United States v. Mogaji

Opinion

USCA1 Opinion

May 3, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________


No. 94-2265



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  ELIZABETH MOGAJI,



                                Defendant, Appellant.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                  [Hon. Francis J. Boyle, Chief U.S. District Judge]
                                          _________________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                           Stahl and Lynch, Circuit Judges.
                                            ______________



                                 ____________________



            Elizabeth I. Mogaji on brief pro se.
            ___________________

            Sheldon Whitehouse, United  States Attorney, and James H.  Leavey,
            __________________                               ________________

        Assistant United States Attorney, on brief for appellee.


____________________


____________________


Per Curiam.   Defendant-appellant Elizabeth  Mogaji
                      __________



was convicted of  one count  of conspiracy  to commit  credit



            card  fraud  and five  counts  of  fraudulent  use of  access



            devices.  See 18 U.S.C.   1029(a)(2).  She raises a number of
                      ___



            issues on appeal, all of them meritless.



                      1.  Motion to Suppress.
                          __________________



                      Defendant  argues that  the  district court  should



            have suppressed the contents of the two plastic bags found by



            Pamela McCutcheon  and turned over to  Secret Service Special



            Agent James  Mooney.  The government  correctly responds that



            defendant has no standing  to contest the search  because she



            did not  have  a reasonable  expectation  of privacy  in  the



            common basement area of the  duplex at 10-12 Stamford Avenue;



            nor does the fact that defendant's driver's license was found



            in one of the bags  make a difference.  See United  States v.
                                                    ___ ______________



            Thornley, 707  F.2d 622, 625  (1st Cir. 1983)  (defendant may
            ________



            not protect himself against discovery of an item by taking it



            from his  own premises and hiding  it in a place  in which he



            has no  legal interest).   Further, defendant did  not assert



            ownership of anything in the plastic  bags at the suppression



            hearing  -- the time at which defendant must carry her burden



            of  showing a  privacy  expectation.   See  United States  v.
                                                   ___  _____________



            Aguirre,  839  F.2d  854,  856  (1st  Cir.  1988).    Because
            _______



            defendant plainly has  no standing to contest  the search, we



            need not address defendant's credibility arguments. 



                      2.  Judgment of Acquittal.
                          _____________________


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Defendant  argues  that   there  was   insufficient



            evidence  to find  her guilty  of any  of  the counts  in the



            indictment.  We will address these arguments by count, ending



            with Count One, the conspiracy charge.  We review  challenges



            to the  sufficiency of  the evidence  to determine  whether a



            rational  jury could  find guilt  beyond a  reasonable doubt.



            United States v.  Flores-Rivera, 56 F.3d  319, 323 (1st  Cir.
            _____________     _____________



            1995).   In  so doing,  we examine  the evidence,  along with



            reasonable  inferences, in  the light  most favorable  to the



            prosecution.  Id.  The evidence may be circumstantial and the
                          ___



            prosecution does not have  to exclude every reasonable theory



            of innocence.  United States v. Batista-Polanco, 927 F.2d 14,
                           _____________    _______________



            17 (1st  Cir. 1991).  "Furthermore, the  reviewing court does



            not   evaluate   witness   credibility,   but   resolves  all



            credibility issues in favor  of the verdict."  Flores-Rivera,
                                                           _____________



            56 F.3d at 323.



                      The   above   principles  dispose   of  defendant's



            assertions that many of the witnesses lied on the stand.   We



            have reviewed  the trial  transcript and conclude  that these



            challenges go  instead to  the credibility of  the witnesses.



            As  such, we will not  revisit the jury's  evaluation in this



            regard.  See id.
                     ___ ___



                          (a).  Count Two.   This count charges defendant
                                _________



            and Onyejekwe with using a Chase Manhattan Mastercard  in the



            name of Raymond Walters  to purchase two checks in  the total


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amount of $10,150  in violation of    1029(a)(2).   Defendant



            first argues  that  none of  the  exhibits submitted  by  the



            government in relation to this charge showed that she had any



            involvement in procuring these checks.  However, defendant is



            being charged as part  of a conspiracy.  Under  the Pinkerton
                                                                _________



            doctrine, Pinkerton v. United States, 328 U.S. 640  (1946), a
                      _________    _____________



            member of a conspiracy may be held liable for the substantive



            crimes committed by co-conspirators if the substantive crimes



            were  committed in  furtherance of  the conspiracy  and while



            defendant was a member  of the conspiracy.  United  States v.
                                                        ______________



            Flores-Rivera, 56 F.3d at 324.
            _____________



                          We think that a  rational jury could have found



            beyond a reasonable doubt that Onyejekwe used the Raymond  P.



