United States v. Ajaegbu ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-10024
Summary Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PETER AJAEGBU
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:96-CV-637-R)
_________________________________________________________________
March 2, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Peter Ajaegbu appeals the district court’s denial of his
motion to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255.1 We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Also pending before the court is an appeal from the
district court’s denial of Ajaegbu’s motion for the return of
personal items seized by the government. United States v.
Ajaegbu, No. 97-10024. Although the court initially consolidated
the two appeals on motion by the government, the court has
concluded that they should proceed separately and is entering an
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 30, 1993, a jury convicted Peter Ajaegbu of
conspiring to import heroin into the United States in violation
of 21 U.S.C. §§ 960 and 963. Ajaegbu, Cosmas Ekwunife, and
Javier Contreras recruited young white females to transport
heroin into the United States based on a belief that Customs
officials would be less likely to suspect them of smuggling. The
three defendants helped the female couriers to obtain passports
to travel abroad and furnished them with money, airplane tickets,
and instructions that resulted in the importation of heroin into
the United States. The evidence indicated that the females
entered the United States through several different entry points,
carrying heroin that originated from different sources, and that
not all of the defendants were personally involved in each
instance of importation. The indictment alleged, and the jury
convicted the defendants of, one overarching conspiracy.
The district court imposed a sentence of 262 months of
imprisonment and five-years of supervised release. Ajaegbu
appealed to this court, and we affirmed the conviction and
sentence. See United States v. Ajaegbu, No. 93-01929 (5th Cir.
Jan. 13 1995) (unpublished).
order deconsolidating the two appeals. The appeal dealing with
the return of personal items is being addressed in a separate
opinion.
2
Ajaegbu subsequently filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. In that motion,
Ajaegbu contended that (1) his trial and appellate attorneys had
provided ineffective assistance, (2) the venire panel did not
represent a fair cross section of the community, (3) insufficient
evidence existed to support the conspiracy conviction, (4) the
district court made two erroneous evidentiary rulings, (5) the
Government failed to disclose material and exculpatory evidence,
(6) the prosecutor made an improper argument to the jury, and (7)
the district court erred during sentencing.
In recommending that Ajaegbu’s § 2255 motion be denied, the
magistrate judge rejected each alleged instance of ineffective
assistance of both trial and appellate counsel and determined
that the evidence was sufficient and that the prosecutor had not
made an improper jury argument. Of the remaining issues in
Ajaegbu’s § 2255 motion, the magistrate judge determined that
either this court had ruled on them in Ajaegbu’s direct appeal or
Ajaegbu had not shown cause for his failure to raise the issues
on direct appeal. After independent review of the record, the
district court adopted the magistrate’s recommendation and
entered judgment denying Ajaegbu’s § 2255 motion.
II. DISCUSSION
Ajaegbu contends that his trial attorney was ineffective for
failing to interview three witnesses or call them to testify and
3
for failing to investigate and obtain evidence to impeach three
government witnesses. Ajaegbu asserts that his appellate counsel
was ineffective on direct appeal for failing to argue that a
variance existed between the proof at trial and the indictment,
failing to allege prosecutorial misconduct, and failing to
challenge two sentencing decisions.
Relief under § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice. United
States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). In
reviewing a district court’s denial of a § 2255 motion, we
examine findings of fact for clear error and questions of law de
novo. United States v. Faubion, 19 F.3d 226, 228 (5th Cir.
1994). Whether counsel provided ineffective assistance is a
mixed question that we review de novo. Id.To prevail on his claim of ineffective assistance of
counsel, Ajaegbu must show that (1) his counsel’s performance was
deficient and (2) the deficient performance prejudiced his
defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 678
(1984)). Performance is deficient only if counsel’s conduct is
so egregious that the assistance rendered is below the standard
guaranteed by the Sixth Amendment. Id. To satisfy the prejudice
prong, Ajaegbu must demonstrate that counsel’s errors rendered
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“the result of the trial unreliable or the proceeding
fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372
(1993); see also Faubion, 19 F.3d at 228. Ajaegbu must satisfy
both prongs to prevail. A failure to establish either deficient
performance or prejudice defeats the claim. Strickland, 466 U.S.
at 697. The Strickland standard applies to claims of ineffective
assistance by both trial and appellate counsel. United States v.
Merida, 985 F.2d 198, 202 (5th Cir. 1993).
