* Pursuant to 5 TH 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that this opinion should not be published and is not precedent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

December 5, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-20188

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MORRIS BROWN OKOLO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(No. H-01-765)

Before DAVIS, WIENER, and STEWART, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Morris Brown Okolo was con victed of one

count of conspiracy to commit bank fraud, one count of conspiracy

to launder funds, and thirty-five counts of aid ing and abetting

bank fraud. On appeal, Okolo (1) challenges the sufficiency of the

evidence supporting his conviction, (2) contests the denial of his

motion for new trial, ( 3) asserts that the district court

erroneously admitted lay opinion testimony, and ( 4) disputes the1 As we struggle to comprehend much of Okolo’s appellate

brief, to any extent that we misapprehend Okolo’s appellate

points, they have been inadequately argued and thus are abandoned

on appeal. See Yohey v. Collins , 985 F.2d 222, 225 (5th Cir.

1993).

2 district court’s sentencing. 1 For the reasons explained below, we

affirm Okolo’s conviction and sentencing.

I. BACKGROUND FACTS

A grand jury returned a thirty-seven count indictment against

Defendant-Appellant Okolo and several codefendants. Each defendant

was charged with one co unt of conspiracy to commit bank fraud in

v iolation of 18 U.S.C. § 371, one count of conspiracy to launder

funds in violation of 18 U.S.C. § 1956(h), and 35 counts of aiding

and abetting bank fra ud in violation of 18 U.S.C. §§ 1344 and 2.

The charges were the culmination of an extensive investigation into

an elaborate check-fraud scheme involving Bank One and other banks.

In 1999, a fraud examiner at Bank One began researching

fraudulent activity relating to several line-of-credit accounts.

The examiner discovered that someone had accessed each account and

changed the address of record without the knowledge of the account

holder. Next, checks reflecting the false address had been ordered

specifying delivery to the false address. After the checks were

delivered to the bogus address, forged checks were drawn on the

account and subsequently deposited into various other bank

accounts. Then, after these checks cleared, the deposited funds3

were withdrawn. Bank One suffered approximately $3.7 million in

losses as a result of this scheme.

Postal Inspector Matthew Boyden assisted Bank One’s fraud

examiner. Inspector Boyden traced the checks and account activity,

which led him to a number of co-conspirators who then cooperated

with law enforcement. Eventually each such co-conspirator

“flipped” in ex change for a lighter sentence. Inspector Boyden

ultimately reached James Anderson who also agreed to cooperate.

An derson divulged that, in the early 1990s, his sister,

Patricia Roebuck, dated O kolo, with whom Anderson became

acquainted. Although Okolo and Roebuck stopped dating after a few

years, Anders on remained friendly with Okolo. In 1999, Anderson

was suffering financial difficulties and approached Okolo to find

out if he knew of a way that Ande rson could make money. Okolo

offered to pay Anderson for locating people who would agree to

deposit fraudulent checks into their bank accounts and withdraw the

funds after the checks cleared. From that time until he was

arrested, Anderson’s extensive involvement in the scheme included

recruiting depositors, acting as an intermediary between Okolo and

the depositors, and transmitting proceeds of the deposited

fraudulent checks to Okolo. Anderson was arrested after he

delivered checks from Okolo to one of the depositors. Anderson

later confessed to Inspector Boyden and agreed to cooperate by2 Anderson pleaded guilty to conspiracy and bank fraud and,

pursuant to a written plea agreement, agreed to testify about his

involvement in the check-fraud scheme. In return, Anderson hoped

to receive a lighter sentence.

3 The government solicited Roebuck’s cooperation and

testimony in exchange for an immunity agreement barring

prosecution for her involvement in the scheme.

