
USCA1 Opinion

	




          May 3, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2265                                    UNITED STATES,                                      Appellee,                                          v.                                  ELIZABETH MOGAJI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                  [Hon. Francis J. Boyle, Chief U.S. District Judge]                                          _________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Elizabeth I. Mogaji on brief pro se.            ___________________            Sheldon Whitehouse, United  States Attorney, and James H.  Leavey,            __________________                               ________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Defendant-appellant Elizabeth  Mogaji                      __________            was convicted of  one count  of conspiracy  to commit  credit            card  fraud  and five  counts  of  fraudulent  use of  access            devices.  See 18 U.S.C.   1029(a)(2).  She raises a number of                      ___            issues on appeal, all of them meritless.                      1.  Motion to Suppress.                          __________________                      Defendant  argues that  the  district court  should            have suppressed the contents of the two plastic bags found by            Pamela McCutcheon  and turned over to  Secret Service Special            Agent James  Mooney.  The government  correctly responds that            defendant has no standing  to contest the search  because she            did not  have  a reasonable  expectation  of privacy  in  the            common basement area of the  duplex at 10-12 Stamford Avenue;            nor does the fact that defendant's driver's license was found            in one of the bags  make a difference.  See United  States v.                                                    ___ ______________            Thornley, 707  F.2d 622, 625  (1st Cir. 1983)  (defendant may            ________            not protect himself against discovery of an item by taking it            from his  own premises and hiding  it in a place  in which he            has no  legal interest).   Further, defendant did  not assert            ownership of anything in the plastic  bags at the suppression            hearing  -- the time at which defendant must carry her burden            of  showing a  privacy  expectation.   See  United States  v.                                                   ___  _____________            Aguirre,  839  F.2d  854,  856  (1st  Cir.  1988).    Because            _______            defendant plainly has  no standing to contest  the search, we            need not address defendant's credibility arguments.                       2.  Judgment of Acquittal.                          _____________________                                         -3-                      Defendant  argues  that   there  was   insufficient            evidence  to find  her guilty  of any  of  the counts  in the            indictment.  We will address these arguments by count, ending            with Count One, the conspiracy charge.  We review  challenges            to the  sufficiency of  the evidence  to determine  whether a            rational  jury could  find guilt  beyond a  reasonable doubt.            United States v.  Flores-Rivera, 56 F.3d  319, 323 (1st  Cir.            _____________     _____________            1995).   In  so doing,  we examine  the evidence,  along with            reasonable  inferences, in  the light  most favorable  to the            prosecution.  Id.  The evidence may be circumstantial and the                          ___            prosecution does not have  to exclude every reasonable theory            of innocence.  United States v. Batista-Polanco, 927 F.2d 14,                           _____________    _______________            17 (1st  Cir. 1991).  "Furthermore, the  reviewing court does            not   evaluate   witness   credibility,   but   resolves  all            credibility issues in favor  of the verdict."  Flores-Rivera,                                                           _____________            56 F.3d at 323.                      The   above   principles  dispose   of  defendant's            assertions that many of the witnesses lied on the stand.   We            have reviewed  the trial  transcript and conclude  that these            challenges go  instead to  the credibility of  the witnesses.            As  such, we will not  revisit the jury's  evaluation in this            regard.  See id.                     ___ ___                          (a).  Count Two.   This count charges defendant                                _________            and Onyejekwe with using a Chase Manhattan Mastercard  in the            name of Raymond Walters  to purchase two checks in  the total                                         -4-            amount of $10,150  in violation of    1029(a)(2).   Defendant            first argues  that  none of  the  exhibits submitted  by  the            government in relation to this charge showed that she had any            involvement in procuring these checks.  However, defendant is            being charged as part  of a conspiracy.  Under  the Pinkerton                                                                _________            doctrine, Pinkerton v. United States, 328 U.S. 640  (1946), a                      _________    _____________            member of a conspiracy may be held liable for the substantive            crimes committed by co-conspirators if the substantive crimes            were  committed in  furtherance of  the conspiracy  and while            defendant was a member  of the conspiracy.  United  States v.                                                        ______________            Flores-Rivera, 56 F.3d at 324.            _____________                          We think that a  rational jury could have found            beyond a reasonable doubt that Onyejekwe used the Raymond  P.            Walters Mastercard in furtherance of the conspiracy and while            defendant  was  a  part  of  the  conspiracy.    