IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 93-2320
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES OKORONKWO a/k/a
DERRICK, EKE BOKO CHUKS
a/k/a BOKO C. EKE, ONWEAZU
OKWECHIME a/k/a OWEN, TONET
JACKSON, EMMANUEL EZINWA
a/k/a EMMA EZINWA,
Defendants-Appellants.
_______________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_______________________________________________
(February 17, 1995)
Before DAVIS, BARKSDALE and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Appellants in this criminal case are James Okoronkwo, Emmanuel
Ezinwa, Onweazu Okwechime, Boko Chuks Eke and Tonet Jackson. All
five were convicted for their role in a sizeable conspiracy to file
false income tax returns with the United States government. Members
of this conspiracy would recruit people to file tax returns and
assist them in filling out fraudulent returns. Typically, these
returns would claim that the filer was in the transportation
business and had bought an enormous amount of fuel, entitling the
person to a huge fuel excise tax credit and, consequently, a hefty
tax refund. These returns were usually filed electronically
through the rapid refund system at an office called Tax Sense.
When the refund check arrived, one of the conspirators would drive
the filer to the bank to cash it, then collect the conspiracy's
share of the refund. The conspirators were not generous:
ordinarily, a filer would get to keep only $200 out of a $3000
refund.
The suspicious nature of these returns did not go unnoticed by
the IRS. The similar characteristics of the numerous returns filed
through Tax Sense tipped them off. In almost every case, a credit
for diesel fuel was claimed, for which the rate of the motor fuel
tax is highest. The returns reported insufficient gross receipts
for the amount of fuel claimed to have been purchased. The amounts
of fuel claimed to have been purchased exceeded the amounts the
taxpayers could have used.1 Most of the returns showed no gross
income and no withholding. The IRS noted that the returns did not
reflect any of the expense deductions that would normally be
claimed by a business. Many of the returns showed the same
address, which often was a post office box. Often the filers
claimed head of household status, enabling them to receive higher
refunds as well. Also, most claimed the earned income credit.
Finally, in order to obtain refund anticipation loans on their
refunds, the filers typically claimed refunds of just under $3,000,
1
Most of the returns claimed fuel usage of approximately
20,000 gallons. One of the government's witnesses explained at
trial why such an amount seemed highly suspicious: in order to
consume 20,000 gallons of fuel, assuming 15 miles per gallon, a
taxpayer would have to have driven at least 300,000 miles per year,
or 821 miles per day. Even assuming a constant driving speed of 65
miles per hour, that would entail driving nonstop 12.6 hours a day
every single day of the year.
2
the maximum refund anticipation loan a taxpayer could receive
through the electronic filing system.
I. SUFFICIENCY OF THE EVIDENCE
All five appellants challenge the sufficiency of the evidence
underlying their convictions. The ground rules for reviewing the
sufficiency of the evidence are familiar. A conviction will stand
if a rational trier of fact could have found that the evidence
established guilt beyond a reasonable doubt. United States v.
Pofahl, 990 F.2d 1456, 1467 (5th Cir. 1993). The jury is free to
choose among reasonable constructs of the evidence and does not
have to exclude every reasonable hypothesis of innocence. United
States v. Maseratti, 1 F.3d 330, 337 (5th Cir. 1993). All
inferences from the evidence must be viewed as supporting the
verdict. United States v. Basey, 816 F.2d 980, 1000-02 (5th Cir.
1987). The jury is entitled to believe a witness unless the
testimony is so incredible that it defies physical laws. United
States v. Lerma, 657 F.2d 786, 789 (5th Cir. 1981), cert. denied,
455 U.S. 921 (1982).
All defendants were charged with varying counts of violations
of 18 U.S.C. § 287 (aiding and abetting the filing of false tax
returns) and/or 18 U.S.C. § 286 (conspiracy to defraud the U.S.
through the filing of false returns).
To establish a violation of 18 U.S.C. § 287, the Government
must prove (1) that the defendant presented a false or fraudulent
claim against the United States; (2) that the claim was presented
to an agency of the United States; and (3) that the defendant knew
3
that the claim was false or fraudulent. See United States v.
