US v. Theophilus Akwei, No. 12-4396 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4396 UNITED STATES OF AMERICA, Plaintiff Appellee, v. THEOPHILUS AKWEI, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:11-cr-00199-JCC-6) Argued: February 1, 2013 Decided: March 14, 2013 Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished opinion. Judge Duncan wrote opinion, in which Judge Niemeyer and Judge Diaz joined. the ARGUED: Gregory E. Stambaugh, GREGORY E. STAMBAUGH LAW OFFICE, Manassas, Virginia, for Appellant. James Philip Gillis, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. DUNCAN, Circuit Judge: This appeal arises from Theophilus Akwei s conviction on three heroin-related counts. Akwei contests the sufficiency of the evidence sustaining his convictions. aspects of his trial and sentencing, He also challenges including the district court s evidentiary rulings, flight instruction, denial of his motion for a minor role adjustment, and forfeiture order. For the reasons that follow, we affirm the judgment of the district court. I. A. Akwei is a resident of Maryland and native of Ghana. convictions arise from his involvement with the His Macauley organization, a Ghanaian heroin smuggling operation commanded by Edward Macauley. the conspiracy In 2010 and 2011, Macauley directed members of based in Ghana, including Frank Ehiobu, to arrange heroin shipments from Ghana to the United States. In February 2011, Ehiobu and Macauley planned a shipment in which Emmanuel Annor, a courier who was working as an undercover Drug Enforcement Agency ( DEA ) informant, took a carry-on bag containing heroin from Accra, Ghana to Washington, D.C. There, a second courier was supposed to pick the bag up and transport it to the appropriate seller. When Annor arrived in Washington 2 on February 21, however, the second courier failed to appear, and Annor proceeded to an Alexandria, Virginia hotel with the heroin-laden bag. Ehiobu promised to send someone else to collect the drugs. On the evening of February 21, Akwei had Joseph Duodo, an associate familiar with northern Alexandria hotel to meet Annor. others identities by recorded the calls. Virginia, drive him to the Akwei and Annor verified each telephoning Ehiobu in Ghana; Annor Akwei greeted Ehiobu as Uncle Frank and Ehiobu told Annor, [i]t s him. J.A. 74. The pair discussed how Annor would transfer the bag to Akwei, who promised to pay [Annor] the money later. Id. After several more phone calls to Ehiobu, Annor placed the bag in the back of Duodo s car. Shortly after the pick-up, the DEA directed local officers to stop Akwei and Duodo and arrest them. The arresting officers recovered the bag, which contained 988.8 grams of heroin. On February 22, while Ehiobu remained unaware of Akwei s arrest, he and Annor discussed Akwei s whereabouts in another recorded phone call. Annor told Ehiobu that Akwei never returned with money, and Ehiobu assured Annor that Akwei was our boy, that he kn[e]w him very well, and that [e]verybody 3 knows him. Director, [Director s] boys. 1 everybody. . . . He s one of his J.A. 84-85. In another February 22 telephone call, Ehiobu talked with a second confidential informant, Augustine Ani, to whom Ehiobu had promised a 100-200 gram heroin sample. J.A. 611. Ehiobu described the drug pick-up, referred to Akwei as my boy, and told Ani that Akwei is the guy who took money to New York for me the last time. Id. at 98. Ehiobu told Ani that [w]hat [Akwei] does is run errands for me, including collecting and delivering items such as the bag and money. Ani expressed explained before. that concern Akwei over has Akwei s not done Id. at 102. trustworthiness, this [disappeared] When Ehiobu to me Id. at 105. On March 18, 2011, the government released Akwei to protect the ongoing investigation of the larger conspiracy, dismissing the charges against him without prejudice. federal agents began a series of coordinated related to the Macauley organization. Akwei s front door before six a.m. led officers upstairs, where she On July 14, 2011, global arrests DEA agents arrived at Akwei s wife answered. said Akwei was She sleeping. Meanwhile, Special Agent Mark Murtha, who was positioned behind 1 Director is one of many names used to refer to Edward Macauley. 