                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-4322
                                      ____________

                          UNITED STATES OF AMERICA

                                             v.

                                ADOLPHUS NWOKEDI,

                                                       Appellant
                                      ____________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. No. 2-15-cr-00177-001)
                         District Judge: Honorable Esther Salas
                                     ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  September 7, 2017

           Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.

                          (Opinion Filed: September 11, 2017)
                                    ____________

                                        OPINION*
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.

       After a jury convicted him of conspiracy to import heroin into the United States in

violation of 21 U.S.C. § 963, Adolphus Nwokedi filed this appeal claiming he was

entitled to a judgment of acquittal or a new trial. Because we are unpersuaded by any of

Nwokedi’s arguments, we will affirm the judgment of the District Court.

                                              I1

       Nwokedi first insists that his conviction cannot stand because the Government

acted in bad faith. In support of this claim, Nwokedi cites the Government’s destruction

of evidence (the heroin) and its failure to record his confession.

       Nwokedi’s bad faith claim, which implicates “a defect in instituting the

prosecution,” Fed. R. Crim. P. 12(b)(3)(A), fails for at least two reasons. For starters,

Rule 12 requires such claims to be raised before trial and we cannot consider untimely

claims absent “good cause.” Fed. R. Crim. P. 12(c)(3); see also United States v.

Salahuddin, 765 F.3d 329, 349–50 (3d Cir. 2014). Although Nwokedi knew prior to trial

that the heroin was destroyed, he neither raised the issue in the District Court nor has he

argued on appeal that good cause existed for his failure to do so. Accordingly, we hold

this claim forfeited.2


       1
         The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. Our
jurisdiction lies under 28 U.S.C. § 1291.
       2
       Even had Nwokedi timely objected, his bad faith argument would have failed.
We have no per se rule requiring confessions to be recorded, United States v. Tykarsky,

                                              2
       Articulating a variation on his first theme, Nwokedi argues that the destruction of

the heroin and the absence of a recorded confession rendered the evidence insufficient to

support his conviction. This argument runs headlong into the seminal precedent of United

States v. Caraballo-Rodriguez, where this Court explained that our review of sufficiency

claims is “highly deferential” to the jury’s findings, even in “drug conspiracy cases.” 726

F.3d 418, 430 (3d Cir. 2013) (en banc). We may reverse only when “no reasonable juror

could accept the evidence as sufficient to support the conclusion of the defendant’s guilt

beyond a reasonable doubt.” Id. at 430–31 (citation omitted).

       Although the jury was free to believe Nwokedi’s testimony that he never

confessed, the jury was equally free to find the agent’s testimony to the contrary more

credible. Nor was it irrational for the jury to find Nwokedi guilty based on the

circumstantial evidence presented at trial. Our review of the trial record leads to the

conclusion that the evidence was sufficient under Caraballo-Rodriguez.

                                              II

       Nwokedi also raises several challenges regarding the District Court’s willful

blindness jury instruction, despite the fact that the instruction was identical to the one the

parties “agreed[ ]upon” and “jointly submitted.” United States v. Nwokedi, 2016 WL




446 F.3d 458, 477 (3d Cir. 2006), and Nwokedi has failed to show that the destruction of
the heroin was not inadvertent or that the heroin would have been materially exculpatory,
see Illinois v. Fisher, 540 U.S. 544, 545, 548 (2004). Furthermore, the purity of the
heroin was irrelevant to his sentence. United States v. Gori, 324 F.3d 234, 238–39 (3d
Cir. 2003); 21 U.S.C. § 960(b)(2)(A).
                                              3
7015626, at *9 & n.9 (D.N.J. Dec. 1, 2016). Under the invited error doctrine, then,

Nwokedi “waived his right to raise these instructional issues.” United States v. Ozcelik,

527 F.3d 88, 97 n.6 (3d Cir. 2008).

       Even had Nwokedi objected to the willful blindness instruction, we would affirm.

Contrary to Nwokedi’s argument, the fact that he willingly accepted the package

containing heroin does not mean he was not willfully blind about its contents. Indeed, this

possibility was remarkably consistent with Nwokedi’s principal line of defense: that he

was unaware the package contained heroin. Nor did the willful blindness instruction

supplant the other elements of conspiracy, as Nwokedi asserts. It merely served as an

alternative to the knowledge element already described by the Court alongside the other

elements of conspiracy. See Supp. App. 382–92; United States v. Leahy, 445 F.3d 634,

649–51 (3d Cir. 2006) (considering the instructions as a “whole”), abrogated in part on

other grounds by Loughrin v. United States, 134 S. Ct. 2384 (2014).

       The willful blindness instruction also did not “uproot[] the reasonable doubt

standard” or “shift[] the burden” of proof “onto Nwokedi.” Nwokedi Br. 32. The District

Court’s instructions were almost identical to the Third Circuit Model Jury Instructions,

which “d[o] not impose any burden, implicit or explicit, on [the defendant] to prove or

disprove his knowledge.” United States v. Tai, 750 F.3d 309, 315 (3d Cir. 2014). Finally,

the willful blindness instruction did not constructively amend the indictment because it

did not “broaden[] the possible bases for conviction.” Salahuddin, 765 F.3d at 340. To

repeat, it merely described an alternative to the knowledge element. See United States v.
                                             4
One 1973 Rolls Royce, 43 F.3d 794, 813 (3d Cir. 1994). For these reasons, the willful

blindness instruction was not infirm.

                                        *   *     *

       For the reasons stated, we will affirm Nwokedi’s judgment of conviction.




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