4 recording conversations with Okolo and participating in a sting

operation. 2

Roebuck was also involved in the scheme. She testified that

on three or four occasions in 2001, Okolo came to her apartment and

asked her for assistance. She stated that Okolo acknowledged to

her that he had ordered fraudulent checks while pretending to be

the accoun t holder. Roebuck helped Okolo write checks,

occasionally filling out the names of the payees or amounts of the

checks, and signing the checks as Okolo directed. According to

her, Okolo sometimes filled out the checks himself and asked her to

sign them. For her assistance, Okolo paid Roebuck a few hundred

dollars for each check. 3

In September 2001, Anderson set up a meeting with Okolo at the

direction of law enforcement agents, ostensibly to deliver pay-off

money that Anderson had purportedly received from another scheme

participant. When Okolo arrived at the scene, Anderson got out of

his car, unlocked its trunk, removed the funds, and got into

Okolo’s vehicle. When Anderson gave Okolo the pay-off money, law

enforcement officers

—— wearing jackets identifying them as agents

from various federal and state agencies

—— announced their presence4 United States v. Reyna , 148 F.3d 540, 543 (5th Cir. 1998).

5 United States v. Villarreal , 324 F.3d 319, 325 (5th Cir.

2003).

6 United States v. Sanchez-Sotelo , 8 F.3d 202, 210 (5th Cir.

1993).

7 United States v. Jimenez , 323 F.3d 320, 322 (5th Cir.

2003).

5 and attempted to surround Okolo’s vehicle. In response, Okolo

accelerated, driving over a curb and side walk, cutting through a

parking lot, and racing away from the scene. After a brief chase,

however, officers arrested Okolo and recovered the pay-off money.

II. DISCUSSION

A. S TANDARDS OF R EVIEW

We apply different standards of review to the various issues

raised by Okolo. To Okolo’s challenge to the sufficiency of the

evidence supporting his conviction, we apply a reasonableness

standard; that is, we ask whether any reasonable trier of fact

could have found that the evide nce established the essential

elements of the offense beyond a reasonable doubt. 4 We apply the

deferential abuse-of-discretion standard in reviewing the district

court’s denial of Okolo’s motion for new trial based on newly

discovered evidence. 5 We apply that same standard in reviewing

O kolo’s evidentiary complaint that the district court improperly

admitted lay opinion testimony. 6 Finally, we review d e novo the

district court’s application and interpretation of the sentencing

guidelines, and we review its findings of facts for clear error. 78 United States v. Resio-Trejo , 45 F.3d 907, 911 (5th Cir.

1995).

6 B. S UFFICIENCY OF THE E VIDENCE

After the government’s case-in-chief and again at the close of

evidence, Okolo moved for a judgment of acquittal on all counts,

pursuant to Federal Rule of Criminal Procedure 29(a). In both

instances, the district court denied Okolo’s motion.

1. Conspiracy to Defraud and Bank Fraud

Okolo’s challenge to the sufficiency of the evidence

supporting his conviction for conspiracy to commit bank fraud

(count 1) and aiding and abetting bank fraud (counts 3-37) amounts

to little more than a request that we reexamine the credibility of

the witnesses who testified against him. For example, Okolo points

to the bias of the government’s two principal witnesses, Anderson

and Roebuck, and complains that “Anderson testified that he wanted

leniency to avoid dying in prison. Patricia Roebuck testified that

she wanted to help her brother.”

It is universally recognized that we resolve all credibility

determinations and reasonable inferences in favor of the verdict. 8

B eyond his conclusional assertion that Anderson’s and Roebu ck’s

t estimony cannot be considered reliable, Okolo’s appellate brie f

fails to articulate why the evidence adduced at trial is not

sufficient to support his conviction on these counts. We cannot9 United States v. Lopez , 74 F.3d 575, 577 (5th Cir. 1996).

10 See United States v. Rivera , 295 F.3d 461, 467 (5th Cir.

2002).

11 See United States v. Pipkin , 114 F.3d 528, 533-34 (5th

Cir. 1997).

7 re-weigh the evidence or independently assess the credibility of

the witnesses, 9 so this argument is frivolous.

