                                                                                  F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                 August 15, 2005
                                     TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                                No.04-3088
    v.                                               (D.C. No.03-CR-10052-01-MLB)
                                                            (Dist. of Kansas)
    ITOBORE OSHOBE,

          Defendant - Appellant.


                                  ORDER AND JUDGMENT*


Before SEYMOUR, HOLLOWAY, and LUCERO, Circuit Judges.


         Itobore Oshobe is a Nigerian citizen living in the United States. Beginning some

time in 2002, he became involved in a scheme to receive various products delivered to his

Pittsburg, Kansas home, which had been fraudulently ordered over the internet. Mr.

Oshobe and his roommates would sign for packages delivered to their apartment at 1800

S. Pine St., Apt. #2 (“S.Pine”). Mr. Oshobe kept and used some of the items that were

delivered to him, but says he re-packaged and shipped most of the items to an individual

named Ade Taiwo in Nigeria.



*
  This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. This court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
       Sometime after February 16, 2003, the United States Secret Service obtained a

search warrant for the S. Pine apartment. They carried out a controlled delivery of

fraudulently obtained merchandise and subsequently executed the search warrant. Mr.

Oshobe and his roommates were eventually indicted, and Mr. Oshobe and one roommate

were tried on a sixteen count indictment including charges of credit card fraud, mail fraud

and transportation and receipt of stolen property. Mr. Oshobe was convicted while his

roommate was acquitted. Mr. Oshobe now appeals both his convictions, and pursuant to

United States v. Booker, 125 S.Ct. 738 (2005), the enhancement of his sentence based on

facts not found by a jury, admitted by Mr. Oshobe, or the fact of a prior conviction.

                                   I. BACKGROUND

       In January 2002, Itobore Oshobe came to Pittsburg, Kansas, on a student visa to

study electrical engineering at Pittsburg State University. Shortly thereafter, he moved

into the S. Pine apartment. Otu Kadana lived there as well, and a third roommate, Andrew

Ikepeme, moved in during January, 2003.

A. Investigation and Prosecution of Mr. Oshobe

       On February 26, 2003, Genesis Office Products received an internet order for the

purchase of ink cartridges to be delivered to “Pete Teemoni” at the S. Pine address.

Payment was to be via Master Card. However, the company discovered that the name

“Pete Teemoni” did not match the credit card information provided. In fact, the credit

card belonged to Gregory Hellyer, who did not authorize his credit card to be used for any


                                            -2-
purchases at Genesis Office Products. Genesis contacted law enforcement, and

eventually had a conversation with Special Agent Ron Emmot of the United States Secret

Service, where Genesis agreed to make a controlled delivery to “Pete Teemoni” at the

address provided by the purchaser.

       After the conversation with Genesis Office Products, Agent Emmot determined

that the Defendant-Appellant, Itobore Oshobe, lived at the S. Pine address. Agent Emmot

further determined that Oshobe’s co-defendant, Otu Kadana, and a third person, Andrew

Ikpeme, were also residents at that address.1 “Pete Teemoni” was not. Agent Emmot

further learned that a large number of complaints had been filed with the Pittsburg,

Kansas police department about deliveries of fraudulently obtained merchandise to the S.

Pine address. Agent Emmot also confirmed with United Parcel Service (“UPS”) that

numerous packages had been delivered to S. Pine, addressed to several different names.

Based on this information, Agent Emmot obtained a warrant authorizing the search of the

S. Pine apartment, as well as the seizure of computer equipment and accessories,

packages or mail addressed to eighteen different names, and evidence, fruits and

instrumentalities of criminal activity. Agent Emmot made the controlled delivery to S.

Pine, and a few minutes later executed the search warrant.

       During the execution of the warrant, law enforcement officers seized extensive


1
 Mr. Kadane was acquitted at trial and is not a party to this appeal. Mr. Ikpeme was also initially
charged, but his charges were dropped before trial. Mr. Ikpeme is likewise not a party to this
appeal.

                                               -3-
evidence. This included fifteen shipping boxes addressed to the defendant’s address,

each of which was packed with merchandise, and four additional boxes which contained

no merchandise but from which the shipping label was seized. Documentary evidence

was also seized, including several documents addressed to the S. Pine address, some of

which were in Mr. Oshobe’s name and some of which were addressed in the names of

people who did not live in the apartment. These included a letter from QVC addressed to

“Ade Teemon,” which had been opened and which informed “Mr. Teemon” that his order

could not be filled and that he needed to contact QVC. There was also a letter from

Chase Bank addressed to Monimon Teemon soliciting him for a Chase credit card. Agent

Emmot also discovered documents in the living room closet bearing the S. Pine address,

but in various fictitious names.

       Mr. Oshobe and Mr. Kadana were indicted on the following charges: Count One -

Aiding the Unauthorized Use of an Access Device/Credit Card (18 U.S.C. 1029 (a)(2));

Count Two - Interstate Transportation of Stolen Property (18 U.S.C. 2314); Count Three -

Receipt of Stolen Property (18 U.S.C. 2134); and Counts Four through Eight and Eleven

through Fifteen2 - Mail Fraud (18 U.S.C. 1341 and 2). At trial, six witnesses testified

about a number of unauthorized transactions on their credit cards. The following items,

which had been purchased using those credit cards, were found during the search of the

apartment: Anne Kennedy-Rackham - Kingston RAM computer memory; Mark Ferguson

2
 Counts Nine and Ten were dismissed pursuant to the Government’s motion. (ROA Vol. 1, DE.
73, 80).

                                           -4-
- a laser printer from Computer Friend; John Krueger - CD Soother from Sharper Image;

Pamela Gauthier - a Roomba robotic vacuum cleaner; Mike Lynn - necklace from Red

Envelope; and Gregory Hellyer - the HP ink jet cartridges used in the controlled delivery.

