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.1 Most of the returns c laimed fuel usage of approximately

20,000 gallons. One of the government's witnesses explained at

trial why such an amount seemed hig hly 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 When the refund check arrived, one of the conspirators would drive

the filer to the bank to cash it, then c ollect the conspiracy's

share of the refund. The conspirators were not generous:

ord inarily, 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 norm ally be

claimed b y a business. Many of the returns showed the same

address, which often was a post offic e 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 $3,000,3

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 e vidence

established guilt beyond a reasonable doubt. U nited States v.

Pofahl , 990 F.2d 1456, 1467 (5th Cir. 1993) . The jury is free to

choose among reasonab le 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

inf erences from the evidence must be viewed as supporting the

verdict. United States v. Basey , 816 F.2d 980, 1000-02 (5th Cir.

1 987). The jury is entitled to believe a witness unless the

testimony is so incredible that it defies physical laws. U nited

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 knew4

that the claim was fals e or fraudulent. S ee 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 conspi racy 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.'" U nited 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 a ppellants challenge the sufficiency of the

evidence on t he 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.5

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 o f 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 id entical 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.6

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 handin-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 d ocuments." The jury was

entitled to believe Clement if it wanted to, and it apparently did.

We find that the evidence was suf ficient 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 su fficient evidence to convict Okwechime:

Clement and a recruited filer named Bibian Nzurum.7

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 c heck, 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 coconspirator, when he testified that Okwechime was in on the8

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 th e

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 abet ting

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 violat ion 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.9

We have carefully reviewed the trial transc ript in order to

determine whether there was s ufficient 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 c learly 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 whi ch she "handled" Armstrong, even in recovering the

papers whi ch constituted written proof of the crime, defy the

credibility of Jackson's protestations of innocence.

Given the testimony of Hawki ns 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

t he nature of the scheme, thereby demonstrating her awareness of10

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 wa s 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. U nited 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 the11

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 othe r 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 accid ent. 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 jud gment in this case.

For example, did anyone get sick and the medical care was

substandard or did you have some trouble gettin g in or

out of Nigeria.

The district court denied O kwechime's counsel's request to

pose these questions to the panel. Counsel for Okwechime objected

and proff ered 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 to2 Counsel's use of such a characterization in his bri ef is

incre dible, considering that it is laden with the very

stereotypical bias which he claims to have been wary of with the

jury.

12 inquire further about the defendants' race and national origin. We

disag ree. The Constitution does not require questioning

prospective ju rors about racial or ethnic bias unless there are

special circumstances. R osales-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 ra cial bias in some circumstances

where the inquiry is not constitutionally required. I bid . A

refusal to honor a request for such questions is reversible error

only if "there is a reasonable possibility that racial or ethnic

p rejudice might have influenced the jury." I d

. at 19 1. The

dec ision as to whether the total circumstances suggest such a

possibility r emains 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 Nig erians,

creating what counsel characteriz ed in brief as an "apparent

Nigerian penchant for fraud" 2 in the public eye. H owever, there is13

not hing 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. E zinwa 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 dif ferent 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 is sues "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 c ase, there is no allegation that matters at

issue in the trial involved allegations of racial or ethnic

prejudice. We also note that in H am

, 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 b ias and

prejudice. In the instant case, the trial judge properly rejected

the proposed questions. There is nothing in H am or its progeny to14

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 a bout their possible prejudice toward

foreigners or those of differing races, he did carefully admonish

the jury not to take into considera tion 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 dev oid 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 notic e of the article. This constitutes an

impermissible attempt to supplement the record on appeal. Neither

this articl e nor any other evidence of pretrial publicity was3 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

jud ge 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 que stioned them individually

about the effect the publicity might have had. However, we

conclude that the secon d question, as posed, was an adequate

attempt to id entify jurors who had been affected by pretrial

publicity.

15 presented to the district court. Accordingly, we will not consider

the article in assessing the adequacy of the voir dire. S ee 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

evide ntiary 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. U nited States v. Wicker

, 9 33 F.2d

284, 289 (5th Cir. 1991).

A. Agent Taylor's Testimony4 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 At trial, the government presented the test imony of Special

Agent Taylor as a summary witness. Okoronkwo and Okwechime argue

that his test imony 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 S ee 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 testimon y. 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 hand writing 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 writing5 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 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 e xhibit into

evidence by laying the proper foundation and instead proceeded to

the next exhibit. The district court's ruling was correct. 5

O k wechime 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 hears ay because it was not offered to prove the truth of

any information c ontained therein. Okwechime explains in brief

that he was merely trying to show that handwriting on Nzurum's

r eturn 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

questione d about the document, as it was not in evidence and its

relevance was not revealed to the court.

Other Assignments of Error18

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 exchan ges 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 k eeping with

proper courtroom decorum and procedure. The district court did not

abuse his discretion in this rega rd, 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 th e jury against

him by threatening to throw his lawyer in jail for talking back on

one occasion when the court interrupted couns el for asking

questions that had already been asked and answered. We have

co nsidered the comments in the context of the trial as a whole.

While we do not wish to encourage a practice of making such heavyhanded remarks to counsel in the pres ence of the jury, we do not

find the court's commen ts to be reversible error under the

circumstances of this ca se. As the government correctly points

out, this was a single, iso lated 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. At6 Tonet Jack son 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 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. S ee 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 six t y 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.20

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 U nited 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 twodefendant case involv ing charges of involuntary manslaughter and

child abuse.

In the instan t 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 argument21

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 tri al, 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

a cross-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 revi ew Judge Kent's decision to recuse himself only for

abuse of discreti on. United States v. MMR Corp. , 954 F.2d 1040,

1044 (5th Cir. 1992). J udge Kent explained that he w as recusing

himself b ecause he could no longer "render adequate due process

protections to the defendants, many of whom are Nigerian nationals7 See U.S.S.G. § 2F1.1 and § 2F1.1(b)(1).

22 . . . [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-existin g 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 sen tencing 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 Sens e. 7 Ezinwa

contends that the returns filed by other conspirators were not23

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 Ju dge 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 o f the information about the

alleged de a th 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,8 See U.S.S.G. § 3C 1.1.

24

stemming from an attempt to subor n perjury 8 ; 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.