United States v. George, Fowobi ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-2996 & 02-4000
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FOWOBI GEORGE and OLA MUSTAPHA,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 589—Rebecca R. Pallmeyer, Judge.
____________
ARGUED FEBRUARY 26, 2004—DECIDED APRIL 14, 2004
____________
Before BAUER, POSNER, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Fowobi George and Ola Mustapha
appeal convictions that were the result of criminal transac-
tions committed between the spring and fall of 2000. All of
the schemes had a common thread: they involved the use of
counterfeit checks to obtain money or goods. George and
Mustapha worked with various other co-conspirators in
their endeavors; we will describe the schemes briefly.
In the first scheme, George worked as a middleman for
Abiola Amin, helping him obtain a counterfeit check. Amin
used the check to purchase computer chips from Neutron,
2 Nos. 02-2996 & 02-4000
Inc. in June or July of 2000, worth about $95,000. Amin
was arrested on July 25, 2000; Mustapha removed the
computer chips from Amin’s apartment before the police
had a chance to find them. Mustapha and George then sold
the chips over the course of the next few weeks and
Mustapha used part of the proceeds to buy a 1998 Lincoln
Navigator.
The second scheme was in operation between May and
August 2000. George and Mustapha recruited third parties
to deposit counterfeit checks that Mustapha supplied into
their bank accounts. Once the checks were deposited, they
were to withdraw the funds in cash and give them to
Mustapha. In return for their help they would receive a
portion of the funds. In all, Mustapha directly or indirectly
recruited four people. George provided Mustapha with two
of the counterfeit checks used in this scheme.
The third scheme was carried out between May and
September 2000; George had another man, Jason Libson,
create numerous counterfeit checks. George provided Libson
with legitimate checks he had received from clients of his
business as models for Libson to copy. In all, Libson made
more than one hundred counterfeit checks for George.
On February 21, 2002, George was found guilty of nine
counts of uttering and possessing counterfeited securities
and two counts of bank fraud. He was sentenced to thirty
months’ imprisonment and was ordered to pay $106,000
in restitution. On February 21, 2002, Mustapha was found
guilty of one count of uttering and possessing a counter-
feited security, four counts of bank fraud, and one count
of money laundering. He was sentenced to thirty-seven
months’ imprisonment and was ordered to pay $93,000
in restitution. Both men appeal their convictions on various
grounds; we affirm the district court’s convictions and
sentencing.
Nos. 02-2996 & 02-4000 3
Discussion
I. George
George argues that his Sixth Amendment rights were
violated when the prosecutor intimidated Amin into plead-
ing the Fifth Amendment instead of testifying as a witness
for George and also challenges the prosecutor’s refusal to
grant Amin use immunity to facilitate his testimony.
A. Intimidation of a Witness
At trial George wanted Amin to testify that he had lied to
the grand jury about George’s involvement in the fraud
schemes; Amin had already told the FBI a similar story a
month earlier. At court, Amin’s attorney advised him that
if he testified for George, “there is a strong chance that the
government could move to revoke the plea agreement” he
had entered into, and a “very real possibility . . . that he
could be charged with perjury or false statement.” (Tr. at
1961-62.) The court confirmed the attorney’s concern that,
by testifying, Amin would place himself in jeopardy. (Tr.
at 1965.) The prosecutor also stated in Amin’s presence,
in court: “We count five possible issues for which . . .
testimony offered now may concern Mr. Amin: Perjury, false
statements, obstruction of justice, . . . the underlying
charges and . . . the revocation or a re-sentencing based on
conduct within the plea agreement.” (Tr. at 1968).
George believes the prosecutor and court acted to intim-
idate Amin to prevent him from testifying. George’s appeal
raises conflicting issues; on the one hand, a defendant has
a Sixth Amendment right to present witnesses for his
defense. Washington v. Texas, 388 U.S. 14, 19 (1967). Such
a right may be violated if governmental interference pre-
vents a witness from testifying. Webb v. Texas, 409 U.S. 95,
98 (1972). However, the defendant’s right is tempered by a
witness’s Fifth Amendment privilege not to provide incrimi-
4 Nos. 02-2996 & 02-4000
nating testimony.1 A witness may validly choose not to
testify if her testimony would be incriminating, or if
it would “furnish a link in the chain of evidence needed
to prosecute the claimant for a federal crime.” Hoffman
v. United States, 341 U.S. 479, 486 (1951). The issue then
is whether the prosecutor’s and court’s warnings were
appropriate to protect Amin’s right to assert his Fifth
Amendment privilege, or whether they were an intimida-
tion tactic employed to interfere with George’s right to call
Amin as a witness.