In addition, witnesses from various companies testified that they had shipped products to

either the S. Pine apartment or another nearby address on S. Elm. Agent Emmot prepared

and testified about a summary exhibit of the witness testimony, dates of purchase,

shipping companies and values of each piece of merchandise. The Government estimated

the total value of these purchases to be $1,351.18.

B. Mr. Oshobe’s Defense

       Mr. Oshobe testified in his own defense. He stated that while living in Pittsburg,

he became friends with a fellow Nigerian, a woman named Foonta Olawafeme. Mr.

Oshobe would occasionally visit Ms. Olawafeme at her apartment at 1409 S. Elm Apt. A

(“S. Elm”), which was about a three to five minute walk away from his S. Pine apartment.

Mr. Oshobe testified that beginning in the summer of 2002, when he visited Ms.

Olawafeme’s apartment, he observed that she was receiving a number of packages from

various stores and companies. He said that Ms. Olawafeme was receiving those packages

and re-packaging and sending them to a family friend back in Nigeria named Ade Taiwo.

Mr. Oshobe testified that on a few occasions he assisted Ms. Olawafeme in opening and

repackaging the items. At some point, Mr. Oshobe said that he spoke to Mr. Taiwo

himself. About that time, Ms. Olawafeme moved to New York. Mr. Oshobe stated that


                                            -5-
at this point, he agreed to start receiving and re-sending packages to Mr. Taiwo. Mr.

Oshobe claims that he did not receive any money for providing this service, but did

receive a laptop computer as a gift of appreciation.

       Mr. Oshobe claimed that at all times, he had been receiving the packages solely on

behalf of Mr. Taiwo and his business partners. Mr. Oshobe stated that Mr. Taiwo owned a

computer store in Nigeria. Mr. Oshobe further claimed that he believed the names of the

addressees for the packages were the names of Mr. Taiwo’s business partners. Mr.

Oshobe testified that he only signed in his own name for materials received and that he

subsequently shipped the materials to Mr. Taiwo in Nigeria.

       Notwithstanding Mr. Oshobe’s contention that he was merely receiving and re-

shipping items, police found several items unpacked and scattered around the apartment,

which appeared to have been used by him. Mr. Oshobe attempted to explain this as

follows: First, in response to Agent Emmot’s testimony that a box for a Panasonic camera

had been found in the apartment but the camera itself was missing, Mr. Oshobe explained

that he had taken it out of the box to examine it because he was intrigued by its functions.

ROA Vol. 4 at 633. He claims it was on his desk when the search was done. Pastor

Allan Parker confirmed that the camera was in Mr. Oshobe’s belongings after he was

arrested. ROA Vol. 5 at 796. Another item called into question was a CD ROM.

Because Mr. Oshobe writes short computer programs as a hobby, he testified that he

removed the CD from its box and installed the software on his computer to compare the


                                            -6-
program to one that he was designing at the time. ROA Vol. 4 at 634. Mr. Oshobe

testified he had since uninstalled it, but it was still out of the box when the S. Pine

apartment was searched. Mr. Oshobe had also used some memory sticks which were

delivered, to upgrade Mr. Kadana’s computer. Mr. Oshobe testified that he did so only

after obtaining permission from Mr. Taiwo. ROA Vol. 4 at 635. Finally, yet another

piece of merchandise that authorities questioned was a laptop computer which Mr.

Oshobe sold to a friend, Fred Njoroge. Mr. Oshobe testified that he had received the

laptop as a token of appreciation from Mr. Taiwo, and subsequently sold it because it was

an older model, not as good as his desktop computer, and he didn’t really need it. ROA

Vol. 4 at 632.

       Mr. Oshobe maintains that no orders for any merchandise were placed from either

Mr. Oshobe’s or Mr. Kadana’s computer. The parties stipulated at trial that based on

information regarding IP addresses which was captured by various companies when the

orders were made, the orders were placed using computers that were located in either

Africa or Europe. ROA Vol. 2 p. 102.

       Mr. Kadana also testified in his own defense. He explained that he had signed for

packages because Mr. Oshobe told him they would be arriving. He stated that he had

only signed his own name when accepting packages. His name was not always legible.

One delivery addressed to Ben Teemon was accepted by T. Kella. Mr. Kadana

recognized the signature as his own, but claimed he never held himself out to the delivery


                                             -7-
driver as T. Kella. ROA Vol. 5 at 848.

       Mr. Oshobe attempted to introduce further witness testimony in his defense from

his third roommate Andrew Ikepeme, as well as Mr. Oshobe’s girlfriend Rachel Born and

the associate pastor of Mr. Oshobe’s church, Edward Appiah. Mr. Oshobe wanted those

witnesses to testify as to his statements to them that he was receiving and re-sending these

packages to Nigeria on behalf of Mr. Taiwo, in an effort to assist Mr. Taiwo’s business

and without knowledge that the packages had been purchased fraudulently. All three

witnesses’ testimony on this subject was excluded as hearsay.

C. The Convictions and Sentencing

       Mr. Oshobe was convicted on all counts while Mr. Kadana was acquitted. Mr.

