United States v. Bonsu

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4023

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GODFREY BONSU,

Defendant - Appellant.

No. 07-4024

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

VICTORIA BOATENG,

Defendant - Appellant.

Appeals from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:05-cr-00422-CCB)

Argued: March 18, 2008 Decided: August 20, 2008
Before NIEMEYER and SHEDD, Circuit Judges, and Irene M. KEELEY,
United States District Judge for the Northern District of West
Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Gerald Chester Ruter, Towson, Maryland; Sicilia Chinn
Englert, LAWLOR & ENGLERT, L.L.C., Greenbelt, Maryland, for
Appellants. Michael Clayton Hanlon, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Following their convictions for conspiracy to import and

possess with intent to distribute one or more kilograms of heroin,

Appellants Godfrey Bonsu ("Bonsu") and Victoria Boateng ("Boateng")

(collectively the "Appellants") appeal their convictions and

sentences. They argue that the district court erred when it

admitted certain testimony and applied various provisions of the

Sentencing Guidelines to enhance their sentences. Finding no

error, we affirm the district court.

I.

This case involves a conspiracy to import heroin from Ghana

for distribution in the United States. After the government broke

up the drug ring, three members of the conspiracy, Hopkins Appau

("Appau"), James Manu (“Manu”) and Linda Richardson (“Richardson”),

all of whom had acted as heroin mules, testified at trial as

witnesses for the government. Appau’s story illustrates their

typical experience.

In 2004, Appau, a citizen of Ghana, was approached there by

someone named "Ricky" who offered to pay him a significant sum of

money to smuggle heroin into the United States. After Appau agreed,

Ricky provided him with a plane ticket, a $500 cash advance and

instructions on how to contact another co-conspirator in the United

States. He also gave Appau a business card for a hotel and

3
directed him to stay there during his visit. Ricky warned Appau to

keep quiet if questioned by law enforcement. Shortly before

leaving Ghana, Appau swallowed approximately 55 pellets containing

heroin.

After arriving at Baltimore-Washington International Airport

(“BWI”) on June 21, 2004, Appau checked into the hotel as

instructed. Shortly after that he received a telephone call from

Boateng, whom he knew as "Adwoa," "Sister Vic" and "Sister Vickie."

While at the hotel, Boateng was Appau’s primary contact. She

brought him milk to drink so he could pass the heroin pellets, and

then retrieved the pellets from him. She also invited Appau to dine

with her family on two occasions. During those dinners, Appau met

Bonsu, whom Boateng introduced as "Kofi Agyemang." Eventually,

Boateng paid Appau $3,000 in cash for his services. She also asked

him to carry money back to Ghana with him but Appau refused out of

fear that the Ghanaian authorities would seize the money.

Several months after his return to Ghana, Boateng contacted

Appau and asked him to again smuggle heroin into the United States.

In December 2004, he swallowed 60 pellets of heroin and again flew

into BWI where, on December 16, 2004, Customs and Border Patrol

("CBP") and Immigration and Customs Enforcement ("ICE") agents

arrested him as he attempted to enter the country. Initially,

Appau claimed to be a fashion designer from Ghana and denied any

involvement in drug trafficking. Eventually, however, he admitted

4
to being a heroin mule. While in custody, he passed the heroin

pellets, which the arresting agents recovered as evidence.

One of those agents, CBP Officer Luis Nieto (“Officer Nieto”),

also seized a number of documents from Appau, including (1) a

business card and paperwork bearing the address of the hotel where

Appau had stayed in June, (2) Appau's passport, which documented

his previous trip to the United States, (3) a scrap of paper with

the name "Agyeman Kofi" and the telephone number 240-381-1870 and

(4) airline and Greyhound bus tickets. After Nieto confirmed that

the telephone number belonged to Boateng, Appau agreed to cooperate

with law enforcement and, beginning on the night of his arrest,

placed a series of monitored telephone calls to Boating’s number.

Although Boateng initially answered the telephone, she passed the

call to Bonsu. Thereafter, all other monitored telephone calls were

between Appau and Bonsu. These conversations were conducted in Twi,

Appau's native tongue.