Miller, 545 F.2d 1204, 1212 n. 10 (9th Cir. 1976).
To prove a defendant guilty of violating 18 U.S.C. § 286, the
Government must establish: (1) that there was a conspiracy to
defraud the United States; (2) that the defendant knew of the
conspiracy and intended to join it; and (3) that the defendant
voluntarily participated in the conspiracy. See United States v.
Orr, 864 F.2d 1505, 1509 (10th Cir. 1988); see also, Pofahl, supra,
990 F.2d at 1467.
Participation in a conspiracy need not be proven by direct
evidence: "a conspirator's knowledge and intent can be shown by
circumstantial evidence," United States v. Judd, 889 F.2d 1410,
1415 (5th Cir. 1989), cert. denied, 494 U.S. 1036 (1990), and "a
common purpose and plan may be inferred from a 'development and
collocation of circumstances.'" United States v. Robertson, 659
F.2d 652, 656 (5th Cir. 1981) (quoting Glasser v. United States,
315 U.S. 60, 80 (1942), and United States v. Marx, 635 F.2d 436,
439 (5th Cir. 1981)).
None of the appellants challenge the sufficiency of the
evidence on the existence of a conspiracy or the falsity of the
returns at issue. Instead, each argues that there was insufficient
evidence to prove intent to join or participation in the
conspiracy. Those challenging their convictions on the substantive
false claim counts assert that there was insufficient evidence of
criminal intent. We will address each defendant's claim separately
below.
4
James Okoronkwo
Okoronkwo was convicted on four counts of aiding and abetting
the filing of false tax returns in violation of 18 U.S.C. § 287 and
one count of conspiracy to defraud the U.S. through the filing of
false tax returns in violation of 18 U.S.C. § 286.
According to the filers he recruited, James Okoronkwo assisted
with the filing of at least six false returns through Tax Sense,
transported at least two of the filers to the bank to cash their
refund checks, and collected all but $200 of each of their refunds.
He helped one of the filers obtain a fake identification card and
file a false return under a fictitious name. Okoronkwo also filed
a false return of his own. He obviously was aware that the
information in his own return was incorrect. The evidence clearly
supports his four aiding and abetting convictions.
The evidence also supports the conspiracy conviction.
Okoronkwo's modus operandi was identical to that used in the
conspiracy. The returns filed were similar to other returns filed
as part of the illegal scheme. Moreover, his false returns were
filed through Tax Sense. Additionally, one of the filers testified
that Oganni Obi, the father of the conspiracy, was present at Tax
Sense when she and Okoronkwo went there. The same filer stated
that both Okoronkwo and Obi told her that the filing of her returns
was part of a "program" for low income people. From this, the jury
reasonably could have concluded that Okoronkwo was a member of this
conspiracy. We reject Okoronkwo's sufficiency of the evidence
claim.
5
Emmanuel Ezinwa
Ezinwa was convicted on one count of conspiring to defraud the
United States by filing false, fictitious or fraudulent tax returns
in violation of 18 U.S.C. § 286.
Henry Clement, a co-conspirator cooperating with the
government, was the primary witness against Ezinwa. He described
Ezinwa as the third-ranking member of the conspiracy, working hand-
in-hand with Oganna Obi, the ringleader of the conspiracy. Clement
testified that Obi had referred to Ezinwa as his best recruiter.
Clement testified Ezinwa was involved in "transportation" and acted
as "policeman" to make sure filers forked over the lion's share of
the refund money to the conspiracy. He stated that he had
personally observed Ezinwa bringing people he had recruited to Tax
Sense to pick up their refund checks, taking them to the bank to
cash the checks, and returning with money. Clement also saw
Ezinwa bringing forms to Tax Sense for transmission, stating that
Ezinwa was "there all the time with documents." The jury was
entitled to believe Clement if it wanted to, and it apparently did.
We find that the evidence was sufficient to support Ezinwa's
conviction.