Oshobe received a base level sentence of 6 under U.S.S.G. § 2B1.1(a), with a 2 level

enhancement based on number of victims (between 10 and 503) and a 2 level

enhancement based on a substantial part of the fraudulent scheme being committed

outside the United States.4 The count 3 conviction of Mr. Oshobe required a minimum

finding of a $5000 loss. The sentencing guidelines provide for a 2 level enhancement

when the loss exceeds $5,000 but is less than or equal to $10,000.5 Rather than applying

that guideline provision, the District Court instead applied a 10 level enhancement, based



See U.S.S.G. § 2B1.1(b)(2)(A)(I)
3



See U.S.S.G. § 2B1.1(b)(9)(B)
4



See U.S.S.G. §2B1.1(b)(1)(B)
5



                                            -8-
on its determination of intended loss between $120,000 and $200,000.6 Since Mr.

Oshobe had no criminal history, his guideline range for a level 20, Category I Offense

was 33-41 months. The court sentenced Mr. Oshobe to 41 months’ imprisonment and

restitution in the amount of $31,361.37.

                                     II. DISCUSSION

       Mr. Oshobe now appeals both his convictions and his sentence. He argues first that

he had no knowledge the merchandise he was receiving had been fraudulently obtained.

He contends that the District Court committed reversible error by instructing jurors that

they may, but were not required to, infer from a person’s possession of stolen property

that the person knew the property was stolen, because that instruction omitted the words

“if not satisfactorily explained” in reference to the possession. Mr. Oshobe further argues

that the Government failed to present sufficient evidence that Mr. Oshobe participated in

or had knowledge of the fraudulent manner in which the merchandise was obtained.

Also, Mr. Oshobe contends the District Court abused its discretion by excluding as

hearsay the witness testimony Mr. Oshobe sought to introduce regarding his alleged lack

of knowledge that the merchandise he possessed was fraudulently obtained.

       In addition to disputing the jury’s finding with respect to his knowledge, Mr.

Oshobe also argues that the jury was not presented sufficient evidence to support the first

count of the indictment under which he was convicted - Aiding the Unauthorized Use of


6
 See U.S.S.G. § 2B1.1(b)(1)(F)

                                            -9-
an Access Device/Credit Card. Mr. Oshobe argues that the Government failed to prove

the amount of the unauthorized use was in excess of $1,000, as is required under 18 U.S.C.

§ 1029 (a)(2). Mr. Oshobe further contends that the Government failed to show he aided

and abetted the unauthorized use of the cards.

       Finally, as to his sentence, Mr. Oshobe argues that the District Court violated his

Sixth Amendment rights under United States v. Booker, 125 S.Ct. 738 (2005), by applying

a total of fourteen levels’ enhancement to his sentence based on facts not found by a jury,

admitted by Mr. Oshobe, or the fact of a prior conviction. We disagree and affirm the

convictions and the sentence on all counts.

A. The challenged jury instruction

       Mr. Oshobe first objects to the District Court’s Jury Instruction number 21

(“Instruction 21”). The challenged instruction reads in full as follows:

       Possession of property recently obtained by fraud is a circumstance from which
       a jury may, but is not required to, infer that the person in possession of it knew
       that the property was fraudulently obtained.

       The term “recently” is a relative one and has no fixed meaning. Whether
       property may be considered “recently obtained by fraud” depends upon the
       nature of the property and all of the other evidence received in the case.

       I specifically caution you that you may not draw the inference of knowledge
       from possession of property recently obtained by fraud as to a particular
       defendant unless you are satisfied that the government has proved beyond a
       reasonable doubt that a particular defendant possessed a particular item of
       property that was recently obtained by fraud. In other words, you may not draw
       the inference as to one defendant based on the other defendant’s possession of
       the property, nor may you draw the inference based merely on evidence the
       property was located in their jointly-occupied apartment. Finally, should you

                                              - 10 -
      choose to draw the inference, you may do so only as to Counts 2 and 3, which
      contain an element of knowledge of the property. You may not draw the
      inference as to counts 1, 4 through 8, and 11 through 15.

      I remind you that the government has the burden to prove the charges beyond
      a reasonable doubt as to each defendant. The burden never shifts to the
      defendant to prove his innocence.

ROA Vol. 1 DE 81.

      Mr. Oshobe raises several challenges to this instruction. First, Mr. Oshobe

contends the judge should have modified this instruction by adding a provision that the

jury’s permissive inference of knowledge from Mr. Oshobe’s possession of the material

alleged to have been recently obtained by fraud was only appropriate “if his possession of

the material was not satisfactorily explained.”(emphasis added).7 He further argues that

the District Court erroneously removed language from the instruction which would prevent

the inference if there was evidence consistent with innocence. Finally, Mr. Oshobe argues

the District Court erroneously removed an explanation from the instruction as to the



7
  The Government argues that Mr. Oshobe’s counsel invited the error. See United States v.
Edward J., 224 F.3d 1216, 1222 (10th Cir. 2000) (holding invited error doctrine "prevents party
from inducing action by a court and later seeking reversal on the ground that the requested action
was error.") During the initial instruction conference the Government asked the court to give its
requested inference instruction, including the phrase “if not satisfactorily explained.” ROA Vol.
V, DE 100, at 714. Mr. Oshobe's counsel objected on the basis that the instruction was “getting
dangerously close to switching the burden of proof[.]” Id. at 715. The Court responded to say
the objection would be cured by deleting the phrase “if not satisfactorily explained.” Id. Mr.
Oshobe's counsel argued this deletion would not cure the objection. Id. at 716. She renewed her
objection to the instruction as a whole during the initial instruction conference (Id. at 717) and
again after the court later announced its intention to give the instruction (Id. at 820). We find
that Mr. Oshobe's counsel did not invite the error because she continued to object to the
instruction as a whole.

