U.S. v. Okoronkwo, 93-2320

• Decision Date: 17 February 1995
• Docket Number: No. 93-2320,93-2320
• Citation: 46 F.3d 426
• Parties: -1339 UNITED STATES of America, Plaintiff-Appellee, v. 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.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 426

46 F.3d 426

75 A.F.T.R.2d 95-1339

UNITED STATES of America, Plaintiff-Appellee, v. 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.

No. 93-2320.

United States Court of Appeals Fifth Circuit.

Feb. 17, 1995.

Richelieu Edward Wheelan (Court-appointed), Houston, TX, for Okoronkwo.

Reginald E. McKamie, Sr. (Court-appointed), Houston, TX, for Chuks.

Peter Adams (Court-appointed), Houston, TX, for Jackson.

David P. Cunningham (Court-appointed), Houston, TX, for Ezinwa.

George W. Lang, II (Court-appointed), Houston, TX, for Okwechime.

Scott A. Schumacher, Atty., Alan Hechtkopf, Tax Div., Dept. of Justice, Robert E. Lindsay, Chief, Crim. App. and Tax Enf. Pol. Sect., Tax Div., Dept. of Justice, Washington, DC, Paula C. Offenhauser, Asst. U.S. Atty., Lawrence Finder, U.S. Atty., Houston, TX, for appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, BARKSDALE and STEWART, Circuit Judges.

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 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 normally be claimed by a business. Many of the returns showed the same address, which often was a post office 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, the maximum refund anticipation loan a taxpayer could receive through the electronic filing system.

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. When the refund check arrived, one of the conspirators would drive the filer to the bank to cash it, then collect the conspiracy's share of the refund. The conspirators were not generous: ordinarily, a filer would get to keep only $200 out of a $3000 refund.

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 evidence established guilt beyond a reasonable doubt. United States v. Pofahl, 990 F.2d 1456, 1467 (5th Cir.1993). The jury is free to choose among reasonable 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 inferences from the evidence must be viewed as supporting the verdict. United States v. Basey, 816 F.2d 980, 1000-02 (5th Cir.1987). The jury is entitled to believe a witness unless the testimony is so incredible that it defies physical laws. United States v. Lerma, 657 F.2d 786, 789 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 463 (1982).

All defendants were charged with varying counts of violations of 18 U.S.C. Sec. 287 (aiding and abetting the filing of false tax returns) and/or 18 U.S.C. Sec. 286 (conspiracy to defraud the U.S. through the filing of false returns).

To establish a violation of 18 U.S.C. Sec. 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 knew that the claim was false or fraudulent. See 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. Sec. 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 Participation in a conspiracy 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, 110 S.Ct. 1494, 108 L.Ed.2d 629 (1990), and "a common purpose and plan may be inferred from a 'development and collocation of circumstances.' " United States v. Robertson, 659 F.2d 652, 656 (5th Cir.1981) (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and United States v. Marx, 635 F.2d 436, 439 (5th Cir.1981)).

Cir.1988); see also, Pofahl, supra, 990 F.2d at 1467.

None of the appellants challenge the sufficiency of the evidence on the 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.

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. Sec. 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. Sec. 286.

According to the filers he recruited, James Okoronkwo assisted with the filing of 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 identical 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.

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. Sec. 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 hand-in-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 documents." The jury was entitled to believe Clement if it wanted to, and it apparently did. We find that the evidence was sufficient 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. Sec. 287 and one count of conspiracy to defraud in violation of 18 U.S.C. Sec. 286. Two witnesses provided sufficient evidence to convict Okwechime: Clement and a recruited filer named Bibian Nzurum.

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...