            Walters Mastercard in furtherance of the conspiracy and while



            defendant  was  a  part  of  the  conspiracy.    First,  when



            Onyejekwe and defendant were  arrested for using a Mastercard



            in  the name of Beverly  Onofrio on July  10, 1991, Onyejekwe



            was carrying a  list of names.  On  this list appeared names,



            birth  dates  and addresses  for  both  Onofrio and  Walters.



            Further, the use  of the Walters Mastercard occurred  in mid-



            May  to  June of  1991  --  only a  month  prior  to the  two



            occasions on  which defendant and Onyejekwe  used the Onofrio



            Mastercard at the Lechmere stores.  The jury could reasonably



            infer, we think, that the use of both the Onofrio and Walters



            Mastercards occurred as part of one conspiracy.


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Second,  we believe  the evidence  supports the



            conclusion that defendant was a participant in the conspiracy



            when Onyejekwe used  the Walters Mastercard.   The common law



            is  that one  who joins an  ongoing conspiracy,  as defendant



            plainly did  on July 6 and 10, "is deemed to have adopted the



            prior acts and declarations of coconspirators, made after the



            formation  and in  furtherance  of the  conspiracy."   United
                                                                   ______



            States  v.  Cintolo,  818  F.2d 980,  997  (1st  Cir.), cert.
            ______      _______                                     _____



            denied, 484 U.S. 913 (1987).  Given that the names of Walters
            ______



            and Onofrio appeared on  the list Onyejekwe was  carrying the



            day defendant was arrested,  there was sufficient evidence to



            convict defendant on Count Two.  



                          (b).  Count Three.  This count concerns the use
                                ___________



            of  Beverly Onofrio's  Mastercard at  the Lechmere  stores on



            July 6 and 10, in 1991.  Defendant first argues  that Exhibit



            #12, a photocopy  of a  Lechmere sales slip,  was altered  to



            influence the jury.   She contends that one order  number was



            written over  another and that the employee number, 1034, was



            handwritten, when the  usual Lechmere custom  is to have  the



            employee  number pre-stamped on the sales slip.  Looking at a



            copy  of the  sales slip,  however, we  can discern  only one



            order  number  --  0061903.    As  for  the  writing  of  the



            employee's  number, there is  nothing to  support defendant's



            assertion  that Lechmere's  "usual  practice" was  to have  a



            printed number.


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Defendant next attacks the photo identification



            procedure  by which Alex Shtutin -- the Lechmere sales person



            who sold the  telefax machines to defendant  and Onyejekwe on



            July 6 --  identified defendant.   However, as far as  we can



            tell, defendant  never filed a  motion to suppress  the photo



            identification  prior to  trial;  in fact,  she did  not even



            object  to Shtutin's testimony at  trial.  We  have held that



            pretrial photo identification  procedures are subject to  the



            requirements of  Fed. R.  Crim. P.  12(b)(3)  and motions  to



            exclude  such evidence must be  made prior to  trial.  United
                                                                   ______



            States v. Gomez-Benabe, 985 F.2d 607, 611-12 (1st Cir. 1993).
            ______    ____________



            Given Gomez-Benabe,  we think  that defendant, by  not having
                  ____________



            given  the district court a chance to determine if she should



            be excused  from filing  a pretrial  motion to  suppress, has



            waived her right to challenge the identification procedure on



            appeal.



                          (c).    Counts Four  and  Five.   These  counts
                                  ______________________



            concern, respectively,  the use  of  Onofrio's Discover  Card



            during June 21, 1991  through June 25, 1991,  and the use  of



            Onofrio's  AT&T Universal  Mastercard  during  June 26,  1991



            through July 24, 1991.  Defendant correctly notes, as she did



            with  respect to Count Two, that there was no direct evidence



            that she ever used  either card.  Thus, under  Pinkerton, the
                                                           _________



            government was required to prove that the use of the Discover



            Card  and the  AT&T Universal  Mastercard, during  the period


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from  June 21,  1991  to July  24, 1991,  was carried  out by



            Onyejekwe   in  furtherance  of   the  conspiracy  and  while



            defendant was involved in the conspiracy.  See Flores-Rivera,
                                                       ___ _____________



            56 F.3d at 324.



                          In regard  to Count Four, the  evidence is that



            the Discover Card was found in Onyejekwe's possession when he



            was arrested on  July 10, and that Onofrio's  name was on the



            list of names Onyejekwe was carrying.   Defendant argues that



            she was in the hospital during the time the Discover Card was



            used.   However, absent any claim that she had withdrawn from



            the conspiracy,  the fact  that defendant was  somewhere else



            during  her co-conspirator's  actions is  not relevant.   See
                                                                      ___



            United States  v. Juodakis,  834  F.2d 1099,  1102 (1st  Cir.
            _____________     ________



            1987) (per curiam).  Cessation of activity in a conspiracy is



            not  enough to  show withdrawal;  rather, a  conspirator must



            take some  affirmative  act  such as  a  full  confession  to



            authorities or a communication to a co-conspirator that he or



            she  is withdrawing from the enterprise.  Id.  Defendant does
                                                      ___



            not allege the existence of such circumstances here.