                                              - 11 -
importance of recency to drawing such an inference. Mr. Oshobe contends that his lack of

knowledge that the materials in question had been obtained by fraud was the crux of his

defense, and as a result, this allegedly erroneous instruction tainted the instructions as a

whole, unduly balancing them in favor of the prosecution and requiring us to reverse the

convictions on all counts.

       Mr. Oshobe raises these specific contentions for the first time on appeal. At trial,

his counsel raised a general objection to Instruction 21, arguing that it shifted the burden

of proof. ROA Vol. V, DE 100, at 715. She also later argued that the instruction failed to

define terms such as “infer” and “fraud,” (id. at 823-26), and joined in an objection to the

instruction as a whole, made by co-defendant Mr. Kadana’s counsel, contending the

instruction unduly focused on possession rather than other factors from which the jury

could infer knowledge, Id. at 820-23, 826. The Federal Rules of Criminal Procedure

provide that “[a] party who objects to any portion of the instructions or to a failure to give

a requested instruction must inform the court of the specific objection and the grounds for

the objection before the jury retires to deliberate.” Fed. R. Crim. P. 30(d) (emphasis

added). A generalized objection to an instruction is insufficient to preserve a specific

objection on appeal. United States v. Bornfield, 184 F.3d 1144, 1146 n. 2 (10th Cir. 1999).

       We review the District Court's decision to give a particular jury instruction for

abuse of discretion and consider the instructions as a whole de novo to determine whether

they accurately informed the jury of the governing law. United States v. Cerrato-Reyes,


                                             - 12 -
176 F.3d 1253, 1262 (10th Cir.1999) (citation omitted). To the extent that Mr. Oshobe’s

specific challenges to the language of Instruction 21 have been raised for the first time on

appeal, however, we will conduct only a limited review of those issues for plain error. See

Jones v. United States, 527 U.S. 373, 388 (1999).

       The jury instruction at issue here resembles an instruction approved by the Supreme

Court in Barnes v. United States, 412 U.S. 837, 840-41 (1973). In Barnes, the defendant

challenged an instruction which stated in relevant part: “[p]ossession of recently stolen

property, if not satisfactorily explained, is ordinarily a circumstance from which you may

reasonably draw the inference and find, in the light of the surrounding circumstances

shown by the evidence in this case, that the person in possession knew the property had

been stolen.” Id. The Barnes instruction further stated: “the term ‘recently’ is a relative

term and has no fixed meaning. Whether property may be considered as recently stolen

depends upon the nature of the property, and all the facts and circumstances shown by the

evidence in this case.” Id. The Barnes Court then examined the extensive common law

history of the inference of guilty knowledge from unexplained possession of stolen goods

before satisfying itself that the instruction was constitutionally permissible. Id. at 843-44.

The Court noted that the “practical effect” of this instruction was to “shift the burden of

going forward with evidence to the defendant[,]” but concluded that where an inference

satisfies the reasonable doubt standard, as was the case in Barnes, the shift was

permissible because there was a “rational connection” between the facts proved and the


                                             - 13 -
fact presumed or inferred. Id. at n. 11; See also Tot v. United States, 319 U.S. 463, 467-68

(1943).

       Unlike in Barnes, the instruction at issue here, Instruction 21, does not contain the

qualifying words “if not satisfactorily explained” with reference to the property allegedly

obtained by fraud. Instruction 21 also omits the adjective “ordinarily” which qualifies the

description of circumstances under which an inference can be drawn. The District Court

here added a provision emphasizing that while the jury “may” draw the inference, it “is not

required to[.]” We hold that it was not an abuse of discretion for the District Court here to

give a permissive inference instruction quite similar to one that was expressly approved by

the Supreme Court. We further conclude that the only substantial difference between

Instruction 21 and the instruction approved by the Court in Barnes, which requires our

further examination, is the omission of the phrase “if not satisfactorily explained.”

       Since Mr. Oshobe did not specifically object below to the District Court’s

modification of the instruction to delete the “satisfactorily explained” language (see our

discussion supra at n. 7), as noted above we will review this issue only for plain error. To

merit reversal under plain error review, there must be (1) “error” that is (2) “plain” and

that (3) “affect[s] substantial rights.” United States v. Olano, 507 U.S. 725, 732 (1993). If

these conditions are met, “the decision to correct the forfeited error [is] within the sound

discretion of the court of appeals, and the court should not exercise that discretion unless

the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial


                                              - 14 -
proceedings.’” Id. We find that Mr. Oshobe has not met this exacting standard.

       Mr. Oshobe argues that the “satisfactorily explained” phrase was critical to the

validity of the instruction. He notes that the court in Barnes emphasized that the defendant

had “provided no plausible explanation for [his possession of stolen goods] consistent with

innocence.” 412 U.S. at 845. In this case, it is true that Mr. Oshobe offered an

explanation that he was merely receiving, repackaging and forwarding materials to Mr.