During the calls, Appau led Bonsu and Boateng to believe he

had been detained by authorities pending an immigration

investigation and that he was staying at a hotel. Bonsu suggested

that he attempt to escape and warned Appau against speaking with

the authorities. Bonsu also asked Appau whether he was still in

possession of the "things," which Appau understood to mean the

heroin pellets.

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 Eventually, Bonsu asked Appau for the telephone number of his

hotel room, after which he called Appau repeatedly to monitor and

direct his activities. Bonsu again advised Appau to escape and

inquired whether the police were still nearby. He repeatedly

inquired about the "things" and "stuff" Appau had been carrying,

what Appau had told the authorities and whether he had given them

an address. Bonsu also threatened Appau to remain silent. In one

of their conversations, for example, Bonsu inquired as follows:

Bonsu: Right now, do you have your ticket and passport
with you or with them?
Appau: They are all with them.
Bonsu: They are all with them?
Appau: Yes.
Bonsu: Are they with you?
Appau: No.
Bonsu: Have they collected them?
Appau: Yes.
Bonsu: Okay. So, up till now, no one has come to you.
Appau: No, but I don’t know whether they are around or
not. As it is, I really don’t think they will let me go
free.
Bonsu: You are sure they will not let you go?
Appau: Yes.
Bonsu: Is someone by your side right now?
Appau: No.
Bonsu: Then why can’t you find a place in the hotel and
leave?
Appau: Hmm, they brought me here so . . . .
Bonsu: Yes, I know. But if they have collected the
things then why don’t you try and leave? Or have they
locked the door and taken the key with them?
Appau: Yes and not all the “stuff” is out.
Bonsu: Are the “things” with you?
Appau: No, not all of them are out.
. . .
Bonsu: Did they ask you if you could identify the house
address?
Appau: They didn’t ask me because I don’t know the place.
Bonsu: Uh.
Appau: That is not a problem.

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 . . .
Bonsu: If they ask you about who sent you, don’t mention
any names because whatever happens will be on the
Internet and then we will know what to do.
Appau: Okay.
Bonsu: If they ask you and you mention any names, it will
create more problems.
Appau: Okay.

II.

The government indicted Appellants on September 15, 2005,

charging them with conspiracy to import one or more kilograms of

heroin in violation of 21 U.S.C. § 952(a) and conspiracy to

distribute and possess with intent to distribute one or more

kilograms of heroin in violation of 21 U.S.C. § 841. Following a

jury trial, Appellants were convicted on both counts on February 6,

2006.

The district court sentenced Bonsu and Boateng on December 1,

2006. With a base offense level 32, criminal history category I,

and a two-level adjustment as a supervisor of one or more other

participants in the conspiracy, Boateng’s advisory guideline range

was 151 to 188 months of incarceration. After considering the

factors at 18 U.S.C. § 3553(a), the district court imposed a

variance sentence of 135 months of incarceration.

Like Boateng, Bonsu had a base offense level 32 and criminal

history category I. However, he received a two-level adjustment

for obstruction of justice for committing perjury during a

suppression hearing and a three-level adjustment for being a

7
manager or supervisor of five or more participants in criminal

activity. His advisory guideline range, therefore, was 210 to 262

months of incarceration. After considering all of the statutory

factors at 18 U.S.C. § 3553(a), the district court imposed a

variance sentence of 168 months of incarceration.1 Following their

sentencings, both Appellants timely noted their appeals to this

Court.

III.

The starting point of our analysis is our standard of review.

We review de novo the denial of a motion to dismiss an indictment

by determining if the evidence, in the light most favorable to the

government, could lead a rational trier of fact to find the

elements of the offense charged beyond a reasonable doubt. United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996). We review a

district court's denial of a motion for a new trial for abuse of

discretion. United States v. Perry, 335 F.3d 316, 320 (4th Cir.

2003). We also review evidentiary rulings for abuse of discretion.

United States v. Lancaster, 78 F.3d 888, 896 (4th Cir. 1996).

Gall v. United States, 552 U.S. _____, 128 S.Ct. 586 (2007),

has significantly changed our standard of review for district court

sentences. Under Gall, we must first ensure that the district court

1
The government has not challenged the reasonableness of these
sentences.

8
committed no significant procedural error, such as failing to

calculate, or improperly calculating, the advisory guideline range,

treating the Guidelines as mandatory, or failing to consider

statutory factors. 128 S.Ct. at 598. Legal questions, including

the interpretation of the advisory Guidelines, are reviewed de

novo, but factual findings are reviewed for clear error. Id.;

United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).