Onweazu Okwechime
Okwechime was convicted on two counts of aiding and abetting
the filing of false tax returns in violation of 18 U.S.C. § 287 and
one count of conspiracy to defraud in violation of 18 U.S.C. § 286.
Two witnesses provided sufficient evidence to convict Okwechime:
Clement and a recruited filer named Bibian Nzurum.
6
Ms. Nzurum's testimony clearly establishes that Okwechime
aided and abetted in the filing of her false return. There was
also sufficient evidence for the jury to find that Okwechime was
involved in the filing of a false return in the name of Michael
Okwechime. Thus, there is sufficient evidence for the jury to
conclude that Okwechime had committed two counts of aiding and
abetting.
With regard to the conspiracy conviction, a careful review of
Ms. Nzurum's testimony reveals that Okwechime did not exactly
follow the typical pattern of activity used by the conspiracy in
his dealings with her. For example, he told her he would take only
one third of the refund as his fee; the other conspirators usually
took all but $200 of the filers' refunds. Nor did Okwechime
accompany Nzurum to the bank to cash her check, which was the
normal modus operandi of the conspiracy. Also, Nzurum denied ever
going to Tax Sense and claimed never to have heard of it. However,
the return Okwechime produced for Nzurum reflected the predictable
fuel tax credit, totally in keeping with the practice of the
conspiracy. In truth, Ms. Nzurum was not engaged in the
transportation business and had not purchased the fuel reflected on
the return. She testified that Okwechime filled out the return and
that she had given him only her name, social security number, and
W-2 form. Moreover, Clement testified that Okwechime was
"involved" with the conspiracy and brought documents to Tax Sense.
The jury reasonably could have believed Clement, an admitted co-
conspirator, when he testified that Okwechime was in on the
7
conspiracy. We conclude that the evidence was sufficient to
convict Okwechime.
Boko Chuks Eke
Eke was convicted on one count of conspiracy to defraud in
violation of 18 U.S.C. § 286. Remarkably, Eke contests his
conviction merely by adopting Ezinwa's argument on the
insufficiency of the evidence. The issue of whether there was
sufficient evidence to convict Ezinwa is irrelevant to the issue of
Eke's conviction. Ordinarily, we treat any assignment of error not
briefed as waived. However, we note that the evidence against Eke
is overwhelming and clearly was sufficient for a conviction on the
conspiracy count. Clement testified that Eke got social security
cards for filers who participated in the scheme. Clement also
stated that Eke got the names for the cards from Obi, filed a false
return in his own name, and helped another person file a false
return. A reasonable jury could have convicted Eke based on this
information. We reject Eke's argument that the evidence was
insufficient to convict him.
Tonet Jackson
Jackson was convicted on four counts of aiding and abetting
the filing of false returns in violation of 18 U.S.C. § 287 and one
count of conspiracy to defraud the U.S. through the filing of false
returns in violation of 18 U.S.C. § 286. Jackson concedes there
was sufficient evidence to convict her on the aiding and abetting
counts. She argues she had no deliberate, knowing, specific intent
to join the larger conspiracy, of which she claims to be unaware.
8
We have carefully reviewed the trial transcript in order to
determine whether there was sufficient evidence to convict Tonet
Jackson on the conspiracy count. Tonet Jackson filed her own false
tax return, transmitted through Tax Sense, which reflected a large
fuel tax credit to which she clearly was not entitled. The
testimony of two of the filers she recruited, Yolanda Armstrong and
Nicole Hawkins, establishes that Jackson told them that they could
receive incentive money from the government to help them stay in
school. She told them that her uncle could file their tax returns
and that they would receive money. When Armstrong noticed that the
address on her check was incorrect and that it was for $2,800
rather than the $500 amount she had been told, Jackson told her not
to worry about it. Jackson implied that the discrepancies had
something to do with the rapid refund. Armstrong also asked
whether she could keep the papers she had received at Tax Sense, to
which Jackson replied that Armstrong did not need them. Jackson
retrieved the papers and put them in her glove compartment.
