UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4136

JA JA CHIMAIHE DIKE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-97-20-CCB)

Submitted: November 10, 1998

Decided: December 17, 1998

Before ERVIN and WILKINS, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael D. Montemarano, Baltimore, Maryland, for Appellant. Lynne
A. Battaglia, United States Attorney, Ira L. Oring, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

A jury convicted Ja Ja Chimaihe Dike of one count of conspiracy
to defraud the United States in violation of 18 U.S.C.A. § 371 (West
Supp. 1998), based upon a scheme to engage in food stamp fraud.
Dike challenges his conviction asserting that: (1) a motion for judg-
ment of acquittal should have been granted; (2) exculpatory evidence
was improperly excluded; (3) the Government improperly used cer-
tain documents not admitted in evidence during his cross-
examination; and (4) the Government illegally provided "things of
value" to persons in exchange for testimony. Finding no reversible
error, we affirm.

In June 1993, Eddy Dikeh opened the Fremont Grocery, a small
convenience store in Baltimore, Maryland. Dike was a clerk at the
store. The store was equipped with a point-of-sale terminal that could
electronically access a food stamp recipient's account and transfer
funds to the store. Maryland food stamp recipients receive their bene-
fits electronically with the use of an electronics benefit transfer card
("EBT"). Recipients swipe the card through a terminal and enter a
PIN number. The sale amount is entered and funds are transferred to
the store. A receipt is printed which contains the statement: "Do not
dispense cash."

In spite of that statement, recipients at the Fremont Grocery often
received cash in exchange for double the benefits. For instance, if a
recipient wanted $20, his account was charged $40, with the store col-
lecting the difference. The money given to the recipient was either
wrapped in a receipt or placed in a paper bag. In addition, the recipi-
ent was obligated to make a purchase of several dollars and given a
complimentary newspaper so that he would not leave the store empty-
handed.

Dike was observed dispensing cash to recipients in exchange for
benefits. However, he would not give cash to recipients he did not
recognize. To avoid this obstacle, "runners" would act as middle-men
between unknown recipients and Dike. Sometimes the runner did not
know what grocery items to purchase in addition to the cash transac-

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tion. Dike would randomly take items off the shelf to give to the run-
ner. On other occasions, Dike asked Leroy Lockley, a friend of
Dikeh, if he recognized the recipient. Dike also ceased making trans-
actions if police cars or other unknown cars were in the neighbor-
hood.

Dike testified in his own defense, denying that he knew what he
was doing was unauthorized. He testified that Dikeh instructed him
to exchange money for benefits. Dike stated that he believed the EBT
cards were like credit cards and did not think it unusual that recipients
had two dollars deducted from their accounts for every dollar
received. He also claimed that he did not understand the significance
of the statement "Do not dispense cash." He denied knowledge of the
use of runners. He also denied dealing with unknown recipients dif-
ferently than others or ceasing transactions when police vehicles were
in the neighborhood.

On appeal, Dike contends that he was entitled to a judgment of
acquittal because the Government's evidence did not establish that he
knew the money-for-benefits transactions were unauthorized. When
reviewing a denial of a motion for judgment of acquittal, we inquire
whether, viewing the evidence in the light most favorable to the gov-
ernment, the evidence was sufficient to sustain a finding of guilt
beyond a reasonable doubt. See United States v. Romer, 148 F.3d 359,
370 (4th Cir. 1998). In Liparota v. United States, 471 U.S. 419
(1985), the Court held that in proving a violation of a food stamp stat-
ute, the government must prove beyond a reasonable doubt that the
defendant knew that his action was unauthorized. However, the bur-
den is not a heavy one. According to Liparota :

          the Government need not show that [the defendant] had
          knowledge of specific regulations governing food stamp
          acquisition or possession. Nor must the Government intro-
          duce any extraordinary evidence that would conclusively
          demonstrate [the defendant's] state of mind. Rather, as in
          any other criminal prosecution requiring mens rea, the Gov-
          ernment may prove by reference to facts and circumstances
          surrounding the case that petitioner knew that his conduct
          was unauthorized or illegal.

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Id. at 434.

It is the jury's role to determine the credibility of witnesses. See
United States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). In spite
of Dike's testimony to the contrary, we find there is sufficient evi-
dence to sustain the conviction. Evidence of intent will almost always
be circumstantial. See United States v. Brooks , 111 F.3d 365, 372 (4th
Cir. 1997). Furthermore, "[f]raudulent intent may be established by
circumstantial evidence and by inferences deduced from facts and sit-
uations." United States v. Celesia, 945 F.2d 756, 759 (4th Cir. 1991)
(quotation omitted).

Dike was aware of the printed prohibition against dispensing cash
at the bottom of each receipt. He was wary of conducting transactions
with persons he did not recognize. He made sure recipients left the
store with something in addition to the money. He ceased conducting
transactions when police were in the neighborhood. Clearly, there was
sufficient evidence showing that Dike knew that what he was doing
was unauthorized.

