BLUE BOOK CITATION FORM: 1996.C04.535
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EMMANUEL IKECHUKWU ANUDU, a/k/a Cletis,
a/k/a Claytus, Defendant-Appellant.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EMMANUEL ODEMENA, Defendant-Appellant.
UNITED STATES OF AMERICA,
CHIJIOKE CHUCKWUMA, a/k/a Mark,
UNITED STATES OF AMERICA,
CYRIACUS AKAS a/k/a Koots,
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
CHUKS EVARISTUS NWANERI,
UNITED STATES OF AMERICA,
CHARLES ONWUAZOMBE, a/k/a Ebele Onwuazor,
UNITED STATES OF AMERICA,
JEROME OKOYE ONWUAZOR, a/k/a Peter,
Appeals from the United States District Court for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
Argued: September 29, 1995
Decided: February 16, 1996
Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.
Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in which Judge Murnaghan
and Judge Wilkins joined.
ARGUED: George Allan Epstein, Baltimore, Maryland; Paul Francis Kemp, Rockville, Maryland,
for Appellants. Jan Paul Miller, Assistant United States Attorney, Robert Reeves Harding,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
ON BRIEF: James C. Savage, Rockville, Maryland, for Appellant Onwuazor; Walter C. McCord,
Jr., Baltimore, Maryland, for Appellant Anudu; Robert L. Bloom, Baltimore, Maryland, for
Appellant Odemena; Darrel L. Longest, Germantown, Maryland, for Appellant Akas; Benjamin
F. Neil, Baltimore, Maryland, for Appellant Nwaneri; Alan C. Drew, Upper Marlboro,
Maryland, for Appellant Onwuazombe. Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
ERVIN, Circuit Judge:
Cyriacus Akas, Emmanuel Anudu, Chijioke Chuckwuma, Chuks E. Nwaneri, Emmanuel Odemena,
Emmanuel Okoli, Charles Onwuazombe, and Jerome Onwuazor were convicted in the District of
Maryland of violating federal controlled-substances laws. They raise various issues on
appeal. We find no grounds for reversal among their challenges to the admissibility of
certain evidence, the sufficiency of the evidence, the jury instructions, and the district
court's application of the United States Sentencing Guidelines.*footnote 1 We agree,
however, that the government failed to properly establish venue for Counts XII and XIII,
which involved two instances of heroin distribution by Onwuazor and Okoli. Accordingly, we
vacate the convictions under those two counts and affirm on all remaining counts.
Federal subject matter jurisdiction over this case is grounded in the statutes defining
the various offenses. It is not contested. Appellate jurisdiction lies under 28 U.S.C.
Section(s) 1291. We address particular facts and standards of review in the portions of
the opinion to which they are relevant.
Appellants Onwuazor and Okoli contend that venue in the District of Maryland was improper
for Counts XII and XIII. Count XII charged Onwuazor with distribution of heroin on or
about May 9, 1991. Count XIII charged Onwuazor and Okoli with distribution of heroin on or
about May 15, 1991. Otherwise the Counts were identical.*footnote 2 The prosecution must
establish venue by a preponderance of the evidence, and the trial court's decision is
reviewed by this court de novo. United States v. Newsom, 9 F.3d 337, 338 (4th Cir. 1993).
Venue is proper "in [any] district in which the offense was committed." Fed. R.
Crim. P. 18. The acts constituting commission are determined by the verbs used to define
the crime. United States v. Walden, 464 F.2d 1015, 1018-19 (4th Cir.), cert. denied sub
nom. , Ard v. United States, 409 U.S. 867 (1972), cert. denied sub nom., Cook v. United
States, 410 U.S. 969 (1973). The operative verb in Counts XII and XIII is
The government presented evidence that Onwuazor made a transfer of heroin to DEA Special
Agent Dwayne M. Dodds on May 9 at Onwuazor's apartment in Queens, New York, and that
Onwuazor and Okoli delivered two samples to Dodds and Special Agent Will Plummer on May 15
at a diner in Queens. Despite the correlation of that evidence with Counts XII and XIII,
the government claims on appeal that the counts "relate not only to the New York
samples but also to the larger quantities of drugs from which the samples came,"
quantities that "ultimately w[ere] distributed" in Maryland on or about the same
dates. But it neither claims nor points to any evidence indicating that Onwuazor and Okoli
personally delivered any heroin in Maryland on or about the dates in question. Instead it
claims, under three theories,*footnote 3 that these appellants' actions in New York were
sufficiently related to the deliveries in Maryland to support venue in the District of
The government's first theory is that distribution is a "continuing crime," and
thus may be prosecuted in any district where it was "begun, continued, or
completed." 18 U.S.C.Section(s) 3237(a) (1988). These appellants' actions in New
York, it contends, were part of a continuing crime of distribution that culminated in
deliveries in Maryland. The trial judge agreed, stating: "I think distribution can be
a continuous thing."