Provided that the district court committed no reversible

procedural error, we consider the substantive reasonableness of the

sentences imposed under an abuse of discretion standard. Gall, 128

S.Ct. at 598. In conducting our substantive reasonableness review,

we look to the totality of the circumstances. Id.

IV.

Appellants appeal the district court’s denial of their motions

to dismiss and for a new trial based on the government’s use of

cooperator testimony that it allegedly knew to be false. They

argue that the three heroin mules, Appau, Manu and Richardson, made

inconsistent statements prior to trial and that their statements

should have led the government to exclude them as witnesses at

trial. According to Appellants, the government’s failure to do so

was an act of prosecutorial misconduct.2

2
Although not briefed, during oral argument Appellants
contended that the district court had a constitutional duty to act
as a “gatekeeper” to keep testimony of questionable veracity away

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 In reviewing a claim of prosecutorial misconduct, we must

determine whether "the conduct so infected the trial with

unfairness as to make the resulting conviction a denial of due

process." United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.

2002). In order to successfully raise a claim of prosecutorial

misconduct based on perjured trial testimony, a defendant must

first show that perjured testimony was used against him at trial.

United States v. Griley, 814 F.2d 967, 970-71 (4th Cir. 1987). If

the defendant meets this initial threshold inquiry, he must then

show that the government knowingly used that perjured testimony to

secure a conviction. Id.

Although a trial court in the exercise of its supervisory

powers may dismiss an indictment in the face of prosecutorial

misconduct that has prejudiced a defendant, we have indicated that

this remedy is seldom appropriate. See United States v. Derrick,

163 F.3d 799, 807 (4th Cir. 1998). A new trial is only warranted

in "the most egregious cases," and the dismissal of an indictment

is only appropriate where even a new trial would be an insufficient

remedy. Id. The trial court must balance the need to remedy the

wrong against "thwart[ing] the public's interest in the enforcement

from the jury. We find this argument unavailing. The jury is the
finder of fact in a trial and properly judges all credibility
issues. Permitting them to weigh testimony of questionable
veracity does not violate a defendant’s due process rights. See,
e.g., Washington v. Wilmore, 407 F.3d 274, 280 (4th Cir. 2005).

10
of its criminal laws in an even more profound and lasting way than

the requirement of a retrial." Id.

After examining the record of the trial, we conclude that,

when viewed in the light most favorable to the government, the

evidence could lead a reasonable trier of fact to find beyond a

reasonable doubt that Appellants were involved in a conspiracy to

import, distribute and possess one or more kilograms of heroin.

Furthermore, even if Appellants’ allegations are true, the

government’s conduct did not infect the trial with such unfairness

as to violate Appellants’ due process rights.

Although they couch their claim as one of prosecutorial

misconduct, at bottom Appellants contend that the trial testimony

of Appau, Manu and Richardson was not credible. Before trial,

however, Appellants knew of the inconsistent statements and chose

to use them extensively at trial for impeachment purposes. Despite

that, the testimony of the heroin mules was supported both by

physical evidence as well as the testimony of other witnesses. As

the trier of fact, the jury weighed the competing evidence and

found the government’s witnesses and evidence more credible.

Consequently, Appellants cannot establish that the challenged

testimony was perjured and therefore fail to meet the first prong

of Griley.

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 V.

Appellants next allege that the district court abused its

discretion by allowing Appau, Manu and Richardson to testify that

Appellants had threatened them and other members of the conspiracy

in order to keep them from talking to the police. They assert that

such evidence was inadmissible under Fed. R. Evid. 403 because it

lacked probative value. Moreover, they argue that even if such

value existed it was substantially outweighed by the danger of

unfair prejudice and the fact that it was intended to inflame the

passions of the jury.

There is no dispute that Appellants failed to object to this

testimony during trial. Consequently, before considering the

merits of their argument, we must first determine whether the

admission of this testimony constitutes plain error. United States

v. Brewer, 1 F.3d 1430, 1434 (4th Cir. 1993).