                          As for  Count Five,  defendant points  out that



            the AT&T Universal Mastercard never  was recovered.  She also



            argues that there is no evidence connecting her to the use of



            the  AT&T card.   We  do not  think that  either ground  is a



            sufficient  basis on  which to  overturn the  jury's verdict.



            First, the question  is not only  whether defendant used  the
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AT&T card, but also whether Onyejekwe might have used it.  In
                                        _________



            this regard,  we note that the  AT&T card was  applied for in



            June 1991 and was  used during the same period  defendant and



            Onyejekwe  were  using the  other  cards  in Onofrio's  name.



            Because  the  evidence  linking   Onyejekwe  to  the  use  of



            Onofrio's  name  is  so  strong,  we  think  that   the  jury



            rationally  could find  that  Onyejekwe  used Onofrio's  AT&T



            Universal Mastercard.



                          (d).  Count Six.   This count charged defendant
                                _________



            with using a Mastercard  in the names of Leonard  L. Medeiros



            and  Althea  V. Medeiros  to  withdraw  money from  automated



            teller  machines.   The government's  evidence  consisted, in



            part, of photographs  of the person  who withdrew money  with



            the  card in question.  McCutcheon had testified that she had



            rented  half of the duplex  at 10 Stamford  Ave. to defendant



            who told McCutcheon that she (defendant) was Althea Medeiros.



            McCutcheon identified defendant as the person in the picture.



                          Defendant  argues  that the  photographs should



            not  have  been admitted  in evidence  because they  were too



            blurry for identification  purposes.  As a result,  she adds,



            McCutcheon's identification of her  was suspect.  However, as



            with the other photo  identification, defendant never filed a



            motion  to  suppress the  photographs.    Therefore, she  has



            waived an appellate challenge to them.  See Gomez-Benabe, 985
                                                    ___ ____________



            F.2d  at  611-12.     In  any  event,  defendant's  arguments


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concerning McCutcheon's testimony  really go to  credibility.



            Thus, we need not  review her claims.  See  Flores-Rivera, 56
                                                   ___  _____________



            F.3d at 323.



                          (e).   Count One.  Count  one charged defendant
                                 _________



            with conspiracy to commit credit card fraud.  Defendant makes



            some  of the same arguments in support of her contention that



            the government failed  to show a  conspiracy between her  and



            Onyejekwe as  she made in regard to Counts Two and Four.  For



            the  reasons stated  in the  discussion regarding  Count Two,



            defendant's arguments,  first, that  the acts in  Counts Two,



            Four and Five  took place prior to July 10  and, second, that



            she  only was present in the  Lechmere parking lot on July 10



            fail.  Similarly unavailing are the arguments that there  was



            no  evidence that defendant ever used a credit card or helped



            Onyejekwe use a  credit card,  that defendant's  fingerprints



            were not found on any cards, and that no cards  were found on



            her person.   Under  Pinkerton, defendant is  responsible for
                                 _________



            the reasonably foreseeable offenses committed by Onyejekwe in



            furtherance of the conspiracy  since she was a member  of the



            conspiracy  during the  relevant time  periods.   See Flores-
                                                              ___ _______



            Rivera, 56 F.3d at 324.  The uses of the various credit cards
            ______



            by Onyejekwe clearly were foreseeable.  



                      3.  Denial of Cross-Examination.
                          ___________________________



                      Defendant argues  that on three  occasions she  was



            prevented from conducting  cross-examination that would  have


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revealed the biases and  perjured testimony of the witnesses.



            However,  a  review  of  the transcript  shows  that  counsel



            decided to  withdraw the questions to  which defendant refers



            and that there  is no evidence  that either the court  or the



            government "prevented" defendant from cross-examining anyone.



            Thus,  this issue,  being  fact-based, must  be raised  as an



            ineffective assistance claim  in a motion  under 28 U.S.C.   



            2255.   See United  States v.  Georgacarakos, 988  F.2d 1289,
                    ___ ______________     _____________



            1297 (1st  Cir. 1993)  (an ineffective assistance  of counsel



            claim which involves issues not fully  developed in the trial



            record is  not ripe for  decision on  appeal).  For  the same



            reason,  we  will  not consider  defendant's  other arguments



            relating to allegedly ineffective assistance of counsel.



                      4.  Improper Jury Instruction.
                          _________________________



                      Defendant complains that the trial  judge failed to



            instruct  the jury  that    1029 requires  the  government to



            prove  that she  "actually  used" an  unauthorized device  to



            obtain something of value.   Because defendant never objected



            below,  we  review for  plain error.    See United  States v.
                                                    ___ ______________



            McGill,   952  F.2d  16,  17  (1st  Cir.  1991).    The  jury
            ______



            instructions plainly  reveal that  the trial  judge correctly



            instructed the jury that, as Pinkerton holds, defendant could
                                         _________



            be found guilty of fraudulent use of an access  device if the



            jury found  that another's use of  such a device  was part of



            the conspiracy,  that such  use was a  reasonably foreseeable


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consequence  of  the conspiracy,  and  that  defendant was  a



            member of  the conspiracy  when the  device was used.   As  a



            result, there was no plain error.



                      Defendant's second argument is that the trial judge



            improperly used the word "conspirators" in reciting the overt



            acts charged in the indictment.  Essentially, the trial judge



            substituted  the  word  "conspirators"  for  the  words  "the



            defendants,  Christopher  Onyejekwe  and  Elizabeth  Mogaji."



            Thus, as to the first overt act, the judge stated that "on or



            about  July 6,  1991,  conspirators purchased  merchandise at
                                   ____________



            Lechmere. . . ."  Defendant alleges that this communicated to



            the  jury  the trial  judge's  belief  that she  was  guilty.



            Again, there is no plain  error here.  The trial  court judge



            instructed  the jury  that the  indictment was  not proof  of



            anything and clearly defined what elements were necessary for



            the jury to  find that  defendant was part  of a  conspiracy.



            The judge also  instructed the  jury that he  had no  opinion



            concerning the facts.



                      5.  Motion to Recuse.
                          ________________



                      Defendant argues that Judge Boyle, the trial judge,



            should have  recused himself  due to  his bias  and prejudice



            against defendant.  She  claims that he was convinced  of her



            guilt  from the beginning.   This claim, in  part, arose when



            defendant and her lawyer allegedly heard Judge Boyle state at



            a bail  reconsideration hearing that there  "was a conspiracy


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among you people."  Defendant also rests her recusal argument



            on  Judge  Boyle's post-trial  threat  that  he would  strike



            defense counsel's name from the court-appointment list.



                      As for the first comment, it does not appear in the



            transcript of the bail reconsideration hearing.  Further, the



            court  reporter  reviewed  the  tape recording  of  the  bail



            reconsideration   hearing   and  verified   the  transcript's



            authenticity.  In any event, defendant has  waived this issue



            by waiting until after trial  to file a motion  for  recusal.
                             _____



            See  In re Abijue Realty  Corp., 943 F.2d  121, 126 (1st Cir.
            ___  __________________________



            1991) (a  litigant, knowing  of a ground  for recusal  cannot



            wait  and  decide whether  he  or  she likes  the  subsequent



            treatment he or she receives).



                      The second  comment, unlike the first,  is not even



            directed at defendant.  Further, a reading of  the transcript



            reveals  that this  apparently  was the  second time  defense



            counsel was  unprepared to go forward on a matter.  We do not



            think  that  this   comment  provides  what   "an  objective,



            knowledgeable  member  of  the  public  would find  to  be  a



            reasonable basis for doubting the judge's impartiality."  See
            ________________                                          ___



            In  re United  States,  666 F.2d  690,  695 (1st  Cir.  1981)
            _____________________



            (stating the  applicable standard under 28  U.S.C.   455(a)).



            Simply, judicial  expressions of vexation at  lawyers who are



            not  ready to  proceed on  time do  not  raise a  question of



            judicial bias.


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6.  Motion for a New Trial.
                          ______________________



                      In her recitation of the facts,  defendant mentions



            that the district court denied her  motion for a new trial as



            untimely.  However,  she fails  to include in  her brief  any



            argument  why we  should  reverse the  trial court's  ruling.
            ________



            Thus,  she  has waived  the  issue.   A review  of  the issue



            nonetheless shows that this claim is meritless.



                      Defendant  was convicted  on May  10, 1994  and the



            certificate of service of the new trial motion was dated July



            6, 1994.  Fed. R.  Crim. P. 33 requires  such a motion to  be



            filed within seven days after verdict.  At the hearing on the



            motion,  defendant's  trial  attorney stated  that  defendant



            never had asked him to file a motion for a new trial.   Judge



            Boyle concluded that defendant had been confused over how one



            obtains a new  trial -- by a  motion or an appeal  -- and had



            asked  her attorney  to file  an appeal.   In any  event, the
                                             ______



            untimeliness  of  the  motion  for  a  new trial,  a  finding



            supported  by the  evidence, means  that the trial  court was



            without jurisdiction to rule  on it.  United States  v. Lema,
                                                  _____________     ____



            909 F.2d 561, 565 (1st Cir. 1990).



                      The judgment of conviction is affirmed.
                                                    ________


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