United States v. Mogaji

May 3, 1996
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2265

UNITED STATES,

Appellee,

v.

ELIZABETH MOGAJI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Chief U.S. District Judge]

Before

Torruella, Chief Judge,

Stahl and Lynch, Circuit Judges.

Elizabeth I. Mogaji on brief pro se.

Sheldon Whitehouse, United States Attorney, and James H. Leavey,

Assistant United States Attorney, on brief for appellee.

Per Curiam. Defendant-appellant Elizabeth Mogaji

was convicted of one count of conspiracy to commit credit

card fraud and five counts of fraudulent use of access

devices. See 18 U.S.C. 1029(a)(2). She raises a number of

issues on appeal, all of them meritless.

1. Motion to Suppress.

Defendant argues that the district court should

have suppressed the contents of the two plastic bags found by

Pamela McCutcheon and turned over to Secret Service Special

Agent James Mooney. The government correctly responds that

defendant has no standing to contest the search because she

did not have a reasonable expectation of privacy in the

common basement area of the duplex at 10-12 Stamford Avenue;

nor does the fact that defendant's driver's license was found

in one of the bags make a difference. See United States v.

Thornley, 707 F.2d 622, 625 (1st Cir. 1983) (defendant may

not protect himself against discovery of an item by taking it

from his own premises and hiding it in a place in which he

has no legal interest). Further, defendant did not assert

ownership of anything in the plastic bags at the suppression

hearing -- the time at which defendant must carry her burden

of showing a privacy expectation. See United States v.

Aguirre, 839 F.2d 854, 856 (1st Cir. 1988). Because

defendant plainly has no standing to contest the search, we

need not address defendant's credibility arguments.

2. Judgment of Acquittal.

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Defendant argues that there was insufficient

evidence to find her guilty of any of the counts in the

indictment. We will address these arguments by count, ending

with Count One, the conspiracy charge. We review challenges

to the sufficiency of the evidence to determine whether a

rational jury could find guilt beyond a reasonable doubt.

United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir.

1995). In so doing, we examine the evidence, along with

reasonable inferences, in the light most favorable to the

prosecution. Id. The evidence may be circumstantial and the

prosecution does not have to exclude every reasonable theory

of innocence. United States v. Batista-Polanco, 927 F.2d 14,

17 (1st Cir. 1991). "Furthermore, the reviewing court does

not evaluate witness credibility, but resolves all

credibility issues in favor of the verdict." Flores-Rivera,

56 F.3d at 323.

The above principles dispose of defendant's

assertions that many of the witnesses lied on the stand. We

have reviewed the trial transcript and conclude that these

challenges go instead to the credibility of the witnesses.

As such, we will not revisit the jury's evaluation in this

regard. See id.

(a). Count Two. This count charges defendant

and Onyejekwe with using a Chase Manhattan Mastercard in the

name of Raymond Walters to purchase two checks in the total

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amount of $10,150 in violation of 1029(a)(2). Defendant

first argues that none of the exhibits submitted by the

government in relation to this charge showed that she had any

involvement in procuring these checks. However, defendant is

being charged as part of a conspiracy. Under the Pinkerton

doctrine, Pinkerton v. United States, 328 U.S. 640 (1946), a

member of a conspiracy may be held liable for the substantive

crimes committed by co-conspirators if the substantive crimes

were committed in furtherance of the conspiracy and while

defendant was a member of the conspiracy. United States v.

Flores-Rivera, 56 F.3d at 324.

We think that a rational jury could have found

beyond a reasonable doubt that Onyejekwe used the Raymond P.

Walters Mastercard in furtherance of the conspiracy and while

defendant was a part of the conspiracy. First, when

Onyejekwe and defendant were arrested for using a Mastercard

in the name of Beverly Onofrio on July 10, 1991, Onyejekwe

was carrying a list of names. On this list appeared names,

birth dates and addresses for both Onofrio and Walters.

Further, the use of the Walters Mastercard occurred in mid-

May to June of 1991 -- only a month prior to the two

occasions on which defendant and Onyejekwe used the Onofrio

Mastercard at the Lechmere stores. The jury could reasonably

infer, we think, that the use of both the Onofrio and Walters

Mastercards occurred as part of one conspiracy.

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Second, we believe the evidence supports the

conclusion that defendant was a participant in the conspiracy

when Onyejekwe used the Walters Mastercard. The common law

is that one who joins an ongoing conspiracy, as defendant

plainly did on July 6 and 10, "is deemed to have adopted the

prior acts and declarations of coconspirators, made after the

formation and in furtherance of the conspiracy." United

States v. Cintolo, 818 F.2d 980, 997 (1st Cir.), cert.

denied, 484 U.S. 913 (1987). Given that the names of Walters

and Onofrio appeared on the list Onyejekwe was carrying the

day defendant was arrested, there was sufficient evidence to

convict defendant on Count Two.