First,  when            Onyejekwe and defendant were  arrested for using a Mastercard            in  the name of Beverly  Onofrio on July  10, 1991, Onyejekwe            was carrying a  list of names.  On  this list appeared names,            birth  dates  and addresses  for  both  Onofrio and  Walters.            Further, the use  of the Walters Mastercard occurred  in mid-            May  to  June of  1991  --  only a  month  prior  to the  two            occasions on  which defendant and Onyejekwe  used the Onofrio            Mastercard at the Lechmere stores.  The jury could reasonably            infer, we think, that the use of both the Onofrio and Walters            Mastercards occurred as part of one conspiracy.                                         -5-                          Second,  we believe  the evidence  supports the            conclusion that defendant was a participant in the conspiracy            when Onyejekwe used  the Walters Mastercard.   The common law            is  that one  who joins an  ongoing conspiracy,  as defendant            plainly did  on July 6 and 10, "is deemed to have adopted the            prior acts and declarations of coconspirators, made after the            formation  and in  furtherance  of the  conspiracy."   United                                                                   ______            States  v.  Cintolo,  818  F.2d 980,  997  (1st  Cir.), cert.            ______      _______                                     _____            denied, 484 U.S. 913 (1987).  Given that the names of Walters            ______            and Onofrio appeared on  the list Onyejekwe was  carrying the            day defendant was arrested,  there was sufficient evidence to            convict defendant on Count Two.                            (b).  Count Three.  This count concerns the use                                ___________            of  Beverly Onofrio's  Mastercard at  the Lechmere  stores on            July 6 and 10, in 1991.  Defendant first argues  that Exhibit            #12, a photocopy  of a  Lechmere sales slip,  was altered  to            influence the jury.   She contends that one order  number was            written over  another and that the employee number, 1034, was            handwritten, when the  usual Lechmere custom  is to have  the            employee  number pre-stamped on the sales slip.  Looking at a            copy  of the  sales slip,  however, we  can discern  only one            order  number  --  0061903.    As  for  the  writing  of  the            employee's  number, there is  nothing to  support defendant's            assertion  that Lechmere's  "usual  practice" was  to have  a            printed number.                                         -6-                          Defendant next attacks the photo identification            procedure  by which Alex Shtutin -- the Lechmere sales person            who sold the  telefax machines to defendant  and Onyejekwe on            July 6 --  identified defendant.   However, as far as  we can            tell, defendant  never filed a  motion to suppress  the photo            identification  prior to  trial;  in fact,  she did  not even            object  to Shtutin's testimony at  trial.  We  have held that            pretrial photo identification  procedures are subject to  the            requirements of  Fed. R.  Crim. P.  12(b)(3)  and motions  to            exclude  such evidence must be  made prior to  trial.  United                                                                   ______            States v. Gomez-Benabe, 985 F.2d 607, 611-12 (1st Cir. 1993).            ______    ____________            Given Gomez-Benabe,  we think  that defendant, by  not having                  ____________            given  the district court a chance to determine if she should            be excused  from filing  a pretrial  motion to  suppress, has            waived her right to challenge the identification procedure on            appeal.                          (c).    Counts Four  and  Five.   These  counts                                  ______________________            concern, respectively,  the use  of  Onofrio's Discover  Card            during June 21, 1991  through June 25, 1991,  and the use  of            Onofrio's  AT&T Universal  Mastercard  during  June 26,  1991            through July 24, 1991.  Defendant correctly notes, as she did            with  respect to Count Two, that there was no direct evidence            that she ever used  either card.  Thus, under  Pinkerton, the                                                           _________            government was required to prove that the use of the Discover            Card  and the  AT&T Universal  Mastercard, during  the period                                         -7-            from  June 21,  1991  to July  24, 1991,  was carried  out by            Onyejekwe   in  furtherance  of   the  conspiracy  and  while            defendant was involved in the conspiracy.  See Flores-Rivera,                                                       ___ _____________            56 F.3d at 324.                          In regard  to Count Four, the  evidence is that            the Discover Card was found in Onyejekwe's possession when he            was arrested on  July 10, and that Onofrio's  name was on the            list of names Onyejekwe was carrying.   Defendant argues that            she was in the hospital during the time the Discover Card was            used.   However, absent any claim that she had withdrawn from            the conspiracy,  the fact  that defendant was  somewhere else            during  her co-conspirator's  actions is  not relevant.   See                                                                      ___            United States  v. Juodakis,  834  F.2d 1099,  1102 (1st  Cir.            _____________     ________            1987) (per curiam).  Cessation of activity in a conspiracy is            not  enough to  show withdrawal;  rather, a  conspirator must            take some  affirmative  act  such as  a  full  confession  to            authorities or a communication to a co-conspirator that he or            she  is withdrawing from the enterprise.  