Circuits that have addressed this issue are divided. The Second Circuit has held that
distribution is not a continuing crime, see United States v. Lartey, 716 F.2d 955, 967
(2nd Cir. 1983), but the First and Eleventh Circuits have held that it is. United States
v. Georgacarakos, 988 F.2d 1289, 1293 (1st Cir. 1993); United States v. Brunty, 701 F.2d
1375, 1380-82 (11th Cir.), cert. denied, 464 U.S. 848 (1983). In Georgacarakos, the First
Circuit did not adequately distinguish distribution from the separate crime of possession
with intent to distribute, which undisputedly is a continuing offense. Cf. United States
v. Bruce, 939 F.2d 1053, 1055 (D.C. Cir. 1991) (noting that "the actual distribution
is a separate crime"). It stated only that "[d]istribution and possession with
intent to distribute are continuing crimes," 988 F.2d at 1293; moreover, the cases it
cited for support do not deal at all with the separate crime of distribution, but hold
merely that "possession of drugs with intent to distribute [is] a continuing
crime." United States v. Kiser, 948 F.2d 418, 425 (8th Cir. 1991), cert. denied, 503
U.S. 983 (1992); accord United States v. Uribe, 890 F.2d 554, 559 (1st Cir. 1989). The
Eleventh Circuit focused more particularly on distribution. It supported its conclusion
with cases that, while not directly on point, affirmed distribution convictions of
defendants who were involved in the transactions in question but were not present when the
substances actually changed hands. Brunty, 701 F.2d at 1380-82 (citing, e.g., United
States v. Wilson, 657 F.2d 755, 761-62 (5th Cir. 1981) ("`Activities in furtherance
of the ultimate sale--such as vouching for the quality of the drugs, negotiating for or
receiving the price, and supplying or delivering the drug[s]--are sufficient to establish
distribution'" (quoting United States v. Wigley, 627 F.2d 224, 225-26 (10th Cir.
1980))), cert. denied, 455 U.S. 951 (1982); United States v. Davis, 564 F.2d 840, 844-45
(9th Cir. 1977) (upholding distribution conviction of doctor who improperly issued
prescriptions), cert. denied, 434 U.S. 1015 (1978)).
Neither Georgacarakos nor Brunty acknowledged Blockburger v. United States, in which the
Supreme Court addressed the issue under the now-superseded Harrison Narcotics Act. 284
U.S. 299, 302-03 (1932) (holding that a defendant may be charged separately for each of
multiple deliveries). The Blockburger Court stated that a continuing crime is not one
defined by a single occurrence:
A distinction is laid down in adjudged cases and in textwriters between an offence
continuous in its character . . . and a case where the statute is aimed at an offence that
can be committed uno ictu.
284 U.S. at 302 (quoting In re Snow, 120 U.S. 274, 286 (1887)). The Court interpreted
distribution to mean a distinct event, not an ongoing enterprise. Id. It held, therefore,
that distribution is not a continuing offense. Id. at 302-03.
The Harrison Narcotics Act has been replaced, but Blockburger's reasoning is equally
applicable to the current statute. Congress now defines "distribute" as "to
deliver," which in turn means "the actual, constructive, or attempted transfer
of a controlled substance." 21 U.S.C. Section(s) 802(8), (11) (1988). Delivery is a
single event, not a continuing operation, so distribution is not a continuing crime.
The government argues in the alternative that we should sustain these appellants'
convictions under either an aiding and abetting or a Pinkerton theory of liability,
without regard to the events in New York. Aiding and abetting is implied by indictment for
any crime, and need not be separately specified. E.g., United States v. Duke, 409 F.2d
669, 671 (4th Cir. 1969), cert. denied, 397 U.S. 1062 (1970). The Pinkerton theory allows
a coconspirator to be convicted of a substantive offense that he neither participated in
nor aided and abetted if the offense was committed in furtherance of the conspiracy.
Pinkerton v. United States, 328 U.S. 640, 646-47 (1946). Thus Onwuazor and Okoli could be
held liable for distributions in which they did not participate if it were proven that the
distributions (1) actually occurred, and (2) either were aided and abetted by Onwuazor and
Okoli or were in furtherance of a conspiracy of which they were members. There is
sufficient evidence in the record to support a verdict based on either theory.
That the evidence could have supported an aiding and abetting or Pinkerton verdict does
not end the inquiry, however. It is likely that the jury based its verdicts under Counts
XII and XIII entirely on the transactions in Queens, without deciding whether the alleged
deliveries in Maryland actually occurred. That would be permissible if distribution were a
continuing offense, because the ultimate deliveries in Maryland would not be elements of
the crime. This court could find de novo and by a preponderance of the evidence that a
chain of distribution led to Maryland, so venue would be proper in Maryland over
prosecutions for transfers in Queens. Under the aiding and abetting and Pinkerton
theories, however, the ultimate deliveries in Maryland are elements of the offense, so the
jury must find beyond a reasonable doubt that those deliveries occurred. Although the
evidence is sufficient that the jury could have made such a finding, we cannot be sure
that it actually did. A conviction cannot stand if it is unclear whether the jury's
verdict was based on a permissible or impermissible ground:
a general verdict must be set aside if the jury was instructed that it could rely on any
of two or more independent grounds, and one of those grounds is insufficient, because the
verdict may have rested exclusively on the insufficient ground.