Pursuant to Fed. R. Evid. 403, a trial court may exclude

evidence "if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence." We have previously

stated that evidence of threats against a witness is to be admitted

with "great caution." United States v. Melia, 691 F.2d 672, 675

(4th Cir. 1982).

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 Fed. R. Crim. P. 52(b) allows an appellate court to correct

"plain errors," even when those errors are not preserved at the

trial level. To reverse a conviction for plain error, however, we

must (1) identify an error which (2) is plain, (3) affects

substantial rights, and (4) seriously affects the fairness,

integrity or public reputation of judicial proceedings. Brewer, 1

F.3d at 1434-35. To establish that the error affected substantial

rights, a defendant bears the burden of demonstrating that he was

prejudiced by the error. United States v. Hastings, 134 F.3d 235,

239 (4th Cir. 1998).

A trial court is accorded "broad deference" with respect to

its evidentiary decisions, including whether such evidence is

probative or unduly prejudicial. United States v. Myers, 280 F.3d

407, 413 (4th Cir. 2002). From our review of the record, it is

apparent that Appellants not only failed to object at trial to the

testimony about the threats but also used that testimony on cross-

examination to undermine the credibility of Appau by questioning

him extensively about such threats. It is difficult to see how

Appellants were prejudiced when, as a matter of trial strategy,

they chose to use the testimony as a sword to attack the

credibility of one of the government’s witnesses. Because

Appellants were not prejudiced, the admission of this testimony,

even if erroneous, does not constitute plain error.

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 VI.

The third issue raised by Appellants concerns whether the

district court erred when it allowed ICE Special Agent Brendan

Cullen ("Cullen") to testify that, in his experience, drug couriers

often give false information to law enforcement when they are first

apprehended. Appellants assert that Cullen's opinion is

inadmissible under Fed. R. Evid. 701 because he was not testifying

as an expert witness.

Fed. R. Evid. 701, which governs fact witness testimony,

states:

If the witness is not testifying as an expert, the
witness's testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, (b)
helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.

Lancaster, 78 F.3d at 896.

The testimony to which Appellants object occurred on re-direct

examination after defense counsel, on cross-examination, asked

Cullen a series of probing questions about his decision-making

process. For example, counsel pressed Cullen as to why he had not

used Manu as an undercover informant. When Cullen responded that

Manu had made several inconsistent statements at the time of his

arrest, counsel then inquired whether Cullen had followed up on

certain false investigative leads provided by Manu, and whether he

believed Manu had understood the terms of a proffer letter. He also

14
asked why Cullen had not alerted federal prosecutors when Manu

provided new, inconsistent information following the proffer

letter. The clear purpose of these questions was to probe Cullen’s

own perceptions, beliefs and decisions with respect to the

investigation.

Appellants’ trial strategy obviously was to place Cullen’s

investigative methods at issue, including his decision not to use

Manu as an undercover operative. The government therefore was

entitled on re-direct to elicit from Cullen that, in his personal

experience, it was not uncommon for drug couriers to lie when

initially confronted by the police. Since Appellants had attempted

to cast doubt on Cullen’s competency to handle various aspects of

the investigation, the government on re-direct could fairly

establish that, in Cullen’s experience, what had happened in this

case was not unusual.

The testimony at issue related to Cullen's own experiences in

drug investigations, not his expert opinion on drug investigations

in general, and it came only after Appellants’ counsel had opened

the door on cross-examination. Moreover, the district court very

carefully limited the scope of the government’s inquiry on

redirect. It never permitted the government to ask Cullen whether

he believed the heroin mules were truthful, whether they had lied

in the past or whether they should be believed. The district

court, therefore, did not abuse its discretion when it permitted

15
the government to elicit testimony from Cullen regarding his

experience with drug couriers.

VII.

A.

Appellants next contend that the district court erred in

determining that Boateng was a supervisor in the drug conspiracy,

a decision that made her ineligible for a two-level statutory

safety valve reduction under Guideline § 2D1.1(b)(11).

Guideline § 3B1.1(c) provides for a two-level adjustment

whenever a defendant acts as an organizer, leader, supervisor or

manager of one or more participants in criminal activity.

