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Date: 09-20-2021
Case Style:
United States of America v. Chimene Hamilton Onyeri
Case Number: 18-50869
Judge: Edith Brown Clement
Court: United States Court of Appeals
for the Fifth Circuit
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
New Orleans, LA - Criminal defense lawyer represented defendant for conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”) charge.
Onyeri’s criminal activities involved a multitude of misdeeds that
spanned almost half a decade. Pertinent to this appeal is his criminal
misconduct from late 2011 to 2015, the years during which Onyeri gathered
and led his associates to engage in racketeering activity, which he cavalierly
nicknamed the “Chimene, Incorporation.” Because of the nature of
Onyeri’s challenges on appeal, a summary of some of the evidence adduced
at his trial aids our discussion.
Onyeri recruited his friend Bernard Akwar to assist him in stealing
credit card numbers through the use of a skimmer. As they perfected their
craft, Onyeri also brought Henry Yehe into the enterprise, and Yehe would
steal gift cards from the various stores they visited. Next, the conspirators
would emboss the stolen credit card numbers onto the stolen gift cards and
then encode the gift cards with the same credit card information. They
converted these gift cards into cash by using them to purchase electronics
and then selling the electronics for cash, or by using them to buy legitimate
gift cards. Onyeri also engaged a bank employee to open a bank account for
them using stolen identities. The conspirators placed some of their proceeds
into that account.
Emboldened by their successes, Onyeri and Akwar also stole
identities—“[n]ames, socials, and dates of birth”—to fabricate tax returns.
They connected with Sherica Price, who would file the fraudulent returns for
them. And, in the course of this scheme, they sought the assistance ofseveral
mailmen, bribing them into intercepting tax-refund checks on their behalves.
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During the same period, Onyeri expanded this enterprise to include
debit card fraud as well. He and Akwar researched “bezels,” devices that
would capture a debit card’s information while it was used at an ATM, and
they had one made to further their scheme. They also engaged Rasul Scott
and Marcellus Burgin to assist them. The combination of these activities
proved lucrative for Onyeri and his associates, resulting in ATM withdrawals
of $20,000 and $40,000 at a time. But Onyeri’s and Akwar’s luck was not
limitless: they were arrested and charged in Texas state court forsome of this
fraudulent misconduct in 2012. When they were apprehended, Onyeri was
out on bond for other charges, including violent crimes. And, prior to facing
those charges, Onyeri had been incarcerated for three years. As a result,
Onyeri was not released on bond again and remained in custody for one
year—but he attempted to continue to lead his criminal enterprise, even from
prison.
It was at this point that the Honorable Julie H. Kocurek, a Texas state
judge for the 390th District Court in Austin, was assigned to Onyeri’s case.
Little did Onyeri know, this was the beginning of the end for him. Onyeri
ultimately pled guilty to the charges stemming from his and Akwar’s 2012
arrest, and Judge Kocurek placed him on a three-year deferred adjudication
probation, under which—“[p]rovided [he] obey[ed his] condition of
probation and . . . successfully complete[d] probation”—he would not face
conviction for these charges.
Only two and a half years later, however, the government filed a
motion to proceed with an adjudication of guilt, following allegations that
Onyeri had engaged in the fraudulent use of debit cards in Calcasieu Parish,
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Louisiana.
1
Judge Kocurek later testified at Onyeri’s trial that she insisted
the District Attorney’s Office move quickly with Onyeri’s case and reset the
case for hearing on November 8, 2015. She further testified that she
suggested Onyeri may face six to seven years in prison.
Onyeri acted quickly after this, fearing that he was going to be sent to
prison. On November 6, 2015, two days before the scheduled hearing, Onyeri
struck. Before Judge Kocurek and her family returned home that Friday
night, he placed a trash bag in front of her driveway to create a diversion.
When the vehicle stopped outside the house’s gate so that Judge Kocurek’s
son could move the bag, Onyeri made his move, shooting Judge Kocurek
through the passenger side window of her car. Although he seriously injured
Judge Kocurek, he “missed,” and she survived.
Despite his failed attempt to assassinate the Judge, Onyeri bragged
about his role in her shooting. This led the authorities to suspect he was
responsible, as an informant relayed this information.
2 A computerized
check also revealed a pending warrant for Onyeri’s arrest. At this point, the
officers tried a Houston address where they believed Onyeri may be located.
Finding it to be a “bad address,” they turned next to Onyeri’s father’s house.
