United States v. Anekwu

• Decision Date: 20 September 2012
• Docket Number: No. 10–50328.,10–50328.
• Citation: 695 F.3d 967
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Henry ANEKWU, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

695 F.3d 967

12 Cal. Daily Op. Serv. 10,858

2012 Daily Journal D.A.R. 13,226

UNITED STATES of America, Plaintiff–Appellee,

v.Henry ANEKWU, Defendant–Appellant.

No. 10–50328.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 8, 2012.

Filed Sept. 20, 2012.

Alexandra Wallace Yates, Federal Public Defender, Los Angeles, CA, for defendant-appellant Henry Anekwu.

Ellyn Marcus Lindsay, Assistant U.S. Attorney, Los Angeles, CA, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Central District of California, John F. Walter, District Judge, Presiding. D.C. No. 2:03–cr–01151–JFW–1.

Before: DOROTHY W. NELSON, DIARMUID F. O'SCANNLAIN, and N. RANDY SMITH, Circuit Judges.

OPINION

N.R. SMITH, Circuit Judge:

Appellant Henry Anekwu (Anekwu) appeals his conviction and sentence for multiplecounts of mail fraud, wire fraud, and telemarketing fraud against the elderly in violation of 18 U.S.C. §§ 1341, 1343, 2326(1). On appeal, Anekwu argues that numerous procedural and substantive errors occurred during his trial, requiring a new trial. Anekwu also argues that his sentence is unreasonable and re-sentencing is necessary. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

The primary question raised on appeal is whether the district court committed plain error by admitting certificates of authentication for foreign public and business records by means of affidavit in violation of the Confrontation Clause. We conclude that it did not.

The Supreme Court has not specifically addressed whether admitting certificates of authentication for documents violates a defendant's Confrontation Clause rights. Melendez–Diaz v. Massachusetts, 557 U.S. 305, 336–37, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (Kennedy, J., dissenting). We have not previously dealt with the issue of whether certifications of foreign public records are “testimonial,” making the custodians who created the certifications “witnesses” subject to the defendant's Sixth Amendment right of confrontation. However, we have concluded that routine certifications of domestic public records are not testimonial. United States v. Weiland, 420 F.3d 1062, 1077 (9th Cir.2005). We have not addressed whether certificates of authenticity for business records are testimonial. Because there is no controlling authority on point, and because our cases indicate that the admission of the certificates of authentication did not violate the Confrontation Clause, we cannot conclude here that the district court plainly erred.

Additionally, we cannot conclude that the district court abused its discretion in (1) conducting voir dire, (2) admitting both a chart summarizing bank records and the underlying records into evidence, or (3) refusing to give the defendant's requested informant credibility instruction to the jury. We also cannot conclude that the district court plainly erred in (1) admitting allegedly improper comments by the prosecutor in closing argument, or (2) re-reading the original jury instructions in response to a question posed by the jury. Because we do not find any error, there can be no cumulative error.

Finally, the district court did not plainly err in (1) referencing the defendant's inability to pay restitution to show that it had considered imposing a lesser sentence to facilitate the payment of restitution, or (2) using two Guidelines ranges.

I.

On November 12, 2003, a federal grand jury in the United States District Court for the Central District of California charged Henry Anekwu with numerous counts of mail fraud and telemarketing fraud against the elderly in violation of 18 U.S.C. §§ 1341, 1343, and 2326. The Government alleged that, between 1998 and 2002, Anekwu owned and operated lottery companies in Canada. Two relevant companies were Platinum Award, Inc. (“Platinum”) and Capital Award, Inc. (“Capital”). The Government also alleged that Anekwu and his companies targeted elderly victims in the United States, particularly in California. According to the Government, Anekwu caused telemarketers to call victims and falsely represent that they had won lottery money, forcing them to pay certain taxes and costs to Anekwu and his companies in order to receive their money. The alleged victims were then told to mail payments to the lottery companies at various commercial mailbox addresses in Vancouver, Canada.

