U.S. v. Orji-Nwosu

• Decision Date: 19 November 2008
• Docket Number: No. 07-20210.,07-20210.
• Citation: 549 F.3d 1005
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael ORJI-NWOSU, also known as Michael Orji, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

549 F.3d 1005

UNITED STATES of America, Plaintiff-Appellee, v. Michael ORJI-NWOSU, also known as Michael Orji, Defendant-Appellant.

No. 07-20210.

United States Court of Appeals, Fifth Circuit.

November 19, 2008.

Mary Jane Harmon, James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Steven Jay Rozan, Steven Rozan & Associates, Houston, TX, for Michael Orji-Nwosu.

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

Before BENAVIDES, SOUTHWICK and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Michael Orji-Nwosu ("Orji") was convicted of possession with intent to distribute more than five kilograms of cocaine. On appeal, Orji contends that the district court abused its discretion in submitting a "deliberate ignorance" instruction within the jury charge. Finding no abuse of discretion, we affirm Orji's conviction.

I. Factual Background

On August 27, 2006, Orji was arrested by an officer with the United States Customs and Border Protection Service at Houston's Bush Intercontinental Airport. Inside two pieces of Orji's luggage marked "heavy," officers discovered four sealed canisters of a protein supplement, each of which contained cocaine underneath a layer of milkshake powder. The four canisters held a total net weight of 17.94 kilograms—almost forty pounds—of cocaine.

Orji is an attorney who had a civil law practice in Philadelphia, Pennsylvania, and Houston, Texas, and was scheduled to travel from Houston to Nigeria via London, England. At trial, the government submitted evidence that Houston is a source-city for international cocaine trafficking, that Orji had traveled on seven recent occasions from Philadelphia to Houston to London, where he stayed for two or three days, then to Nigeria and then back to Philadelphia. Those trips occurred in April, June, August, and November of 2005, and February, April, and July of 2006. On more than half of the trips, Orji traveled to London with additional luggage that he had not carried from Philadelphia.

The government also presented evidence that on the date in question, Orji was asked security screening questions about his knowledge of the contents of his luggage. He gave standard answers to those questions and did not state that he was transporting items for another person. After discovery of the cocaine, law enforcement personnel at the airport conducted a re-screening of all passengers on Orji's flight, including Orji. He was specifically asked if all items of his luggage belonged to him, and he said they did. He was asked if he packed everything in his luggage, and he said that he did. Again, Orji did not contend that he was transporting sealed containers for another person. Additionally, government witnesses testified that: (1) the canisters were significantly heavier than the six pound weight indicated on the packaging; (2) Orji expressed no emotion upon his arrest; and (3) the street value of the cocaine seized from Orji would be millions of dollars.

In his defense, Orji called a number of witnesses who indicated that it was common within the Nigerian community to transport items for friends and family members. Orji himself testified that he had ongoing business ties to Houston and Nigeria, and that he was carrying the canisters as a favor for an acquaintance named Samuel Oguguo,¹ whom he had known for twelve years. Orji stated that on August 25, 2006, he encountered Oguguo outside a barbershop, and he was asked to deliver items of clothing and a "protein substance" to Oguguo's brother in Nigeria. Oguguo was driving a new car.

Orji further testified that on the day before his flight to London, Oguguo brought two suitcases—one large and one small—to Orji's hotel room. The suitcases contained four canisters of protein powder, which were wrapped in a black bag, and other items, such as cotton balls and clothing. Because Orji intended to carry computers to Nigeria and recognized that the larger suitcase was too big to be accepted by the airlines, he refused to transport both pieces of luggage. Oguguo, who purportedly travels to Nigeria often because his wife lives there, appeared to be "really desperate," and explained that the heavy canisters were intended for his brother's medical clinic in Lagos. Orji inquired further about the canisters, shook them, and read the label. Oguguo told Orji that the powder was for use in bodybuilding. Finally, Orji agreed to take the canisters. He placed two canisters in his own suitcase and also carried two in Oguguo's smaller suitcase. Orji indicated that Oguguo was "a little hesitant" to allow Orji to carry the canisters all the way to Nigeria. Instead, Oguguo offered to have a cousin pick up the items in London.

Based on the evidence elicited at trial, and over Orji's objection, the district court included a "deliberate ignorance" jury instruction, adopted from Fifth Circuit Pattern Jury Instruction 1.37. The instruction stated,

You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.

Orji was convicted of the single count of the indictment, and was sentenced to 168 months of imprisonment. Orji now asks this court to reverse his conviction.

II. Standard of Review

We review an appellant's objection to jury instructions under an abuse of discretion standard, "affording the trial court `substantial latitude' in describing the law to the jurors." United States v. Young, 282 F.3d 349, 353 (5th Cir.2002) (quoting United States v. Chaney, 964 F.2d 437, 444 (5th Cir.1992)). We consider whether the "charge, as a whole, was a correct statement of the law and whether it clearly instructed the jurors as to the principles of the law applicable to the factual issues confronting them." United States v. Conner, 537 F.3d 480, 486 (5th Cir.2008). "The district court may not instruct the jury on a charge the evidence does not support. But in determining whether the evidence reasonably supports the charge, the evidence and all reasonable inferences that may be drawn from it are viewed in the light most favorable to the Government." Id.

III. Discussion

"`The circumstances which will support the deliberate ignorance instruction are rare.'" United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003) (quoting United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir.1990)). However, "[t]his court has consistently upheld such an instruction as long as sufficient evidence supported its insertion into the charge." United States v. Daniel, 957 F.2d 162, 169 (5th Cir.1992). The instruction is proper when the facts elicited at trial "support an inference that the defendant was subjectively aware of a high probability of the existence of illegal conduct, and that he purposely contrived to avoid learning of the illegal conduct." Id. The term "deliberate ignorance" "denotes a conscious effort to avoid positive knowledge of a fact which is an element of an...