We believe that the prosecutor’s and court’s actions
were a necessary conveyance of information so as to allow
Amin to make an educated decision regarding his Fifth
Amendment rights. George refers us to a handful of cases
decided over the last forty years by various courts finding
a violation when a witness was threatened by a prosecutor,
or other official, and as a result did not testify. See, e.g.,
Webb, 409 U.S. at 97 (finding a violation when a trial judge
singled out the sole defense witness, assumed he would lie
on the stand and admonished him that if/when he testified
falsely he would be prosecuted for perjury and would lose
his chance for parole), United States v. Smith, 478 F.2d 976,
979 (D.C. Cir. 1973) (finding violation when an Assistant
United States Attorney approached a witness outside of
court and told him that if he testified he would be prose-
cuted as an accessory to murder), United States v.
MacCloskey, 682 F.2d 468, 479 (4th Cir. 1982) (finding a
violation when the prosecutor called the witness’s attorney
the day before the witness was to testify to “remind” him
that the witness could be re-indicted on related charges).
This case is easily distinguishable. In particular, we note
that the discussions in question occurred in court, on the
1
The Fifth Amendment provides, “no person shall be compelled
in any criminal case to be a witness against himself . . . .” U.S.
CONST. amend. V.
Nos. 02-2996 & 02-4000 5
record. The warnings contained accurate information about
the risks he faced by testifying and were initiated by Amin’s
own attorney. United States v. Hooks, 848 F.2d 785, 802
(7th Cir. 1988) (finding no intimidation when witnesses
acted on their own attorney’s advice not to testify). The
court and prosecutor merely corroborated, in a straight-
forward and nonthreatening manner, the information given
by Amin’s attorney. Given the plainly incriminatory nature
of the proposed testimony, it is evident that Amin’s asser-
tion of his Fifth Amendment privilege was well considered.
B. Witness Use Immunity
George argues that the prosecutor should have granted
Amin use immunity to allow him to testify at trial. Use
immunity is a device created by 18 U.S.C. §§ 6002, 6003
that allows a witness to testify and not have that testimony
used against him or her in a criminal case. The prosecutor
is not required to grant use immunity, but may do so when,
“in his judgment . . . the testimony or information from such
individual may be necessary to the public interest.” 18
U.S.C. § 6003(b). The power to grant use immunity is
delegated exclusively to the executive branch of the govern-
ment; federal courts play only a ministerial role in ensuring
the power is properly exercised. United States v. Taylor, 728
F.2d 930, 934 (7th Cir. 1984). We review a prosecutor’s
decision not to grant a witness use immunity for clear abuse
of discretion. United States v. Schweihs, 971 F.2d 1302,
1315 (7th Cir. 1992).
In this case, the government declined to provide Amin use
immunity because it wished to maintain its ability to collect
evidence to use against him in the event he violated the
terms of his plea agreement. This situation clearly falls
under the purview of our decision in United States v. Hooks.
There we held, “[i]t is well within the discretion of a
prosecutor . . . to decline immunity to a witness who could
6 Nos. 02-2996 & 02-4000
be charged for false statement and perjury.” Hooks, 848
F.2d. at 802. And it is the prosecutor’s “prerogative
to decide not to seek immunity simply because the govern-
ment would gain nothing and the immunity would hinder
future actions.” Id. Given Amin’s involvement in the fraud
schemes and his earlier conflicting statements, the pros-
ecutor did not abuse his discretion in not granting use
immunity to Amin.
II. Mustapha
Mustapha raises numerous issues on appeal. We discuss
each separately.