A. Ineffective Assistance of Trial Counsel
Ajaegbu asserts that his trial attorney provided ineffective
assistance by failing to sufficiently investigate his case and by
failing to present the mitigating evidence of potential witnesses
at trial. On post-conviction review, this court is reluctant to
find ineffective assistance based on complaints regarding
uncalled witnesses. Alexander v. McCotter, 775 F.2d 595, 602
(5th Cir. 1985). Whether or not to present a particular
witness’s testimony “is essentially strategy and thus within the
trial counsel’s domain, and . . . speculations as to what [the
witness] would have testified is too uncertain.” Id.Government agents found Ajaegbu’s airline ticket in the same
compartment of a garment bag as heroin connected with the
conspiracy. Ajaegbu contends that his attorney did not interview
or call to testify three witnesses -- Howard Leader, Thomas
Cascione, and Chukwudi Okolie -- who he alleges would have
5
testified that the heroin seized from the garment bag in a New
York apartment did not belong to him, thereby proving his
innocence.
To support his claim, Ajaegbu submitted affidavits from
Leader and Cascione, both New York attorneys, in which each
stated that Okolie admitted ownership of the heroin. Neither
attorney states in his affidavit that he would testify at trial.
Moreover, had they agreed to testify, any testimony regarding
statements made by Okolie would constitute inadmissible hearsay.
Ajaegbu also claims that Okolie would testify as to ownership of
the heroin. However, he offers no affidavit from Okolie, nor any
other evidence that Okolie would have testified or the substance
of that testimony had he been willing to do so.
Even assuming the witnesses would have testified as Ajaegbu
alleges, Ajaegbu cannot show prejudice because he has not
demonstrated the existence of a reasonable probability that the
result of the trial would not have been different had the three
witnesses testified. A tremendous amount of evidence existed to
justify the jury’s determination of his involvement in the
conspiracy. Sandra Hildebrandt testified that she was recruited
to smuggle heroin from Switzerland into the United States and
that Peter Ajaegbu was present at the meeting at which the
details were discussed. Ajaegbu either purchased Hildebrandt’s
airline ticket or called in the order to the travel agency.
Ajaegbu gave Hildebrandt the telephone number of the contact
6
person in Switzerland and instructions on picking up the heroin
upon her arrival. After Hildebrandt successfully smuggled the
heroin into the United States, Ajaegbu arrived at Hildebrandt’s
hotel, retrieved the suitcase containing the heroin, and paid
her. Another courier, James Gleason, testified that Ajaegbu
personally recruited him to smuggle heroin from Bangkok into the
United States. Because potential testimony from Leader, Cascione
and Okolie that the heroin seized in New York did not belong to
Ajaegbu would not have contradicted the evidence connecting
Ajaegbu to the conspiracy, no reasonable probability exists that
the outcome would have been different. Because Ajaegbu cannot
show prejudice, his claim of ineffective assistance of trial
counsel must fail.
B. Ineffective Assistance of Appellate Counsel
Ajaegbu charges that his appellate attorney provided
ineffective assistance by failing to argue on direct appeal (1)
that a variance existed between the single conspiracy charged in
the indictment and the multiple conspiracies proved by evidence
presented at trial, (2) that the court erroneously made an upward
adjustment to his sentence for his being a leader or organizer in
the conspiracy, (3) that the district court improperly enhanced
his sentence for obstruction of justice, and (4) that the
prosecutor engaged in misconduct during closing arguments.
1. Variance from the Indictment
7
Ajaegbu contends that appellate counsel should have argued
that the government’s evidence proved multiple conspiracies with
each conspiracy involving different participants and goals.
Ajaegbu also argues that the trial court did not give the jury
instructions regarding multiple conspiracies.
When the government proves one conspiracy, evidence of other
conspiracies does not necessarily create a material variance.
United States v. Valdez, 861 F.2d 427, 432 (5th Cir. 1988). On
direct appeal, Ajaegbu presented his challenge to the evidence of
multiple conspiracies in the form of a challenge to the
sufficiency of evidence to support a conviction for the charged
conspiracy. In response, this court held that the government
produced sufficient evidence to support the jury’s finding of a
single conspiracy. Ajaegbu, No. 93-01929. Ajaegbu’s challenge
to the competence of his appellate counsel in this respect is
meritless.