Jackson's carefully crafted responses to Armstrong's voiced
suspicions about the legality of the scheme and the seemingly delft
manner in which she "handled" Armstrong, even in recovering the
papers which constituted written proof of the crime, defy the
credibility of Jackson's protestations of innocence.
Given the testimony of Hawkins and particularly that of
Armstrong, it was reasonable for the jury to infer guilty knowledge
on the part of Jackson, as she had created a cover to misrepresent
the nature of the scheme, thereby demonstrating her awareness of
9
the scheme's illegality. The evidence is also clear that Jackson
shared with Emmanuel Opurum in the proceeds of the people she
recruited. Jackson had been brought into the conspiracy by Opurum,
who had been introduced to the conspiracy by Oganna Obi, the
mastermind of the whole scheme. From this, the jury could
reasonably conclude that Jackson was engaged in a conspiracy to
defraud the United States through the making of false claims, at
least with Emmanuel Opurum. Her full knowledge of the greater
background conspiracy is not necessary. Thus, we conclude that
there was sufficient evidence to convict Tonet Jackson on the
conspiracy charge.
II. OTHER CHALLENGES TO APPELLANTS' CONVICTIONS
Having concluded that there was sufficient evidence to convict
all five defendants on all counts, we turn our attention to the
other assignments of error raised by various defendants.
Improper Voir Dire
Ezinwa argues that the district court failed to conduct a
proper voir dire of the jury. Trial judges have broad discretion
in conducting voir dire. Absent an abuse of discretion and a
showing that the rights of the accused have been prejudiced
thereby, the scope and content of voir dire will not be disturbed
on appeal. United States v. Black, 685 F.2d 132, 134 (5th Cir.
1982).
A. Nigerian Nationality
Ezinwa argues that the district court abused its discretion by
not thoroughly questioning the venire about prejudice against the
10
Nigerian nationality of all but one of the defendants. Prior to
trial, counsel for co-defendant Okwechime submitted two questions
which he requested that the district court ask the jury panel.
The two proposed questions were as follows:
[1] Has anyone had an argument, fight, or
confrontation with a Nigerian or other African which
might come to light during this trial. For example, has
anyone been in an automobile accident in which he or she
was rear-ended and the person who rear-ended you was a
Nigerian or African and got out of the car yelling and
blaming you for the accident. Or has anyone been in a
restaurant and had a Nigerian waiter spill hot soup over
you and an argument ensued.
[2] [H]as anyone been to Nigeria or other African
country. If so, while you were there, did anything
happen which would affect your judgment in this case.
For example, did anyone get sick and the medical care was
substandard or did you have some trouble getting in or
out of Nigeria.
The district court denied Okwechime's counsel's request to
pose these questions to the panel. Counsel for Okwechime objected
and proffered the two questions. No other proposed questions
regarding the defendants' nationality or race were proffered. We
readily agree with the district court's refusal to pose either of
these questions to the venire and note the court's well-stated
reasons for the ruling:
It is inconceivable to me to imagine questions that
would more improperly invoke race and prejudice and bias
on behalf of the jury than those questions. They are to
me the most loaded questions I have ever heard observed
[sic] in court . . . . And I can't imagine anything that
would cause this panel to sink to a lower level of bias
or antipathy . . . . I absolutely would not even begin
to offer those questions to this jury (emphasis added).
Ezinwa acknowledges that these are not model questions, but he
argues that they served to alert the district court to the need to
11
inquire further about the defendants' race and national origin. We
disagree. The Constitution does not require questioning
prospective jurors about racial or ethnic bias unless there are
special circumstances. Rosales-Lopez v. United States, 451 U.S.
182, 190, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981).
The Court has indicated, however, that under its supervisory
authority over the federal courts, it would require questions
directed toward discovery of racial bias in some circumstances
where the inquiry is not constitutionally required. Ibid. A
refusal to honor a request for such questions is reversible error
only if "there is a reasonable possibility that racial or ethnic
prejudice might have influenced the jury." Id. at 191. The
decision as to whether the total circumstances suggest such a
possibility remains primarily with the trial court, subject to a
case-by-case review by the courts of appeals. Id. at 192.
