United States v. Fabuluje

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 31, 2000
• Docket: 98-10008
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-11278 c/w 98-10008 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OMOTAYO TONY FABULJUE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:97-CR-113-H-1 -------------------- January 27, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Proceeding pro se, Omotayo Tony Fabuluje appeals his

convictions for conspiracy to transport stolen merchandise in

interstate commerce and for unlawfully procuring naturalization,

violations of 18 U.S.C. §§ 371, 659, and 1425(a). Fabuluje also

appeals the district court’s order revoking his citizenship

pursuant to 18 U.S.C. § 1451(e).

Fabuluje first argues that the Government withheld several

items of evidence favorable to his defense. Brady v. Maryland,

373 U.S. 83 (1963) requires the Government to disclose material

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-11278 c/w 98-10008 -2-

evidence favorable to the defendant. A Brady violation occurs

when the Government suppresses evidence “if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.” Kyles

v. Whitley, 514 U.S. 419, 433-34 (1995)(quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)). Assuming, arguendo, that the

Government was in possession of all items allegedly withheld and

that the Government failed to disclose such items to the defense,

Fabuluje cannot show a reasonable probability that disclosure of

such evidence would have made a difference in the result of the

proceeding. See Kyles, 514 U.S. at 433-34. Nor do we find that

Fabuluje has stated a claim under the Jencks Act. See United

States v. Ramirez, 174 F.3d 584, 587 (5th Cir. 1999).

Accordingly, we reject Fabuluje’s first argument.

Fabuluje next argues that the prosecutor engaged in several

instances of misconduct. Because Fabuluje did not preserve error

by objecting to the alleged instances of misconduct at trial, his

claims are reviewed for plain error only. See United States v.

Tomblin, 46 F.3d 1369, 1386 (5th Cir. 1995).

Applying the two-step analysis to charges of prosecutorial

misconduct, we first decide whether the prosecutor’s comments

were improper. See United States v. Gallardo-Trapero, 185 F.3d

307, 320 (5th Cir. 1999). If the comments are found to be

improper, the court must assess whether they prejudiced

Fabuluje’s substantive rights. Id.

Several of Fabuluje’s allegations of misconduct are based on

the unsupported assertion that the prosecutor elicited perjurious No. 97-11278 c/w 98-10008 -3-

testimony. To establish a constitutional violation based on

perjured testimony, the defendant must show that the prosecutor

knowingly presented material false evidence, or that he

deliberately failed to correct perjured testimony. Spence v.

Johnson, 80 F.3d 989, 996-97 (5th Cir. 1996). Fabuluje provides

this court with nothing to suggest that the prosecutor solicited

the false testimony or knowingly failed to correct the testimony.

Nor has he established that various comments by the

prosecutor were improper. Assuming, arguendo, that the

prosecutor acted improperly by suggesting during closing argument

that Fabuluje illegally assisted a friend in obtaining a

chauffeur’s license, Fabuluje has not shown that the comment

prejudiced his substantive rights such that plain error resulted.

See Gallardo-Trapero, 185 F.3d at 320.

Fabuluje also argues that the superseding indictment was

defective because it improperly joined the conspiracy count with

the unlawful-naturalization count. However, Fabuluje failed to

move for a severance of the two counts prior to trial.

Objections based on defects in the indictment as well as requests

for severance of charges must be raised prior to trial. Fed. R.

Crim. P. 12(b)(2); see United States v. Mann, 161 F.3d 840, 861.

Failure by a party to make requests which must be made prior to

trial shall constitute waiver thereof, but the court for cause

shown may grant relief from that waiver. Fed. R. Crim. P. 12(f);

Mann, 161 F.3d at 861-62. This court has held that where the

appellant failed to show any cause for failing to move for a

severance prior to trial, the merits of the argument need not No. 97-11278 c/w 98-10008 -4-

even be addressed. Mann, 161 F.3d at 862 & n.60. Alternatively,

this court has limited review in such circumstances to plain-

error review. Id. at 862 & n.61.

Under the plain-error standard, this court corrects

forfeited errors only where they are “clear” or “obvious” and

“affect substantial rights.” United States v. Clements, 73 F.3d

1330, 1337 (5th Cir. 1996). Fabuluje has not shown that joinder

of the counts resulted in plain error. See id.

Fabuluje also argues that even assuming that joinder was

proper, his trial was “procedurally defaulted” because he should

have been given a revocation hearing pursuant to 8 C.F.R. § 340.1

prior to criminal prosecution. Section 340.1, which provides for

the reopening of naturalization proceedings under certain

circumstances, provides that after being served with a notice of

intent to reopen the proceedings, the applicant may request a

hearing. Nowhere does it suggest that such hearing is a

prerequisite to criminal prosecution under 18 U.S.C. § 1425. Nor

does § 1425 provide that a hearing must be held prior to the

initiation of criminal proceedings.