Zant v. Stephens, 462 U.S. 862, 881 (1983); Terminiello v. Chicago, 337 U.S. 1, 5-6
(1949); Cramer v. United States , 325 U.S. 1, 36 n.45 (1945); Williams v. North Carolina,
317 U.S. 287, 292 (1942)). Because a verdict based solely on the events in New York would
be impermissible, we must reverse the convictions under Counts XII and XIII.
B. Jury Instructions
The appellants contest several portions of the trial court's charge to the jury. To
determine whether a particular instruction was erroneous, we must view it "in the
context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47 (1973).
Regarding most issues, we reverse only if there is "a `reasonable likelihood,' i.e.,
more than a mere possibility, that the jury misconstrued the instruction," United
States v. Cobb, 905 F.2d 784, 789 n.8 (4th Cir. 1990) (quoting Boyde v. California, 110 S.
Ct. 1190, 1198 (1990)), cert. denied sub nom., Hatcher v. United States, 498 U.S. 1049
(1991), and the misconstruction "prejudice[d] the jury's consideration of the
dispositive issue," United States v. Davis, 739 F.2d 172, 175 (4th Cir. 1984). If the
error involves the instruction on reasonable doubt, however, it can never be harmless, so
we must reverse if we find a "reasonable likelihood that the jury applied the
instruction in an unconstitutional manner." See Victor v. Nebraska, 114 S. Ct. 1239,
The appellants contend that the district court's instruction on reasonable doubt was
constitutionally deficient. The trial court stated:
Now, the fact that the defendant has been indicted by the grand jury raises no presumption
whatever of guilt on the part of the defendant; that is, you should not assume that the
accused is guilty merely because he is being prosecuted and because criminal charges have
been filed against him. He comes into court presumed to be innocent and that presumption
of innocence remains with him throughout his trial until the government overcomes it by
evidence of the defendant's guilt beyond a reasonable doubt as to each and every element
of the offense.
The government has the burden of proof to show that the defendant is guilty of the crime
for which he is charged; and the degree of proof that is necessary for the government to
produce is proof that the defendant is guilty beyond a reasonable doubt.
Also, the concurrence of the twelve minds of the jury is necessary to find the defendant
guilty or not guilty. If, after considering all of the evidence and circumstances in this
case, any one member of the jury has a reasonable doubt of the guilt of any defendant,
then that juror cannot consent to a verdict of guilty. The burden is upon the government
to prove all elements of the alleged crime and to do so beyond a reasonable doubt.
Now, while the burden is upon the government to establish by proof every material fact as
to the guilt of the defendants beyond a reasonable doubt, that does not mean that the
government must prove the defendants guilty to an absolute or mathematical
The appellants contend not that the alleged definition was inaccurate, but that it was
incomplete and misleading. They argue that it focused only on "what the government
did not have to prove," and thus failed to emphasize the high level of proof required
to eliminate reasonable doubt. Without that emphasis, they conclude, the jury may have
applied a lesser burden of proof than that required by the constitution.
The Supreme Court addressed a nearly identical instruction in Victor v. Nebraska.
Petitioner Sandoval*footnote 5 contested the trial judge's instruction that "a
reasonable doubt is `not a mere possible doubt.'" Victor, 114 S. Ct. at 1248. The
Court rejected Sandoval's argument because the high level of proof required is implicit in
the term "reasonable doubt": "[A] `reasonable doubt,' at a minimum, is one
based upon `reason.' A fanciful doubt is not a reasonable doubt." Id. (internal
quotations and citations omitted).
We addressed an instruction even more similar to the instruction in this case in United
States v. Adkins. The Adkins trial court did not specify the level of proof required to
eliminate reasonable doubt, but did state that "it is not necessary that a
defendant's guilt be proved beyond all possible doubt." 937 F.2d 947, 949 (4th Cir.
1991). We affirmed, holding that the trial court accurately stated that the government's
burden is not "beyond all possible doubt," and properly left reasonable doubt to
its "self-evident meaning comprehensible to the lay juror." Id. at 950
(quotation and citation omitted). In its instructions in this case, the trial court
repeated "reasonable doubt" five times. Because the standard's meaning is
self-evident, there is no "reasonable likelihood that the jury applied it in an
unconstitutional manner." Victor, 114 S. Ct. at 1243.
The appellants also contest the district court's instruction, to which they objected at
trial, that a witness ordinarily is assumed to speak truthfully:
You, as jurors, are the sole judges of the credibility of the witnesses and the weight
their testimony deserves. Ordinarily, it is assumed that a witness will speak the truth.
But this assumption may be dispelled by the appearance and conduct of the witnesses, or by
the manner in which the witnesses testified, or by the character of the testimony given.
The government acknowledges that a "presumption of truthfulness" instruction
constitutes error, but argues that it was harmless in this case.
The appellants cite United States v. Varner, in which we held that a similar instruction
was not harmless under the circumstances. 748 F.2d 925, 927 (4th Cir. 1984)). But the
trial judge in Varner placed great emphasis on a "presumption" of truthfulness.
After stating the existence of the presumption, he listed factors that could outweigh it.