Ezinwa contends that this case involves "special
circumstances" like those in Ham v. South Carolina, 409 U.S. 524,
93 S.Ct. 848, 35 L.Ed.2d 46 (1973), which required the district
court to inquire about the potential jurors' racial bias. Ezinwa
first urges as a special circumstance his contention that southern
Texas had been flooded with fraud cases involving Nigerians,
creating what counsel characterized in brief as an "apparent
Nigerian penchant for fraud"2 in the public eye. However, there is
2
Counsel's use of such a characterization in his brief is
incredible, considering that it is laden with the very
stereotypical bias which he claims to have been wary of with the
jury.
12
nothing in the record to support his contention that there is a
particular public bias in southern Texas against persons of
Nigerian origin which might have prejudiced the jury. Ezinwa next
attempts to paint this case as one involving "special
circumstances" because it involves foreign nationals accused of
defrauding the U.S. government as well as U.S. citizens. The
Supreme Court has stated a supervisory rule that in cases involving
a defendant accused of a violent crime where the defendant and
victim are members of different racial or ethnic groups, federal
district courts must make an inquiry into racial prejudice when
requested by a defendant. Rosales-Lopez, supra, 451 U.S. at 192.
We reject Ezinwa's argument that this is a "special circumstances"
case under Rosales-Lopez and Ham, as the defendants have not been
accused of a crime of violence.
Moreover, in Ham, racial issues "were inextricably bound up
with the conduct of the trial," Rosales-Lopez, 451 U.S. 182, 189,
101 S.Ct. 1629, 1635, because the defendant's defense was that he
had been framed because of civil rights activities in which he had
engaged. In this case, there is no allegation that matters at
issue in the trial involved allegations of racial or ethnic
prejudice. We also note that in Ham, the proposed inquiries
pertaining to racial bias, which the trial court had rejected, were
very simple, basic questions of whether the venire was prejudiced
and were not "loaded questions" which would promote bias and
prejudice. In the instant case, the trial judge properly rejected
the proposed questions. There is nothing in Ham or its progeny to
13
suggest that the trial judge had a further duty to formulate his
own questions on racial bias or prejudice.
Moreover, we note that although the trial court did not
question the venire about their possible prejudice toward
foreigners or those of differing races, he did carefully admonish
the jury not to take into consideration the defendants' race,
nationality, or unusual-sounding names.
B. Pretrial Publicity
Ezinwa also alleges that the district court did not inquire of
the venire concerning pretrial publicity, thereby committing
reversible error. He asserts that the district court asked only
about the media coverage that the attorneys involved in the case
had received and never questioned jurors about media coverage of
the case itself. However, the trial transcript reflects that the
judge did make the following inquiries:
Is there anyone among you who has any personal knowledge
of any such alleged occurrence involving these defendants
in this case?
Is there anyone among you who has been exposed to
any media coverage on this or any similar case, the
effect of that media coverage being to in any way
diminish, impede, reduce or otherwise affect your
judgment or your perceptions or your fairness or
impartiality for these parties in this case? Good.
The record is completely devoid of any evidence of pretrial
publicity. On appeal, Ezinwa appends to his brief a single Houston
newspaper article which discusses the case and asks this Court to
take judicial notice of the article. This constitutes an
impermissible attempt to supplement the record on appeal. Neither
this article nor any other evidence of pretrial publicity was
14
presented to the district court. Accordingly, we will not consider
the article in assessing the adequacy of the voir dire. See Ham v.
South Carolina, supra, 409 U.S. at 528.
We conclude that the above questions which the district court
posed to the jury venire were adequate to discover whether any of
the jurors had been biased by pretrial publicity.3 Ezinwa's claim
of error is groundless.
We find no abuse of discretion in the district court's conduct
of voir dire.
Evidentiary Rulings
Appellants challenge several of the district court's
evidentiary rulings. The decision whether to admit testimony or
other evidence is left to the sound discretion of the trial judge
and will not be overturned absent clear abuse, United States v.
