United States v. Anele

Case: 08-20459 Document: 00511031869 Page: 1 Date Filed: 02/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2010
No. 08-20459
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HOPE IKECHUKWU ANELE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-187-ALL
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Hope Ikechukwu Anele appeals his jury convictions
for possession with intent to distribute five kilograms or more of cocaine and for
conspiring to do so. Anele was arrested at Houston’s Intercontinental Airport
with more than seven kilograms of cocaine in his luggage.
Anele contends that the evidence was insufficient to prove that he
knowingly possessed the cocaine and that he agreed with anyone to possess it.
To affirm, we need only to conclude that “a rational trier of fact could have found
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 08-20459
that the government proved the essential elements of the offense beyond a
reasonable doubt” when the evidence, all reasonable inferences that can be
drawn from the evidence, and all credibility determinations are viewed in the
light most favorable to the jury’s verdict. United States v. Moreno, 185 F.3d 465,
471 (5th Cir. 1999); see Jackson v. Virginia, 443 U.S. 307, 319 (1979).
To prove possession with intent to distribute, the government was required
to show that Anele knowingly possessed the cocaine with the intent to distribute
it. Moreno, 185 F.3d at 471. To prove Anele’s knowledge, the government
adduced evidence from which the jury could conclude that Anele claimed the
luggage as his own and took responsibility for its contents. Although he was
informed that he was under arrest for possession of cocaine, Anele showed no
shock or surprise. These factors support an inference of knowledge. See id. In
addition, evidence showing that the cocaine had a potential value of $300,000
supported an inference of Anele’s knowledge as well as an inference of an intent
to distribute the cocaine. See United States v. Garcia, 567 F.3d 721, 732 (5th
Cir.) (noting that value and quantity support an inference of an intent to
distribute), cert. denied 130 S. Ct. 303 (2009); United States v. Villareal, 324 F.3d
319, 324 (5th Cir. 2003) (noting that value and quantity support an inference
that drugs were not entrusted to an unknowing courier).
The government also adduced extensive circumstantial evidence, including
travel itineraries and financial information, to support its contention that Anele
and his wife earned money by carrying cocaine from Houston to London while
on their way to Nigeria. Although Anele attempted to chip away piecemeal at
the government’s case, for example by arguing that there were innocent
explanations for his travels, the jury was free to find the government’s evidence
credible. See Moreno, 185 F.3d at 471.
To prove a conspiracy, the government was required to show Anele’s
agreement to engage in criminal activity with another person. See United States
v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003). A government agent testified on
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cross-examination that, based on his experience, he believed that a Nigerian
named Peter Igwe purchased the cocaine that was found in Anele’s luggage. The
theory of the defense was that Igwe put the cocaine in Anele’s luggage without
Anele’s knowledge. The defense conceded that Igwe was a drug-trafficking
conspirator but argued that Anele was not. The jury was entitled to accept the
government’s evidence that Igwe was a drug smuggler who gave Anele the
cocaine and was free to reject the defense’s position that Igwe acted without
Anele’s knowledge or agreement. See United States v. Estrada-Fernandez,
150 F.3d 491, 496 n.3 (5th Cir. 1998) (noting that a jury may believe all, part, or
none of the defendant’s version of events). There was also ample circumstantial
evidence from which a jury could conclude that Anele conspired with his wife to
traffic in cocaine in accordance with the government’s theory of the case.
Anele contends that the government was obligated to prove that he knew
the drug type and quantity he possessed. This contention is foreclosed by United
States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009).
Anele asserts that the government made an improper reference to his
election not to testify, when, in closing argument, the government noted defense
counsel’s concession that Anele had been untruthful in several respects during
the years preceding to his arrest. The government then said that Anele’s lies
were important, “[b]ecause any time a witness testifies, that witness ...” at which
point defense counsel objected on grounds that the remark drew attention to
Anele’s election not to testify. The court overruled the objection promptly and
without comment. The prosecutor went on to say, “A witness’s credibility is
always important. And Mr. Anele lied to get a job. And you have to question
what his witnesses would do in order to prevent him from going to jail.” The
prosecutor then impugned the credibility of Anele’s wife and the defense’s hired
expert witnesses.
The government was attempting to project Anele’s established lack of
credibility onto defense witnesses and the defense in general. This was
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consistent with the government’s theme, revealed throughout the trial record,
that Anele and his wife were not credible in general and that the jury should
therefore reject the defense’s offer of innocent reasons for Anele’s behavior,
which evidence came largely through Anele’s wife. The record thus shows a
plausible and proper explanation for the remark that did not concern Anele’s
decision to remain silent at trial. See United States v. Grosz, 76 F.3d 1318, 1326
(1996). Accordingly, the remark did not manifest the government’s intent to
comment adversely on Anele’s decision not to testify. Id. Further, “the character
of the remark was [not] such that the jury would naturally and necessarily
construe it as a comment on the defendant’s silence.” Id. (internal quotation
marks and citation omitted).
The jury’s conviction of Anele and the district court’s judgment based
thereon are, in all respects,
AFFIRMED.
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