An interview at his father’s house alerted the authorities that Onyeri
was likely travelling in a silver Dodge Charger with black rims, and shortly
thereafter, a task force member identified the vehicle in the neighborhood,
headed toward Onyeri’s father’s house. Officer Derek Uresti testified at trial
that the officers followed the vehicle through the neighborhood, ultimately
1 This was technically the government’s second motion to proceed with an
adjudication of guilt. The first had been withdrawn.
2 On November 7, the authorities received an anonymous tip that Onyeri was
responsible for shooting Judge Kocurek, but, at the time, they concluded the tip was
unfounded. The second tip came shortly thereafter, on November 9.
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initiating a traffic stop when the Charger made an errant right-hand turn.
The officers apprehended Onyeri when they called the passengers out of the
vehicle. Among other evidence, they recovered a “smashed” Samsung
Galaxy cell phone from the rear floorboard of the vehicle.
Not long thereafter, Onyeri was charged in a seventeen-count
indictment for RICO violations, including one count for conspiracy to
commit RICO violations. The racketeering acts charged were: (1) mail fraud,
(2) bribery of a public official, (3) wire fraud, (4) identity theft, (5) access
device fraud, (6) conspiracy to commit money laundering, (7) money
laundering, and (8) attempted murder. After a jury trial lasting twenty days,
the jury found Onyeri guilty on all counts.
3
Onyeri timely appealed.
Following his conviction, Onyeri’s father died. Because his father had
been a teacher, Onyeri was to receive benefits from the Teacher Retirement
System of Texas (“TRST”). Included in the district court’s judgment,
however, was an order to pay restitution, and the government sought to
collect the restitution through a writ of garnishment that attached to Onyeri’s
monthly annuity payments. Onyeri objected to the garnishment, but the
district court ordered that the TRST pay Onyeri’s benefits toward his
restitution obligation.
On appeal, Onyeri argues that the district court erred by admitting
evidence obtained from the traffic stop because it was not supported by
probable cause or reasonable suspicion. He further contends that there was
not sufficient evidence to support his RICO conspiracy conviction and that
the district court erred by denying his motion for a judgment of acquittal.
3 Also among the seventeen counts in the indictment were six counts of tampering
with a witness, in violation of 18 U.S.C. § 1512. For example, a law enforcement officer
testified at trial that Onyeri attempted to “direct Marcellus Burgin and Rasul Scott to not
talk to any of [the] authorities.”
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Finally, he challenges the district court’s order to garnish the monthly
annuity payments he receives, contending they are exempt from garnishment
under 15 U.S.C. § 1672(a). We disagree with Onyeri at each turn.
II.
A.
We first address Onyeri’s challenge to the district court’s conclusion
that the officers had probable cause to make the initial traffic stop and the
resulting denial of Onyeri’s motion to suppress the information obtained
from his Samsung Galaxy.
4 He contends that Officer Uresti’s testimony
regarding the traffic stop was not credible. Analyzing the stop in its entirety,
we conclude the district court was correct.
We review the district court’s legal conclusions de novo, but its factual
findings are reviewed for clear error. United States v. Ibarra, 493 F.3d 526,
530 (5th Cir. 2007). “A factual finding is not clearly erroneous if it is
plausible in light of the record as a whole.” United States v. Jacquinot, 258
F.3d 423, 427 (5th Cir. 2001). “[W]e may consider all of the evidence
presented at trial, not just that presented before the ruling on the suppression
motion, in the light most favorable to the prevailing party, which in this case
is the Government.” Ibarra, 493 F.3d at 530.
“As a general matter, the decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic violation has
occurred.” Whren v. United States, 517 U.S. 806, 810 (1996). Probable cause
is a “practical, nontechnical conception.” Illinois v. Gates, 462 U.S. 213, 231
(1983) (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). It is a
4 Initially, the government asserted that Onyeri did not have standing to challenge
the seizure and subsequent search of this cell phone, but it ultimately withdrew its
objection.
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“fluid concept” guided by a totality of the circumstances analysis. Id. at 230,
232. We have said that “the constitutionality of [an] officer’s stop of [a]
vehicle must stand or fall based on whether [the defendant] violated Texas
law[.]” United States v. Cole, 444 F.3d 688, 689 (5th Cir. 2006). That is, the
“legal justification for the traffic stop must be ‘objectively grounded.’”
United States v. Khanalizadeh, 493 F.3d 479, 482 (5th Cir. 2007) (per curiam)
(quoting Cole, 444 F.3d at 689).