Application Note 2 to that Guideline states that

[t]o qualify for an adjustment under this section, the
defendant must have been the organizer, leader, manager,
or supervisor of one or more other participants. An
upward departure may be warranted, however, in the case
of a defendant who did not organize, lead, manage, or
supervise another participant, but who nevertheless
exercised management responsibility over the property,
assets, or activities of a criminal organization.

Application Note 4 states that

[f]actors the court should consider [when applying this
adjustment] include the exercise of decision making
authority, the nature of participation in the commission
of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or
organizing the offense, the nature and scope of illegal
activity, and the degree of control and authority
exercised over others. There can, of course, be more
than one person who qualifies as a leader or organizer of
a criminal association or conspiracy.

16
As noted earlier, we review legal questions, including

interpretation of the Guidelines, de novo but review underlying

factual findings for clear error. Abu Ali, 528 F.3d at 261.

B.

In drug cases, "control" over others is a key factor in

determining whether an adjustment under § 3B1.1(c) is proper.

United States v. Harriott, 976 F.2d 198, 202 (4th Cir. 1992).

Examples of control include instructing couriers, making travel

arrangements or otherwise directing another person's activities.

Id. At sentencing, the district court heard extensive argument

about whether Boateng met the requirements for a supervisory role

adjustment. Initially, the government had sought a four-level

adjustment for Boateng as a leader or organizer of criminal

activity with five or more participants. The district court

rejected that argument because the government could not name five

persons involved in Boateng’s criminal activity. Nevertheless,

because Boateng had acted as a contact for Appau, instructed him on

how to pass the pellets, secured a hotel room for him, paid for his

services and asked him to make another trip, the court concluded

she had supervised one or more other participants in the conspiracy

and should receive a two-level adjustment for supervisory role

pursuant to § 3B1.1(c).

In support of its finding, the district court noted Appau had

testified at trial that, when he arrived in the United States,

17
Boateng contacted him at the hotel and informed him "she is the one

[he was] coming to see." She told him to stay in the hotel room

and provided him with $500 to pay his expenses. She gave him her

phone number and instructed him to contact her when he passed the

heroin pellets. Boateng acted as Appau’s sole contact during his

stay in the United States. She also attempted to recruit him to

carry money back to Ghana and later called him in Ghana to persuade

him to chance another drug run into BWI.

The district court did not clearly err in applying the two-

level adjustment for supervisory role pursuant to Guideline

§ 3B1.1(c) to Boateng. Application Note 2 recognizes that

defendants who supervise one or more other participants in any

criminal activity qualify for the adjustment. Although Boateng

argues she was not a supervisor because there were others above her

in the hierarchy, her argument is unavailing. The advisory

Guidelines recognize that relative degrees of responsibility may

exist within the same criminal activity. As in a lawful enterprise,

an illegal enterprise may contain multiple levels of management.

U.S.S.G. § 3B1.1 Application Note 4.

C.

The statutory safety valve entitles a defendant to a reduction

of two levels below the base offense level and waives any statutory

minimum sentence provisions if the defendant meets the following

five criteria: (1) the defendant must have no more than one

18
criminal history point; (2) the defendant must not have used

violence or credible threats of violence or possession of a firearm

or a dangerous weapon during the offense; (3) the offense must not

have resulted in death or serious bodily harm to any person; (4)

the defendant must not have been a supervisor in the offense; and

(5) prior to sentencing, the defendant must have "truthfully

provided to the Government all information and evidence the

Defendant has concerning the offense." 18 U.S.C. § 3553(f);

U.S.S.G. § 5C1.2. Because Boateng played a supervisory role in the

offense, the district court properly concluded she was ineligible

for the safety valve.

VIII.

Appellants argue that the government failed to carry its

burden of proving, by a preponderance of the evidence, that Bonsu

committed perjury prior to trial. They contend the district court

erred by applying the adjustment for obstruction of justice

pursuant to Guideline § 3C1.1 without first determining whether

Bonsu’s statement was material. They also assert it failed to

address whether the alleged perjury was done willfully for the

purpose of deceiving the court.

U.S.S.G. § 3C1.1 provides:

If (A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation, prosecution,
or sentencing of the instant offense of conviction, and

19
 (B) the obstructive conduct related to (I) the
defendant's offense of conviction and any relevant
conduct; or (ii) a closely related offense level,
increase the offense level by 2 levels.