Id.  Defendant does                                                      ___            not allege the existence of such circumstances here.                          As for  Count Five,  defendant points  out that            the AT&T Universal Mastercard never  was recovered.  She also            argues that there is no evidence connecting her to the use of            the  AT&T card.   We  do not  think that  either ground  is a            sufficient  basis on  which to  overturn the  jury's verdict.            First, the question  is not only  whether defendant used  the                                    ___                                         -8-            AT&T card, but also whether Onyejekwe might have used it.  In                                        _________            this regard,  we note that the  AT&T card was  applied for in            June 1991 and was  used during the same period  defendant and            Onyejekwe  were  using the  other  cards  in Onofrio's  name.            Because  the  evidence  linking   Onyejekwe  to  the  use  of            Onofrio's  name  is  so  strong,  we  think  that   the  jury            rationally  could find  that  Onyejekwe  used Onofrio's  AT&T            Universal Mastercard.                          (d).  Count Six.   This count charged defendant                                _________            with using a Mastercard  in the names of Leonard  L. Medeiros            and  Althea  V. Medeiros  to  withdraw  money from  automated            teller  machines.   The government's  evidence  consisted, in            part, of photographs  of the person  who withdrew money  with            the  card in question.  McCutcheon had testified that she had            rented  half of the duplex  at 10 Stamford  Ave. to defendant            who told McCutcheon that she (defendant) was Althea Medeiros.            McCutcheon identified defendant as the person in the picture.                          Defendant  argues  that the  photographs should            not  have  been admitted  in evidence  because they  were too            blurry for identification  purposes.  As a result,  she adds,            McCutcheon's identification of her  was suspect.  However, as            with the other photo  identification, defendant never filed a            motion  to  suppress the  photographs.    Therefore, she  has            waived an appellate challenge to them.  See Gomez-Benabe, 985                                                    ___ ____________            F.2d  at  611-12.     In  any  event,  defendant's  arguments                                         -9-            concerning McCutcheon's testimony  really go to  credibility.            Thus, we need not  review her claims.  See  Flores-Rivera, 56                                                   ___  _____________            F.3d at 323.                          (e).   Count One.  Count  one charged defendant                                 _________            with conspiracy to commit credit card fraud.  Defendant makes            some  of the same arguments in support of her contention that            the government failed  to show a  conspiracy between her  and            Onyejekwe as  she made in regard to Counts Two and Four.  For            the  reasons stated  in the  discussion regarding  Count Two,            defendant's arguments,  first, that  the acts in  Counts Two,            Four and Five  took place prior to July 10  and, second, that            she  only was present in the  Lechmere parking lot on July 10            fail.  Similarly unavailing are the arguments that there  was            no  evidence that defendant ever used a credit card or helped            Onyejekwe use a  credit card,  that defendant's  fingerprints            were not found on any cards, and that no cards  were found on            her person.   Under  Pinkerton, defendant is  responsible for                                 _________            the reasonably foreseeable offenses committed by Onyejekwe in            furtherance of the conspiracy  since she was a member  of the            conspiracy  during the  relevant time  periods.   See Flores-                                                              ___ _______            Rivera, 56 F.3d at 324.  The uses of the various credit cards            ______            by Onyejekwe clearly were foreseeable.                        3.  Denial of Cross-Examination.                          ___________________________                      Defendant argues  that on three  occasions she  was            prevented from conducting  cross-examination that would  have                                         -10-            revealed the biases and  perjured testimony of the witnesses.            However,  a  review  of  the transcript  shows  that  counsel            decided to  withdraw the questions to  which defendant refers            and that there  is no evidence  that either the court  or the            government "prevented" defendant from cross-examining anyone.            Thus,  this issue,  being  fact-based, must  be raised  as an            ineffective assistance claim  in a motion  under 28 U.S.C.               2255.   See United  States v.  Georgacarakos, 988  F.2d 1289,                    ___ ______________     _____________            1297 (1st  Cir. 1993)  (an ineffective assistance  of counsel            claim which involves issues not fully  developed in the trial            record is  not ripe for  decision on  appeal).  For  the same            reason,  we  will  not consider  defendant's  other arguments            relating to allegedly ineffective assistance of counsel.                      4.  Improper Jury Instruction.                          _________________________                      Defendant complains that the trial  judge failed to            instruct  the jury  that    1029 requires  the  government to            prove  that she  "actually  used" an  unauthorized device  to            obtain something of value.   Because defendant never objected            below,  we  review for  plain error.    