4 the house, saw Akwei open the basement door, peer outside, and exit the home. Agent Murtha arrested Akwei, who was wearing a light shirt, sweat pants, gym shoes, and no underwear. Akwei claimed he was on his way to work, but subsequently admitted he began work later in the day. Agents searched his residence and seized $3200 in cash. B. On August 24, 2011, a federal grand jury returned a sixcount superseding coconspirators indictment alleging importation efforts. against involvement in eight a series Macauley of heroin The three counts involving Akwei charged him with conspiracy to import heroin, 21 U.S.C. § 963, (the conspiracy count ), distribution for the purpose of unlawful importation of heroin, 21 U.S.C. §§ 959(a), 960, (the distribution count ), and possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1), (the possession count ), based on his involvement in the conspiracy and participation in the February 21, 2011 transaction in particular. Ehiobu and several alleged Macauley coconspirators pleaded guilty and testified for the government at Akwei s trial. The two confidential informants, Annor and Ani, also testified. At trial, Ehiobu affirmed that Akwei had agreed to pick up the bag and knew it contained heroin. to the recorded phone conversations. 5 Annor and Ani testified Ani explained that he understood Ehiobu s description of Akwei as someone who run[s] errands to mean that Akwei performed drug-related messenger and courier work for Ehiobu. Macauley organization Evidence further revealed that the had orchestrated three other heroin importation efforts in 2010 and 2011, each involving a courier transporting over United States. one kilogram of heroin from Ghana to the The government presented evidence that Akwei and Macauley knew each other by submitting Macauley s phone contact list, which, at the time of Macauley s arrest, contained Akwei s name and phone number. Agent Murtha testified to Akwei s behavior on the morning of his July 14 arrest, describing how mounds of clothes and other debris blocked the path through the basement to the back door where Akwei exited. J.A. 587. After trial, Akwei moved for judgment of acquittal with respect to sufficiency his of the conspiracy evidence conviction, supporting challenging the jury s the conclusion that the conspiracy involved one or more kilograms of heroin. Akwei also moved for a new trial, arguing that the evidence of his behavior on the morning of his July 14 arrest insufficiently supported the flight instruction the district court gave the jury. The district court found that sufficient evidence supported the conclusion that Akwei could have foreseen that the conspiracy involved a kilogram or more of heroin, considering 6 that the bag Akwei picked up contained 988.8 grams and that recorded Ehiobu. conversations revealed that he ran errands for Akwei s With respect to the flight instruction, the court found attempt to flee sufficiently related to his consciousness of guilt of the heroin importation crimes at issue to support the instruction. Consistent indictment, the with the forfeiture government moved for notice a included preliminary in the order of forfeiture pursuant to 21 U.S.C. § 853(a) and Federal Rule of Criminal Procedure 32.2. It sought a $5,000 judgment against Akwei and forfeiture of the $3,200 seized during his arrest to partially satisfy that judgment. 2 Akwei argued that he never received proceeds from his participation in the conspiracy. The court granted the forfeiture order after finding the requisite nexus between the $5,000 judgment and Akwei s offense and applied the $3,200 to the judgment as substitute property. J.A. 991; 21 U.S.C. § 853(p). The district court denied Akwei s motion for a minor role adjustment and sentenced him to the mandatory minimum of ten years imprisonment for his conspiracy conviction, as well as 2 Although trial testimony established the street value of a kilogram of heroin at between $70,000 and $120,000, the government sought only $5,000 from Akwei. 7 ninety-seven months each on the convictions, to run concurrently. distribution and possession This appeal followed. II. On appeal, Akwei contends that the district court (1) erred in holding that sufficient evidence supported his convictions, particularly with regard to whether he could have foreseen that the conspiracy involved a kilogram or more of heroin; (2) abused its discretion in allowing evidence of Macauley s phone contact list; (3) abused its discretion in allowing evidence of flight and giving a flight instruction; (4) erred in entering the forfeiture order; and (5) erred in denying his motion for a minor role adjustment. We consider each contention in turn. A. We review the denial of a motion for judgment of acquittal de novo. United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011). In so doing, we construe the evidence in the light most favorable to the government, assuming its credibility, and drawing all favorable inferences from it, and will sustain the jury s verdict if any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Id. (citation omitted). Further, we cannot make [our] own credibility determinations but must assume that the 8 jury resolved all contradictions in testimony in favor of the Government. Id. at 572 (citation omitted). 