*

Pursuant to 5 T H C IR

. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 7, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-30117

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ADEDIPUPO ADENODI, also known as Felix,

doing business as AAA Used Auto Sales,

doing business as AAA Used Cars,

doing business as AAA Used Auto's,

doing business as Triple AAA,

doing business as Triple A Used Cars;

SUNDAY ADEOSHUN, also known as Sunny,

doing business as AAA Used Auto Sales,

doing business as AAA Used Cars,

doing business as AAA Used Auto's,

doing business as Triple AAA,

doing business as Triple A Used Cars,

Defendants-Appellants.

-------------------- Appeals from the United States District Court

for the Eastern District of Louisiana

(01-CR-13-3)

--------------------

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM: *

Following a jury trial, Adedipupo Adenodi and Sunday Adeoshun

were convicted of conspiracy to sell stolen vehicles that crossed2

state lines, to commit mail fraud, and to alter vehicle

identification numbers; mail fraud; and s elling stolen vehicles.

The district court sentenced Adenodi to 24 months in prison and

Adeoshun to 27 months in prison. Each defendant was also sentenced

to a three-year term of supervised release. Adenodi and Adeoshun

now challenge their convictions and sentences.

Adeoshun and Adenodi conten d that the district court

reversibly erred by informing the venire that they were not United

States citizens. Because Adeoshun and Adenodi did not object to

the disputed remark, we review this claim for plain error only.

See United States v. Taylor

, 513 F.2d 70, 72 (5th Cir. 1975). Far

from being improper, the apparent purpose of this statement to the

venire was to ensure that any jurors who did hold the defendants’

citizenship, or lack thereof, against them did not sit on the jury.

This remark was thus proper. S ee United States v. Garcia

, 86 F.3d

394, 402 (5th Cir. 1991); see also U nited States v.

Quiroz-Hernandez , 48 F.3d 858, 868 (5th Cir. 1995).

The appellants also challenge the sufficiency of the evidence.

They argue that the Government failed to prove that they knowingly

engaged in activities involvi ng stolen cars. When considering a

sufficiency challenge, the pertinent inquiry is “whether any

reasonable trier of fact could have found that the evidence

established the essential elements of the crime beyond a reasonable

doubt.” U nited States v. Ortega Reyna

, 148 F.3d 540, 543 (5th Cir.

1998). In conducting this analysis, we “consider[s] the evidence3

i n the light most favorable to the government, drawing all

reasonable inferences and credibility cho ices made in support of

the verdict.” Id.

When viewed in the light most favorable to the Government, the

extensive documentary and testimonial evidence adduced at trial was

sufficient to prove the appellants’ knowing participa tion in a

conspiracy to a lter vehicle identification numbers, sell stolen

cars, and commit mail fraud. This evidence was likewise sufficient

to prove that the defendants knowingly sold stolen cars and

committed mail fraud.

To the extent that the appellants argue that the evidence was

not sufficient to support their convictions because the jury should

not have believed certa in Government witnesses, they cannot

prevail. We will not substitute our own determination of

credibility based on a cold record for that of the jury which saw

the witnesses and heard the testimony firsthand. U nited States v.

Martinez

, 975 F.2d 159, 161 (5th Cir. 1992). Adeoshun and Adenodi

have not shown that the evidence was insufficient to support their

convictions.

The appellants contend further that the prosecutor committed

reversible error when he commented, during closing arguments, that

the jurors could not acquit the defendants. In reviewing a claim

of prosecutorial misconduct in the form of an improper remark, we

consider whether the remark “prejudiced the defendant’s substantive4

rights.” U nited States v. Mu noz , 150 F.3d 401, 415 (5th Cir.

1998).

The disputed remark was likely not even improper. Rather, it

can fairly be read as an attempt to assist the jury in “analyzing,

evaluating, and applying the evidence,” which are proper functions

of the prosecutio n’s closing argument. U nited States v. Binker

,

795 F.2d 1218, 1224 (5th Cir. 1986). Additionally, even if the

remark was improper, the appellants still have not shown that it

entitles them to have their conviction s reversed, especially in

light of the subst antial evidence against them and the district

court’s repeated admonitions to the jury.

The appellants next contend that the district court reversibly

erred in instructing the jury on the effect of the appellants’

F ifth Amendment right to silence. We review this issue only to

determine i f the allegedly improper instruction could have meant

the difference between acquittal and conviction. U nited States v.

Anderson

, 987 F.2d 251, 256 (5th Cir. 1993). The disputed

instruction is, at most, ambiguous, and our review of the record

convinces us that it did not alter the outcome of the trial. The

appellants have not shown that they are entitled to have their

convictions reversed based on the district court’s instructions to

the jury on the right against self-incrimination.

Adeoshun and Adenodi argue further that the district court

erred in denying their requests for downward adjustments to their

offense levels based on their purportedly minimal roles in the5

offense. The district court’s refusal to grant a defendant this

downward adjustment is entitled to great deference. See U nited

States v. Devine

, 9 34 F.2d 1325, 1340 (5th Cir. 1991). Adeoshun

and Adenodi have not shown that their involvement in the conspiracy

underlying their convictions was “peripheral.” See United States

v. Miranda

, 248 F.3d 434, 446-47 (5th Cir. 2001), cert. denied

, 534

U.S. 980 (2001) and 534 U.S. 1086 (2002). Accordingly, they have

not shown that the district court erred in denying them this

adjustment.

In addition, Adenodi contends that the district court erred in

denying his objection to the two-point adjustment he received for

being in the business of buying and selling stolen vehicles. As

his argument on this issue amounts to no more than a conclusional

assertion, he has not shown that the district court erred in

overruling this objection. S ee United States v. Londono

, 285 F.3d

348, 355 (5th Cir. 2002).

Finally, Adenod i advances that the district court erred in

denying his motion for a downward departure. There is no

indication that the district court denied this request based on a

mistaken belief that the guidel ines did not permit such a

departure. Accordingly, the district court’s denial of Adenodi’s

request for a downward departure is unreviewable. S ee Unit e d

States v. Wilson , 249 F.3d 366, 380 (5th Cir. 2001).6

Adeoshun and Adenodi have shown no error in conne ction with

their convictions and sentences. Accordingly, the judgments of the

district court are AFFIRMED.