Dike contends the court erred in not permitting a letter purportedly
written by Dikeh into evidence. According to Dike, the letter should
have been admitted under Fed. R. Evid. 804(b)(3), as a statement
against penal interest.* In the letter, Dikeh states that he was responsi-
ble for "any thing [sic] that happened in the store" and that prosecut-
ing Dike was a "mistake." Dikeh also claimed in the letter that he was
going to commit suicide.

When the offered hearsay statement exposes the declarant to crimi-
nal liability and is offered to exculpate the defendant, as in the instant
case, the statement "is not admissible unless corroborating circum-
stances clearly indicate the trustworthiness of the statement." Fed. R.
Evid. 804(b)(3). The party offering the statement bears the formidable
burden of meeting the requirements of Rule 804(b)(3), and the court's
decision is reviewed for abuse of discretion. See United States v.
Lowe, 65 F.3d 1137, 1145 (4th Cir. 1995) (quotation omitted).
_________________________________________________________________

*Dikeh absconded and was unavailable to testify at trial.

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The court found that it was doubtful that the letter was exculpatory
as far as Dike was concerned. Although Dikeh assumed responsibility
for actions that went on in the store, even if Dike was merely follow-
ing instructions, he was still criminally responsible if he acted know-
ingly in participating in the fraud. The court also doubted the letter's
trustworthiness, noting that it contained several inconsistencies,
including a threatening statement attributed to the prosecuting attor-
ney which was refuted by a defense attorney present when the state-
ment was allegedly made. Dikeh's threat to commit suicide was also
not credible because there was evidence he was planning to flee to
Nigeria when the letter was written. Furthermore, Dikeh's fear of a
life sentence, as expressed in the letter, was unfounded in light of evi-
dence that he was informed that he faced a sentence no greater than
twenty-seven months. Because there was a lack of corroborating evi-
dence tending to show that the letter was trustworthy, we find the
court did not abuse its discretion in not admitting the letter into evi-
dence. See United States v. Bumpass, 60 F.3d 1099, 1102-03 (4th Cir.
1995) (corroborating circumstances must clearly indicate the trust-
worthiness of the statement).

Next, Dike contends the Government improperly used a series of
documents to cross-examine him, which the court subsequently
refused to admit into evidence. The documents were purported to be
a description prepared by Dikeh of how one might apply for political
asylum. On direct examination, Dike described his efforts in applying
for asylum. Dike's asylum application detailed alleged persecution by
the Nigerian government. On cross-examination, over defense coun-
sel's objection, the Government presented the documents prepared by
Dikeh. Dikeh's documents described facts similar to those set forth
in Dike's own asylum application and included supporting documen-
tation that could be used to support a fraudulent asylum application.
Dike admitted that Dikeh assisted him in filing the asylum applica-
tion, but denied filing a false application. The Government later
sought to admit the documents into evidence on the basis that it estab-
lished a relationship between Dike and Dikeh. The court refused to
admit the document into evidence, finding that its probative value was
outweighed by the possibility of confusion. See Fed. R. Evid. 403.

The Government's contention is that Dike's credibility was a
proper subject on cross-examination. The court's ruling is reviewed

                    5
for abuse of discretion. See United States v. McMillon, 14 F.3d 948,
955 (4th Cir. 1994). It is well established that a defendant who volun-
tarily offers himself as a witness and testifies in his own behalf sub-
jects himself to legitimate and pertinent cross-examination to test his
veracity and credibility. See United States v. Ling, 581 F.2d 1118,
1120 (4th Cir. 1978).

We fail to find error with the Government's cross-examination.
Dike testified on direct examination about applying for asylum. Dike
later identified Dikeh's handwriting on one of the documents. He,
however, was free to admit or deny the inference suggested by the
documents, i.e., that Dikeh assisted him in filing a false asylum appli-
cation. The Government did not read any statements from the docu-
ments in an attempt to put clearly inadmissible hearsay statements
before the jury under the guise of impeachment. See United States v.
Hall, 989 F.2d 711, 716 (4th Cir. 1993). Because the documents were
evidence of the Government's good-faith belief that Dike had previ-
ously engaged in fraudulent conduct, we find that the court did not
abuse its discretion in permitting the cross-examination. See United
States v. Guay, 108 F.3d 545, 553 (4th Cir. 1997).

Finally, Dike contends the Government offered inducements to its
witnesses in exchange for their testimony in violation of 18 U.S.C.
§ 201(c)(2) (1994). Dike does not offer any evidence to support this
contention. At best, Dike is relying on United States v. Singleton, 144
F.3d 1343 (10th Cir. 1998), which held that any promise made by the
government to a witness in exchange for truthful testimony violates
§ 201(c)(2). The opinion is not controlling in this circuit and, in any
event, it has been vacated.

For the foregoing reasons, we affirm the conviction. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid in the decisional process.

AFFIRMED

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