1. Akwei first sustaining his convictions. court challenges erred conspiracy, In in the distribution, particular, denying his sufficiency he maintains motion for of the and that judgment evidence possession the district of acquittal because the primary evidence connecting him to the conspiracy and to the knowledge that the bag contained heroin came from Ehiobu s trial testimony, testimony he argues is unworthy of belief. Appellant s Br. at 13. We have repeatedly recognized that a fundamental rule of the jury system is that this court is bound by the credibility choices of the jury. 973 (4th Cir. 1996) United States v. Lamarr, 75 F.3d 964, (citation omitted). Even if a witness testifies hoping to receive favor for substantial assistance, id., credibility evaluations remain the province of the jury. Further, the settled law of this circuit recognizes that the testimony of a defendant s accomplices, standing alone and uncorroborated, can provide an adequate basis for conviction. United States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993) (citation omitted). Thus, the jury was entitled to evaluate Ehiobu s testimony and could have concluded that Akwei agreed to engage in the 9 conspiracy with knowledge that the importation and distribution of heroin. scheme involved the This is so even though Ehiobu testified pursuant to his plea agreement with the hope of earning a recommendation for a reduced sentence. We defer to the jury s credibility determinations with respect to Ehiobu, including consideration of his motives. Accordingly, we find that Akwei s sufficient evidence supports conspiracy, distribution, and possession convictions. 2. With respect to the conspiracy conviction, Akwei argues that the government failed to present sufficient evidence that he could have reasonably foreseen that the conspiracy involved more than one kilogram of heroin. the sheer amount of heroin The government responds that involved in the February 21 transaction, as well as testimony identifying Akwei as someone who ran errands for Ehiobu in other instances, suffice to meet the weight threshold. We agree. We have recognized that in a drug conspiracy case, the jury must determine that the threshold drug amount was reasonably foreseeable to the individual defendant. United States v. Brooks, 524 F.3d 549, 558 (4th Cir. 2008) (citation omitted); see United States v. Collins, 415 F.3d 304, 314 (4th Cir. 2008) (holding that district court must instruct jury to use Pinkerton principles when determining 10 the drug quantity attributable Although to the threshold by a particular government defendant in cannot so reasoning establish attenuated a conspiracy). the one it kilogram borders on mathematical impossibility, we continue to draw the available reasonable inferences in favor of the government. United States v. Hickman, 626 F.3d 756, 764 (4th Cir. 2010). government may aggregate transactions within a conspiracy The to establish the weight threshold, as long as they are reasonably foreseeable to the defendant. See id. at 765 (aggregating heroin transactions to determine weight threshold for purposes of evaluating conspiracy conviction). Like Akwei, the defendant in Hickman challenged the sufficiency of evidence that the conspiracy in which he took part involved more than one kilogram of heroin. There, officers had recovered only 176 grams of high-purity heroin, 3 and the government presented transactions which meager offered evidence virtually amounts that may have been involved. the government credit for the of no other guide Id. at 770. maximum conceivable unknown as to the Even giving amount of heroin in those unknown transactions, the evidence still fell 3 The high-purity heroin seized in Hickman would have yielded 681 street-ready grams. 626 F.3d at 765. Although the dilution evidence was unique to testimony elicited at Hickman s trial, we note that the 988.8 grams recovered in this case were high-purity, undiluted grams by Hickman standards. 11 short of the one kilogram threshold. Id. at 766. We therefore reversed the jury s one kilogram finding as unsupported by the evidence. Despite Akwei s attempts to analogize his case to Hickman, here, the government presented sufficient evidence to sustain the one kilogram threshold. The court properly instructed the jury accountable that a defendant is for the quantity of controlled substance of heroin that he personally distributed or imported importing or aided or and could abetted reasonably others foresee in distributing that others or would distribute or import during and in furtherance of a conspiracy. J.A. 863. bag The evidence clearly showed that Akwei picked up a containing Additionally, 988.8 the grams government of heroin at introduced Ehiobu s ample direction. evidence that Akwei knew about, and