2. Conspiracy to Launder Money

In count 2, the government charged Okolo with engaging in a

conspiracy to launder money based on the manner in which he

conducted financial tra nsactions with the proceeds of the checkfraud scheme. The government proffered two alternative theories to

prove that Okolo had the requisite intent. First, the government

advanced a promotion theory under § 1956(a)(1)(A)(1), arguing that

Okolo managed the bank fraud scheme with the intent either to

promote or further the bank fraud. 10 Second, the government alleged

a concealment-of-proceeds theory under § 1956(a)(1)(B)(i),

a sserting that Okolo intended to conceal or disguise the natu re,

location, source, or ownership of the funds derived from the checkfraud scheme. 11 We glean from Okolo’s appellate brief two distinct

challenges to the government’s alternative theories. Okolo asserts

that the government failed to prove that he had the necessary

specific intent to support a conviction under the promotion theory.

Regarding the concealment-of-proceeds theory, Okolo advances that

it is an “unwarranted reaching” to infer that concealment occurred12 F ED

. R. C RIM

. P. 33.

8

just because some of the fraudulently obtained checks were payable

to cash.

Again, we need not engage in an extended discussion of these

contentions as our review of the record confirms that there is more

than ample evidence to support the jury’s conviction verdict under

either theory. The jury easily could have inferred from the

evidence that Okolo used proceeds from the check-fraud sche me to

pay various participants in the operation

—— Roebuck and Anderson,

for example

—— to perpetuate the scam and ensure its success. The

jury just as easily could have concluded that Okolo and the other

conspirators conducted the financia l transactions to conceal his

ownership of and control over the unlawful proceeds. From the

scheme’s very nature

—— Okolo’s employment of third parties to

forge and deposit the checks rath er than doing so himself —— the

jury could have deduced that the scheme was designed to avoid

Okolo’s being detected. His challenge to the sufficiency of the

evidence supporting his conviction for conspiracy to launder money

is without merit.

C. D ENIAL OF M OTION FOR N EW T RIAL B ASED ON N EW E VIDENCE

A district court may grant a motion for new trial based on

newly discovered evidence “if the interests of justice so

require.” 12 To prevail on such a motion, Okolo had to show that:

(1) The evidence was newly discovered and was unknown to him at the13 See Villarreal , 324 F.3d at 325 (citations omitted).

9 time of trial; (2) his failure to detect the new evidence earlier

was not the result of a lack of diligence on his part; (3) the new

e vidence was not merely cumulative or impeaching; (4) the new

evidence was material; and (5) the new evidence, if introduced at

a new trial, would probably produce an acquittal. 13

Okolo contends that, after trial, he learned of evidence that

three Bank One employees had supplied confidential account

information of Bank One customers

——individuals whose lines-ofcredit were tapped

—— directly to Anderson. At trial, though, the

evidence had shown that Okolo received the account information and

subsequently provided the completed checks to Anderson. Okolo

argues that t his “new” evidence controverts Anderson’s testimony

and demonstrates that Anderson’s involvement with the s cheme was

far deeper than he led the jury to believe. Okolo argues further

that this evidence supports his defense theory that he had no

involvement with the scheme whatsoever and that it was orchestrated

by Anderson and the other defendants.

The district court correctly ruled that Okolo was not entitled

to a new trial. In ruling against Okolo, the district court

determined th at, even though this information was new to the

government, it was not new to Okolo because he had dealt directly

with one of the Bank One employees to obtain confidential bank

customer information. But even if we were to assume arguendo that14 In response, the government partly relies on Rule 901’s

recognition that a non-expert may give his opinion about the

genuineness of handwriting based on “familiarity not acquired for

the purpose of litigation.” F ED

. R. E VID . 901(b)(2). Rule 901

addresses what is necessary to authenticate a document before it

can be admitted into evidence. That rule does not short-circuit

the need for the underlying non-expert testimony to conform to

Rule 701. See United States v. Scott , 270 F.3d 30, 48-50 (1st

Cir. 2001) (explaining the relationship between Rules 901 and 701

in the authentication and admission of documents containing

handwriting). See also 31 W RIGHT & G OLD

, F EDERAL P RACTICE AND

P ROCEDURE : E VIDENCE § 7103, at 26 (2000) (noting that non-expert

opinions offered under Rule 901(b)(2) to authenticate handwriting

are still subject to the proscriptions of Rule 701). Here, Okolo

is not questioning the admission of the forged checks into

evidence.