Ajaegbu raises the challenge to the jury instruction for the
first time in this appeal. It is, however, meritless as the jury
was correctly charged on its responsibility to determine whether
a single conspiracy or multiple conspiracies existed.
2. Role in the Offense Adjustment
Ajaegbu contends that his appellate counsel provided
ineffective assistance for failing to argue that the district
court erred in granting an upward adjustment based on Ajaegbu’s
8
role in the offense. Because a claim that the district court
erred in adjusting Ajaegbu’s sentence upward based on his role in
the offense lacks merit, Ajaegbu cannot demonstrate that his
appellate counsel rendered deficient performance in failing to
make such a claim. Smith v. Puckett, 907 F.2d 581, 585 n.6 (5th
Cir. 1990) (“Counsel is not deficient for, and prejudice does not
issue from, failure to raise a legally meritless claim.”).
The Sentencing Guidelines authorizes a three-level increase
in Ajaegbu’s offense level if he was a manager or supervisor of
the charged criminal activity and the criminal activity involved
five or more people or was otherwise extensive. U.S. SENTENCING
GUIDELINES MANUAL § 3B1.1(b). Ajaegbu participated in the activity
in which Hildebrandt smuggled heroin from Switzerland and
instructed Gleason and Johnny Moore as to the Bangkok trip. The
conspiracy involved at least five persons, including the three
defendants, Ajaegbu, Ekwunife, and Contreras, and others
including Hildebrandt, Gleason, and Moore. Thus, any challenge
by Ajaegbu’s appellate counsel to the court’s upward adjustment
in Ajaegbu’s offense level based on his role in the offense would
have lacked merit.
3. Obstruction of Justice Adjustment
Ajaegbu contends that his appellate counsel’s failure to
argue on appeal that the district court neglected to make the
fact-findings regarding which portions of Ajaegbu’s testimony the
9
court believed to be lies and the materiality of those lies
necessary to support the court’s imposition of a two-level
increase in his offense level for obstruction of justice
constituted ineffective assistance. This claim lacks merit
because Ajaegbu has not demonstrated that his appellate counsel’s
failure to raise this issue on appeal rendered his performance
unconstitutionally deficient.
In determining whether a claimant has satisfied the
deficiency prong of Strickland’s ineffective assistance inquiry,
we “must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. “Our scrutiny of
counsel’s performance must be ‘highly deferential,’ and we must
make every effort ‘to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.’” Motley v. Collins, 18 F.3d 1223, 1226
(5th Cir. 1994) (quoting Strickland, 466 U.S. at 689).
Ajaegbu correctly points out that the district court failed
to make the requisite fact-findings regarding the specific
statements that the district court believed to be lies and the
materiality of these statements. See United States v. Cabral-
Castillo, 35 F.3d 182, 187 (5th Cir. 1994). However, Ajaegbu’s
trial counsel did not object to the district court’s lack of
10
specific fact-findings regarding these matters; rather, she made
only a general objection that Ajaegbu merely told his version of
the story at trial and should not be penalized on that basis.2
Ajaegbu’s appellate counsel therefore could have reasonably
believed that a claim based on the district court’s inadequate
fact-findings regarding Ajaegbu’s obstruction of justice was not
properly preserved for appeal. See FED. R. CRIM. P. 51 (providing
that, “at the time the ruling or order of the court is made or
sought,” the party must “make[] known to the court . . . that
party’s objection to the action of the court and the grounds
therefor” (emphasis added)); 3A CHARLES ALAN WRIGHT, FEDERAL PRACTICE
AND PROCEDURE § 843 (2d ed. 1982) (“[I]f a specific objection on
one ground is overruled, the party cannot raise some other ground
2
Ajaegbu made the following written objection to the
addendum to the PSR that added the sentence enhancement for
obstruction of justice:
Mr. Ajaegbu objects to the two level increase for
obstruction of justice. At trial, Mr. Ajaegbu told his
version of what happened. The fact that his testimony
differed from the government’s witnesses [sic]
testimony and the jury chose to believe the governments
[sic] witness does not mean Mr. Ajaegbu committed
perjury when he testified.
To assess a two level increase, which results in
an increase of approximately five years incarceration
in the Federal Bureau of Prisons, would not be
justified under the circumstances. Mr. Ajaegbu merely
exercised his constitutional right to testify on his
own behalf.
Ajaegbu’s trial counsel reiterated this objection before the
district judge at the sentencing hearing.
11
for the objection on appeal.”).