(b). Count Three. This count concerns the use

of Beverly Onofrio's Mastercard at the Lechmere stores on

July 6 and 10, in 1991. Defendant first argues that Exhibit

#12, a photocopy of a Lechmere sales slip, was altered to

influence the jury. She contends that one order number was

written over another and that the employee number, 1034, was

handwritten, when the usual Lechmere custom is to have the

employee number pre-stamped on the sales slip. Looking at a

copy of the sales slip, however, we can discern only one

order number -- 0061903. As for the writing of the

employee's number, there is nothing to support defendant's

assertion that Lechmere's "usual practice" was to have a

printed number.

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Defendant next attacks the photo identification

procedure by which Alex Shtutin -- the Lechmere sales person

who sold the telefax machines to defendant and Onyejekwe on

July 6 -- identified defendant. However, as far as we can

tell, defendant never filed a motion to suppress the photo

identification prior to trial; in fact, she did not even

object to Shtutin's testimony at trial. We have held that

pretrial photo identification procedures are subject to the

requirements of Fed. R. Crim. P. 12(b)(3) and motions to

exclude such evidence must be made prior to trial. United

States v. Gomez-Benabe, 985 F.2d 607, 611-12 (1st Cir. 1993).

Given Gomez-Benabe, we think that defendant, by not having

given the district court a chance to determine if she should

be excused from filing a pretrial motion to suppress, has

waived her right to challenge the identification procedure on

appeal.

(c). Counts Four and Five. These counts

concern, respectively, the use of Onofrio's Discover Card

during June 21, 1991 through June 25, 1991, and the use of

Onofrio's AT&T Universal Mastercard during June 26, 1991

through July 24, 1991. Defendant correctly notes, as she did

with respect to Count Two, that there was no direct evidence

that she ever used either card. Thus, under Pinkerton, the

government was required to prove that the use of the Discover

Card and the AT&T Universal Mastercard, during the period

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from June 21, 1991 to July 24, 1991, was carried out by

Onyejekwe in furtherance of the conspiracy and while

defendant was involved in the conspiracy. See Flores-Rivera,

56 F.3d at 324.

In regard to Count Four, the evidence is that

the Discover Card was found in Onyejekwe's possession when he

was arrested on July 10, and that Onofrio's name was on the

list of names Onyejekwe was carrying. Defendant argues that

she was in the hospital during the time the Discover Card was

used. However, absent any claim that she had withdrawn from

the conspiracy, the fact that defendant was somewhere else

during her co-conspirator's actions is not relevant. See

United States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir.

1987) (per curiam). Cessation of activity in a conspiracy is

not enough to show withdrawal; rather, a conspirator must

take some affirmative act such as a full confession to

authorities or a communication to a co-conspirator that he or

she is withdrawing from the enterprise. Id. Defendant does

not allege the existence of such circumstances here.

As for Count Five, defendant points out that

the AT&T Universal Mastercard never was recovered. She also

argues that there is no evidence connecting her to the use of

the AT&T card. We do not think that either ground is a

sufficient basis on which to overturn the jury's verdict.

First, the question is not only whether defendant used the

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AT&T card, but also whether Onyejekwe might have used it. In

this regard, we note that the AT&T card was applied for in

June 1991 and was used during the same period defendant and

Onyejekwe were using the other cards in Onofrio's name.

Because the evidence linking Onyejekwe to the use of

Onofrio's name is so strong, we think that the jury

rationally could find that Onyejekwe used Onofrio's AT&T

Universal Mastercard.

(d). Count Six. This count charged defendant

with using a Mastercard in the names of Leonard L. Medeiros

and Althea V. Medeiros to withdraw money from automated

teller machines. The government's evidence consisted, in

part, of photographs of the person who withdrew money with

the card in question. McCutcheon had testified that she had

rented half of the duplex at 10 Stamford Ave. to defendant

who told McCutcheon that she (defendant) was Althea Medeiros.

McCutcheon identified defendant as the person in the picture.

Defendant argues that the photographs should

not have been admitted in evidence because they were too

blurry for identification purposes. As a result, she adds,

McCutcheon's identification of her was suspect. However, as

with the other photo identification, defendant never filed a

motion to suppress the photographs. Therefore, she has

waived an appellate challenge to them. See Gomez-Benabe, 985

F.2d at 611-12. In any event, defendant's arguments

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concerning McCutcheon's testimony really go to credibility.

Thus, we need not review her claims. See Flores-Rivera, 56

F.3d at 323.

(e). Count One. Count one charged defendant

with conspiracy to commit credit card fraud. Defendant makes

some of the same arguments in support of her contention that

the government failed to show a conspiracy between her and

Onyejekwe as she made in regard to Counts Two and Four. For

the reasons stated in the discussion regarding Count Two,

defendant's arguments, first, that the acts in Counts Two,

Four and Five took place prior to July 10 and, second, that

she only was present in the Lechmere parking lot on July 10

fail. Similarly unavailing are the arguments that there was

no evidence that defendant ever used a credit card or helped

Onyejekwe use a credit card, that defendant's fingerprints

were not found on any cards, and that no cards were found on

her person. Under Pinkerton, defendant is responsible for

the reasonably foreseeable offenses committed by Onyejekwe in

furtherance of the conspiracy since she was a member of the

conspiracy during the relevant time periods. See Flores-

Rivera, 56 F.3d at 324. The uses of the various credit cards

by Onyejekwe clearly were foreseeable.

