IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 19, 2008
No. 07-20210 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MICHAEL ORJI-NWOSU, also known as Michael Orji
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before BENAVIDES, SOUTHWICK, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Michael Orji-Nwosu (“Orji”) was convicted of possession with intent to
distribute more than five kilograms of cocaine. On appeal, Orji contends that
the district court abused its discretion in submitting a “deliberate ignorance”
instruction within the jury charge. Finding no abuse of discretion, we affirm
Orji’s conviction.
I. Factual Background
On August 27, 2006, Orji was arrested by an officer with the United States
Customs and Border Protection Service at Houston’s Bush Intercontinental
Airport. Inside two pieces of Orji’s luggage marked “heavy,” officers discovered
four sealed canisters of a protein supplement, each of which contained cocaine
No. 07-20210
underneath a layer of milkshake powder. The four canisters held a total net
weight of 17.94 kilograms – almost forty pounds – of cocaine.
Orji is an attorney who had a civil law practice in Philadelphia,
Pennsylvania, and Houston, Texas, and was scheduled to travel from Houston
to Nigeria via London, England. At trial, the government submitted evidence
that Houston is a source-city for international cocaine trafficking, that Orji had
traveled on seven recent occasions from Philadelphia to Houston to London,
where he stayed for two or three days, then to Nigeria and then back to
Philadelphia. Those trips occurred in April, June, August, and November of
2005, and February, April, and July of 2006. On more than half of the trips, Orji
traveled to London with additional luggage that he had not carried from
Philadelphia.
The government also presented evidence that on the date in question, Orji
was asked security screening questions about his knowledge of the contents of
his luggage. He gave standard answers to those questions and did not state that
he was transporting items for another person. After discovery of the cocaine, law
enforcement personnel at the airport conducted a re-screening of all passengers
on Orji’s flight, including Orji. He was specifically asked if all items of his
luggage belonged to him, and he said they did. He was asked if he packed
everything in his luggage, and he said that he did. Again, Orji did not contend
that he was transporting sealed containers for another person. Additionally,
government witnesses testified that: (1) the canisters were significantly heavier
than the six pound weight indicated on the packaging; (2) Orji expressed no
emotion upon his arrest; and (3) the street value of the cocaine seized from Orji
would be millions of dollars.
In his defense, Orji called a number of witnesses who indicated that it was
common within the Nigerian community to transport items for friends and
family members. Orji himself testified that he had ongoing business ties to
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No. 07-20210
Houston and Nigeria, and that he was carrying the canisters as a favor for an
acquaintance named Samuel Oguguo,1 whom he had known for twelve years.
Orji stated that on August 25, 2006, he encountered Oguguo outside a
barbershop, and he was asked to deliver items of clothing and a “protein
substance” to Oguguo’s brother in Nigeria. Oguguo was driving a new car.
Orji further testified that on the day before his flight to London, Oguguo
brought two suitcases – one large and one small – to Orji’s hotel room. The
suitcases contained four canisters of protein powder, which were wrapped in a
black bag, and other items, such as cotton balls and clothing. Because Orji
intended to carry computers to Nigeria and recognized that the larger suitcase
was too big to be accepted by the airlines, he refused to transport both pieces of
luggage. Oguguo, who purportedly travels to Nigeria often because his wife lives
there, appeared to be “really desperate,” and explained that the heavy canisters
were intended for his brother’s medical clinic in Lagos. Orji inquired further
about the canisters, shook them, and read the label. Oguguo told Orji that the
powder was for use in bodybuilding. Finally, Orji agreed to take the canisters.
He placed two canisters in his own suitcase and also carried two in Oguguo’s
smaller suitcase. Orji indicated that Oguguo was “a little hesitant” to allow Orji
to carry the canisters all the way to Nigeria. Instead, Oguguo offered to have a
cousin pick up the items in London.
Based on the evidence elicited at trial, and over Orji’s objection, the
district court included a “deliberate ignorance” jury instruction, adopted from
Fifth Circuit Pattern Jury Instruction 1.37. The instruction stated,
You may find that a defendant had knowledge of a fact if you find
that the defendant deliberately closed his eyes to what would
otherwise have been obvious to him. While knowledge on the part
of the defendant cannot be established merely by demonstrating
1
We have only Orji’s word that such a person exists. No such person testified at trial,
and no one else testified to his existence.
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No. 07-20210
that the defendant was negligent, careless, or foolish, knowledge can
be inferred if the defendant deliberately blinded himself to the
existence of a fact.
Orji was convicted of the single count of the indictment, and was sentenced to
168 months of imprisonment. Orji now asks this court to reverse his conviction.
II. Standard of Review
We review an appellant’s objection to jury instructions under an abuse of
discretion standard, “affording the trial court ‘substantial latitude’ in describing
the law to the jurors.” United States v. Young, 282 F.3d 349, 353 (5th Cir. 2002)
(quoting United States v. Chaney, 964 F.2d 437, 444 (5th Cir. 1992)). We
consider whether the “charge, as a whole, was a correct statement of the law and
whether it clearly instructed the jurors as to the principles of the law applicable
to the factual issues confronting them.” United States v. Conner, 537 F.3d 480,
486 (5th Cir. 2008). “The district court may not instruct the jury on a charge the
evidence does not support. But in determining whether the evidence reasonably
supports the charge, the evidence and all reasonable inferences that may be
drawn from it are viewed in the light most favorable to the Government.” Id.
III. Discussion
“‘The circumstances which will support the deliberate ignorance
instruction are rare.’” United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th
Cir. 2003) (quoting United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir.