10 this informa tion was newly discovered, it was essentially

impeachment evidence to undermine Anderson’s credibility.

Furthermore, we are not convinced that this “new” evidence could

raise a reasonable doubt about Okolo’s guilt, and, if introduced at

a new trial, would probably produce an acquittal. Okolo has failed

to carry his burden of showing that the district court abused its

discretion when it denied his motion for new trial, so Okolo is not

entitled to relief on this issue.

D. I MPROPER A DMISSION OF L AY O PINION T ESTIMONY

Over an objection by Okolo, the district court allowed Roebuck

to testify about whether the handwriting on some of the forged

checks was that of Okolo. He contends that this was error because

the government did not lay a predict qualifying Roebuck as an

expert on handwriting.

The government was not obligated to elicit expert testimony to

demonstrate that the handwriting on the forged checks was Okolo’s. 1415 F ED

. R. E VID . 701 advisory committee’s note to 1972

proposed rules. See also United States v. Rea , 958 F.2d 1206,

1215 (2d Cir. 1992).

11 Federal Rule of Evi dence 701, which governs non-expert opinion

testimony, requires such testimony to be based on the witness’s own

perceptions. In this context, Roebuck could serve as a Rule 701

witne ss for the government and testify about whether the

handwriting was Okolo’s, as long as her testimony was based on her

own first-hand kn owledge or observations. 1 5 This requirement is

satisfied here. Roebuck said that she was familiar with Okolo’s

handwriting because she dated him for two years and because she

observed him writing his name and signing documents. The district

court did not abuse its discretion in allowing Roebuck to testify

about Okolo’s handwriting.

E. S ENTENCING I SSUES

Okolo raises two separate sentencing issues, one challenging

a two-level increase under USSG § 3C1.2 and the other challenging

a four-level increase under USSG § 3B1.1(a). We are not persuaded

by either argument.

1. Two-Level Enhancement Under USSG § 3C1.2

First, Okolo challenges the district court’s two-level

increase under USSG § 3C1.2 for his speeding away from arresting

officers. Section 3C1.2 prescribes a two-level increase “[i]f the

defendant recklessly created a risk of death or serious bodily16 USSG § 3C1.2, app. note 2.

17 USSG § 2A1.4, app. note 1. See also Jimenez , 323 F.3d at

323.

12 injury to another person in the course of fleeing from a law

enforcement officer.”

The application notes to § 3C1.2 direct the court to the

definition of “reckless” foun d in § 2A1.4, the involuntary

manslaughter guideline. 16 “Reckless” under § 2A1.4 “refers to a

situation in which the defendant was aware of the risk created by

his conduct and the risk was of such a nature and degree th at to

disregard that risk constituted a gross deviation from the standard

of care that a reasonable person would exercise in such a

situation.” 17

Okolo maintains that he could not have been “aware of the risk

created by his conduct” because he did not realize that he was

fleeing from law enforcement officers. Okolo notes that the

officers who attempted to apprehend him and subsequently gave chase

drove unmarked cars. Okolo adds that, because this incident

occurred on the afternoon of September 11, 2001

—— a day, as he

describes it, when “no one in the country knew who was who”

—— his

act of fleeing does not support a § 3C1.2 enhancement. Okolo asks

us to adopt the reasoning of United States v. Hayes , in which the

Sixth Circuit held that “a § 3C1.2 enhancement is inapplicable if18 49 F.3d 178, 183-84 (6th Cir. 1995). See also United

States v. Moore , 242 F.3d 1080, 1082 (8th Cir. 2001); United

States v. Sawyer , 115 F.3d 857, 859 (11th Cir. 1997).

19 Jimenez , 323 F.3d at 322.

20 530 U.S. 466 (2000).