3. Denial of Cross-Examination.

Defendant argues that on three occasions she was

prevented from conducting cross-examination that would have

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revealed the biases and perjured testimony of the witnesses.

However, a review of the transcript shows that counsel

decided to withdraw the questions to which defendant refers

and that there is no evidence that either the court or the

government "prevented" defendant from cross-examining anyone.

Thus, this issue, being fact-based, must be raised as an

ineffective assistance claim in a motion under 28 U.S.C.

2255. See United States v. Georgacarakos, 988 F.2d 1289,

1297 (1st Cir. 1993) (an ineffective assistance of counsel

claim which involves issues not fully developed in the trial

record is not ripe for decision on appeal). For the same

reason, we will not consider defendant's other arguments

relating to allegedly ineffective assistance of counsel.

4. Improper Jury Instruction.

Defendant complains that the trial judge failed to

instruct the jury that 1029 requires the government to

prove that she "actually used" an unauthorized device to

obtain something of value. Because defendant never objected

below, we review for plain error. See United States v.

McGill, 952 F.2d 16, 17 (1st Cir. 1991). The jury

instructions plainly reveal that the trial judge correctly

instructed the jury that, as Pinkerton holds, defendant could

be found guilty of fraudulent use of an access device if the

jury found that another's use of such a device was part of

the conspiracy, that such use was a reasonably foreseeable

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consequence of the conspiracy, and that defendant was a

member of the conspiracy when the device was used. As a

result, there was no plain error.

Defendant's second argument is that the trial judge

improperly used the word "conspirators" in reciting the overt

acts charged in the indictment. Essentially, the trial judge

substituted the word "conspirators" for the words "the

defendants, Christopher Onyejekwe and Elizabeth Mogaji."

Thus, as to the first overt act, the judge stated that "on or

about July 6, 1991, conspirators purchased merchandise at

Lechmere. . . ." Defendant alleges that this communicated to

the jury the trial judge's belief that she was guilty.

Again, there is no plain error here. The trial court judge

instructed the jury that the indictment was not proof of

anything and clearly defined what elements were necessary for

the jury to find that defendant was part of a conspiracy.

The judge also instructed the jury that he had no opinion

concerning the facts.

5. Motion to Recuse.

Defendant argues that Judge Boyle, the trial judge,

should have recused himself due to his bias and prejudice

against defendant. She claims that he was convinced of her

guilt from the beginning. This claim, in part, arose when

defendant and her lawyer allegedly heard Judge Boyle state at

a bail reconsideration hearing that there "was a conspiracy

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among you people." Defendant also rests her recusal argument

on Judge Boyle's post-trial threat that he would strike

defense counsel's name from the court-appointment list.

As for the first comment, it does not appear in the

transcript of the bail reconsideration hearing. Further, the

court reporter reviewed the tape recording of the bail

reconsideration hearing and verified the transcript's

authenticity. In any event, defendant has waived this issue

by waiting until after trial to file a motion for recusal.

See In re Abijue Realty Corp., 943 F.2d 121, 126 (1st Cir.

1991) (a litigant, knowing of a ground for recusal cannot

wait and decide whether he or she likes the subsequent

treatment he or she receives).

The second comment, unlike the first, is not even

directed at defendant. Further, a reading of the transcript

reveals that this apparently was the second time defense

counsel was unprepared to go forward on a matter. We do not

think that this comment provides what "an objective,

knowledgeable member of the public would find to be a

reasonable basis for doubting the judge's impartiality." See

In re United States, 666 F.2d 690, 695 (1st Cir. 1981)

(stating the applicable standard under 28 U.S.C. 455(a)).

Simply, judicial expressions of vexation at lawyers who are

not ready to proceed on time do not raise a question of

judicial bias.

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6. Motion for a New Trial.

In her recitation of the facts, defendant mentions

that the district court denied her motion for a new trial as

untimely. However, she fails to include in her brief any

argument why we should reverse the trial court's ruling.

Thus, she has waived the issue. A review of the issue

nonetheless shows that this claim is meritless.

Defendant was convicted on May 10, 1994 and the

certificate of service of the new trial motion was dated July

6, 1994. Fed. R. Crim. P. 33 requires such a motion to be

filed within seven days after verdict. At the hearing on the

motion, defendant's trial attorney stated that defendant

never had asked him to file a motion for a new trial. Judge

Boyle concluded that defendant had been confused over how one

obtains a new trial -- by a motion or an appeal -- and had

asked her attorney to file an appeal. In any event, the

untimeliness of the motion for a new trial, a finding

supported by the evidence, means that the trial court was

without jurisdiction to rule on it. United States v. Lema,

909 F.2d 561, 565 (1st Cir. 1990).

The judgment of conviction is affirmed.

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