If Ajaegbu’s trial counsel failed to adequately preserve his
claim regarding the inadequacy of the district court’s fact-
findings to support the sentence adjustment for obstruction of
justice, then the claim would have been subject to plain error
review on appeal. See United States v. Ravitch, 128 F.3d 865,
869 (5th Cir. 1997). Plain error review of the district court’s
sentencing determination is quite narrow: “‘[i]f the case were
remanded [and] the trial judge could reinstate the same
sentence,’ we have upheld the defendant's sentence although the
district court’s stated reasons for departing evidence a mistaken
application of the Sentencing Guidelines.” Id. (first set of
brackets in original) (quoting United States v. Brunson, 915 F.2d
942, 944 (5th Cir. 1990)). Because the district court concluded
that Ajaegbu had obstructed justice, it calculated his sentence
based on an offense level of 39, which indicated that the
applicable sentencing range was 262 to 327 months. See U.S.
SENTENCING GUIDELINES MANUAL ch. 5, pt. A tbl. Had the district court
not applied the obstruction of justice adjustment, Ajaegbu’s
offense level would have been 37, with an accompanying sentencing
range of 210 to 262 month. See id. The court imposed a sentence
of 262 months. Thus, under a plain error standard of review, we
would have upheld Ajaegbu’s sentence on direct appeal even if we
concluded that the district court erred in imposing the
12
obstruction of justice enhancement because the district court
could have imposed the same sentence in the absence of the
enhancement. Because Ajaegbu’s appellate counsel could have
reasonably believed that a claim relating to the inadequacy of
the district court’s fact-findings in support of its imposition
of the obstruction of justice adjustment was meritless,3
appellate counsel’s failure to raise such a claim on appeal did
not render his assistance unconstitutionally deficient. This
portion of Ajaegbu’s ineffective assistance of counsel claim
therefore fails.
4. Prosecutorial Misconduct
Ajaegbu asserts that his appellate counsel rendered
3
In reaching this conclusion, we are cognizant of the fact
that Ajaegbu’s codefendant, Javier Contreras, made the same
objection as Ajaegbu to the district court’s adjustment of his
offense level for obstruction of justice and that a panel of this
court ordered the district court to resentence Contreras in light
of the fact that it had not made the fact-findings necessary to
support an upward adjustment for obstruction of justice. In so
doing, the panel provided no indication that it reviewed
Contreras’s claim regarding the adequacy of the district court’s
fact-findings only for plain error, thereby implicitly indicating
that it found the claim adequately preserved for appeal.
However, the fact that a panel of this court ultimately reached
the conclusion that the objection at issue here was adequate to
preserve a claim relating to the adequacy of the district court’s
fact-findings regarding obstruction of justice is not dispositive
of our determination of whether Ajaegbu’s appellate counsel acted
in a professionally reasonable manner in concluding prior to the
panel decision on direct appeal that such a claim was not
properly preserved for appellate review. Were we to conclude
otherwise, we would violate Strickland’s admonition that, in
determining whether counsel’s performance was deficient, we must
make “every effort . . . to eliminate the distorting effects of
hindsight.” Strickland, 466 U.S. at 689.
13
ineffective assistance because he failed to raise a claim of
prosecutorial misconduct during closing arguments.
“Prosecutorial misconduct implicates due process concerns.” Foy
v. Donnelly, 959 F.2d 1307, 1316 (5th Cir. 1992). However,
“[a]bsent a violation . . . of a specific guarantee of the
Constitution, habeas corpus relief will not be granted unless the
prosecution’s conduct renders the trial fundamentally unfair so
as to deny a defendant due process of the Fourteenth Amendment.”
Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). “A trial
is fundamentally unfair if there is reasonable probability that
the verdict might have been different had the trial been properly
conducted.” Foy, 959 F.2d at 1317 (internal quotation marks and
citation omitted).
Before the judgment warrants reversal, the prosecutorial
remarks “must be more than undesirable or condemnable; they must
be so pronounced and persistent as to cast serious doubts on the
verdict,” United States v. Rodriguez, 43 F.3d 117, 124 (5th Cir.
1995), and must have been a “crucial, critical, highly
significant factor in the jury’s determination of guilt,” Ortega
v. McCotter, 808 F.2d 406, 410 (5th Cir. 1987). The reviewing
court analyzes the prosecutor’s remarks, “not in isolation, but
in context of . . . the trial as a whole.” Estelle, 631 F.2d at
1233.