participated in, the distribution of other amounts of heroin in furtherance of the conspiracy. In Ehiobu s recorded telephone conversations, he stated that Akwei: is not the one who sells but the one who run[s] errands for me, id. at 620; is his boy and known to Macauley, id. at 381; is willing to take it [the heroin] to the other boy, the boy who will sell it . . . . send him [Akwei]. Then if it is to collect money, I will He will collect money from that person if he is told, id. at 620; has not done this [disappeared] to me before, id. at 624; and had taken money to New York for Ehiobu 12 prior to concluded February that 2011, Akwei id. at could 617. have involving one kilogram of heroin. The jury justifiably the conspiracy foreseen The fact that Ehiobu planned to send a 100-200 gram[] heroin sample to Ani, id. at 611, further supports this conclusion. As distinguished from Hickman, the amount of heroin recovered here combined with the specificity of evidence of Akwei s involvement in the conspiracy lead us to conclude that sufficient evidence supported the jury s weight determination. B. We next consider Akwei s argument that the district court abused its discretion by admitting evidence that Macauley s cell phone contact which Akwei list contained contends is Akwei s name irrelevant. We rulings for abuse of discretion. and phone review number, evidentiary United States v. Blake, 571 F.3d 331, 346 (4th Cir. 2009). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable. Fed. R. Evid. 401. Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, we review the lower court s application of this balancing test with the broad deference that the abuse 13 of discretion standard requires. United States v. Myers, 280 F.3d 407, 413 (4th Cir. 2002) (quoting Fed. R. Evid. 403). The cell phone contact list is relevant because it tends to show a connection between Macauley, the undisputed kingpin of the importation operation, and Akwei. The government needed to prove at least a slight connection between the defendant and the conspiracy to make its case. United States v. Burgos, 94 F.3d 849, 861 (4th Cir. 1996) (citation omitted). Macauley s contact sought list was one way in which connect Akwei to the conspiracy. the government to Therefore, the district court did not abuse its discretion in admitting the relevant phone contact list. C. Next, Akwei argues that the district court erred by (1) admitting evidence of his attempted flight during arrest and (2) giving a flight instruction. Essentially, Akwei contends that his July 14 flight was too minor and temporally attenuated from his initial February 21 arrest to justify a flight instruction. In response, the government argues that because Akwei knew he was under investigation for involvement in the instant offense at the time of his July 14 flight, the district court properly admitted the evidence and accordingly instructed the jury. We review admission of evidence of flight as well as [t]he decision to give or not give a jury instruction for abuse of 14 discretion. United States v. Allen, 491 F.3d 178, 186 (4th Cir. 2007) (citation omitted). We will not vacate a conviction on the basis of an erroneous jury charge if, in light of the above inquiry, the charge contained an adequate statement of the law and was not misleading. Id. at 187. Evidence of an accused s flight is generally admissible as an indication of guilt. United States v. Obi, 239 F. 3d 662, 665 (4th Cir. 2001) ( It cannot be doubted that in appropriate circumstances, a consciousness evidence of flight. ). of guilt may be deduced from However, evidence of flight as proof of consciousness of guilt would be completely unfounded where a defendant flees after commencement of an investigation unrelated to the crime charged, or of which the defendant was unaware. United States v. Beahm, 664 F.2d (internal quotation omitted). alerting the jury that 414, 420 (4th Cir. 1981) Therefore, a flight instruction it may infer the defendant s consciousness of guilt from his flight is only warranted when evidence supports each link in the causative chain such that the jury can draw inferences (1) from the defendant s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. 239 F.3d at 665-66 (citation omitted). 