Anekwu was extradited to the United States and made his initial court appearance on December 24, 2009. Anekwu's jury trial lasted three days. The jury found Anekwu guilty of sixteen counts of mail fraud committed in connection with telemarketing. On July 12, 2010, the district court sentenced Anekwu to 108 months in prison and ordered a restitution payment of $510,840.75. Anekwu filed a timely Notice of Appeal.

II.

As part of the Government's case against Anekwu, the Government sought to introduce foreign business and public records pursuant to 18 U.S.C. § 3505 and Federal Rules of Evidence 803 and 902. The records consisted of incorporation records for Capital and Platinum, Canadian bank records, and mailbox applications, linked to Anekwu.

To comply with 18 U.S.C. § 3505 and the Federal Rules of Evidence, the Government obtained certifications signed by the respective record-keepers in Canada. The certifications for the bank records and the mailbox applications set forth the facts required by § 3505. The certifications for the documents of incorporation state, for example:

I Hereby Certify that the documents annexed hereto and impressed with my Seal of Office and relating to CAPITAL AWARD INC., which was dissolved under section 257 of the Company Act on June 14, 2002, are true copies of the public documents whereof they purport to be copies, and that I am the proper custodian of the said documents.

Anekwu filed a motion in limine, objecting to the admission of the incorporation records and the mailbox records. He argued that the foreign records were inadmissible hearsay and did not meet the requirements of 18 U.S.C. § 3505, because they were not trustworthy. The Government responded that the requirements of § 3505 were met, and the records were admissible through signed certificates of authentication by the custodians of the records (compliant with § 3505) with no need of an authenticating witness. The Government never suggested that the record-keepers were unavailable. Anekwu did not dispute that the records were what they purported to be.

The district court denied Anekwu's motion and admitted the records and certifications into evidence. At the hearing on the matter, Anekwu's counsel stated that she did not object to the authentication (based on the certificates of authentication) of the mailbox applications, but instead she argued that the source of the information or method of preparation lacked trustworthiness. The court ruled that the mailbox applications had “the requisite trustworthiness because they each contain the driver's license with a picture of the defendant, and for that reason [it] ... den[ied] the motion in limine with respect to the mailbox applications.” As for the incorporation documents, the court ruled that the certificates of incorporation were admissible as public records and the other incorporation documents were admissible as defendant's own statements under Federal Rule of Evidence 801(d)(2)(A), and as statements of a co-conspirator Emeka Ofor under Federal Rule of Evidence 801(d)(2)(E).

A.

Anekwu argues that the district court violated his Confrontation Clause rights by admitting evidence of foreign documents by means of written affidavit. We normally review whether evidence was admitted in violation of the Confrontation Clause de novo. United States v. Hagege, 437 F.3d 943, 956 (9th Cir.2006). However,“[i]f the defendant failed to object to the admission of evidence under the Confrontation Clause, we review for plain error.” Id. Plain error occurs when “(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Wright, 625 F.3d 583, 607–08 (9th Cir.2010) (internal quotation marks omitted). “To be plain, the error must be clear or obvious, and an error cannot be plain where there is no controlling authority on point and where the most closely analogous precedent leads to conflicting results.” United States v.Gonzalez–Aparicio, 663 F.3d 419, 428 (9th Cir.2011) (internal quotation marks omitted).

Here, Anekwu failed to object to the admission of the foreign records under the Confrontation Clause. Rather, Anekwu objected to the admission of the foreign records on hearsay grounds. While the Government stated in its response that the admission of records, without an authenticating witness, “does not violate the Confrontation Clause,” that brief statement by the Government does not substitute for a timely and specific Confrontation Clause objection by Anekwu. See United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989) (recognizing that the “pointless formality” exception—“[a] party need not properly object if doing so would be a ‘pointless formality’ ”—is the “sole exception to the requirement of a formal, timely, and distinctly stated objection”). Thus, plain error review of Anekwu's Confrontation Clause claim is appropriate. See United States v. Huber, 772 F.2d 585, 588 (9th Cir.1985) (stating that where a defendant “objected on hearsay grounds, [but] failed to make a [C]onfrontation [C]lause objection at trial,” the court could review the defendant's Confrontation Clause claims “under the plain error doctrine, [despite] the lack of a timely and specific objection before the district court....”).

B.

We cannot conclude that the district court...