Ajaegbu, who is Nigerian, cites the following statements
14
made by the prosecutor as appealing to the racial prejudices of
the jury:
No, ladies and gentlemen, the parties involved starting
with Samson Okapala up here and coming up here and
coming on down to Cosmas Ekwunife and Peter Ajaegbu
here in Dallas, whose function is to recruit girls, and
just like Johnny Earl Moore, can you find me some
people to—some white people to be introduced to, just
like Johnny Earl Moore, they contacted the Defendant
Javier Contreras.
The prosecutor’s remarks during closing arguments amounted to a
summary of the government’s evidence as to the means by which the
conspiracy operated. Peter Amakwe testified that members of the
conspiracy told him that they “currently used white people to go
overseas,” rather than “the old way of swallowing the heroin.”
The prosecutor’s solitary reference to “white people” did not
constitute pronounced, persistent misconduct, if it constituted
misconduct at all under the circumstances. Moreover, considering
the remark in the context of the entire trial and the evidence of
Ajaegbu’s guilt, there is little likelihood that the remark was a
“crucial, critical, highly significant factor in the jury’s
determination of guilt.” Ortega, 808 F.2d at 410-11. Ajaegbu’s
counsel was not ineffective for failing to raise this issue on
appeal because it is meritless.
Ajaegbu also argues that the prosecutor vouched for the
government’s witnesses when he made the following comments during
closing arguments:
The Defense would have you believe that this—that
15
Sandra is the girlfriend of Samson Okapala. . . .
Remember her demeanor on the stand. Was there any
guile in her voice? Was there any intent to deceive?
. . . She told you what she knew. And she told you who
she dealt with and when she dealt with them. . . .
Counsel would have you believe that . . . the
government must have lied to you. One grand conspiracy
by the government to indict and prosecute these
Defendants. . . .
There’s an old saying, when the law is in your
favor argue the facts. When the facts are against you,
argue the law. And when both are against you, attack
the government. And that’s what’s happened here. . . .
If it had been conspired, agreed, trying to
develop a case, fabricate a case against these persons,
people like James Gleason would have told you that, oh,
I saw not only Peter but I saw Cosmos [sic] as well . .
.
A prosecutor must not vouch for a witness’s credibility
because it implies that the prosecutor has additional personal
knowledge about the witness or circumstances garnered through
extrajudicial investigation. United States v. Carter, 953 F.2d
1449, 1460 (5th Cir. 1992). By nature of the prosecutor’s
official position, the prosecutor’s perceived stamp of approval
to the witness’s testimony may influence the jury’s decision.
Id.However, the government may present a bolstering argument
“in rebuttal to assertions made by the defense counsel in order
to remove any stigma cast” upon a witness. United States v.
Washington, 44 F.3d 1271, 1278 (5th Cir. 1995). If the remarks
did amount to bolstering, they would not have been improper
because they were made during rebuttal.
The prosecutor made these remarks in response to the defense
16
counsel’s questioning the credibility of the government’s
witnesses, in particular Sandra Hildebrandt. Ajaegbu’s counsel
had argued that Hildebrandt smuggled the heroin for Samson
Okapala and not for Ajaegbu and that she covered for Okapala when
she testified at trial. Ajaegbu’s counsel had further argued
that Hildebrandt fabricated a story to cover for Okapala. Viewed
in its entirety, the comments by the prosecutor, to rebut
assertions made by the defense, were not improper. Therefore,
Ajaegbu’s appellate counsel did not perform in a deficient manner
in failing to raise the issue on appeal.
Ajaegbu’s claim of ineffective assistance of appellate
counsel fails.
C. Evidentiary Hearing
Ajaegbu argues that the district court abused its discretion
in failing to hold an evidentiary hearing on his § 2255 motion
because factual issues are in dispute. A district court may deny
a § 2255 motion without a hearing “only if the motion, files, and
records of the case conclusively show that the prisoner is
entitled to no relief.” United States v. Bartholomew, 974 F.2d
39, 41 (5th Cir. 1992). As the above discussion demonstrates,
the district court did not need to hold an evidentiary hearing to
resolve Ajaegbu’s claims. Accordingly, the district court did
not abuse its discretion in failing to hold an evidentiary
hearing.
17
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court denying Ajaegbu’s § 2255 motion.
18