A. Fingerprint Testimony
Mustapha’s first argument is that the expert testimony of
Kim DeCarla Smith, an FBI fingerprint examiner, should
have been excluded. Mustapha argues that the district
court erred when it relied on our recent holding in United
States v. Havvard, 260 F.3d 597 (7th Cir. 2001) to admit the
Smith’s expert testimony. In Havvard we closely examined
fingerprint analysis techniques in light of Daubert and
Federal Rule of Evidence 702 and concluded that such
analysis was admissible. Id. at 599 (listing the district
court’s reasons for allowing fingerprint evidence and
affirming its decision). Federal Rule of Evidence 702 allows
the use of expert testimony, “[i]f scientific . . . knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue” and “(1) the testimony is based
upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to
the facts of the case.” FED. R. EVID. 702. It is the role of the
trial judge to play a “gatekeeping” function to ensure
evidence is relevant and reliable. Daubert v. Merrell Dow
Nos. 02-2996 & 02-4000 7
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). The
Supreme Court’s holding in Daubert also outlines a number
of factors that a trial court should consider in deciding
whether expert testimony is reliable, specifically (1)
whether the theory on which it is based can be tested, (2)
whether the theory or technique has been subject to peer
review, (3) the rate of error of the technique and the
existence of standards to control the technique’s operation,
and (4) whether it is generally accepted. Id. at 593-95. This
is a flexible test, its outcome varies with the circumstances
of each case.
Mustapha urges us to reconsider our holding in Havvard.
We decline to do so, but merely point out areas of analysis
that answer his specific concerns. Mustapha’s concerns are
twofold: first, he does not believe that the fingerprint
analysis technique is able to be effectively tested, and
second, he argues that Havvard incorrectly applied the
Daubert test by relying only on the “general acceptance”
prong. Mustapha supports his arguments with the Eastern
District of Pennsylvania’s short-lived opinion in United
States v. Llera Plaza, 179 F.Supp.2d 492 (E.D. Pa. 2002)
(“Llera Plaza I”) vacated by, United States v. Llera Plaza,
188 F.Supp.2d 549, 566 (E.D. Pa. 2002) (“Llera Plaza II”).
These arguments are easily answered. In Havvard we con-
sidered that fingerprint analysis was generally accepted,
had a low rate of error and could be objectively tested. See
Havvard, 260 F.3d at 599. This was more than sufficient
ground to find it admissible under the Daubert test, and did
not rely solely on one prong as Mustapha asserts. Addi-
tionally, in vacating its first opinion, the Eastern District of
Pennsylvania noted that FBI fingerprint analysis had
methods to control the techniques operation that were not
purely subjective. Llera Plaza II, 188 F.Supp.2d at 571. Of
particular note, and in answer to Mustapha’s complaint
that fingerprint analysis cannot be objectively tested, the
Llera Plaza II court noted that the FBI annually tests its
8 Nos. 02-2996 & 02-4000
fingerprint examiners with sets of prints whose sources are
known to the testers, but unknown to the test-takers. Id. at
555-57. Hence, while an actual print taken in the field
cannot be objectively tested, we are satisfied that the
method in general can be subjected to objective testing to
determine its reliability in application. For these reasons,
we feel comfortable that Havvard correctly decided the
issue of fingerprint analysis admissibility.
As to Mustapha’s second argument, that the prints in his
case were unreliable because they were partial rather than
complete prints, we review the district court’s decision
to admit the testimony for abuse of discretion. We find that
the district court did not abuse its discretion. Having found
fingerprint analysis to be reliable, the issue as to whether
particular prints can be connected to a particular defendant
goes to the weight and credibility of the evidence. These are
issues best left to the finder of fact, not an appellate court.
Deputy v. Lehman Bros., Inc., 345 F.3d 494, 506 (7th Cir.
2003). Further, the issue that Mustapha is concerned
about—the probability that the partial prints might be mis-
attributed to him—was thoroughly covered in the cross-
examination of Smith. (Br. for Defendant-Appellant Ola
Mustapha at 20.) Hence, the jury was functioning with a
proper warning regarding the value of the fingerprint
evidence. The district court did not abuse its discretion in
allowing Smith to testify.
B. Batson Challenge
Mustapha also appeals the prosecutor’s decision to strike
an African-American juror, Mark Conner, from the venire
panel. A prosecutor is forbidden to strike a juror from the
panel solely based on the juror’s race. Batson v. Kentucky,
476 U.S. 79, 89 (1986). A prosecutor’s motives in striking
potential jurors is a question of fact. Because these are
determinations of credibility, and because “the trial judge
Nos. 02-2996 & 02-4000 9
is in the best position to evaluate the demeanor of the at-
torney exercising the challenge,” we review such appeals for
clear error on the part of the district court. United States v.
Jones, 224 F.3d 621, 624 (7th Cir. 2000).