Taiwo in Nigeria, and that he did not believe the materials he was handling had been

fraudulently obtained because he thought the various names on the packages were names

of Mr. Taiwo’s business partners. Mr. Oshobe therefore argues that the District Court’s

omission of the phrase “if not satisfactorily explained” prevented the jury from properly

considering his explanation before drawing the inference that he knew the material he

possessed had been fraudulently obtained.

       We disagree. The fact that Mr. Oshobe has offered an explanation does not mean

the jury had to believe it. See Barnes, 412 U.S. supra at 846 n. 9 (“The jury is not bound

to accept or believe any particular explanation any more than it is bound to accept the

correctness of the inference.”). Even without the “satisfactorily explained” language

included in the challenged instruction, we still review the instructions as a whole to

evaluate whether the jury was misled. See United States v. Pappert, 112 F.3d 1073, 1076

(10th Cir. 1997). “Only where the reviewing court has ‘substantial doubt that the jury was

fairly guided’ will the judgment be disturbed.” Id. (citation omitted).


                                            - 15 -
       In this case, the challenged Instruction 21 made it clear to the jurors that they were

not required to draw the inference of guilty knowledge. Further, in the instruction

immediately prior, the jury was expressly instructed that “the process of drawing

inferences is not a matter of guesswork or speculation. In order to return a verdict of

guilty, you still must be satisfied that the Government has proved the defendant’s guilt

beyond a reasonable doubt on all of the elements of the offense.” Jury Instruction 20, ROA

Vol. I, DE 81. Mr. Oshobe offered his explanation for possessing the fraudulently

obtained materials principally through his own testimony. The instruction immediately

following Instruction 21 advised the jury they were to determine Mr. Oshobe’s credibility

“in the same way as you would consider the testimony of any other witnesses who took the

stand.” Jury Instruction 22, Id. The jury was also specifically instructed that good faith

was a defense to counts 4 through 8 and 11 through 15 (Jury Instruction 23, Id.), and that

Mr. Oshobe had introduced evidence of good character which, while not a defense, may be

sufficient to generate reasonable doubt (Jury Instruction 24, Id.). Finally, the jury was

instructed in the penultimate paragraph of the challenged Instruction 21 that the relevant

inference of guilty knowledge was only available as to counts 2 and 3 of the indictment.

Nonetheless, the jury convicted Mr. Oshobe on all thirteen counts.

       In light of the instructions as a whole, reviewed above, it seems clear the jury

simply did not believe Mr. Oshobe’s explanation for his conduct, concluding to the

contrary that Mr. Oshobe knew he was participating in an act of fraud. For this reason, we


                                            - 16 -
find that even assuming arguendo that Mr. Oshobe could meet the first two prongs of plain

error analysis, he has failed to show that the impact of the District Court’s alleged error

affected his substantial rights. As the Court noted in Olano, in most cases the

determination that an error has affected substantial rights “means that the error must have

been prejudicial: It must have affected the outcome of the District Court proceedings.” 507

U.S. supra at 734. “It is the defendant rather than the Government who bears the burden of

persuasion with respect to prejudice.” Id. We do not find that the instructions as a whole

raise “substantial doubt that the jury was fairly guided.” Pappert, supra. Mr. Oshobe has

therefore failed to meet his burden under Olano because he has failed to show a reasonable

probability of a different outcome had the District Court included the phrase “if not

satisfactorily explained” in its Instruction 21.

B. Sufficiency of the evidence with respect to Mr. Oshobe’s knowledge of or

participation in the fraud

       Mr. Oshobe’s contentions in this regard are principally with respect to his

conviction on counts 4 through 8 and 11 through 15 of the indictment, which are charges

of mail fraud under 18 U.S.C. §1341 and § 1342. The elements of mail fraud require the

Government to prove (1) the devising of a scheme or artifice either to defraud or for

obtaining money by means of false or fraudulent pretenses, representations or promises;

(2) the specific intent to defraud; and (3) use of the United States mails or a commercial

carrier to execute the scheme. United States v. Kennedy, 64 F.3d 1465, 1475 (10th Cir.


                                             - 17 -
1995); 18 U.S.C. § 1341. Mr. Oshobe argues that the Government failed to present

sufficient evidence to support the charge that he knew of or participated in the fraud, and

therefore the Government failed to prove the element of specific intent to defraud.

       The standard of review for sufficiency of evidence to support a conviction requires

us to review the record de novo and then, after reviewing both the direct and

circumstantial evidence, and the inferences from that evidence, in the light most favorable

to the Government, determine whether a reasonable jury could find the defendant guilty

beyond a reasonable doubt. United States v. Lazcano-Villalobos, 175 F. 3d 838, 843 (10th

Cir. 1999). The Government argues that at the close of its case, Mr. Oshobe did not

specifically raise the sufficiency of evidence relating to his knowing participation in the

scheme. ROA Vol. IV, DE 99 at 510-511. However, Mr. Oshobe’s counsel orally made a

motion for judgment of acquittal under Fed. R. Crim. P. 29. The Court treated it as a

sufficiency of the evidence argument. ROA Vol. IV, pg. 510. Making a Rule 29 motion

for judgment of acquittal preserves the sufficiency of the evidence issue. United States v.

Williamson, 53 F.3d 1500, 1514 (10th Cir. 1995).

       The Government charged Mr. Oshobe as both a principal and an aider and abettor,

although it proceeded against him primarily as an aider and abettor. Mr. Oshobe argues

that to convict a defendant under an aiding and abetting theory, the evidence must

establish that a defendant associated himself with a criminal venture; participated in the

venture as something he wished to bring about; and sought by his actions to make the


                                            - 18 -
venture succeed. United States v. Hanson, 41 F.3d 580, 582 (10th Cir. 1994).