Fabuluje next argues that the evidence was insufficient to

support his conviction. Fabuluje failed to renew his motion for

a judgment of acquittal after the close of the case.

Accordingly, review of his claim is limited to whether the

convictions resulted in a manifest miscarriage of justice. See

United States v. Inocencio, 40 F.3d 716, 724 (5th Cir. 1994).

Such a miscarriage would exist only if the record is devoid of

evidence pointing to guilt, or because the evidence on a key No. 97-11278 c/w 98-10008 -5-

element of the offense is so tenuous that a conviction would be

shocking. Id.

To establish Fabuluje’s guilt, the Government must have

proved beyond a reasonable doubt that (1) Fabuluje conspired with

another person to steal chattels moving in interstate commerce

and of a value in excess of $1000; (2) Fabuluje voluntarily

agreed to the conspiracy; and (3) either Fabuluje or another

member of the conspiracy committed an overt act to further the

conspiracy. See 18 U.S.C. §§ 371, 659. The Government

introduced 13 false bills of lading which a CF employee verified

as corresponding to the items seized in California. Another CF

employee testified that the bills of lading had “pro numbers”

corresponding to the CF facility and section where Fabuluje

worked. The Government provided testimony indicating that the

signature on the false bills of lading was that of the same

person who signed Fabuluje’s time cards. The Government also

provided testimony indicating that a set of false invoices was

faxed from Fabuluje’s home telephone to investigators in a failed

attempt to legitimize the shipments. No manifest miscarriage of

justice has been shown as to the sufficiency of the evidence to

support the conspiracy conviction. See Inocencio, 40 F.3d at

724.

Fabuluje also argues that the evidence was insufficient to

revoke his citizenship. As noted by the Government, the

cancellation of Fabuluje’s certificate of naturalization was the

result of Fabuluje’s conviction for illegally obtaining such.

Fabuluje’s argument is thus in reality a challenge to his No. 97-11278 c/w 98-10008 -6-

conviction under 18 U.S.C. § 1425, which forbids the knowing

procurement of naturalization contrary to the law.

Fabuluje argues that the Government failed to prove

knowledge and intent to conceal beyond a reasonable doubt. The

Government proved knowledge by proving that Fabuluje was engaged

in the conspiracy to steal merchandise from CF and by introducing

evidence that Fabuluje falsely denied having knowingly committed

any crime for which he had not been arrested in his application

for naturalization. Intent to conceal is not an element of the

offense. See § 1425. This argument is without merit.

Fabuluje challenges the trial court’s jury instructions on

several grounds. His first argument - that the instructions were

not given in open court - is completely without merit.

Similarly, his last argument - that he was entitled to attend the

charge conference - has been rejected by this court. See United

States v. Graves, 669 F.2d 964, 972 (5th Cir. 1982). With regard

to Fabuluje’s remaining challenges to the jury instruction - many

of which are raised for the first time on appeal - we find no

error, plain or otherwise, in the instruction.

Regarding sentencing, Fabuluje argues that the trial court

impermissibly him accountable for the “full loss” of all

shipments discovered to be fraudulent rather than only those

shipments alleged in the indictment. Although the presentence

report (PSR) found that the dollar amount of merchandise stolen

totaled $749,554, the district court accepted a loss figure of

only $390,499, which reflected only those shipments alleged in

the indictment. Fabuluje also argues that the Government failed No. 97-11278 c/w 98-10008 -7-

to identify the underlying value of the alleged shipments;

however, the value of the stolen shipments was determined based

on documentation supplied by CF, and by comparison with prices

charged by local stores for corresponding items.

Fabuluje’s final argument is that the district court’s order

of restitution must be reversed because the “Declaration of

Victim Losses” is “fictitious, bogus, and/or, fraudulent.”

Fabuluje objected to the PSR recommendation that restitution be

imposed solely on the basis that he had no ability to pay. He

did not object to the PSR’s determination of the amount of

restitution owed. Review is thus for plain error only. See

United States v. Arce, 118 F.3d 335, 344 n.8 (5th Cir. 1997),

cert. denied, 118 S. Ct. 705 (1998). Questions of fact that the

sentencing court could have resolved upon proper objection at

sentencing can never constitute plain error. Id.

The judgment of the district court is AFFIRMED. Fabuluje’s

motion to supplement the record on appeal is DENIED.

AFFIRMED; MOTION DENIED.