Officer Uresti testified at trial that he observed the vehicle that Onyeri
was riding in commit a minor traffic violation, making a wide right-hand turn
into an adjacent lane. He explained how a proper right-hand turn should be
made, according to the Texas Transportation Code: “when making a right
turn, the operator shall approach and complete the turn closest to the . . .
right-hand curb or the edge of the roadway.” In this case, Officer Uresti
testified, the number two lane was the proper lane for completing a right turn;
“[t]he inside lane closest to the median is the number one lane, and the
outside lane is the number two lane.” But, he told the district court, he saw
the vehicle make an improper turn “into the number one lane” in violation
of Texas Transportation Code § 545.101. Officer Uresti’s observation of this
traffic violation therefore gave him an objectively grounded legal
justification—and sufficient probable cause—to initiate the stop. See Whren,
517 U.S. at 819 (“Here[,] the District Court found that the officers had
probable cause to believe that petitioners had violated the traffic code. That
rendered the stop reasonable under the Fourth Amendment, the evidence
thereby discovered admissible, and the upholding of the convictions . . .
correct.”).
Onyeri disputes the district court’s finding that Officer Uresti’s
testimony was credible. The crux of his argument centers on Officer Uresti’s
responses that he didn’t remember certain details of the traffic stop. Onyeri
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argues that Officer Uresti’s failure to recall aspects of the stop undermines
the district court’s credibility finding, and therefore, any probable cause.
Onyeri’s contentions are misleading. Officer Uresti also answered,
with certainty, many other questions about the traffic stop. For example, he
testified that traffic was permitted to flow during the traffic stop and that the
road was not obstructed. He also stated that his line of sight to the silver
Charger was not obstructed in any way and that he had no doubt that he saw
the Charger turn into the number one lane. These details are crucial to the
determination of whether to stop the Charger, and whether the officers had
probable cause. In contrast, many of the aspects of the stop that Officer
Uresti could not remember were unimportant to the propriety of initiating
the traffic stop.
It is eminently plausible that the traffic stop occurred just as Officer
Uresti explained; nothing in the record suggests otherwise. And the district
court twice stated for our review that it found Officer Uresti credible.
Furthermore, “the clearly erroneous standard is particularly strong because
the judge had the opportunity to observe the demeanor of the witnesses” at
the suppression hearing and at trial. United States v. Santiago, 410 F.3d 193,
197 (5th Cir. 2005). We cannot identify any clear errors in the district court’s
factual findings. Accordingly, we conclude that the district court correctly
denied Onyeri’s motion to suppress.5
5 Onyeri also contends that the district court erred in concluding that the officers
had reasonable suspicion to make the traffic stop because, despite the warrant for his arrest,
they did not have a sufficient basis to believe Onyeri was in the vehicle at the time they
made the stop. Either ground—probable cause or reasonable suspicion—is sufficient to
support the district court’s denial of Onyeri’s motion to suppress. Thus, because Officer
Uresti had sufficient probable cause to believe a traffic violation occurred, and therefore to
initiate the traffic stop, and because the district court did not clearly err in determining that
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B.
Onyeri preserved his challenge to the sufficiency of the evidence by
moving for a judgment of acquittal at the close of the Government’s case.
We review these claims de novo, according “substantial deference to the jury
verdict.” See United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018)
(Owen, J.) (quoting United States v. Delgado, 672 F.3d 320, 330 (5th Cir.
2012) (en banc)). We “must affirm a conviction if, after viewing the evidence
and all reasonable inferences in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299,
301 (5th Cir. 2014) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
Onyeri’s challenge is specific to one offense of conviction: conspiring
to violate the RICO statute. The elements of a RICO conspiracy are: (1) an
agreement between two or more people to commit a substantive RICO
offense; and (2) knowledge of and agreement to the overall objective of the
RICO offense. United States v. Rosenthal, 805 F.3d 523, 530 (5th Cir. 2015);
see 18 U.S.C. § 1962. These elements may be established by circumstantial
evidence. United States v. Delgado, 401 F.3d 290, 296 (5th Cir. 2005).
First, there is sufficient evidence to find that two or more people
agreed to violate § 1962(c), which criminalizes racketeering activity.
Evidence presented at trial showed that Onyeri engaged associates to assist
him in carrying out his many fraudulent schemes. They met to discuss the
organization and plan activities in furtherance of the enterprise, including
mail fraud, wire fraud, and murder, as prohibited by RICO. This evidence
Officer Uresti’s testimony was credible, we need not address Onyeri’s argument that the
officers lacked reasonable suspicion to make the stop.
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supports the jury’s determination that two or more people agreed to violate
§ 1926(c).