15 Obi, Evidence of Akwei s flight was properly admitted at trial and supported the flight instruction. correctly asserts that he did not First, although Akwei run from the evidence supports the conclusion that he fled. testimony revealed that while officers house, the Agent Murtha s entered Akwei s home through the front door and followed his wife upstairs to conduct their early morning arrest, Akwei opened the back basement door, peered outside, and exited. The fact that Akwei sought to leave the house in sweatpants, a t-shirt, and no underwear at six in the morning after climbing over a large volume of clothing and debris obstructing the path to the basement exit further supports a finding of flight, as does the fact that Akwei first claimed to be on his way to work, then on the way to pick up his mother-in-law, neither of which was substantiated by the facts. Second, evidence supported a link between Akwei s flight and consciousness of guilt of the instant offense; Akwei does not dispute that he knew he was under investigation for the February incident and that his prior charges had been dismissed without prejudice, nor does he contend that intervening incident explains his behavior. months had passed between Akwei s February an alternate or Although several arrest and his flight, the facts here support the conclusion that his attempt to flee from police on July 14 related to that prior arrest--the only pending criminal investigation of which he was aware. 16 We can therefore distinguish Beahm, in which we found that the district court erred by giving a flight instruction when the government presented no evidence that [the defendant] was aware that he was the subject of a criminal investigation at the time he fled. 664 F.2d at 420. Therefore, the district court did not abuse its discretion in admitting evidence of Akwei s flight and instructing the jury accordingly. D. Finally, against him. Akwei contests the forfeiture order entered He argues that he never received proceeds from the February 21 transaction and that coconspirators may not be held jointly and severally liable for conspiracy proceeds, such that the district court erred in accepting the $3,200 seized during the search as substitute property to satisfy the judgment. In the criminal forfeiture context, we review a district court s findings of fact interpretations de novo. 490 (4th Cir. 2012). for clear error and its legal United States v. Oregon, 671 F.3d 484, In order to obtain a forfeiture order after conviction, the government must establish a nexus between the property for which it is seeking forfeiture and the crime by a preponderance of the evidence. United States v. Martin, 662 F.3d (citing 301, 307 32.2(b)(1)(A)). (4th Cir. 2011) Fed. R. Crim. P. Conspirators are responsible at sentencing for co-conspirators reasonably foreseeable acts and omissions . . . 17 in furtherance of the jointly undertaken criminal activity. United States v. McHan, 101 F.3d 1027, 1043 (4th Cir. 1996) (internal quotation and citation omitted). As forfeiture is an element of the defendant s sentence, [w]e have therefore held conspirators jointly and severally liable for the forfeiture of proceeds from a conspiracy. 347, 351 (4th Cir. 2010) United States v. Jalaram, 599 F.3d (citing McHan, 101 F.3d at 1043). Further, the criminal forfeiture statute allows for forfeiture of any other property of the defendant as substitute property when conspiracy proceeds cannot be located. United States v. McHan, 345 F.3d 262, 271 (4th Cir. 2003) (citing 21 U.S.C. § 853(p)). Applying Evidence these principles, introduced coconspirators were at offered trial Akwei s revealed thousands of arguments that dollars fail. Macauley to work as couriers, and that the street value of just one kilogram of heroin ranged from $70,000 to $120,000. Insofar as Akwei challenges the establishment of the nexus between the $5,000 order entered against him and the February 21 transaction, his argument fails because coconspirators are jointly and severally liable for the forfeiture of conspiracy property. Thus, the $5,000 order was proper even if Akwei did not receive payment for his participation in the February 21 transaction, as evidence at trial supported the conclusion that the Macauley 18 coconspirators obtained at least that amount. As Akwei had no other assets, the government properly applied the seized $3,200 to the judgment, because [i]f any of the forfeitable property cannot be pursuant located to [21 by the U.S.C.] government § 853(p), . . order . the the court must, forfeiture of substitute property of the defendant up to the value of the forfeitable property. McHan, 345 F.3d at 268. We thus affirm the district court s forfeiture order. 4 III. For the foregoing reasons, Akwei s conviction and sentence are AFFIRMED. 4 Finally, we reject Akwei s argument that the district court erred in denying his motion for a minor role adjustment at sentencing. As Akwei himself concedes, his sentence would not have been affected by the court s ruling on this issue, Appellant s Br. at 29, rendering any error harmless. Akwei received the mandatory minimum 120-month sentence for his conspiracy conviction; the district court explicitly recognized, as does Akwei, that a two-level minor role adjustment would not impact the mandatory minimum. 19