IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10434

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

IGNATIUS AKPAN,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:08-CR-3-1

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Ignatius Akpan, proceeding pro se, appeals his jury conviction of one count

of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and eight

counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. The district court

sentenced him to 57 months in prison and to two years of supervised release on

each count, to be served concurrently.

First, Akpan argues that the evidence was insufficient to show that he

knew about James Yarclay’s misrepresentations to American Express and that

United States Court of Appeals

Fifth Circuit

F I L E D

September 23, 2010

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. 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 5TH CIR.

R. 47.5.4.

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he willfully agreed with Yarclay to intentionally defraud American Express. By

moving for judgment of acquittal at the close of the Government’s case and by

renewing his motion after he presented his defense, Akpan preserved his claim

for de novo appellate review. See United States v. Williams, 602 F.3d 313, 315

(5th Cir. 2010); FED. R. CRIM. P. 29(a).

To convict Akpan of the conspiracy charge, the Government was required

to prove beyond a reasonable doubt: (1) an agreement between Akpan and one

or more persons (2) to commit the crime of wire fraud, and (3) an overt act by one

of the conspirators in furtherance of that agreement. United States v. Ingles, 445

F.3d 830, 838 (5th Cir. 2006). The Government must also demonstrate that

Akpan acted with the intent to defraud. Id.

The evidence was sufficient to show that Akpan, owner of Union

Communication and Utilities Corporation (UCUC), and Yarclay, owner of

Universal Internet Concepts, Inc. (UICI), devised a scheme to defraud American

Express. Trial testimony revealed that Akpan charged UICI’s American Express

corporate account for approximately $664,360 in eight separate transactions in

March and April of 2004, that American Express transferred $648,082 to

Akpan’s bank account based on the charges, and that Akpan eventually

transferred a total of $319,000 to Yarclay. The jury heard testimony that Akpan

inflated UICI’s checking account balances by depositing a series of worthless

checks, that both Akpan and Yarclay called American Express numerous times

to request approval for charges that exceeded UICI’s credit limit, that Akpan

failed to produce any documents or other evidence to the Government to

substantiate the charges to UICI’s American Express account, and that Akpan

gave inconsistent explanations to investigators for the charges. In light of this

testimony, the evidence is sufficient to support Akpan’s conviction for conspiracy

to commit wire fraud. See Ingles, 445 F.3d at 838; United State v. Bieganowski,

313 F.3d 264, 276-77 (5th Cir. 2002).

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Relatedly, Akpan asserts that he was convicted simply because of his

association with Yarclay, and, as such, that his due process rights were violated.

The Government may not attempt to prove a defendant’s guilt by showing that

he associates with “unsavory characters.” United States v. Singleterry, 646 F.2d

1014, 1018 (5th Cir. 1981). Because Akpan did not object at trial to any guilt-byassociation evidence, our review is for plain error. United States v. Thompson,

454 F.3d 459, 464 (5th Cir. 2006).

The record reflects that Akpan was not convicted simply because he

associated with Yarclay, but rather because the Government presented strong

evidence that he conspired with Yarclay to defraud American Express. Cf.

United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008), cert. denied, 129 S.

Ct. 2018 (2009). Akpan has not shown any plain error. Thompson, 454 F.3d at

464.

Akpan next argues that the jury instructions failed to include a Pinkerton

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charge. We review this newly raised claim for plain error. FED. R. CRIM. P. 30,

52(b); United States v. Redd, 355 F.3d 866, 874–75 (5th Cir. 2003). “Error in a

[jury] charge is plain only when, considering the entire charge and evidence

presented against the defendant, there is a likelihood of a grave miscarriage of

justice.” United States v. Sellers, 926 F.2d 410, 417 (5th Cir. 1991). In the

instant case, the Government was not prosecuting Akpan for any substantive

offenses committed by Yarclay in furtherance of the conspiracy. Thus, no

Pinkerton charge was necessary. Because the jury charge on conspiracy was

proper, Akpan has failed to show the likelihood of a grave miscarriage of justice.

See id.

Akpan also complains that the district court erred in failing to admit

defense exhibit # 5, the pro forma invoice, into evidence. This misstates the

record. When sustaining the objection to the introduction of the invoice, the

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

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district court explained to Akpan that he must first lay a proper foundation.

Akpan, however, did not avail himself of this opportunity as he failed to offer a

qualified witness who could lay the proper foundation as required by FED. R.

EVID. 803(6) for the admission of the invoice into evidence. Thus, the district

court did not abuse its discretion in refusing to admit the document into

evidence. See United States v. Franklin, 561 F.3d 398, 404 (5th Cir.), cert.

denied, 129 S. Ct. 2848 (2009); United States v. Brown, 553 F.3d 768, 792 (5th

Cir. 2008), cert. denied, 130 S. Ct. 246 (2009).

Relatedly, Akpan asserts that the district court admitted into evidence all

of the Government’s exhibits “without inquiring into the substance of each and

every evidence as required under Fed. R. Evid. 103.” Rule 103 is entitled

“Rulings on Evidence” and addresses the procedures by which parties object to

evidence and other evidentiary procedures. Akpan, however, fails to explain

which documents should have been excluded and why and how the district court

failed to follow Rule 103. Although pro se briefs are liberally construed, even pro

se litigants must brief arguments in order to preserve them. Yohey v. Collins,

985 F.2d 222, 224-25 (5th Cir. 1993). Akpan has failed to adequately brief this

argument.