Stouffer, 986 F.2d 916, 924 (5th Cir. 1993), cert. denied, 114
S.Ct. 115 (1993), which resulted in the deprivation of some
substantial right of a party. United States v. Wicker, 933 F.2d
284, 289 (5th Cir. 1991).
A. Agent Taylor's Testimony
3
The second inquiry posed by the judge is actually a compound
question: the judge asked if the jurors had been exposed to media
coverage of the case, the effect of which would affect their
judgment or impartiality. It would have been preferable for the
judge to have asked first whether any of the venire had been
exposed to any media coverage. Then, if any had responded
affirmatively, the judge could have questioned them individually
about the effect the publicity might have had. However, we
conclude that the second question, as posed, was an adequate
attempt to identify jurors who had been affected by pretrial
publicity.
15
At trial, the government presented the testimony of Special
Agent Taylor as a summary witness. Okoronkwo and Okwechime argue
that his testimony was inadmissible hearsay because it was based on
out-of-court statements made to him by taxpayers and other agents,
being offered to prove the truth of the statements.4 See Fed. R.
Evid. 801(c).
The government contends that any error in the admission of the
testimony at issue was harmless. We agree. Agent Taylor's
testimony was merely cumulative of substantial evidence
establishing the various defendants' participation in the
conspiracy. In reviewing defendants' sufficiency of the evidence
challenges, we have not relied upon Taylor's testimony. The
district court did not commit reversible error.
B. Exclusion of Okwechime's Exhibit
Okwechime contends that the district court erred in refusing
to admit a handwriting sample of Nzurum's boyfriend as an exhibit
and refusing to allow a handwriting expert to testify as to the
handwriting on that sample. Counsel for Okwechime first sought to
introduce the exhibit during cross-examination of Nzurum. However,
a review of the trial transcript reveals that counsel did not lay
the proper foundation for introducing the exhibit. He merely asked
the witness to look at the document, then immediately launched into
questioning Nzurum about whether she could identify the writing
4
Okwechime also argues that Taylor's testimony should have
been excluded because it was based on an illegal wiretap. Because
we conclude that any error in the admission of Agent Taylor's
testimony was harmless, we do not reach the hearsay or illegal
wiretap issues.
16
thereon as her boyfriend's handwriting. The prosecution objected
on the basis of improper foundation, and the trial court properly
sustained the objection. At that point, counsel for Okwechime
totally abandoned his attempt to introduce the exhibit into
evidence by laying the proper foundation and instead proceeded to
the next exhibit. The district court's ruling was correct.5
Okwechime later attempted to have the handwriting expert
testify as to the handwriting on the proposed exhibit. At sidebar,
the judge again reiterated that he would not allow the document to
be used to interrogate a witness until a proper foundation was
laid. The prosecution argued at sidebar that the document
constituted hearsay, and the judge did imply at that point that the
document was hearsay. Okwechime argues in brief that the exhibit
was not hearsay because it was not offered to prove the truth of
any information contained therein. Okwechime explains in brief
that he was merely trying to show that handwriting on Nzurum's
return was her boyfriend's handwriting, suggesting that he had
prepared the false return. However, Okwechime's counsel did not
give any explanation in this regard to the court. The district
court did not err in refusing to allow the handwriting expert to be
questioned about the document, as it was not in evidence and its
relevance was not revealed to the court.
Other Assignments of Error
5
Okwechime has briefed the admissibility of the exhibit from
the standpoint of whether it was hearsay. However, as explained
above, the document was not excluded because it was characterized
as inadmissible hearsay but instead because counsel did not lay the
proper foundation.
17
A. Limiting cross-examination and rebuking counsel
Okwechime also argues that the district court prejudiced him
by repeatedly cutting short his cross-examination of Bibian Nzurum.
