                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              November 21, 2005
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 05-20179


     UNITED STATES OF AMERICA

                                       Plaintiff - Appellee

     v.

     FRANK NWABARDI

                                       Defendant - Appellant

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                        No. H-03-CR-230-02
_________________________________________________________________

Before KING, Chief Judge, and DAVIS, Circuit Judge, and
ROSENTHAL,* District Judge.

PER CURIAM:**

     Defendant-appellant Frank Nwabardi appeals his conviction

for participating in a conspiracy that involved stealing

vehicles, obtaining fraudulent titles for those vehicles,

transporting the vehicles across state lines, and selling them to

individuals or dealerships.   For the following reasons, we AFFIRM

     *
         District Judge of the Southern District of Texas,
sitting by designation.
     **
        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that this opinion should not be published and is not precedent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-
Nwabardi’s conviction and sentence.

               I.   FACTUAL AND PROCEDURAL BACKGROUND

     On December 3, 2003, a grand jury issued a ten-count

superceding indictment charging ten participants, one of whom was

Nwabardi, with crimes related to the conspiracy.1   Count One

charged Nwabardi with knowingly and willfully conspiring to

transport in interstate commerce at least three separate vehicles

he knew to be stolen in violation of 18 U.S.C. § 371.2    Counts

Two and Five charged Nwabardi with aiding and abetting in the

unlawful interstate transport of a 2000 Ford Excursion and a 2001

Lincoln Navigator, respectively, in violation of 18 U.S.C. §§ 2

and 2312.   Nwabardi pleaded not guilty to all counts against him.


     1
        Nwabardi was implicated in only three of the ten counts
of conspiracy listed in the indictment. The instant appeal was
originally consolidated with the lead case involving several
other defendants from this conspiracy. By oral direction, this
court severed Nwabardi’s appeal and ordered separate briefing by
the parties on July 19, 2005. The panel issued an unpublished
per curiam opinion affirming the convictions of some of
Nwabardi’s co-conspirators on July 21, 2005. United States v.
Mendoza-Alarcon, No. 04-20506, 140 F. App’x 529, 532 (5th Cir.
July 21, 2005).
     2
        Specifically, Count One charged Nwabardi with the
following overt acts in connection with the criminal scheme: (1)
conspiring with Roberto Herrerra, the purported leader of the
criminal enterprise, to cause Olefumi Ajai, another participant,
to generate a vehicle identification certificate, which was then
used to obtain a Texas certificate of title, for a 2000 Ford
Excursion; (2) conspiring with Herrera to cause an unknown person
to generate a vehicle identification certificate, which was then
used to obtain a Texas certificate of title, for a 2001 Lincoln
Navigator; and (3) obtaining a certified copy of the original
Texas title for a 1999 Lexus, which was later sold by Bruce
Dirzo, another member of the conspiracy, in California.

                                 -2-
     The criminal scheme involved a large and complex auto-theft

ring.   Some of the participants stole cars from Texas,

California, and Arkansas and altered the identification

information on the vehicles in order to obtain counterfeit out-

of-state titles.   Once they obtained counterfeit titles for the

stolen out-of-state vehicles, other members of the conspiracy

would enlist the services of local businesses to register the

vehicles in Texas.   One of the Texas businesses used was New

Millennium Title Transfer Service, which Nwabardi owned and

operated.   Specifically, Nwabardi’s business completed auto title

applications for individuals seeking to transfer their titles or

obtain certified copies of their titles.    Absent clean Texas

titles, the ultimate objective of the conspiracy to sell the

stolen vehicles at a profit would have been considerably

undermined.

     Ordinarily, when a person seeks a title and registration for

an out-of-state vehicle in Texas, the individual must present the

out-of-state title along with a vehicle identification

certificate, proof of insurance, and a completed title

application to the county tax assessor.    The tax office then

examines the documents and forwards them to an office in Austin,

which issues a new Texas title to the individual.