Not every strike of a racial minority from a jury venire is
a violation of Batson. Id. There are three steps in handling
Batson challenges. First, the appellant must make out a
prima facie case that the strike was made on the basis of
the juror’s race; second, the party exercising the strike must
offer a race-neutral reason for doing so; third, the trial court
must decide whether the proffered reason is pretextual.
Tinner v. United Ins. Co. of Am., 308 F.3d 698, 703 (7th Cir.
2002). At all times during this analysis the burden of
persuasion rests with the opponent of the strike. Jones, 224
F.3d at 624. Let us turn to the facts in this case with all
this in mind.
During jury selection the prosecution struck one African-
American juror and allowed one to sit on the jury.
Mustapha raised his Batson challenge and the district court
asked for the prosecution’s reason for striking Conner.
Prosecution stated two reasons for striking the juror, first,
Conner had previously served on a jury that acquitted a
defendant, and second, Conner stated that he had been
pickpocketed once by a friend. The government’s attorney
believed these two factors made Conner more likely to
sympathize with the defendant; the district court found
these reasons were not pretextual.
We find the district court did not commit error. We note
that, in showing it did not strike a juror due to his race, the
government’s proffered reason for the strike need not be
particularly persuasive, or even based on quantifiable data,
so long as it is not pretextual. United States v. Jordan, 223
F.3d 676, 687 (7th Cir. 2000). In this case the government
could properly rely on Conner’s statement that he had been
pickpocketed by someone he knew as a reason to strike him.
10 Nos. 02-2996 & 02-4000
The government explained that the case was about a
criminal conspiracy where the participants were all either
friends or acquaintances of one another; at times Mustapha
was betrayed by other members of the conspiracy. The
prosecution felt that the juror’s experience may have caused
him to sympathize with Mustapha. We find this a reason-
able explanation.
C. Insufficient Evidence
Mustapha’s third argument is that the prosecution
did not present sufficient evidence to convict him on the
charges of money laundering, bank fraud and uttering a
counterfeit check. In considering whether there was suffi-
cient evidence to find Mustapha guilty beyond a reasonable
doubt, we view the evidence in the light most favorable to
the government and will only reverse if no rational trier of
fact could have found Mustapha guilty beyond a reasonable
doubt for each element of the offense. United States v. Sax,
39 F.3d 1380, 1385 (7th Cir. 1994).
Mustapha was charged and convicted of money launder-
ing in violation of 18 U.S.C. § 1957.2 This charge was in
connection with his sale of the computer chips in the first
scheme, and subsequent use of the profits to make a down
payment of $15,000 for the purchase of a 1998 Lincoln
Navigator. In support of this charge, the government
presented the testimony of five witnesses detailing
Mustapha’s actions with regard to the sale of the computer
2
18 U.S.C. § 1957 states in relevant part:
(a) Whoever . . . knowingly engages . . . in a monetary
transaction in criminally derived property of a value greater
than $10,000 and is derived from specified unlawful activity,
shall be punished as provided in subsection (b).
Nos. 02-2996 & 02-4000 11
chips, physical evidence in the form of boxes and trays in
which the computer chips were shipped with Mustapha’s
fingerprints, and telephone records showing calls made by
Mustapha and other conspirators. The documentation for
the sale of the Navigator was also admitted into evidence;
it showed on one side that Mustapha had paid $9,000, and
on the reverse side it had notations signifying Mustapha
had also paid $6,000. The government presented testimony
to the effect that Mustapha knew he could not withdraw
more than $10,000 from the bank at a time without trig-
gering a currency transaction investigation (providing a
logical explanation for the two-part transaction). A co-
worker also testified that Mustapha told him he made a
$15,000 down payment on the vehicle. Mustapha argues the
witnesses were biased and not credible. We note that the
credibility of witnesses is a function for the finder of fact.
Viewing the evidence in the light most favorable to the
government, it takes little imagination to see how a rational
finder of fact could have found Mustapha guilty beyond a
reasonable doubt of the money laundering charge.
Mustapha was also charged with and convicted of bank
fraud, and uttering and possessing a counterfeit check in
violation of 18 U.S.C. §§ 513(a)3, and 1344.4 These charges
3
18 U.S.C. § 513(a) states in relevant part:
(a) Whoever makes, utters or possesses a counterfeited
security of a State or a political subdivision thereof or of an
organization . . . with intent to deceive another person, org-
anization, or government shall be fined under this title or
imprisoned for not more than ten years, or both.