13 the defendant did not know it was a law enforcement officer from

whom he was fleeing.” 18

In this case, we need neither adopt nor reject Hayes because

we review a district court’s factual findings for clear error, 19 and

three facts foreclose Okolo’s argument. First, agents surrounded

Okolo’s ca r immediately after he accepted Anderson’s pay-off.

Second, when they did this, the agents shouted “Police! Stop!

Freeze!” And, third, as he drove away, Okolo yelled to Anderson,

“You set me up!” These facts demonstrate that Okolo realized full

well that he was fleeing from law enforcement officers. We find no

error in the district court’s factual findings or in its

application of the § 3C1.2 enhancement.

2. Four-Level Enhancement Under § 3B1.1(a)

Okolo’s final cha llenge is directed at the district court’s

four-level increase under USSG § 3B1.1(a) for his leadership role

in the offense. On this point, he includes a request that we hold

t hat the district court’s application of § 3B1.1(a) violates

Apprendi v. New Jersey

. 20

a. Factual Support for Concluding that

Okolo had a Leadership Role21 United States v. Fullwood , 342 F.3d 409, 415 (5th Cir.

2003). Okolo contends that our review should be de novo

, pursuant to United State v. McGregor , 11 F.3d 1133, 1138 (2d Cir.

1993), but here, the exercise of de novo review would not affect

the outcome.

22 USSG § 3B1.1(a).

23 USSG § 3B1.1, app. note 4.

14 In this circuit, “[t]he application of § 3B1.1 is a factual

finding reviewed only for clear error.” 21 The Sentencing Guidelines

direct a court to increase a defendant’s offense level by four

“[i]f the defendant was an organizer or leader of a criminal

activity that involved five or more participants or was otherwise

extensive.” 22 According to § 3B1.1’s application notes, the

sentencing court should consider:

the exercise of decision making authority, the nature of

the 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 the illegal activity, and the degree

of control and authority exercise over others. 23

The probation officer recommended the enhancement because the

evidence showed that most of the fraudulently obtained checks were

delivered to bogus addresses under Okolo’s control. In addition,

Okolo caused the signatures of Bank One account holders to be

forged on the checks, and he arranged for recruited depositors to

be listed as the payees on the checks. The checks passed from

Okolo to Anderson and from him to the scheme’s participants who

deposited the forged checks into their accounts. Once the cashed24 Okolo’s reliance on United States v. Fields , 251 F.3d

1041 (D.C. Cir. 2001), is misplaced. The Fields Court held that

Apprendi does not apply because “a leadership enhancement based

on a role-in-offense finding is not a fact that increases the

penalty for a crime beyond the prescribed statutory maximum.”

Id. at 1046 (quotations omitted).

25 United States v. Keith , 230 F.3d 784, 787 (5th Cir. 2000)

(emphasis added). Accord United States v. Moreno , 289 F.3d 371,

372 (5th Cir. 2002); United States v. McIntosh , 280 F.3d 479, 484

(5th Cir. 2002).

15 funds were withdrawn, the proceeds were sent back up the line,

t hrough Anderson, to Okolo. Including Okolo, seven defendants

participated in the check-fraud scheme. These facts undeniably

support the district court’s assessment of § 3B1.1(a)’s four-level

enhancement.

b. Apprendi and Leadership Enhancement

The last argument that Okolo advances in his effort to avoid

enhancement under § 3B1.1(a) is that the issue of leadership should

have been charged as an element in the indictment and submitted to

the jury under Apprendi

. He reasons that such a role increase

could have elevated his sentence above the prescribed statuto r y

maximum

. 24 We have read A pprendi to hold that “a fact used in

sentencing that does not increase a penalty beyond the statutory

maximum need not be alleged in the indictment and proved to a jury

beyond a reasonable dou bt.” 2 5 The application of § 3B1.1(a)

enhancement did not ther efore violate A pprendi

, because Okolo’s

sentence was below the statutory maximum applicable to each count.

Okolo’s Apprendi challenge is without merit.16 III. CONCLUSION

For the foregoing reasons, Okolo’s conviction and sentence are

AFFIRMED.