     In order to understand Nwabardi’s precise role in the

conspiracy, it is necessary to examine how an individual obtains

a vehicle identification certificate.   A safety inspection

                                -3-
station issues a vehicle identification certificate, which

identifies the vehicle by its Vehicle Identification Number

(“VIN”).   Unless the inspector falsifies the information on the

inspection documents, the vehicle must be physically present at

the inspection.   An additional form called a VI-30-A must be

completed for out-of-state vehicles, which calls for the

inspector to identify the VIN of the vehicle.   The inspector is

required to sign the form, swearing that he has personally

witnessed the VIN.   The certificate is then relied upon by the

Texas Department of Transportation in issuing a fresh title.

     At trial, the government introduced evidence that Olefumi

Ajai assisted Nwabardi by providing vehicle identification

certificates based only on the out-of-state titles.   Ajai owned

an auto shop named Uni-Tech Automotive, which conducted safety

inspections and issued vehicle identification certificates.

According to the government’s theory, Nwabardi was aware that

Ajai was conducting the safety inspections without requiring the

presence of the vehicles.3   Nwabardi would then complete the

title application, assemble and send away the package of relevant


     3
        Nwabardi testified at trial that he never personally
visited Ajai to pick up the VI-30-A forms for the out-of-state
vehicles that he was completing the title applications for. The
title history packets on file with the Texas Department of
Transportation for all three vehicles connected to Nwabardi in
the indictment indicate that a California title was used to
obtain the Texas title. Without explaining this apparent
discrepancy, Nwabardi flatly denied that he needed the out-of-
state forms to process the title application.

                                -4-
documents to the county tax assessor, and await the issuance of

fresh title from Austin.    Although the government presented no

direct evidence of Nwabardi’s voluntary involvement in the

criminal enterprise, the government bolstered the circumstantial

evidence of such irregular practices with live testimony from

other members of the conspiracy explaining Nwabardi’s active role

in the conspiracy.

     On March 3, 2004, the jury found Nwabardi guilty on all

three counts.     The district court sentenced Nwabardi to forty-two

months imprisonment and three years supervised release.    The

court also imposed a $300 special assessment.    Nwabardi filed a

timely appeal to this court on January 31, 2005.    On appeal,

Nwabardi argues only that the evidence was insufficient to

sustain his convictions, and the district court therefore erred

in not granting his motion for a judgment of acquittal under FED.

R. CRIM. P. 29.

                            II.   DISCUSSION

A.   Standard of Review

     We review de novo a district court’s denial of a motion for

acquittal.   United States v. DeLeon, 170 F.3d 494, 496 (5th Cir.

1999).   Our review of a jury’s verdict, however, is “tempered

with great deference,” and this court accordingly evaluates the

evidence in the light most favorable to the jury verdict.     United

States v. Valuck, 286 F.3d 221, 224 (5th Cir. 2002); see also


                                   -5-
United States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (applying

a “rule of reason” that affords some latitude for the jury to

evaluate facts in light of natural human inclinations and common

knowledge).    Therefore, in reviewing a challenge to the

sufficiency of the evidence to support a conviction, we will

uphold the verdict if a rational juror could have found each

element of the charged offense beyond a reasonable doubt.       United

States v. McCauley, 253 F.3d 815, 818 (5th Cir. 2001); United

States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997) (“It is by

now well settled that a defendant seeking reversal on the basis

of insufficient evidence swims upstream.”).      “The evidence need

not exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, and the

jury is free to choose among reasonable constructions of the

evidence.”    United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.