He concluded: "[I]f you find the presumption of truthfulness to be outweighed as to
any witness you will give the testimony of that witness such credibility, if any, as you
think it deserves." 748 F.2d at 926. In effect, the trial judge in Varner told the
jury not to evaluate the credibility of a witness directly without first finding that the
presumption of truthfulness was outweighed by the factors he enumerated. Further
compounding the error, he did not instruct the jury to apply the presumption of
truthfulness to the defendant. Instead, he instructed them to "give [the defendant's]
testimony such credence and belief as you may think it deserves," apparently without
the need to first overcome the presumption of truthfulness. Id. at 926-27. The error in
the instant case is not as egregious as that in Varner. The district judge did not speak
in terms of a "presumption" that must be "outweighed" before a jury
can evaluate directly the credibility of a witness. He used the term
"assumption," but only after stating that "jurors . . . are the sole judges
of the credibility of the witnesses and the weight their testimony deserves." He then
elaborated at length on the jurors' responsibility to evaluate credibility, without
mentioning assumption or presumption.*footnote 6 Finally, the instruction did not
distinguish between the defendants and the government's witnesses.
The instruction in this case more closely resembles that in United States v. Safley:
"Ordinarily, it is assumed that a witness will speak the truth, but this assumption
may be dispelled . . . ." 408 F.2d 603, 605 (4th Cir.), cert. denied, 395 U.S. 983
(1969). The Safley court held that the "assumption" language was harmless error.
It noted that the judge had instructed the jury properly that they were the sole judges of
the facts, that they should consider carefully the credibility of accomplices, and that
the government had the burden to prove the defendants' guilt beyond a reasonable doubt.
Id. The Safley defendants had failed to object to the instruction at trial, but the court
nevertheless decided the case on the merits, concluding that the jury was "not likely
to have been misled by the erroneous instruction concerning the assumption of a witness'
truthfulness." Id. at 605-06. Similarly, in this case, the trial court used the
"assumption" language only briefly, and did so during a lengthy description of
the jury's autonomy in determining credibility. Thus it is not reasonably likely that the
error "prejudice[d] the jury's consideration of the dispositive issue."
The appellants contest what they describe as the court's "missing government
The law does not require the prosecution to call as witnesses all who have been present at
any time or place involved in this case, or who may appear to have some knowledge of the
matters in issue in this trial. Nor does the law require the prosecution to produce all
exhibits, all papers and things mentioned in the evidence.
The appellants argue that the quoted instruction unfairly favored the government, because
it did not convey to "the jury that it was entitled to consider the government's
failure to present any particular item of relevant evidence in determining whether the
government had met its burden of proof." The appellants base their argument on model
instructions indicating that, if the trial court tells the jury that the prosecution need
not present all evidence, it also should state that the jury may consider that failure to
produce evidence. See 1 Edward J. Devitt & Charles B. Blackmar, Federal Jury Practice
and Instructions Section(s) 17.18 (3d ed. 1977).
In fact, as pointed out by the government, the district court did instruct the jury that
it could consider the failure of the prosecution to produce certain evidence. While
discussing investigative techniques, it stated that,
[f]or example, at some point fingerprints may not have been taken, or some other type of
technique, or some certain leads might not have--not every possible lead pursued. You may
consider these facts in deciding whether the government has met its burden of proof,
because, as I told you, you should look at all of the evidence or lack of evidence in
deciding whether the defendant is guilty. . . .
Your concern, as I have said, is to determine whether or not, on the evidence or lack of
evidence, a defendant's guilt has been proven beyond a reasonable doubt.
The instruction on lack of evidence as an indication of innocence was not given in tandem
with the instruction to which the appellants object, but it was given. If indeed there is
an imbalance, it does not rise to the level of error. Nor does it create "a
reasonable likelihood that the jury misconstrued the instruction." Craigo, 956 F.2d
Finally, the appellants object to the instruction on circumstantial evidence:
A defendant may be proved guilty by either direct or circumstantial evidence. Direct
evidence is the testimony of one who asserts actual knowledge of a fact, such as an
eyewitness; circumstantial evidence is proof of such facts or circumstances connected with
or surrounding the commission of the crime charged as tend to show the guilt or innocence
of the defendant. The law makes no distinction between direct and circumstantial evidence;
it requires only that the jury, after weighing all the evidence, must be convinced of the
guilt of the defendant beyond a reasonable doubt.
The necessity to resort to circumstantial evidence to prove guilt is readily apparent
since, by the nature of things, crimes are generally committed in secret, beyond the range
of eyewitnesses. Guilty knowledge may be inferred from the circumstances, even when there
is a positive denial.
The appellants claim that the instruction implied both "that circumstantial evidence
could operate only to prove guilt, not to establish innocence," and "that
appellants were in fact guilty." They argue also that the instruction assumed a crime
had been committed, leaving open only the issue of whether the appellants were the
perpetrators, by defining circumstantial evidence as "proof of . . . facts or
circumstances surrounding the commission of the crime."
The court spoke three times in this instruction of using circumstantial evidence to prove
guilt, but only once of using it to prove "guilt or innocence." Greater emphasis
on use of evidence to prove guilt is objectionable, but it is not without basis since only
the prosecution is required to prove anything. To a jury cognizant of the burden of proof,
and of its choice between "guilty" and"not guilty" rather than
"guilty" and "innocent," such emphasis does not alone seem reasonably
likely to have prejudiced the jury's deliberations.