1990)). However, “[t]his court has consistently upheld such an instruction as
long as sufficient evidence supported its insertion into the charge.” United
States v. Daniel, 957 F.2d 162, 169 (5th Cir. 1992). The instruction is proper
when the facts elicited at trial “support an inference that the defendant was
subjectively aware of a high probability of the existence of illegal conduct, and
that he purposely contrived to avoid learning of the illegal conduct.” Id. The
term “deliberate ignorance” “denotes a conscious effort to avoid positive
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No. 07-20210
knowledge of a fact which is an element of an offense charged, the defendant
choosing to remain ignorant so he can plead lack of positive knowledge in the
event he should be caught.” United States v. Restrepo-Granda, 575 F.2d 524, 528
(5th Cir. 1978). In Young, we explained that where the facts raise a question
about the conduct and intentions of someone other than the defendant, as they
do here, a deliberate ignorance instruction is appropriate. Young, 282 F.3d at
353.
In this case, the evidence at trial, viewed in the light most favorable to the
government, supported the insertion of a “deliberate ignorance” instruction in
the jury charge. Although the government’s primary theory was that Orji had
actual knowledge of the presence of cocaine in his luggage, the trial testimony
also suggests a conscious attempt to avoid incriminating knowledge and not
merely “negligent or stupid” conduct. Lara-Velasquez, 919 F.2d at 951.
The evidence established that Orji was subjectively aware of a high
probability of illegal conduct. According to Orji’s testimony, Oguguo, an
acquaintance who traveled frequently to Nigeria, approached Orji. Oguguo
requested that Orji transport two heavy suitcases, including one that was so
large that Orji believed it would not be accepted by the airline. Inside these
suitcases, the items that Oguguo was “really desperate” to have transported
were four canisters, wrapped in a black bag, purportedly containing protein
powder. These containers, holding almost forty pounds of cocaine and additional
protein powder, were clearly labeled as holding only six pounds each, and Orji
claimed to have been puzzled enough to shake the notably heavy canisters. As
a licensed attorney aware of heightened security on flights to London in 2006,
Orji would be cognizant of a high probability of the existence of illegal conduct
when his friend brought two suitcases containing heavy containers covered in
plastic bags.
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Further, Orji’s trial testimony documents a purposeful contrivance to avoid
learning of the illegal conduct. By his own testimony, Orji apparently accepted
at face value Oguguo’s curious claim that the four canisters of protein powder
would be used for bodybuilding purposes at a medical clinic. Despite Oguguo’s
desperation to have the containers transported, Orji did not further investigate
when Oguguo was “hesitant” to have him transport the items from London to
Nigeria. Since the rationale for having Orji transport the items to Nigeria was
to avoid theft by Nigerian courier services, it would make little sense to carry the
items only as far as London. Orji’s statements about his luggage to two different
people at the airport are inconsistent with his trial testimony. Assuming
arguendo that Orji’s trial testimony about the canisters was true, the airport
statements show a purposeful attempt to avoid discovery of what was in the
canisters Oguguo gave him. The jury could reasonably infer that an experienced
traveler such as Orji would know that if he said that the luggage contained items
unknown to him, the items would be thoroughly searched.
Orji’s testimony that he failed to further inspect the canisters and question
Oguguo’s conduct, coupled with his answers to officials at the airport (which
were inconsistent with his trial testimony), suggest a conscious attempt to avoid
incriminating knowledge, not mere negligence. Thus, the district court could
have reasonably concluded that the evidence at trial satisfied the second prong
of the “deliberate ignorance” test.2
In any case, this court has explained that “‘an error in giving the
deliberate ignorance instruction is harmless where there is substantial evidence
of actual knowledge.’” Mendoza-Medina, 346 F.3d at 134 (quoting United States
2
The actual wording of the instruction, adopted from the Fifth Circuit Pattern Jury
Instruction 1.37, is a correct statement of the law. See FIFTH CIRCUIT PATTERN JURY
INSTRUCTIONS (Criminal Cases) § 1.37; see also United States v. Turner, 960 F.2d 461, 464 (5th
Cir. 1992) (holding that district court did not err in giving instruction that tracked Fifth Circuit
Pattern Jury Instructions and was correct statement of law).
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No. 07-20210
v. Saucedo-Munoz, 307 F.3d 344, 349 n.5 (5th Cir. 2002)). Here, the government
submitted evidence that Orji, a licensed attorney, made eight costly trips from
Philadelphia, via Houston and London, to Nigeria, within sixteen months.
During most of those trips, Orji picked up additional luggage before traveling to
London, and he usually remained in Nigeria for only a few days. Orji showed no
emotion when arrested, and he claimed to the British Airways representative
that he had packed his own luggage. During the re-screening, he again stated
that all items in his luggage belonged to him.
If Orji’s answers to the airport questions were truthful, then the cocaine
canisters were packed by him and belonged to him. If he was merely an
“unwitting dupe,” as he now claims, then his repeated failure in response to the
airport questions to admit his supposed role as an innocent delivery service is
highly suspect. Finally, the jury could have easily concluded that Oguguo,
alleged to be a casual acquaintance who makes frequent trips to Nigeria himself,
would not be willing to entrust millions of dollars worth of cocaine to an
unknowing accomplice. In sum, the evidence of Orji’s actual knowledge of the
cocaine was substantial enough to render harmless any error in giving the
“deliberate ignorance” instruction.
Accordingly, the district court did not abuse its discretion in providing the
instruction, and Orji’s conviction is AFFIRMED.
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