See United  States v.                                                    ___ ______________            McGill,   952  F.2d  16,  17  (1st  Cir.  1991).    The  jury            ______            instructions plainly  reveal that  the trial  judge correctly            instructed the jury that, as Pinkerton holds, defendant could                                         _________            be found guilty of fraudulent use of an access  device if the            jury found  that another's use of  such a device  was part of            the conspiracy,  that such  use was a  reasonably foreseeable                                         -11-            consequence  of  the conspiracy,  and  that  defendant was  a            member of  the conspiracy  when the  device was used.   As  a            result, there was no plain error.                      Defendant's second argument is that the trial judge            improperly used the word "conspirators" in reciting the overt            acts charged in the indictment.  Essentially, the trial judge            substituted  the  word  "conspirators"  for  the  words  "the            defendants,  Christopher  Onyejekwe  and  Elizabeth  Mogaji."            Thus, as to the first overt act, the judge stated that "on or            about  July 6,  1991,  conspirators purchased  merchandise at                                   ____________            Lechmere. . . ."  Defendant alleges that this communicated to            the  jury  the trial  judge's  belief  that she  was  guilty.            Again, there is no plain  error here.  The trial  court judge            instructed  the jury  that the  indictment was  not proof  of            anything and clearly defined what elements were necessary for            the jury to  find that  defendant was part  of a  conspiracy.            The judge also  instructed the  jury that he  had no  opinion            concerning the facts.                      5.  Motion to Recuse.                          ________________                      Defendant argues that Judge Boyle, the trial judge,            should have  recused himself  due to  his bias  and prejudice            against defendant.  She  claims that he was convinced  of her            guilt  from the beginning.   This claim, in  part, arose when            defendant and her lawyer allegedly heard Judge Boyle state at            a bail  reconsideration hearing that there  "was a conspiracy                                         -12-            among you people."  Defendant also rests her recusal argument            on  Judge  Boyle's post-trial  threat  that  he would  strike            defense counsel's name from the court-appointment list.                      As for the first comment, it does not appear in the            transcript of the bail reconsideration hearing.  Further, the            court  reporter  reviewed  the  tape recording  of  the  bail            reconsideration   hearing   and  verified   the  transcript's            authenticity.  In any event, defendant has  waived this issue            by waiting until after trial  to file a motion  for  recusal.                             _____            See  In re Abijue Realty  Corp., 943 F.2d  121, 126 (1st Cir.            ___  __________________________            1991) (a  litigant, knowing  of a ground  for recusal  cannot            wait  and  decide whether  he  or  she likes  the  subsequent            treatment he or she receives).                      The second  comment, unlike the first,  is not even            directed at defendant.  Further, a reading of  the transcript            reveals  that this  apparently  was the  second time  defense            counsel was  unprepared to go forward on a matter.  We do not            think  that  this   comment  provides  what   "an  objective,            knowledgeable  member  of  the  public  would find  to  be  a            reasonable basis for doubting the judge's impartiality."  See            ________________                                          ___            In  re United  States,  666 F.2d  690,  695 (1st  Cir.  1981)            _____________________            (stating the  applicable standard under 28  U.S.C.   455(a)).            Simply, judicial  expressions of vexation at  lawyers who are            not  ready to  proceed on  time do  not  raise a  question of            judicial bias.                                         -13-                      6.  Motion for a New Trial.                          ______________________                      In her recitation of the facts,  defendant mentions            that the district court denied her  motion for a new trial as            untimely.  However,  she fails  to include in  her brief  any            argument  why we  should  reverse the  trial court's  ruling.            ________            Thus,  she  has waived  the  issue.   A review  of  the issue            nonetheless shows that this claim is meritless.                      Defendant  was convicted  on May  10, 1994  and the            certificate of service of the new trial motion was dated July            6, 1994.  Fed. R.  Crim. P. 33 requires  such a motion to  be            filed within seven days after verdict.  At the hearing on the            motion,  defendant's  trial  attorney stated  that  defendant            never had asked him to file a motion for a new trial.   Judge            Boyle concluded that defendant had been confused over how one            obtains a new  trial -- by a  motion or an appeal  -- and had            asked  her attorney  to file  an appeal.   In any  event, the                                             ______            untimeliness  of  the  motion  for  a  new trial,  a  finding            supported  by the  evidence, means  that the trial  court was            without jurisdiction to rule  on it.  United States  v. Lema,                                                  _____________     ____            909 F.2d 561, 565 (1st Cir. 1990).                      The judgment of conviction is affirmed.                                                    ________                                         -14-