However, the second paragraph of the excerpt--involving the commission of crimes in
secret--makes the issue more problematic. The appellants argue that the paragraph
did not instruct the jury as to any principle of law, but instead offered a tactical
rationale for the manner in which the government had elected to present its case. Such a
statement might have been appropriate by the government in its closing argument, but had
no proper place in the court's instructions to the jury.
We agree that the paragraph is imbalanced. As the appellants point out, it explained only
why the prosecution needed to use circumstantial evidence. In effect, it invited the jury
to give greater weight to circumstantial evidence offered by the prosecution than to
circumstantial evidence offered by the defense, based solely on the debatable, non-legal
premise that "crimes are generally committed in secret." Even the government
nearly admits that the paragraph was erroneous, acknowledging that "the trial court
did include some extraneous information in this part of the charge." It responds only
that the paragraph "did not taint the entire instruction."
The appellants cite United States v. Dove, in which the Second Circuit examined
instructions on circumstantial evidence. 916 F.2d 41, 45-46 (2d Cir. 1990). The Dove court
found error in the trial judge's use of a hypothetical in which the guilt of a defendant
was assumed "and the jury [was] merely instructed how to look for evidence of that
guilt." Id. at 46. The court held that the instruction was "unbalanced."
Id. at 45. Because the defendant's theory of the case depended heavily on circumstantial
evidence, the court concluded that the error warranted reversal of the defendant's
conviction. Id. at 46-47.
The error in this case is more egregious than that in Dove. The Dove jury heard only
"how" to find circumstantial evidence of guilt, and at least could infer that it
could use the same method to find evidence of innocence. But the jury in the instant case
was given a particular justification for the reliability of circumstantial evidence of
guilt, a justification that did not apply at all to evidence of innocence.
The question for this court, therefore, is whether there is a reasonable likelihood that
the error prejudiced the jury's consideration of the appellants' guilt. As it did in Dove,
that question turns on the role that circumstantial evidence played in the trial. Unlike
Dove, in this case circumstantial evidence played only a minor role. As the appellants
themselves admit in another context, "the government presented the testimony of
dozens of purported eyewitnesses." Thus we find that, on the facts of this case, the
error was harmless.
The appellants' second argument regarding this instruction, that the judge's choice of
words indicates an assumption that a crime has been committed, is without merit. The
instruction's definition of circumstantial evidence--"facts or circumstances
surrounding the commission of a crime"--implies such an assumption. But the trial
court made very clear that each element of each count, including the fact that a crime
occurred, must be proven beyond a reasonable doubt. Exemplary is the conspiracy
instruction: "If you are satisfied that the conspiracy charged in the indictment
existed, you must next ask yourself who the members are." We hold, therefore, that
the instructions as a whole did not assume that a crime had been committed.
C. Sufficiency of Evidence
The appellants contend that the evidence was insufficient to support several of the
charges. A conviction may be reversed for insufficiency of evidence only if, from the
perspective most favorable to the government, Hamling v. United States, 418 U.S. 87, 124
(1974), the evidence was so insubstantial that no "rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt," Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
The appellants argue first that there was insufficient evidence to support Counts IX and
XI, involving importation of heroin. The indictments state that, on two different
occasions,"the defendants . . . did knowingly willfully and unlawfully import and
attempt to import into the customs territory of the United States," quantities of
heroin "in violation of 21 U.S.C. Section(s) 952(a)." In addition to section
952(a), both Counts cite 18 U.S.C. Section(s) 2, which governs aiding and abetting. The
appellants contend that the indictments effectively charged them only with importation,
not attempt to import, because neither of the statutes cited criminalizes attempt. The
government's evidence, they assert, indicates that the heroin in question was seized by
foreign authorities before it could be brought to the United States. Thus, they argue,
there is no evidence in the record to support the first element of importation under 21
U.S.C. Section(s) 952(a)--that the substance actually was imported. United States v. Samad
, 754 F.2d 1091, 1096 (4th Cir. 1984).
The government acknowledges that it did not prove actual importation. It points out,
however, that the appellants' argument ignores both the language of the indictment and the
charges that the government actually presented to the jury. The appellants properly were
charged with attempt, it concludes, and there is sufficient evidence to support their
convictions on those charges.
The government's argument is compelling. Where an indictment's text provides sufficient
notice of a charge, failure to cite the appropriate statute does not render it
Error in the citation or its omission shall not be ground for dismissal of the indictment
or information or for reversal of a conviction if the error or omission did not mislead
the defendant to the defendant's prejudice.
Fed. R. Crim. P. 7(c)(3). The counts in question both include the word
"attempt." Attempt to import heroin is punishable under 21 U.S.C. Section(s)
963. The appellants do not contest the sufficiency of evidence of attempt to import. We
affirm, therefore, the convictions under Counts IX and XI.
Akas argues that there was insufficient evidence to support his conviction for money
laundering. To support a conviction for money laundering, the government must prove that a
defendant "knowingly conducted a financial transaction which involved the proceeds of
drug distribution and that he did so either with the intent to promote his drug business
or with knowledge that the transaction was designed to disguise the nature or source of
those proceeds." United States v. Blackman, 904 F.2d 1250, 1256 (8th Cir. 1990); see
also United States v. Campbell, 977 F.2d 854, 857 (4th Cir. 1992), cert. denied 113 S. Ct.