       Mr. Oshobe’s defense was that he did not know the items he was receiving had

been obtained through fraud, and therefore he could not have formulated the necessary

intent to have aided and abetted the fraud. According to Mr. Oshobe, the Government’s

case against him was based only on the circumstantial evidence that he was receiving

packages under a number of different names, and that he had removed some of the items

from their packages and used them. A jury may draw a reasonable inference of knowledge

from circumstantial evidence where there exists a “probability that the conclusion flows

from proven facts” and an inference is unreasonable where a jury engages “in a degree of

speculation and conjecture that renders its findings a guess or mere probability.” United

States v. Rahseparian, 231 F.3d 1257, 1262 (10th Cir. 2000). Mr. Oshobe argues that in

light of the explanation he provided for his conduct, the jury verdict against him could

only be based on such impermissible “speculation and conjecture.”

       We disagree. Mr. Oshobe claims that he did not realize the material that he was

receiving had been obtained through fraudulent means. However, there was considerable

evidence presented which cast doubt on this assertion. Mr. Oshobe was receiving

packages under a long list of fraudulent names.8 Not only did Mr. Oshobe receive the


8
 Those names included: Raymon Tee, Monimon Teemon, Joe Teemon, Ramon Teemon,
Monimon Mon, Ramoni Monimon, Rays Teemon, Temmeoni Rayus, Temmeoni Raymoni, Yaya
Teemon, Ben Teemon, Stanley Teemon, Stefan Monimon, Teenana Stepmon (Supp. Vol. III, Ex.
207a and 207); Pete Teemoni (Supp. Vol. III, Ex. 7-1, 8-1, 12-1, 15-1); Ogboye Jones (Supp.
Vol. III Ex. 11-1); Teemoni Peter (Supp. Vol. III, Ex. 13-1, 14-1); Raph Teemoon Akin (Supp.
Vol. III, Ex. 3-140); Joe Minimon, Teemon Mons, Moni (Supp. Vol. III, Ex. 3-145); Teemon

                                           - 19 -
merchandise delivered to these fictitious individuals, but he opened many of the packages

and had the material scattered throughout the apartment. Mr. Oshobe also received and

opened mail addressed to some of the fictitious individuals, including a notice from QVC

that QVC had been unsuccessful in reaching Ade Teemon by phone but that his QVC

account had been frozen, as well as a credit card solicitation to Monimon Teemon. Supp.

Vol III, Ex. 200. Further, when a package was sent from the S. Elm address, to be

delivered to Mr. Oshobe’s Nigerian contact, it was returned to the S. Pine address instead;

rather than forward the package or return it to S. Elm, Mr. Oshobe opened the package and

removed some of its contents. ROA Vol. II, DE 97 at 96-99. Taken together, this was

sufficient evidence for the jury to conclude Mr. Oshobe had knowledge of the fraud and

formed the specific intent to participate in it.

C. Exclusion of Mr. Oshobe’s Witnesses’ testimony

       We review the District Court’s evidentiary rulings on hearsay evidence for abuse of

discretion, considering the record as a whole. United States v. Becker, 230 F. 3d 1224,

1228 (10th Cir. 2000). An abuse of discretion occurs when a judicial determination is

arbitrary, capricious or whimsical and a trial court’s discretionary judgment will not be

overturned if it falls within the “bounds of permissible choice in the circumstances.”

United States v. Shumway, 112 F.3d 1413, 1419 (10th Cir. 1997), quoting United States v.



Peter (Supp. Vol. III, Ex. 3-144); Ade Teemon (Supp. Vol. III, Ex. 3-145); Golly Temane (Supp.
Vol. III, Ex. 3-151); PT Computers, Peter Teemoni (Supp. Vol. III, Ex. 3-154); and Peter
Teemoni (Supp. Vol. III, Ex. 3-147).

                                              - 20 -
Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996). Further, “on hearsay issues, [this court]

accords heightened deference to the District Court “because the determination of whether

certain evidence is hearsay rests heavily upon the facts of the particular case.” Becker, 230

F.3d at 1228.

       Mr. Oshobe argues that the testimony he sought to introduce from Ms. Born, Mr.

Ikepeme and Mr. Appiah was not hearsay because it was not offered for its truth value, but

rather, as “context or background.” See e.g. United States v. Wilson, 107 F.3d 774, 781

(10th Cir. 1997); United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987). Mr.

Oshobe argues that the testimony was intended to show the relationship he had established

with Ms. Olawafeme at the Elm apartment. He claims he would explain why he helped

Ms. Olawafeme repackage boxes at the Elm apartment and then later, agree to help Mr.

Taiwo by shipping merchandise to him in Nigeria. He further claims that the testimony by

the other witnesses would support the fact that they saw Mr. Oshobe do exactly what he

said he was doing, shipping packages to Mr. Taiwo. Their confirmation of this with him

settled in their minds that he was doing nothing wrong. Mr. Oshobe’s own belief that he

was doing nothing wrong was the crux of the defense theory.

       We do not believe the District Court committed reversible error when it refused to

allow the above witnesses to testify as Mr. Oshobe wished. Mr. Oshobe was permitted to

testify himself as to his defense theory of the case: that he believed he was helping out Mr.