Second, there is sufficient evidence that Onyeri agreed to the overall
objectives of the conspiracy; indeed, he orchestrated it. At trial, Akwar told
the jury that he and Onyeri agreed that Akwar “would come with [Onyeri] to
make money,” which meant “going to various stores, and purchasing iPads
with gift cards with stolen credit card information on it.” Akwar further
testified that he and Onyeri agreed to perpetrate the tax fraud together as
well. The jury also heard another of Onyeri’s associates, Scott, testify that
he “was thinking [he was] about to get rich” once he agreed to help Onyeri
with debit card and credit card skimming.
Finally, the evidence at trial showed that Onyeri himself traveled to
Judge Kocurek’s home to kill her and that he carried out this attempt, another
one of the overall objectives of the conspiracy. The jury heard evidence of
this not only from Burgin, and Scott, but the jury also heard Onyeri’s own
testimony that he was in Judge Kocurek’s neighborhood that night, placed
the trash bag in front of her gate, waited for the Judge and her family to return
home, and was standing by her vehicle when the gun that he was holding
“burst out.” What’s more, the jury heard evidence that Onyeri bragged
about it. In sum, there is more than sufficient evidence for a rational trier of
fact to find beyond a reasonable doubt that Onyeri agreed with several of his
associates to further the overall objectives of the RICO conspiracy. See
Vargas-Ocampo, 747 F.3d at 301. Therefore, upon review of the record, we
conclude that the district court did not err in denying Onyeri’s motion for a
judgment of acquittal as the jury heard sufficient evidence to find Onyeri
guilty of the RICO conspiracy count.
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C.
Onyeri brings one more challenge on appeal. He contests the
garnishment of his monthly annuity payments, which the government sought
in order to fulfill his restitution obligations. In deciding this issue, some
review of the posture is instructive.
The district court ordered Onyeri to pay restitution in the amount of
$178,374.41, as well as a special assessment of $1,700.00.
6 To effectuate this
order, the government sought a writ of garnishment, and the clerk of the
court issued the writ. The garnishee, TRST, filed an answer to the writ of
garnishment, and the government responded. In its response, the
government also requested an order from the district court permitting the
government to garnish 100% of Onyeri’s monthly annuity, which the district
court granted. Onyeri requested a hearing, claiming that his monthly annuity
payments were exempt from garnishment. In an order dated February 27,
2019, the district court denied Onyeri’s request for a hearing and entered a
final order of garnishment. Although Onyeri had taken an appeal from the
final judgment issued on October 2, 2018, Onyeri did not file a second notice
of appeal challenging the propriety of the ordered garnishment.
Onyeri does not contest the garnishment in its entirety; instead, he
argues that the district court should not have granted the government’s
motion and permitted it to garnish 100% of his monthly annuity. The
government contends that we do not have jurisdiction to consider this aspect
of Onyeri’s appeal because he was required to file a second timely notice of
appeal following the final order of garnishment on February 27, 2019.
6 Onyeri is jointly and severally liable for the restitution sum along with codefendants Marcellus Burgin and Rasul Scott, would-be fraudulent tax-preparer Sherica
Price, and others.
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It is well-settled that a defendant may not use a garnishment
proceeding to challenge the underlying judgment and restitution order in his
case. See United States v. Clayton, 613 F.3d 592, 594, 596 (5th Cir. 2010)
(holding that a defendant who filed a notice of appeal following a final order
of garnishment but who did not file a notice of appeal after entry of judgment
had not challenged the underlying restitution order). Whether the reverse is
permissible, however, appears to be an issue of first impression for our court.
Canvassing the legal landscape before us, we conclude that it is not.
The Supreme Court has confronted an analogous situation to the one
we encounter here. See Manrique v. United States, 137 S. Ct. 1266 (2017)
(Thomas, J.). In Manrique, the district court entered an initial judgment of
conviction and sentenced the defendant to 72 months’ imprisonment. Id. at
1270. The defendant appealed the judgment. Id. Two months later, the
district court held a restitution hearing and ordered the defendant to pay a
particular sum in restitution, thereby amending the initial judgment. Id. The
defendant did not file a second notice of appeal, id., but he nonetheless
challenged the amount of restitution in his brief on appeal, id. at 1270–71.
The Eleventh Circuit held that he could not challenge the restitution amount,
and the Supreme Court affirmed, explaining that the defendant’s “notice of
appeal could not have been for review of the restitution order” because he
“filed only one notice of appeal, which preceded by many months the . . .
judgment imposing restitution.” Id. at 1271 (internal quotation marks and
citation omitted).
