U.S. v. Adewusi, s. 95-50504
| Decision Date | 25 June 1997 |
| Docket Number | Nos. 95-50504,95-50507,s. 95-50504 |
| Citation | 1997 WL 349035,116 F.3d 1486 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Suarawu ADEWUSI, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Nelson Afolabi KAMSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeal from the United States District Court for the Central District of California, Nos. CR-95-00372-LEW, CR-95-00372-LEW-02; Laughlin E. Waters, District Judge, Presiding.
Before: SKOPIL, PREGERSON, and REINHARDT, Circuit Judges.
Nelson Afolabi Kamson appeals his convictions for violations of 18 U.S.C. §§ 371, 1029(a)(1), 1029(a)(4). Kamson also appeals his sentence of 110 months imprisonment and his partial restitution order. Suarawu Adewusi appeals his conviction for violation of 18 U.S.C. § 371. Adewusi also appeals his sentence of 51 months imprisonment and his partial restitution order.
We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 3231. We affirm.
Appellants' challenge the district court's ruling that excluded evidence of Rosenthal's involvement with the murder of his stepfather ("Rosenthal murder evidence"). We review the evidentiary rulings of the district court for abuse of discretion. United States v. Carpenter, 95 F.3d 773, 775 (9th Cir.1996), cert. denied, 117 S.Ct. 1094 (1997). The district court did not abuse its discretion in excluding the Rosenthal murder evidence because it was not relevant.
The Rosenthal murder evidence was not admissible to show the character and conduct of Rosenthal because it did not involve a conviction, and it was not probative of Rosenthal's truthfulness or untruthfulness. Fed.R.Evid. 608(b). Consiglio argued that the Rosenthal murder evidence included episodes where a young Rosenthal lied to the District Attorney. Even if such evidence demonstrated Rosenthal's lack of truthfulness, however, it would be cumulative because Rosenthal readily admitted--before the jury--to having an untruthful character. The jury therefore possessed " 'sufficient information upon which to make a discriminating appraisal of the subject matter at issue.' " United States v. Reese, 2 F.3d 870, 892 (9th Cir.1993) (quoting United States v. Brown, 936 F.2d 1042, 1049 (9th Cir.1991)), cert. denied, 510 U.S. 1094 (1994).
The Rosenthal murder evidence had no probative value to impeach Rosenthal about his testimony of his age. Rosenthal truthfully testified that in 1983 he was seventeen years old.
Appellants argue that the Rosenthal murder evidence was relevant to impeach Rosenthal because he lied about committing other crimes in high school. Rosenthal, however, answered truthfully on this issue: he was "not involved in any other crimes in high school." Rosenthal's stepfather was murdered in March 1981. Close scrutiny of the Government's sealed records reveal that Rosenthal was in junior high in August 1980, still in junior high in January 1981, and was "scheduled for [Northview High School] on 4-22-81, however had never shown up for any classes."
While Appellants were given opportunities to submit documentation showing that Rosenthal was in high school at the time of the murder, they never presented any evidence to this effect. Because Rosenthal was not in high school at the time of the murder he gave a truthful answer when questioned about other crimes in high school. The Rosenthal murder evidence was therefore not relevant to impeach Rosenthal.
Appellants contest the district court's reliance on evidence filed in camera in an ex parte hearing, to rule on the admissibility of the Rosenthal murder evidence. We review for abuse of discretion a district court's reliance on ex parte communications to resolve a pending motion. United States v. Thompson, 827 F.2d 1254, 1257 (9th Cir.1987).
"Absent ... compelling justification, ex parte proceedings are anathema in our system of justice and, in the context of a criminal trial, may amount to a denial of due process." Id. at 1258-59. In its brief the Government admits that its decision to submit two sets of documents in camera was improper. We do not condone this procedure and agree with the Government that its actions were improper. Nonetheless, we must still apply the harmless error analysis to the erroneous use of an ex parte hearing. Id. at 1261 (). In the present case, the district court's reliance on evidence submitted in an ex parte hearing was harmless error.