Taiwo in Nigeria, and did not know that the merchandise he was receiving had been


                                            - 21 -
fraudulently obtained. Further, the witnesses Mr. Oshobe sought to call were in fact

permitted to testify as to those things that they themselves had seen. The only topics they

were prevented from testifying about were things that they had been told by Mr. Oshobe or

some other out-of-court declarant. Ms. Born was permitted to testify, for example, that

she had spoken on the telephone with someone who identified himself as Mr. Taiwo, that

he asked for someone else and she gave that person the phone, and that Mr. Taiwo had left

a voice mail message on another occasion. The Government objected and no evidence

was introduced regarding the substance of the voice mail message.

       In addition, although Mr. Oshobe contends that the testimony he was precluded

from introducing was merely “background information,” it is clear that the testimony

which Mr. Oshobe sought to elicit went to the essence of his theory of defense. United

States v. Becker, 230 F.3d 1224, 1229 (10th Cir. 2000), states that the background

exception to the hearsay rule is inapplicable when the hearsay response goes to the essence

of the prosecution or defense. In Becker, we held that testimony which “directly

implicates the issue of guilt,” upon which the “Government clearly relied” for its

truthfulness, was therefore used for more than the “limited” background purposes allowed

in Freeman, supra, and it was an abuse of discretion for the District Court to admit such

statements. In this case, the District Court did not exceed the “bounds of permissible

choice” by preventing Mr. Oshobe from introducing similar testimony in his defense

because such testimony would have clearly gone to the essence of Mr. Oshobe’s defense,


                                           - 22 -
rendering the context or background exception to the hearsay rule inapplicable.

D. Sufficiency of the evidence to support conviction for unauthorized use of credit cards

in excess of $1,000

       As indicated above, the standard of review for sufficiency of evidence to support a

conviction requires us to review the record de novo and then, after reviewing both the

direct and circumstantial evidence, and the inferences from that evidence, in the light most

favorable to the Government, to determine whether a reasonable jury could find the

defendant guilty beyond a reasonable doubt. Lazcano-Villalobos, 175 F. 3d supra at 843.

       Mr. Oshobe’s Rule 29 motion for judgment of acquittal preserved the sufficiency of

the evidence issue. Williamson, 53 F.3d at 1514 (10th Cir. 1995). However, we find that

the Government did introduce sufficient evidence for the jury to find unauthorized use of

credit cards for purchases amounting to in excess of $1000. The Government’s evidence

was based on the testimony of six individuals regarding the unauthorized use of their

credit cards. Of those six, the following items, ordered by use of the credit cards of five

persons, were found in the S. Pine apartment: 1) A CD Soother ordered from Sharper

Image using John Krueger’s credit card; 2) a Roomba Vacuum valued at $200 ordered

from Brookstone using Pam Gauthier’s credit card; 3) a printer valued at $69 ordered from

Computer Friend using Mark Ferguson’s credit card; 4) a horseshoe necklace valued at

$400 ordered from Red Envelope using Mike Lynn’s credit card and 5) ink cartridges

valued at $461.86 and attempted to be purchased from Genesis Office Products using Greg


                                            - 23 -
Hellyer’s credit card.

       Mr. Oshobe contends that a value for the CD Soother was never established, and

the value for the ink cartridges should not be considered towards the total value since

Genesis became suspicious of the order immediately, never charged Hellyer’s credit card,

and the item was eventually delivered only as part of the controlled delivery in conjunction

with executing the search warrant. Mr. Oshobe further contends that there was no

evidence he aided and abetted the fraud because it was stipulated that the fraudulent orders

were placed on computers in Africa and Europe. He argues that the credit card

information had already been provided to the merchant and the merchandise shipped,

meaning that the crime had already been committed before Mr. Oshobe entered the scene.

       Contrary to Mr. Oshobe’s contentions, however, the value of the CD Soother was

introduced in the summary exhibit prepared by Agent Emmot, an exhibit to which Mr.

Oshobe did not object. ROA Vol. III, DE 98 at 374 and 375. The value of the Soother

was shown in this exhibit to be $263.14. Further, Mr. Oshobe’s contention that the value

of the ink cartridges should be excluded from the calculation of total value is not

supported by the statute or any case law. 18 U.S.C. 1029 (a)(2) provides one who “uses

one or more unauthorized devices during any one year period” and by the use of such

devices (credit cards) “obtains anything of value aggregating $1,000” has violated the

statute. Regardless of whether the credit card was actually charged, it was “used” when

the person who ordered the ink cartridges gave the credit card number in placing the order


                                            - 24 -
for the ink cartridges, and Mr. Oshobe “obtained” the cartridges when they were delivered

to him before the execution of the warrant. Likewise, Mr. Oshobe has no basis for his

contention that the “aiding and abetting” of the offense was “completed” at the time the

products were fraudulently ordered by some alleged third party. The criminal transaction

continued until the time those cartridges were delivered to Mr. Oshobe. The total value of

the items seized from Mr. Oshobe’s apartment, including the CD Soother and the ink

cartridges, exceeded $1,000 and was sufficient to support the jury’s conviction.

E. The Constitutionality of Mr. Oshobe’s sentence

       In United States v. Booker, the Supreme Court held that the Sixth Amendment

requires “[a]ny fact (other than a prior conviction) ... necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or a jury

verdict [to] be admitted by the defendant or proved to a jury beyond a reasonable doubt.”