We have carefully reviewed the exchanges between counsel and the
court and conclude that the court only interjected when the
questioning became repetitive or wandered outside the bounds of
relevancy, or when counsel referred to the parties by their first
names, rather than by their surnames, as is more in keeping with
proper courtroom decorum and procedure. The district court did not
abuse his discretion in this regard, nor in any other of his
comments directed toward Okwechime's counsel. Moreover, Okwechime
has not made a showing, nor did he make a proffer at trial, as to
what evidence he was prevented from eliciting.
Okwechime contends that the court poisoned the jury against
him by threatening to throw his lawyer in jail for talking back on
one occasion when the court interrupted counsel for asking
questions that had already been asked and answered. We have
considered the comments in the context of the trial as a whole.
While we do not wish to encourage a practice of making such heavy-
handed remarks to counsel in the presence of the jury, we do not
find the court's comments to be reversible error under the
circumstances of this case. As the government correctly points
out, this was a single, isolated occurrence within a four-day
trial. Moreover, the judge carefully instructed the jury that they
should not read anything into his admonitions of people, and that
his actions were irrelevant to their work in deciding the case. At
18
the end of the case, the judge reiterated to the jury that they
should not read anything into it if he had admonished any of the
attorneys. We find no reversible error. See United States v.
Morales, 868 F.2d 1562, 1576-77 (11th Cir. 1989).
B. Limiting time for Closing Arguments
Eke contends that the district court placed very short time
limits on closing arguments, giving the government forty minutes
and the defendants as a group sixty minutes.6 Eke's attorney was
given fourteen minutes to present a closing argument. He objected
and made a proffer of the issues he wanted to discuss in closing
argument. Eke alleges violations of his Fifth Amendment due
process rights and his Sixth Amendment right to effective
assistance of counsel because he was not fully able to present his
case to the jury.
The time allowed for closing arguments ordinarily lies within
the discretion of the district court. United States v. Moye, 951
F.2d 59, 63 (5th Cir. 1992). Eke argues that fourteen minutes
clearly amounted to an abuse of discretion. The government
contends that fourteen minutes was sufficient time in this case, as
Eke was only charged with one conspiracy count, and most of the
government's witnesses did not pertain to him.
6
Tonet Jackson and Emmanuel Ezinwa attempt to adopt this
argument by incorporating the arguments of all other co-defendants
by reference. However, because neither has briefed the issue, nor
did counsel make a proffer at trial of what issues they would have
liked to discuss had they been given a longer amount of time, it is
impossible to determine whether these defendants were given a
sufficient amount of time to present their closing arguments.
19
Recently, this Court has upheld time limits of ten minutes,
id., and twenty-two minutes, United States v. Leal, 30 F.3d 577,
586 (5th Cir. 1994). However, in a case such as this involving
multiple defendants charged on multiple counts in a complicated
conspiracy, we must carefully examine whether the time allotted was
adequate in light of the complexity of the case and not rely upon
a cursory comparison of time limitations that we have upheld in
other cases.
In United States v. Bednar, 728 F.2d 1043 (8th Cir. 1984), our
colleagues of the Eighth Circuit upheld a twenty minute limit given
to a criminal defendant in a case involving multiple counts of
perjury and one count involving a violation of securities law, an
indisputably complicated area of law. In United States v. Fesler,
781 F.2d 384 (5th Cir.), cert. denied, 476 U.S. 1118 (1986), we
upheld an allocation of 22.5 minutes per defendant in a two-
defendant case involving charges of involuntary manslaughter and
child abuse.
In the instant case, in analyzing whether Eke was allotted
sufficient time in which to present his closing argument in light
of the complexity of the case, we note in particular that none of
the defendants, Eke included, seriously challenged the existence of
the conspiracy or the falsity of the returns. A substantial
portion of the government's effort was expended in proving up its
case on these points, and yet none of the defendants had to devote
any time in closing to challenging these elements of the case.