4
18 U.S.C. § 1344 provides in relevant part:
Whoever knowingly executes, or attempts to execute, a
scheme or artifice . . . to obtain any of the moneys, funds,
credits, assets, securities, or other property owned by or
under the custody or control of, a financial institution, by
means of false or fraudulent pretenses, representations or
(continued...)
12 Nos. 02-2996 & 02-4000
were in connection with the second scheme, where
Mustapha solicited individuals to deposit forged checks into
their bank accounts and withdraw the proceeds for him. In
support of these charges the government presented the
testimony of the four individuals involved (who explained
the details of the transactions), other conspirators in the
scheme (Libson and Alawode), and telephone records of
calls between Mustapha and George during the relevant
time period. Again, Mustapha challenges the credibility of
the witnesses. Again, we note that credibility is an issue
reserved for the finder of fact; a rational finder of fact
viewing this evidence in the light most favorable to the
government could have found Mustapha guilty beyond a
reasonable doubt.
D. Denial of Motion to Dismiss
Fourth, Mustapha argues that the district court erred
when it declined his motion to dismiss Count 8, the money
laundering charge. Mustapha believed the government
failed to allege that his transaction regarding his purchase
of the Lincoln Navigator involved at least $10,000. We
review the district court’s refusal to dismiss the indictment
de novo. United States v. Yoon, 128 F.3d 515, 521 (7th Cir.
1997). We find that the indictment in this case, while brief,
was sufficient in stating the charged offense. See Record at
86 (copy of the indictment).
E. Sentencing
Fifth, and last, Mustapha argues that the district court
erred in determining his sentence for two reasons. First,
(...continued)
promises . . . shall be fined not more than $1,000,000 or
imprisoned not more than 30 years, or both.
Nos. 02-2996 & 02-4000 13
Mustapha argues that the court erroneously found that he
was a “manager or supervisor of a criminal activity that
involved five or more participants,” and accordingly erred
in increasing his offense level by three levels. Second, he
argues that the court should not have awarded him two
criminal history points for having committed the offense
while on probation. We review the district court’s determi-
nation of these facts for clear error. United States v. Gracia,
272 F.3d 866, 876 (7th Cir. 2001) (considering sentencing
increase under U.S.S.G. § 3B1.1), United States v. Brown,
209 F.3d 1020, 1023 (7th Cir. 2000) (considering criminal
history points).
Section 3B1.1 of the federal Sentencing Guidelines
is designed to increase the sentence of a defendant who
exercises increased responsibility in a criminal organiza-
tion. Specifically, the increase occurs when a defendant was
a “manager” or “supervisor” of a criminal activity that in-
volved five or more participants. It is not disputed that
the conspiracy involved five or more members; rather,
Mustapha argues that he was not a manager or supervisor.
Application Note 4 to U.S.S.G. § 3B1.1 is instructive on
making such determinations; it lists factors the court
should consider, including: “the exercise of decision making
authority, the nature of participation in the commission of
the offense, the recruitment of accomplices, the claimed
right to a larger share of the fruits of the crime, the degree
of participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree of
control and authority exercised over others.” Additionally,
under U.S.S.G. § 3B1.1, the role of “manager or supervisor”
is distinguished from “organizer or leader,” which is subject
to harsher punishment.
Testimony at trial revealed that Mustapha acted as
a recruiter for the bank fraud scheme, that he gave in-
structions to the third parties on how they should proceed,
and that he provided the counterfeit checks. This was a
sufficient basis for the upward adjustment.
14 Nos. 02-2996 & 02-4000
In calculating his sentence, the district court awarded
Mustapha two criminal history points for committing a
portion of the crime on May18, 2000 while he was serving
a 24-month probation sentence, pursuant to U.S.S.G.
§ 4A1.1(d). Mustapha disputes that his probation ended
on June 29, 2000 (the date the order terminating the pro-
bation was entered)—he believes it ended on May 15, 2000
(the date the order terminating probation was signed). We
note that the probation sentence began on June 30, 1998
and had a duration of 24 months; relying on basic arithme-
tic and a calendar, we find the district court did not commit
clear error in finding the May 18, 2000 transaction was
committed while Mustapha was under probation.
The convictions and sentences appealed from are
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-14-04