125 S.Ct. 738, 756 (2005). To remedy a constitutional infirmity created by applying

judge-found facts to mandatory sentencing guidelines, the Court severed the provision of

the Sentencing Reform Act making application of the Guidelines mandatory. Id. (excising

18 U.S.C. § 3553(b)(1)). When a defendant raises the constitutionality of his sentence for

the first time on appeal, the standard of review is that of plain error. Id at 769.

       Mr. Oshobe argues that he preserved his objection to one of the three sentencing

enhancements - a two level increase for a substantial part of the scheme being committed

outside the United States. ROA Vol. XII. However, Mr. Oshobe did not object to this


                                             - 25 -
enhancement on the ground that it violated his Sixth Amendment rights; rather, he

disputed the factual basis for the imposition enhancement. ROA Vol. VI, DE 101 at 2.

Further, contrary to Mr. Oshobe’s objection, this enhancement was in fact supported by

facts which he had previously admitted. Mr. Oshobe stipulated at trial that the computers

used to defraud the victims were located in Europe and Africa. Supp. Vol. III, Stipulation.

Mr. Oshobe also admitted in his testimony that he was shipping the merchandise he

received to Nigeria. We find that Mr. Oshobe’s admissions as to the use of computers in

fraudulently obtaining the merchandise in question, and as to the ultimate delivery of the

merchandise to Nigeria, supported the District Court's use of the enhancement.

       Mr. Oshobe did not object to the other two sentencing enhancements - a two level

increase based on the number of victims being between 10 and 50 and a ten level

enhancement for specific offense increase based on intended loss between $120,000 and

$200,000. Notwithstanding his failure to object below, Mr Oshobe contends on appeal

that based solely on the jury verdict, the two level enhancement for more than 10 victims

should not have been applied at all, and instead of the ten level enhancement for intended

loss between $120,000 and $200,000, only a two level enhancement should have been

applied for an actual loss between $5,000 and $10,000. We disagree. Even allowing that

Mr. Oshobe’s failure to object to these enhancements did not amount to an admission (see

United States v. Bass, No. 04-6049 at n. 7), and allowing that before applying these

enhancements, the District Court made factual determinations which went beyond those


                                           - 26 -
facts found by the jury and were not the fact of a prior conviction, and assuming arguendo

that Mr. Oshobe could meet the first three steps of plain error analysis with respect to these

enhancements, we find that nevertheless this is not a case where the alleged error

“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” We

therefore decline to exercise our discretion to notice any such error. See Olano, 507 U.S.

supra at 735-37 (“a plain error affecting substantial rights does not, without more, satisfy

the [test for reversal], for otherwise the discretion afforded by Rule 52(b) would be

illusory.”)

       As we noted in United States v. Mozee, 405 F.3d 1082, 1091 (2005), constitutional

Booker error is “unique” because the remedy for such an error is not a direct cure; rather, it

is a remand for resentencing under a discretionary guidelines regime. Thus, “the question

before us is whether a reversal and remand for resentencing by the District Court under a

discretionary guidelines regime would advance the fairness, integrity, or public reputation

of the courts.” Id.

       In this case, after the District Court determined that the applicable guideline range

for Mr. Oshobe’s offense was 33-41 months, it sentenced Mr. Oshobe to 41 months’

imprisonment. In other words, the court exercised its discretion and in doing so sentenced

Mr. Oshobe to serve the maximum term of imprisonment it could lawfully impose.

“Because the court decided to maximize punishment rather than exercise leniency where it

had discretion, there is no basis for us to assume Mr. Mozee would receive a lesser


                                            - 27 -
sentence if he were resentenced under a discretionary sentencing regime in which the

District Court is required to ‘consider’ the guidelines when it exercises its discretion.”

Mozee, 405 F.3d at 1092. Under these circumstances, Mr. Oshobe has failed to persuade

us that the alleged Sixth Amendment error here would seriously affect the fairness,

integrity, or public reputation of judicial proceedings. We therefore decline to exercise our

discretion to correct the forfeited error.

                                        III. Conclusion

       For the reasons discussed above, we therefore conclude that the District Court did

not commit plain error when it removed the words “if not satisfactorily explained,” from

its Instruction 21, which permitted the jury to infer from Mr. Oshobe’s possession of

fraudulently obtained merchandise, that Mr Oshobe knew the merchandise was

fraudulently obtained. Inter alia, the judge instructed the jury that the inference was only

applicable to Counts 2 and 3 of the indictment, yet the jury found Mr. Oshobe guilty on all

thirteen counts.

       Further, we find that the Government presented sufficient evidence that Mr. Oshobe

participated in or had knowledge of the fraudulent manner in which the merchandise was

obtained. We hold that the District Court did not abuse its discretion when it excluded as

hearsay the witness testimony Mr. Oshobe sought to introduce regarding his alleged lack

of knowledge. We find that the Government presented sufficient evidence for the jury to

convict Mr. Oshobe on the first count of his indictment - Aiding the Unauthorized Use of


                                             - 28 -
an Access Device/Credit Card. Finally, we conclude that the District Court did not

commit plain error when it applied a total of fourteen levels’ enhancement to Mr Oshobe’s

sentence based in part on facts not found by a jury, admitted by Mr. Oshobe, or the fact of

a prior conviction, where the court then sentenced Mr. Oshobe to a total 41 months’

imprisonment, the top of the applicable guideline range it found. Accordingly, the

convictions and the sentence of Defendant Mr. Oshobe are AFFIRMED.



                                                           ENTERED FOR THE COURT

                                                           William J. Holloway, Jr.
                                                           Circuit Judge




                                           - 29 -