1994).    Our review does not depend on whether the jury in fact

made the correct determination of guilt or innocence but only

whether the jury’s decision to convict or acquit was rational in

light of the available evidence.       See Burton v. United States,

237 F.3d 490, 497 (5th Cir. 2000).

B.   Sufficiency of the Evidence

     1.     Count One: Conspiracy Under 18 U.S.C. § 371

     Nwabardi challenges the sufficiency of the evidence that the

government presented at trial to show that he knowingly and


                                 -6-
willfully conspired to transport in interstate commerce three

stolen vehicles, specifically a 2000 Ford Excursion, a 2001

Lincoln Navigator, and a 1999 Lexus.4   In particular, Nwabardi

questions the credibility of two key government witnesses, Juan

Beltran and Olefumi Ajai, and contends that their testimony

provided insufficient evidence of Nwabardi’s guilt on the

conspiracy charges.   Nwabardi argues that the documents brought

to him contained falsified information and that he was unaware of

any possible criminal activity because there was a considerable

lapse of time between his title work and the actual theft of the

vehicles.   In essence, he claims that he was not aware that the

vehicles were stolen and, therefore, did not knowingly

participate in the criminal activity.   Under the circumstances,

Nwabardi argues that “it is possible” that he was unaware of his

contribution to the criminal enterprise.   (Appellant’s Br. 10.)

In light of our deferential standard of review with respect to

jury verdicts, we decline to indulge Nwabardi’s alternative

theory of the evidence and find ample basis in the record for the

jury to conclude otherwise.

     To prove a conspiracy in violation of 18 U.S.C. § 371, the

government must establish three separate elements beyond a

     4
          On this appeal, Nwabardi does not contest that a
criminal conspiracy existed but rather presents the narrower
legal issue of whether the government’s evidence against him was
sufficient to prove that Nwabardi was a voluntary member of the
criminal scheme or merely a business owner who unwittingly
rendered services that furthered a criminal conspiracy.

                                -7-
reasonable doubt: (1) an agreement between two or more persons to

pursue an unlawful objective; (2) the defendant’s knowledge of

the unlawful objective and voluntary agreement to join the

conspiracy; and (3) an overt act by one or more members of the

conspiracy in furtherance of the objective.      United States v.

Holmes, 406 F.3d 337, 351 (5th Cir. 2005).      The government need

not produce direct evidence to convict the members of a

conspiracy under § 371 but rather “each element may be proven by

circumstantial evidence.”   Mulderig, 120 F.3d at 547.     The jury

may infer fraudulent intent from “circumstantial evidence that

one party arranged matters with another party in such a way as

would facilitate the commission of fraud.”      Crowe v. Henry, 115

F.3d 294, 297 (5th Cir. 1997).   In considering the evidence in

the light most favorable to the verdict, we find that a rational

trier of fact could have concluded that the evidence established

Nwabardi’s guilt beyond a reasonable doubt.      McCauley, 253 F.3d

at 818.

     The testimony of Ajai and Beltran was central to the

government’s case against Nwabardi, as both men explained their

specific dealings with Nwabardi and how his efforts furthered the

unlawful goals of the conspiracy.      Ajai testified that on

previous occasions unrelated to the conspiracy, Nwabardi would

present an actual vehicle to Ajai for inspection to procure the

vehicle identification certificate for a standard fee.      With

respect to the vehicles listed in the indictment, however,

                                 -8-
Nwabardi simply brought Ajai the California titles and requested

that he issue the vehicle identifications certificates without

physical inspection.   Ajai also testified that Nwabardi paid him

additional compensation above the normal fee for these inspection

services when no vehicle was present.    Consistent with Ajai’s

account, Beltran testified that he brought only the California

titles–-never the vehicles themselves--to Nwabardi’s business.

     Irregular business practices or an unexplained deviation

from the ordinary course of business can provide circumstantial

proof of one’s participation in the conspiracy itself.       See

United States v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 2002)

(affirming conviction on conspiracy charges where circumstantial

evidence established the defendant’s actions “far exceeded the

limits of an ordinary professional relationship”); United States

v. Sutherland, 656 F.2d 1181, 1187-88 (5th Cir. 1981) (holding

that unexplained changes in the manner of processing traffic

violation tickets constituted “overwhelming circumstantial

evidence” of a criminal conspiracy).    When viewed in this light,

the testimony of Beltran and Ajai tends to corroborate Nwabardi’s

complicity with the criminal scheme.    In particular, the

conspicuous changes in Nwabardi’s course of dealing with Ajai–-

i.e. the failure to present an actual vehicle and additional

compensation for the inspection services on these occasions–-lend

credence to the jury’s finding on the evidence presented at

trial.   At the very least, we find such circumstantial evidence

                                -9-
more than sufficient to support an inference that Nwabardi was

guilty of the § 371 conspiracy.