Thus, each defendant was totally free to focus in closing argument
20
on distancing himself/herself from the admitted conspiracy, rather
than being bogged down in the process of trying to challenge its
existence. This is especially true of Eke, who was charged only on
the conspiracy count. Thus, we do not find that the district court
abused its discretion in limiting Eke's time for closing arguments
to fourteen minutes. While we conclude that in this case Eke was
given adequate time, we do not wish to underestimate the value of
closing argument, as it is the last impression a defendant makes
upon the jury. We want to make it clear that in multiple-count,
multiple-defendant criminal cases tried en masse, especially those
involving complex factual scenarios, trial courts should be mindful
that each defendant should be given adequate time in closing
argument to mete out the evidence and issues particular to that
defendant and individualize his/her defense to the jury.
C. Improper Recusal
After trial, and immediately before sentencing, Judge Kent,
the trial judge, allegedly received a death threat from Eke and
recused himself from the entire case. Okoronkwo argues that this
across-the-board recusal was improper and that it prejudiced him
because the new judge, Judge Rosenthal, gave him a harsher sentence
than he thought he was going to get from Judge Kent.
We review Judge Kent's decision to recuse himself only for
abuse of discretion. United States v. MMR Corp., 954 F.2d 1040,
1044 (5th Cir. 1992). Judge Kent explained that he was recusing
himself because he could no longer "render adequate due process
protections to the defendants, many of whom are Nigerian nationals
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. . . [and] to avoid even the appearance of impropriety which might
occur at sentencing by me . . . ." We find no abuse of discretion.
Okoronkwo also contends that Judge Kent promised that his
sentence would run concurrent with a pre-existing sentence.
However, Okoronkwo did not raise this claim at sentencing before
Judge Rosenthal. Thus, he will have to prove plain error. Judge
Kent made the statement in question in the midst of arranging for
Okoronkwo to begin serving a prior sentence. He stated that "I
would assume that any sentence I give him will run concurrently
with that, if it's a Federal prosecution." This hardly qualifies
as a promise; it is merely an assumption made by the court in
passing. There is no plain error.
D. Sentencing
1. Ezinwa's arguments
Ezinwa argues that the district court erred by not redacting
disputed factual allegations in the presentence report. However,
the district court formally stated during sentencing that she had
not factored the disputed facts into the sentence and ordered a
copy of the sentencing transcript to accompany the presentence
report made available to the Bureau of Prisons. As the government
correctly argues, the district court did exactly what Fed. R. Crim.
P. 32(c)(3)(D) requires. There was no error.
Ezinwa also argues that the court erred when it based his
sentence on 75% of the returns filed through Tax Sense.7 Ezinwa
contends that the returns filed by other conspirators were not
7
See U.S.S.G. § 2F1.1 and § 2F1.1(b)(1).
22
within his conspiratorial agreement with Obi. Ezinwa argues that
the date he entered into the conspiracy was uncertain, making the
loss that was reasonably foreseeable also uncertain.
The Government responds that there was substantial evidence to
indicate that Ezinwa joined Obi early on and that he had a central
role in the conspiracy. It points out that Ezinwa does not produce
any evidence suggesting that he was a late-comer to the scheme;
instead Ezinwa merely denies the extent of his involvement. The
PSR recommended that Ezinwa be held responsible for 90% of the
loss. We find no error here.
2. Eke's arguments
Eke argues that his Eighth Amendment rights were violated when
he was given a longer sentence than his co-conspirators. He claims
that he was treated more harshly because he allegedly made death
threats against both the trial judge and the sentencing judge. Eke
also contends that Judge Rosenthal, the sentencing judge, should
have recused herself in his case because of the alleged death
threats. We find no abuse of discretion in Judge Rosenthal's
decision not to recuse herself. The court specifically noted that
she did not rely on or consider any of the information about the
alleged death threats in determining the applicable guideline
sentence for Eke. The government correctly points out that two
objective facts account for the difference in Eke's sentence: (1)
Eke received a two-level increase for obstruction of justice,
23
stemming from an attempt to suborn perjury8; and (2) Eke had
several prior convictions that put him in a higher criminal history
category than his co-conspirators.
CONCLUSION
For the foregoing reasons, we AFFIRM.
8
See U.S.S.G. § 3C 1.1.
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