Turning to his sentence, Akpan challenges the two-level enhancement for

obstruction of justice under U.S.S.G. § 3C1.1. He contends that there was

insufficient evidence to find that he obstructed justice by suborning the false

testimony of Robert Rodriguez and by attempting to introduce a false document,

the pro forma invoice, into evidence at trial and producing it to the Government

during pretrial discovery; he also argues that the district court’s factual findings

were inadequate.

The district court’s determination that a defendant obstructed justice

under § 3C1.1 is a factual finding that this court reviews for clear error. United

States v. Martinez, 263 F.3d 436, 441 (5th Cir. 2001). Producing a counterfeit

document during an official judicial proceeding and suborning perjury are

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specific examples of conduct to which the enhancement applies. § 3C1.1,

comment. (n.4(b), (c)).

There was sufficient evidence from which the district court could have

found that Akpan suborned Rodriguez’s testimony and that the invoice was

fraudulent. Although Rodriguez testified that he was UCUC’s technical

manager, that he remembered Akpan working on a deal to purchase cell phones,

that he signed the invoice, and that he was involved in executing the invoice, his

testimony was directly contradicted by other witnesses and his own testimony

on cross-examination. Rodriguez admitted that the only work he performed for

UCUC was to install some telephone lines in the ceiling. He offered conflicting,

confusing testimony regarding whether he was the technical manager of UCUC

or had knowledge regarding the agreement between UCUC and UICI to

purchase cell phones. The court could infer from Rodriguez’s difficulty in

pronouncing the phrase “pro forma” and lack of knowledge as to UCUC’s

business that he had been encouraged to testify to issues about which he knew

nothing. The district court’s finding that Akpan obstructed justice by suborning

Rodriguez’s testimony and producing a fraudulent document is “plausible in

light of the record as a whole.” See United States v. Harms, 442 F.3d 367, 378

(5th Cir. 2006).

Akpan also argues that the district court failed to make specific factual

findings regarding Rodriguez’s testimony and the pro forma invoice. The district

court adopted the factual findings contained in the PSR, and those findings were

sufficient to encompass the four elements of subornation of perjury. See United

States v. Dunnigan, 507 U.S. 87, 95 (1993). Specifically, the district court found

that Rodriguez’s testimony regarding his job title and the contents of the pro

forma invoice were false. Moreover, we can conclude that the testimony was

material because it was designed to affect the outcome of the trial by showing

that an agreement existed between UCUC and UICI for the purchase of cell

phones, which, in turn, would have substantiated the American Express charges

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and that Rodriguez intended to testify falsely because he knew that he was not

working for UCUC in February 2004. The PSR stated that Akpan presented

Rodriguez as a witness to testify on behalf of UCUC regarding the pro forma

invoice. The PSR also stated that the invoice was produced to the Government

in pretrial discovery and presented at trial “to refute the allegations of the

offense,” which was sufficient to establish that the document was “material” and

had been produced in an attempt to influence the trial. See United States v.

Como, 53 F.3d 87, 90 (5th Cir. 1995); see also United States v. Storm, 36 F.3d

1289, 1295 (5th Cir. 1994). Akpan has not shown any clear error by the district

court.

Next, Akpan argues that his sentence is procedurally and substantively

unreasonable because the district court miscalculated his guidelines range when

it imposed the obstruction-of-justice enhancement. Although Akpan requested

a sentence at the low end of the guidelines range, he did not object to the

calculation of his guidelines range or to the substantive reasonableness of his

sentence. Accordingly, review is for plain error. United States v. Peltier, 505

F.3d 389, 391-92 (5th Cir. 2007). Because we have determined that the district

court did not err by imposing the obstruction-of-justice enhancement, Akpan has

not established that his guidelines range was miscalculated; thus, he has failed

to establish plain error in that regard. In addition, Akpan has not set forth any

argument overcoming the presumption of reasonableness afforded his

within-guidelines sentence. See United States v. Campos-Maldonado, 531 F.3d

337, 339 (5th Cir. 2008). Accordingly, he has not shown that his sentence is

procedurally or substantively unreasonable.

Finally, Akpan complains that the district court miscalculated the amount

of restitution because it failed to subtract $64,940 for a payment that UICI made

to American Express, the $14,625 that American Express seized from Akpan,

and the $165 charged by American Express for three months of administrative

fees.

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Because Akpan did not object to the restitution amount, we review for

plain error. See United States v. Maturin, 488 F.3d 657, 659-60 (5th Cir. 2007).

The record reflects that UICI’s payment and the amount seized from Akpan were

already subtracted from the total loss. Accordingly, he is not entitled to receive

additional credit for these amounts. Further, Akpan has set forth no cogent

argument explaining why he is entitled to receive credit for the alleged

administrative fees that he paid to American Express. Accordingly, the district

court did not plainly err in requiring Akpan to pay $584,793 in restitution. See

id.

AFFIRMED.

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