To be sure, Manrique is not this precise case. The two judgments
involved—the initial and amended judgments—were indisputably a part of
the core criminal proceeding. See id. at 1270. The initial judgment pertained
to the defendant’s convictions and sentence of imprisonment and ordered
mandatory restitution; the amended judgment clarified the amount of
restitution. Id. In Onyeri’s case, the final order of garnishment arose later,
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when the government sought to enforce the restitution order via the Fair
Debt Collection Practices Act (“FDCPA”). The order in Onyeri’s case was
issued following a proceeding that “look[ed] more civil than criminal,” even
though it proceeded under the same criminal docket number as the
underlying criminal prosecution. United States v. Lee, 659 F.3d 619, 620 (7th
Cir. 2011). Not to mention, the appeal at issue in Manrique pertained to the
restitution order; Onyeri, on the other hand, now challenges the garnishment
order.
But none of these distinctions persuades us that a different rule should
apply in Onyeri’s case. In fact, the juxtaposition only strengthens the
government’s position that Onyeri should have filed a second notice of
appeal. First, in contrast to the initial and amended judgments in Manrique,
both of which involved preliminary determinations related to the defendant’s
restitution, the order Onyeri seeks to challenge pertains to garnishment,
which is an enforcement mechanism for a restitution obligation. If a notice
of appeal from an initial judgment setting mandatory restitution is not
sufficient also to appeal the amount of restitution, it is difficult for us to see
how a notice of appeal from a judgment ordering restitution could also extend
to the enforcement of that obligation.
Second, the judgments in Manrique each indisputably stemmed from
the same core criminal proceeding. In Onyeri’s case, the judgment he seeks
to appeal arguably arose out of a subsequent, civil proceeding.7
Cf. United
7 The basis for the government’s authority to seek restitution from Onyeri is the
Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. § 3663A. The MVRA
permits the government to “enforce a judgment imposing a fine in accordance with the
practices and procedures for the enforcement of a civil judgment under Federal law or State
law,” and this extends to orders of restitution. 18 U.S.C. § 3613(a), (f). Accordingly, the
government often uses the garnishment provisions of the FDCPA to collect restitution
obligations imposed in a criminal judgment. See, e.g., United States v. Ekong, 518 F. 3d 285,
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States v. Apampa, 179 F.3d 555, 556 (7th Cir. 1999) (per curiam) (“Some
orders in criminal cases have been treated as civil matters because they are
collateral to criminal punishment.” (collecting cases)). It would make little
sense to require a second notice of appeal for issues within the same core
proceeding but to permit an appeal from that same criminal matter to extend
to collateral issues. And what’s more, our court has recognized judgments
of conviction and sentencing as distinct from final orders of garnishment.
See, e.g., United States v. Goyette, 446 F. App’x 718, 720 (5th Cir. 2011) (per
curiam) (treating as distinct the judgment of conviction and sentencing and
the final order of garnishment for the purposes of filing a notice of appeal);
Clayton, 613 F.3d at 593–94.
Thus, we conclude the principle from Manrique readily applies to
Onyeri’s case. The district court entered judgment on Onyeri’s sentence and
conviction on October 2, 2018. Onyeri filed a notice of appeal ten days later
on October 12, 2018. Over four months later, following further proceedings
on the issue, the district court entered the final order of garnishment. Onyeri
did not file another notice of appeal. And when he raised the issue in this
appeal, the government objected.8
As a result, we need not address the deadlines applicable to Onyeri’s
second notice of appeal. It is enough that Onyeri failed to file a second notice
of appeal at all, let alone within any of the deadlines under Rule 4. And,
286 (5th Cir. 2007) (per curiam); United States v. Phillips, 303 F.3d 548, 550–51 (5th Cir.
2002).
8 We have suggested that Rule 4’s deadlines for filing a notice of appeal are
jurisdictional in a civil case but may be waived in a criminal case. See United States v.
Martinez, 496 F.3d 387, 388–89 (5th Cir. 2007) (discussing Federal Rule of
Appellate Procedure 4 and citing Bowles v. Russell, 551 U.S. 205, 212–14 (2007)).
To the extent the law in our circuit is unsettled, we need not address the issue because
Onyeri raised the challenge on appeal, and the government objected.
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Onyeri’s only “notice of appeal could not have been for review of the
[ordered garnishment]” because he “filed only one notice of appeal, which
preceded by many months the . . . judgment [enforcing the garnishment].”
Manrique, 137 S. Ct. at 1271. Accordingly, we cannot consider this aspect of
Onyeri’s appeal
Outcome: The judgment of the district court is therefore AFFIRMED. To the
extent that Onyeri now attempts to appeal the final order of garnishment, that
portion of his appeal is DISMISSED.
Plaintiff's Experts:
Defendant's Experts:
Comments: