United States v. Tohotcheu , 299 F. App'x 262 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4546
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANNE TOHOTCHEU, a/k/a Danielle,
Defendant - Appellant.
No. 07-4547
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOISE W. TOHOTCHEU,
Defendant - Appellant.
No. 07-4548
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOEL HAPPY SIWE,
Defendant - Appellant.
No. 07-4549
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HIPPOLYTE T. KOKOO, a/k/a Jeff,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:06-cr-305-CMH-2; 1:06-cr-305-CMH-3; 1:06-cr-
305-CMH-4; 1:06-cr-305-CMH-5)
Submitted: September 10, 2008 Decided: October 31, 2008
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Nos. 07-4546, 07-4548, and 07-4549 affirmed; No. 07-4547 dismissed
in part and affirmed in part by unpublished per curiam opinion.
Paul P. Vangellow, PAUL P. VANGELLOW, P.C., Falls Church, Virginia;
Isaac Scott Pickus, Richmond, Virginia; J. Brian Donnelly, PRICE,
PERKINS, LARKEN & DONNELLY, Virginia Beach, Virginia; Lawrence H.
Woodward, Jr., SHUTTLEWORTH, RULOFF, GIORDANO & SWAIN, P.C.,
Virginia Beach, Virginia, for Appellants. Chuck Rosenberg, United
States Attorney, Michael E. Rich, James P. Gillis, Assistant United
States Attorneys, Michael J. Frank, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Anne Tohotcheu, Moise W. Tohotcheu, Joel Happy Siwe, and
Hippolyte T. Kokoo appeal their jury convictions and sentences for
conspiracy to commit wire fraud, alter United States securities,
and cause a person to move interstate to be defrauded in violation
of 18 U.S.C. § 371 (2000); altering United States currency in
violation of 18 U.S.C. §§ 2, 471 (2000); and two counts of causing
a person to move in interstate commerce to be defrauded in
violation of 18 U.S.C. §§ 2, 2314 (2000). On appeal, Appellants
contend the evidence was insufficient to prove a single conspiracy;
the district court abused its discretion in not giving their
proposed jury instruction; and the evidence was insufficient to
prove Siwe and Kokoo guilty of the substantive offenses. Moise
Tohotcheu further contends the district court erred in calculating
his advisory guideline range and in not granting his motion for a
downward departure. We dismiss in part and affirm in part.
Appellants first contend the evidence was insufficient to
prove a single conspiracy rather than multiple conspiracies.
“Whether the evidence establishes a single conspiracy or multiple
conspiracies is an issue for the jury.” United States v. Lozano,
839 F.2d 1020, 1023 (4th Cir. 1988). “The finding of a single
conspiracy by the jury must stand unless the evidence, taken in the
light most favorable to the government, would not allow a
reasonable jury to so find.” United States v. Baker, 985 F.2d
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1248, 1255 (4th Cir. 1993). “A single conspiracy exists where
there is ‘one overall agreement’ or ‘one general business
venture.’” United States v. Leavis, 853 F.2d 215, 218 (4th Cir.
1988) (citations omitted). “Whether there is a single conspiracy
depends upon the overlap of main actors, methods, and goals.”
United States v. Barsanti, 943 F.2d 428, 439 (4th Cir. 1991).
“Circumstantial evidence tending to prove a conspiracy
may consist of a defendant’s relationship with other members of the
conspiracy, the length of this association, the defendant’s
attitude and conduct, and the nature of the conspiracy.” United
States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (quotations and
citations omitted). “It is of course elementary that one may be a
member of a conspiracy without knowing its full scope, or all its
members, and without taking part in the full range of its
activities or over the whole period of its existence.” United
States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). “[I]t is not
necessary to proof of a conspiracy that it have a discrete,
identifiable organizational structure; the requisite agreement to
act in concert need not result in any such formal structure.” Id.We have reviewed the record and conclude the evidence was
sufficient for a reasonable jury to find a single conspiracy.
There was an overlap of main actors, methods, and goals, indicating
“one overall agreement” or “one general business venture.” Each
“black money scam” was nearly identical in its methods and goals in
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convincing a victim to part with his money. The evidence suggested
that Appellants targeted immigrants for their scams. All of the
Appellants are from Cameroon. Three of them are siblings, and
items linking and incriminating them were found in a residence
rented by Moise Tohotcheu. At least one of the Appellants was a
key player in each of the scams, and Anne Tohotcheu was somehow
linked to nearly every one. There was also a consistent use of
aliases by Appellants during the course of the conspiracy.
Siwe and Kokoo also challenge the sufficiency of the
evidence in support of their convictions on the substantive counts.
They do not dispute that the offenses were committed, but they
challenge whether they can be held responsible for them under
Pinkerton v. United States, 328 U.S. 640 (1946). “The Pinkerton
doctrine imposes vicarious liability on a coconspirator for the
substantive offenses committed by other members of the conspiracy
when the offenses are during and in furtherance of the conspiracy.”
United States v. Aramony, 88 F.3d 1369, 1379 (4th Cir. 1996). The
Pinkerton Court held that “acts in furtherance of the conspiracy
are ‘attributable to the others for the purpose of holding them
responsible for the substantive offense,’ when those acts are
reasonably foreseen as a necessary or natural consequence of the
unlawful agreement.” United States v. Brooks, 524 F.3d 549, 557-58
n.16 (4th Cir. 2008) (quoting Pinkerton, 328 U.S. at 647-48).