As discussed above, the Rosenthal murder evidence was not relevant. Therefore, even had defense counsel been present during the hearing, the Rosenthal murder evidence would have still had no relevance to any defense. Accordingly, while we view the ex parte hearing held in the district court with extreme suspicion, Appellants have failed to demonstrate how they could have effectively rebutted the evidence presented in the hearing and impeached Rosenthal. The error was therefore harmless.
Kamson challenges the sufficiency of the evidence to support his convictions for conspiracy, in violation of 18 U.S.C. § 371, trafficking in counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(1), and possessing device-making equipment, in violation of 18 U.S.C. § 1029(a)(4). Adewusi challenges the sufficiency of evidence to support his conviction for conspiracy, in violation of 18 U.S.C. § 371. In reviewing the sufficiency of evidence to support a conviction, we view the evidence in the light most favorable to the prosecution and ask if any rational trier of fact could have found the substantial elements of the crime beyond a reasonable doubt. United States v. Melvin, 91 F.3d 1218, 1225 (9th Cir.1996). PH1H A. Conspiracy Convictions
To establish the crime of conspiracy the Government must show: "(1) an agreement to accomplish an illegal objective; (2) one or more overt acts in furtherance of the illegal objective; and (3) the intent to commit the underlying substantive crime." United States v. Ray, 930 F.2d 1368, 1371 (9th Cir.1990), as amended Apr. 23, 1991, cert. denied, 498 U.S. 1124 (1991). " 'The agreement need not be explicit, but may be inferred from circumstantial evidence.' " United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir.1996) (quoting United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir.1980)).
There was sufficient evidence from which a rational jury could have inferred an agreement to commit fraud between Kamson, Idris, and Adewusi. Viewing the evidence in the light most favorable to the Government, Rosenthal's testimony established that at one time Kamson had at least a dozen people working for him who were involved in credit card fraud. On the day of the arrest Kamson and Idris exchanged cash for credit card numbers, and Idris was later arrested in possession of seven $100 bills. While in the hotel room both Idris and Adewusi helped Rosenthal and Kamson set up devices used to produce counterfeit cards. These facts demonstrate an agreement to commit credit card fraud between Kamson, Adewusi, and Idris.
"Once a conspiracy exists, evidence establishing beyond a reasonable doubt defendant's connection with the conspiracy, even though the connection is slight, is sufficient to convict defendant of knowing participation in the conspiracy." Melvin, 91 F.3d at 1225. Adewusi's "mere proximity" to the hotel where the cards were counterfeited "is insufficient to establish involvement in a conspiracy, [but his mere] presence may support that inference when viewed in light of other evidence." Ray, 930 F.2d at 1371. There was ample "other evidence" from which a rational jury could find that Adewusi had more than a slight connection to the conspiracy. Adewusi drove Kamson to the El Segundo Inn, entered the hotel room in which the embosser, encoder, and tipper were in plain view, and Adewusi stayed in the room while this loud machinery was being used. While in the hotel room, Rosenthal and Adewusi discussed the relative difficulty of committing credit card fraud in Japan, Los Angeles and other parts of the United States. Adewusi moved a piece of furniture in the hotel room to allow Rosenthal to plug in an encoder. Adewusi was later arrested with four "marked" $100 bills given to Rosenthal by the Secret Service, presumably by Rosenthal to Kamson, and then by Kamson to Adewusi. This evidence was sufficient for a rational jury to conclude that Adewusi was connected with the conspiracy, and that his connection with the conspiracy was more than the "slight connection" required for conviction. Melvin, 91 F.3d at 1225.
Additional evidence demonstrates Kamson's connection to the conspiracy. In two separate conversations taped by Secret Service agents, Kamson agreed to produce ten counterfeit credit cards. Kamson was also arrested with $600 in bills whose serial numbers matched those given by Sierze to Rosenthal before the sting. Rosenthal testified that Kamson made and encoded counterfeit credit cards in the hotel room. This evidence is sufficient to support Kamson's conspiracy conviction.
B. Kamson's Other Convictions
The evidence discussed above that establishes a conspiracy also demonstrates that Kamson had control of and trafficked in counterfeit access devices. Kamson agreed to produce counterfeit cards for Rosenthal in a conversation taped and monitored by the Secret Service. A California identification card found in luggage seized in the hotel room bore the name of Theodore Perry...
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