     Moreover, although both Beltran and Ajai were able to reach

favorable plea agreements based on their cooperation with the

government’s case,5 Nwabardi misapprehends the scope of our

review with respect to the credibility of incriminating testimony

of co-conspirators.   “A guilty verdict may be sustained even if

supported only by the uncorroborated testimony of a co-

conspirator, and even if the witness is interested due to a plea

bargain, unless the testimony is incredible on its face.”     Burton

v. United States, 237 F.3d 490, 498 (5th Cir. 2000); see also

United States v. Gadison, 8 F.3d 186, 190 (5th Cir. 1993); United

States v. Hernandez, 962 F.2d 1152, 1157 (5th Cir. 1992).     In

this case, the testimony of both Beltran and Ajai supported the

inference that Nwabardi voluntarily joined the conspiracy.    Given

our review of the record, we cannot find that the testimony was

facially implausible as a matter of law such that we should

disturb the credibility determinations of the jury.   See United

States v. Dadi, 235 F.3d 945, 951 (5th Cir. 2000) (“The

credibility of witnesses is a matter for the jury and its

determinations demand deference.”).

     5
        The pending criminal charges against Beltran from Texas,
California, and New Mexico were all dismissed based upon his
cooperation, and he was never charged in any federal court for
involvement in the conspiracy. Ajai was originally listed as a
defendant on the superceding indictment but pleaded guilty to one
count in exchange for dismissal of six other charges.

                               -10-
     2.   Counts Two and Five: Aiding and Abetting Under 18

          U.S.C. §§ 2 and 2312

     Nwabardi also disputes the sufficiency of the evidence to

support the aiding and abetting charges under 18 U.S.C. §§ 2 and

2312 with respect to the 2000 Ford Excursion and 2001 Lincoln

Navigator.   To prove that a defendant aided and abetted the

commission of a criminal offense, the government must demonstrate

that the defendant “intentionally associated with, and

participated in, the criminal venture and acted to make the

venture succeed.”   Id.    Nwabardi concedes that he completed the

title applications for both vehicles.     In challenging these

convictions, Nwabardi simply reiterates his argument that he was

unaware that the vehicles were stolen when he performed his

services and therefore lacked the specific intent to aid and abet

the conspiracy.   As with his conviction on the conspiracy charge

under § 371, however, we find that his altered business practices

with respect to the stolen vehicles permitted the jury to reach

the reasonable inference that Nwabardi knowingly participated in

the criminal scheme.      See Bieganowski, 313 F.3d at 277;

Sutherland, 656 F.2d at 1187-88; United States v. Cauble, 706

F.2d 1322, 1339 (5th Cir. 1983) (affirming a conviction for

aiding and abetting a drug smuggling conspiracy where

circumstantial evidence showed “significant changes in business

practices” during the years in which the illegal acts occurred).


                                  -11-
     Nwabardi also contends that the lapse of time between the

actual theft of the vehicles and his involvement somehow supports

his argument that he was unaware that the vehicles were stolen.

We find no merit in this argument.     The evidence was sufficient

for a jury to reasonably infer that Nwabardi knew the vehicles

were stolen when he performed the title work.

                         III.   CONCLUSION

     For the foregoing reasons, we find no reason to disturb the

jury’s verdict with respect to Nwabardi’s role in this criminal

conspiracy.   Therefore, we AFFIRM the conviction and sentence of

Nwabardi.




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