1331 (1993). The prosecution alleged that Onwuazor and Akas used drug proceeds to purchase
Nissan Pathfinders, which they shipped to Nigeria to pay suppliers. Akas acknowledges that
the prosecution presented evidence that he knew the Pathfinders were bought with proceeds
of illegal activity, but contends that the government failed to prove that he knew the
sale was designed to conceal the illegal nature of the proceeds.
It is true that the government introduced no direct evidence that Akas knew the
transactions' purpose, but direct evidence is not necessary. Prosecutors presented
evidence that Akas knew the funds were drug proceeds, and that he knew the Pathfinders
were shipped to overseas heroin suppliers. That evidence is sufficient for a rational jury
to have found beyond a reasonable doubt that Akas knew the purpose of the transactions.
Thus we affirm his conviction for money laundering.
Anudu argues that there was insufficient evidence to convict him under Counts I, II, and
VI.*footnote 7 Regarding Count I, which charged conspiracy to import heroin, he claims
that the government presented no evidence of an agreement between Anudu and his alleged
coconspirator, Onwuazor. The government's evidence was merely circumstantial, Anudu
contends; he cites our holding in United States v. Guinta that
circumstantial evidence that proves nothing more than association between two persons,
even if one has a fixed intent known to the other to commit an unlawful act, is not
sufficient to permit the inference of the requisite agreement between the two to act in
concert to commit the act.
925 F.2d 758, 764 (4th Cir. 1991). In fact, the"circumstantial evidence" of
which Anudu complains includes testimony and audio tapes of conversations indicating that
he was involved in the planning of, and was to receive a kilogram of heroin from, an
attempted importation from Singapore. That evidence is sufficient to support the jury's
finding of an agreement to import.
Count II charged Anudu with conspiracy to distribute heroin. Anudu contends that the
evidence showed no more than a buyer-seller relationship in which he was the buyer. In
fact, the record contains evidence that Anudu's role was not so limited. One coconspirator
described him as a partner in the operation with Onwuazor. If a rational trier of fact
were to deem that testimony credible, it could find Anudu guilty of conspiracy to
distribute heroin. Thus we affirm the conviction.
Count VI alleged that Anudu distributed heroin to Raymond Obilo on or about September 29,
1990. Anudu contends that the evidence supporting this charge was insufficient, because it
consisted entirely of statements made by Onwuazor to Plummer, statements that Plummer
embellished to bolster their impact. It is not our role to determine Plummer's
credibility. The jury believed his testimony, and Anudu's allegations do not convince us
that a rational trier of fact could not have found the elements of this offense beyond a
D. Sentencing Guidelines
All of the appellants argue that they were not reasonably capable, individually or as a
group, of producing the quantities of heroin attributed to each of them and to the
conspiracy under the Sentencing Guidelines. The district court's application of the
Guidelines to the facts is reversible only if clearly erroneous. 18 U.S.C. Section(s)
3742(e) (1988). Questions of law, however, are reviewed de novo. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
The appellants contend that the district court erred in its assignment of Base Offense
Levels under the Guidelines. The court found a level of thirty-six for Okoli, and
thirty-eight for the remaining appellants. A defendant's Base Offense Level is determined
not according to the quantity of drugs actually seized, but according to the amount
"reasonably foreseeable" to the defendant within the scope of the conspiracy.
United States v. Irvin, 2 F.3d 72, 77 (4th Cir. 1993), cert. denied sub nom., Gonzalez v.
United States, 114 S. Ct. 1086 (1994). The sentencing judge must make individualized
findings, estimating the amount reasonably foreseeable to each coconspirator. USSG
Section(s) 1B1.3 application note 2. The appellants argue that the district court both
interpreted the Guidelines incorrectly and estimated inaccurately the amounts of drugs.
In their brief, the appellants assert that the trial court misinterpreted the Guidelines
by automatically attributing liability for all drugs involved in the conspiracy to any
defendant who performed three or more acts in furtherance of the conspiracy:
The trial court interpreted the Commentary to mean that an individual who performs one, or
possibly two, acts in connection with a drug conspiracy need not be held responsible for
all of the drugs involved in the entire conspiracy, but that anyone who does more than two
acts is automatically responsible for all the drugs.
In fact, the district court does not appear to have applied such a bright-line rule. The
judge's words indicate only the correct proposition that a person who engages in several
activities in furtherance of a conspiracy is likely to foresee its scope:
That guideline says that one time you can pick if that's all you've done. But it doesn't
say you can pick and choose and pick and choose. As a matter of fact, you can't jump in
and out of a conspiracy. . . . [Y]ou're going to be charged with everything it does and
then is it foreseeable that you can see that all these drugs are coming in?
Because the trial judge was using the correct "reasonable foreseeability"
standard, this court may reverse his application of the standard to the facts only if it
is clearly erroneous. It is not clearly erroneous to infer from the extent of a
defendant's activities that he reasonably foresaw the entire scope of the conspiracy.
A Base Offense Level of thirty-eight applies where the amount of heroin involved is
between thirty and fifty kilograms. In their brief, the appellants offer amounts different
than those calculated by the district court, but each individual's recalculation considers
only the quantities actually accounted for in the transactions in which he participated.
Nowhere do the appellants even suggest what this court must find to reverse--clear error
in the trial court's finding that each could reasonably foresee an amount larger than that
which he personally handled. The appellants also argue that the entire conspiracy involved
less than thirty kilograms, even though the evidence at trial included statements by
Onwuazor that he delivered more than fifty kilograms of heroin to buyers in Baltimore. The
appellants contend that Onwuazor's statements were mere bragging: "He simply could
not have done the things he claimed to have done." But we will not second-guess the
credibility determinations of the trial judge. The district court did not clearly err in
finding that the conspiracy included at least 30 kilograms of heroin.
Okoli contends that he should have received a two-level downward adjustment for a minor
role in the conspiracy, because he was only a courier. The presentencing report
recommended such an adjustment. We have held previously that a mere courier is not
automatically entitled to a downward adjustment. United States v. Gordon, 895 F.2d 932,
935 (4th Cir.), cert. denied 498 U.S. 846 (1990). The controlling factor is the
individual's degree of involvement in the conspiracy, not the nature of his duties. A
defendant has the burden to prove, by a preponderance of the evidence, that he is entitled
to a downward adjustment. Id. Evidence at trial indicated that coconspirators relied
heavily on Okoli as a courier. That evidence is sufficient to preclude a finding that the
district court clearly erred.
Anudu argues that the trial court erred in increasing his Base Offense Level by three
levels. He received the adjustment for his role as a supervisor over Chuckwuma, Jeff
Owunna, Emmanuel Bangura-Lee, and Yaw Osei. See USSG Section(s) 3B1.1. Anudu contends that
he cannot be charged with a supervisory role in the Onwuazor conspiracy because his
relationship with the alleged supervisees (1) was not that of a supervisor, and (2)
constituted a conspiracy independent of the Onwuazor conspiracy. But there is evidence to
the contrary. Owunna testified that Chuckwuma acted as a manager and courier for Anudu's
drug business. That alone is sufficient to support the court's finding that Anudu was a
supervisor. Owunna also testified that Anudu considered Onwuazor his business partner,
indicating that the operations Anudu supervised were part of the Onwuazor conspiracy. Thus
the court did not clearly err by including in that conspiracy Anudu's dealings with
Chuckwuma, Owunna, Bangura-Lee, and Osei.
Anudu also argues that he should have received a two-level downward adjustment of his Base
Offense Level for accepting responsibility for his crimes. See USSG Section(s) 3E1.1. It
is true that he acknowledged involvement in the heroin trade. However, as the government
points out, he denied being involved with any of his codefendants, and thus denied
responsibility for the conspiracy charges. The district court did not clearly err,
therefore, by denying him a downward adjustment for acceptance of responsibility.
The appellants argue that there was a material variance between the indictment and the
evidence at trial. They contend that the indictment charged an overall conspiracy but the
proof at trial indicated multiple conspiracies. The parties disagree about the standard of
review. The appellants urge us to reverse "if proof of multiple conspiracies
prejudiced the substantial rights of the appellants, i.e., if the jury would have been
confused into imputing guilt to members of one conspiracy because of the illegal
activities of the members of another conspiracy." However, as we decided in Barsanti
v. United States, we reach the issue of confusion between conspiracies only if we first
find that the evidence, viewed in the light most favorable to the prosecution, cannot
support the conclusion that there was a single conspiracy:
The government bears the burden of proving the single conspiracy it charged in the
indictment. On appeal, this court must determine whether the evidence, when viewed in the
light most favorable to the government, supports the jury's finding of a single
conspiracy. If the evidence shows that there was more than one conspiracy, we must reverse
the verdict only where proof of the multiple conspiracies prejudiced substantial rights of
appellants. A defendant's rights would be infringed if the jury would have been confused
into imputing guilt to members of one conspiracy because of the illegal activities of the
943 F.2d 428, 439 (4th Cir.), cert. denied, 112 S. Ct. 1474 (1991) (internal quotations
and citations omitted); accord United States v. Urbanik, 801 F.2d 692, 695-96 (4th Cir.
1986) (holding that verdict can be overturned only if a reasonable fact-finder could not
have found single conspiracy).
Even when there are several small, more tightly woven groups of coconspirators, the groups
may be deemed a single conspiracy if they constitute "one general business
venture." United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). The record
contains ample evidence of interwoven business relationships among the appellants, such as
Owunna's statement that Anudu and Onwuazor were partners. See supra part III.D.3. That
evidence is sufficient to support the jury's finding of a single conspiracy.
Finally, the appellants argue that the trial court repeatedly admitted testimony without
requiring a foundation of personal knowledge, in violation of Fed. R. Evid. 602.
Evidentiary rulings of the trial court are reversible only for abuse of discretion.