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We conclude the evidence was sufficient to support the
convictions. The offenses were properly attributed to Siwe and
Kokoo because they were committed during and in furtherance of the
conspiracy, and they were reasonably foreseen as a necessary and
natural consequence of the unlawful agreement. There was evidence
from which the jury could reasonably find they were members of the
conspiracy, and their other scams involved similar offenses.
Appellants next contend the district court abused its
discretion by failing to give their proposed agency instruction in
conjunction with its Pinkerton instruction. Although they do not
allege any error in the district court’s Pinkerton instruction,
they contend that our decision in Aramony required the Government
to prove the elements of an agency relationship on top of the
Pinkerton standard instruction. We disagree. The district court
gave the same instruction we upheld in Aramony, and it informed the
jury as to when they could find that a member of a conspiracy was
“acting as an agent of the other members of the conspiracy.” The
district court denied Appellants’ request because the instruction
was either superfluous, or, to the extent that it imposed a
heightened requirement as they argued, it was counter to Pinkerton.
We find no abuse of discretion by the district court.
Next, we consider Moise Tohotcheu’s contention that the
district court erred in calculating his offense level under the
sentencing guidelines. We review his sentence under a deferential
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abuse-of-discretion standard. See Gall v. United States, 128 S.
Ct. 586, 590 (2007). The first step in this review requires us to
ensure that the district court committed no significant procedural
error, such as improperly calculating the guideline range. United
States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008), cert. denied,
128 S. Ct. 2525 (2008). In assessing the district court’s
guideline application, we review its factual findings for clear
error and legal conclusions de novo. United States v. Allen, 446
F.3d 522, 527 (4th Cir. 2006). We then consider the substantive
reasonableness of the sentence, taking into account the totality of
the circumstances. Gall, 128 S. Ct. at 597. We presume a sentence
within a properly calculated guideline range is reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
Mr. Tohotcheu first contends the district court erred in
enhancing his offense level under U.S. Sentencing Guidelines Manual
§ 2B1.1(b) (2006) based on intended loss rather than actual loss in
light of what he claims was a limited role in the conspiracy.
Pursuant to U.S.S.G. § 2B1.1 comment. n.3(A), “loss is the greater
of actual loss or intended loss”; actual loss “means the reasonably
foreseeable pecuniary harm that resulted from the offense”; and
intended loss “means the pecuniary harm that was intended to result
from the offense,” including “intended pecuniary harm that would
have been impossible or unlikely to occur.” A district court “need
only make a reasonable estimate of the loss.” U.S.S.G. § 2B1.1
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comment. n.3(C); United States v. Miller, 316 F.3d 495, 503 (4th
Cir. 2003). “[A] co-conspirator is responsible for the losses that
were intended by the conspiracy and that were reasonably
foreseeable to him.” United States v. Brownell, 495 F.3d 459, 461-
62 (7th Cir. 2007) (citations omitted). We review for clear error
a district court’s factual determination of the amount of loss
intended. Miller, 316 F.3d at 503.
We find no error in the district court’s finding that Mr.
Tohotcheu was responsible for a loss between $1 and $2.5 million.
The district court correctly utilized the losses intended by the
conspiracy, because they were greater than the actual losses. With
respect to the Tellawi scam, the court did not clearly err in
finding the intended loss was $1 million. Mr. Tohotcheu’s co-
conspirator told Tellawi that the minimum required investment was
$1 million, and he responded that he would see what he could do and
needed to return to Washington, D.C. to collect some money.
Mr. Tohotcheu was thus properly held accountable not only
for the $125,000 in actual loss but also the full $1 million in
intended loss. Likewise, he has not shown that the district court
clearly erred in holding him responsible for the remaining losses.
By finding him guilty of the substantive offenses beginning in
April 2004, the jury necessarily found that he was a member of the
conspiracy prior to his individual participation in the Tellawi
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scam. It was not clear error for the district court to attribute
the other losses intended by the conspiracy to him.
Next, Mr. Tohotcheu asserts that the district court erred
in not reducing his offense level under U.S.S.G. § 2X1.1(b)(2).
This reduction applies in the unusual case when the defendant or a
co-conspirator has not completed the acts they believed necessary
on their part for the successful completion of the substantive
offense. In most conspiracy cases, “no reduction of the offense
level is warranted.” U.S.S.G. § 2X1.1 comment. (backg’d); United
States v. Watkins, 477 F.3d 1277, 1280 (11th Cir. 2007). As we
have explained, “there is a distinction between completing a fraud,
on the one hand, and inflicting all the loss that one intended to
inflict by means of that fraud, on the other.” United States v.
Williams, 81 F.3d 1321, 1327 (4th Cir. 1996) (citation omitted).
Here, Mr. Tohotcheu was convicted for the substantive offenses and
he cannot show that he and his co-conspirators failed to complete
acts necessary for the completion of such offenses.
Finally, Mr. Tohotcheu seeks to challenge the district
court’s denial of his motion for downward departure. “‘A district
court’s decision not to depart from the Sentencing Guidelines is
not reviewable unless the court mistakenly believed that it lacked
authority to depart.’” Allen, 491 F.3d at 193 (quoting United
States v. Carr, 271 F.3d 172, 176 (4th Cir. 2001)). Mr. Tohotcheu
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does not contend the district court mistakenly believed it lacked
such authority, and we dismiss this portion of his appeal.
Accordingly, we dismiss in part Moise Tohotcheu’s appeal
(No. 07-4547), and we affirm the district court’s judgments. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
Nos. 07-4546, 07-4548, and 07-4549 AFFIRMED
No. 07-4547 DISMISSED IN PART AND AFFIRMED IN PART
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