, sell stolen
cars, and commit mail fraud. This evidence was likewise sufficient
to prove that the defendants knowingly sold stolen cars and
committed mail fraud.
To the extent that the appellants argue that the evidence was
not sufficient to support their convictions because the jury should
not have believed certain Government witnesses, they cannot
prevail. We will not substitute our own determination of
credibility based on a cold record for that of the jury which saw
the witnesses and heard the testimony firsthand. United States v.
Martinez, 975 F.2d 159, 161 (5th Cir. 1992). Adeoshun and Adenodi
have not shown that the evidence was insufficient to support their
convictions.
The appellants contend further that the prosecutor committed
reversible error when he commented, during closing arguments, that
the jurors could not acquit the defendants. In reviewing a claim
of prosecutorial misconduct in the form of an improper remark, we
consider whether the remark “prejudiced the defendant’s substantive
3
rights.” United States v. Munoz, 150 F.3d 401, 415 (5th Cir.
1998).
The disputed remark was likely not even improper. Rather, it
can fairly be read as an attempt to assist the jury in “analyzing,
evaluating, and applying the evidence,” which are proper functions
of the prosecution’s closing argument. United States v. Binker,
795 F.2d 1218, 1224 (5th Cir. 1986). Additionally, even if the
remark was improper, the appellants still have not shown that it
entitles them to have their convictions reversed, especially in
light of the substantial evidence against them and the district
court’s repeated admonitions to the jury.
The appellants next contend that the district court reversibly
erred in instructing the jury on the effect of the appellants’
Fifth Amendment right to silence. We review this issue only to
determine if the allegedly improper instruction could have meant
the difference between acquittal and conviction. United States v.
Anderson, 987 F.2d 251, 256 (5th Cir. 1993). The disputed
instruction is, at most, ambiguous, and our review of the record
convinces us that it did not alter the outcome of the trial. The
appellants have not shown that they are entitled to have their
convictions reversed based on the district court’s instructions to
the jury on the right against self-incrimination.
Adeoshun and Adenodi argue further that the district court
erred in denying their requests for downward adjustments to their
offense levels based on their purportedly minimal roles in the
4
offense. The district court’s refusal to grant a defendant this
downward adjustment is entitled to great deference. See United
States v. Devine, 934 F.2d 1325, 1340 (5th Cir. 1991). Adeoshun
and Adenodi have not shown that their involvement in the conspiracy
underlying their convictions was “peripheral.” See United States
v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001), cert. denied, 534
U.S. 980 (2001) and 534 U.S. 1086 (2002). Accordingly, they have
not shown that the district court erred in denying them this
adjustment.
In addition, Adenodi contends that the district court erred in
denying his objection to the two-point adjustment he received for
being in the business of buying and selling stolen vehicles. As
his argument on this issue amounts to no more than a conclusional
assertion, he has not shown that the district court erred in
overruling this objection. See United States v. Londono, 285 F.3d
348, 355 (5th Cir. 2002).
Finally, Adenodi advances that the district court erred in
denying his motion for a downward departure. There is no
indication that the district court denied this request based on a
mistaken belief that the guidelines did not permit such a
departure. Accordingly, the district court’s denial of Adenodi’s
request for a downward departure is unreviewable. See United
States v. Wilson, 249 F.3d 366, 380 (5th Cir. 2001).
5
Adeoshun and Adenodi have shown no error in connection with
their convictions and sentences. Accordingly, the judgments of the
district court are AFFIRMED.
6