According to Application Note 4, the type of conduct to which this

adjustment is intended to apply includes "committing, suborning or

attempting to suborn perjury [and] providing materially false

information to a judge or magistrate." Material evidence is

"evidence, fact, statement, or information that, if believed, would

tend to influence or affect the issue under determination."

Application Note 6.

In order to adjust a defendant’s base offense level for

obstruction on the basis of perjury, a district court must first

identify the allegedly false statements. United States v.

Akinkoye, 185 F.3d 192, 205 (4th Cir. 1999). It then must

determine whether the defendant (1) gave false testimony, (2)

concerning a material matter, and (3) with the willful intent to

deceive (as opposed to confusion, mistake, or faulty memory).

United States v. Quinn, 359 F.3d 666, 680 (4th Cir. 2004).

In this case, the district court found that Bonsu’s perjury

occurred when he testified at the hearing on his motion to suppress

that law enforcement had not advised him of his Miranda rights

before he made certain incriminating statements. The trial court

specifically found that: (1) Bonsu had testified falsely when,

during the suppression hearing, he stated he had not been read his

Miranda rights before his interrogation; (2) Bonsu’s testimony was

20
material because it related to whether his statements should be

suppressed; and (3) Bonsu had perjured himself willfully in order

to suppress inculpatory statements he had given to government

agents.

In its findings, the district court recognized that not every

false statement is perjury, nor is every false statement entitled

to an adjustment under the guidelines. United States v. Smith, 62

F.3d 641, 647 (4th Cir. 1995). It noted that some false statements

are merely the result of faulty memory. Id. at 646. In Bonsu’s

case, however, it found that his statements "went beyond that."

Not only had Bonsu testified that a government special agent had

failed to read him his Miranda rights, he also testified the agent

actually told him whatever he said could not be used in court.

After weighing this evidence, the district court concluded that

Bonsu's testimony conflicted with that of the agent to such a

degree that either Bonsu or the agent had lied. The court then

found the agent’s testimony credible.

The district court did not abuse it discretion when it found

that Bonsu’s testimony was false and material, and that he had lied

willfully to secure suppression of his statements by deception. It

therefore properly applied Guideline § 3C1.1 in Bonsu’s case.

21
 IX.

Finally, Appellants contend the district court erroneously

increased Bonsu’s base offense level by three levels pursuant to

Guideline § 3B1.1(b) because he was a supervisor or manager within

a conspiracy of five or more participants. According to

Appellants, the district court failed to make specific evidentiary

findings to support its conclusion.

Guideline § 3B1.1(b) provides that a defendant who supervises

or manages a criminal activity involving five or more participants

qualifies for a three-level adjustment to the advisory Guideline

level. As noted earlier, in drug cases we consider “control” over

others a key factor in determining whether to apply this adjustment

for supervisory role. Harriott, 976 F.2d at 202. Here, the

district court found that Bonsu’s modus operandi with Manu clearly

resembled Boateng’s method of dealing with Appau. Bonsu ordered

Manu to remain in a hotel room, collected heroin pellets after Manu

passed them and paid him for his services. The district court

found that five or more participants were involved in the

conspiracy with Bonsu when, at sentencing, he testified that

another previously unknown co-conspirator named Steve had been on

the telephone with one of the other heroin mules, Appau, during two

of the calls. Based on that admission, and the evidence of Bonsu’s

relationship to Boateng, Appau, Manu and Richardson, the district

22
court determined that Bonsu had supervised five or more

participants in the conspiracy pursuant to Guideline § 3B1.1(b).

These factual determinations about Bonsu’s supervisory role in

the conspiracy were not clearly erroneous. At trial, Manu had

testified that Bonsu was “the boss” who had paid him for carrying

the drugs, that Bonsu had met him at the airport and driven him to

the hotel, that Bonsu had paid for his hotel room and directed him

to stay in his room until he passed the heroin pellets. Based on

this testimony, an adequate factual basis existed for the district

court to apply the three-level adjustment pursuant to Guideline

§ 3B1.1(b).

X.

For the foregoing reasons, the judgment of the district court

in this case is in all respects

AFFIRMED.

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