Distaff, Inc. v. Springfield Contracting Corp., 984 F.2d 108, 111 (4th Cir. 1993). The
appellants cite only one example from the record--testimony by Special Agent Plummer about
a conversation he had "with an individual named Koots." "Koots" told
Plummer about an earlier conversation with Okoli and Onwuazombe. Because Plummer was
relating the statements of others, the appellants contend, his testimony was not based on
personal knowledge and thus violated Rule 602.
Rule 602 does not apply to the portions of Plummer's testimony that the appellants
contest. "Koots" is a nickname for Akas, and was used so commonly that the
government included it in his indictments. Thus both Koots's own statements and the words
of Okoli and Onwuazombe that Koots repeated were statements of coconspirators. Rule
801(d)(2) deems statements of coconspirators to be nonhearsay, and the Advisory Committee
Notes state that Rule 602 does not apply where Rule 801 applies, so Rule 602 does not
apply to the evidence that appellants contest. United States v. Ammar , 714 F.2d 238, 254
(3rd Cir.), cert. denied sub nom., 464 U.S. 936 (1983). The district court properly
admitted Koots's statements under Rule 801.
The government failed to properly prove venue for Counts XII and XIII. Thus we vacate
Onwuazor and Okoli's convictions and sentences on those charges. However, Onwuazor was
convicted of eleven other counts, for each of which he received a prison term and a period
of supervised release equal to or greater than those he received for Counts XII and XIII.
All thirteen of his prison terms were to run concurrently, as were all of his periods of
supervised release. Similarly, Okoli was convicted of two other counts, and received for
each a prison sentence equal to the term he received for Count XIII. His sentences, also,
were to run concurrently. Finally, both Onwuazor and Okoli received a special assessment
of fifty dollars for every count.
Because sentences for Counts XII and XIII run concurrently with terms of equal or greater
length, we conclude that our vacation of those convictions and sentences does not
necessitate reconsideration by the trial court of either appellant's overall sentence.
Thus we remand only for vacation of the special assessments for Counts XII and XIII.
Finding no other reversible error, we affirm on all remaining counts.
AFFIRMED IN PART AND VACATED IN PART
***** BEGIN FOOTNOTE(S) HERE *****
*footnote 1 In addition to the defendants' joint brief, supplemental pro se briefs were
submitted by Chijioke, Okoli, and Onwuazombe. We have considered their arguments, and find
them to be without merit.
*footnote 2 Both counts are replicated below:
And the Grand Jury for the District of Maryland further charges that:
On or about May 9, 1991, in the State of New York, the State and District of Maryland, and
JEROME OKOYE ONWUAZOR a/k/a Peter
the defendant herein, did knowingly, willfully and intentionally distribute a quantity of
a mixture or substance containing a detectable amount of heroin, a Schedule I narcotic
drug controlled substance.
21 U.S.C. Section(s) 841(a)
18 U.S.C. Section(s) 2
And the Grand Jury for the District of Maryland further charges that:
On or about May 15, 1991, in the State of New York, the State and District of Maryland,
JEROME OKOYE ONWUAZOR a/k/a Peter AND EMMANUEL OKOLI
the defendants herein, did knowingly, willfully and intentionally distribute a quantity of
a mixture or substance containing a detectable amount of heroin, a Schedule I narcotic
drug controlled substance.
21 U.S.C. Section(s) 841(a)
18 U.S.C. Section(s) 2
*footnote 3 The district court instructed the jury on all three theories. We discuss the
first theory in part II.A.1, infra, and the two alternative theories in part II.A.2,
*footnote 4 The parties disagree about whether the final paragraph of the instruction was
an "attempt to define" reasonable doubt or a mere "comment." Their
arguments are irrelevant, however, because the Supreme Court recently clarified that
"the Constitution neither prohibits trial courts from defining reasonable doubt nor
requires them to do so," if, "taken as a whole," their instructions
"impress upon the factfinder the need to reach a subjective state of near certitude
of the guilt of the accused." Victor, 114 S. Ct. at 1243, 1247 (internal quotations
and citations omitted).
*footnote 5 The Supreme Court paired Sandoval v. California with Victor v. Nebraska.
*footnote 6 The district court continued:
You should carefully scrutinize all the testimony given, the circumstances under which
each witness has testified, and every matter in evidence which tends to indicate whether a
witness is worthy of belief. Consider each witness's intelligence, motive and state of
mind, and demeanor and manner while on the stand. Consider also any relation each witness
might have to or be affected by the verdict, and the extent to which, if at all, each
witness is either supported or contradicted by the other evidence in the
case--contradicted by the evidence in the case. This applies to a defendant who takes the
stand on his own behalf.
Inconsistencies and discrepancies, even prior inconsistencies in statements in the
testimony of a witness, or between the testimony of different witnesses, may or may not
cause the jury to discredit such testimony. In weighing the effect of a discrepancy,
always consider whether it is pertinent to the matter of importance or an unimportant
detail, and whether or not intentional falsehood. Credibility is not merely choosing
between one witness and another. As to each witness, you are free to reject all their
testimony, accept all their testimony or as a third alternative reject some parts and
accept some other parts of that testimony.
*footnote 7 Anudu also challenges his conviction under Count IX. We address the
appellants' joint challenge to Count IX in part II.C.1, supra, so we do not discuss Count
IX separately here.