                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              MAY 9 2001
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 00-7022
                                                          (E.D. Okla.)
 AUGUSTIN SOLA EKPETI,                               (D.Ct. No. 99-CR-41-S)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Augustin Sola Ekpeti appeals his jury convictions for the


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The 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.
interstate transportation of stolen vehicles in violation of 18 U.S.C. §§ 2312 and

2(b) and resulting twenty-one month concurrent sentences. On appeal, Mr. Ekpeti

argues: 1) insufficient evidence supported his jury convictions for transporting

stolen property; 2) the district court improperly enhanced his sentence under

United States Sentencing Guideline (“U.S.S.G.”) § 2B1.1(b)(4)(A) for “more than

minimal planning” in committing the crimes underlying his conviction; and 3) the

government improperly failed to request a downward departure motion under

U.S.S.G. § 5K1.1 for his “substantial assistance” in its investigation. We exercise

our jurisdiction under 28 U.S.C. § 1291 and affirm.



                                 Factual Background

      The relevant facts pertinent to our disposition follow. 1 Beginning in 1995,

Mr. Ekpeti owned and operated Ausnet Security and Intelligence, Inc. (Ausnet), a

Miami-based security service company. In the summer of 1998, Ausnet obtained

a security contract with a federal army ammunition plant in McAlester,

Oklahoma. The terms of the contract required Ausnet to provide, in part, twelve

specially equipped white trucks or vehicles for use on security patrol routes. The



      1
         In outlining the facts on direct appeal, we view the evidence in the light most
favorable to the government. See United States v. Magleby, No. 99-4245, 241 F.3d 1306,
1312(10th Cir. 2001).


                                          -2-
contract terms further designated October 1, 1998 as the performance date.



      In preparing for the contract, Mr. Ekpeti hired Jerry Holloway, a resident of

McAlester, as the local manager for the project. In order to raise funds necessary

for purchasing the twelve vehicles required, Mr. Ekpeti unsuccessfully sought

financing prior to the October 1, 1998 performance date. As of October 1, 1998,

Mr. Ekpeti had only one vehicle with which to perform the contract.

Consequently, Mr. Ekpeti requested and received an extension from the

government until October 23, 1998 to begin performance. In order to get an

extension, Mr. Ekpeti made false statements a hurricane damaged his vehicles and

as proof, submitted a false repair invoice to the government.



      Mr. Ekpeti sought assistance from his friend, Mr. Robert Inyang, in

acquiring the necessary vehicles. Mr. Ekpeti claims he believed Mr. Inyang

obtained vehicles for him from government auctions. Each time Mr. Inyang

obtained a vehicle, he brought it to Mr. Ekpeti’s Miami business where Ausnet

employees immediately sent the vehicles for painting and equipping. Ultimately,

Mr. Ekpeti shipped the twelve vehicles to McAlester, but not in time to meet the

October, 23, 1998 contract performance date. As a result, the government

canceled the contract. In the meantime, the first shipment of vehicles arrived in


                                        -3-
McAlester on or about October 24, 1998, and the second shipment arrived one day

later. Mr. Ekpeti received permission from Mr. Holloway to store the twelve

vehicles at Mr. Holloway’s home in McAlester until Mr. Ekpeti could retrieve

them.



        A few months after delivery of the subject vehicles, Mr. Ekpeti and others

began retrieving the vehicles from Mr. Holloway’s property. On March 26, 1999,

Mr. Ekpeti drove one of the twelve vehicles, accompanied by four passengers, to

McAlester to retrieve some of the other vehicles. On reaching McAlester, a

police officer stopped Mr. Ekpeti for a traffic offense. The vehicle was registered

to Mr. Ekpeti’s secretary, LaToya Sands, but a subsequent check verified the

registration statement was fraudulent. Immediately after his arrest, a Federal

Bureau of Investigation agent interviewed Mr. Ekpeti, who stated he owned the

vehicle, paid in excess of $20,000 for it, and registered it in his secretary’s name

because he did not have identification with him when he registered it. A

subsequent investigation revealed the vehicle was reported stolen on October 22,

1998 – just a few days before its shipment to McAlester. Further investigation

showed all twelve vehicles transported to McAlester had altered vehicle

identification numbers and fraudulent registration statements, and Mr. Ekpeti did

not have titles for eleven vehicles. When federal agents later contacted Mr.


                                          -4-
Ekpeti at his Miami home, they discovered another stolen vehicle, in addition to

the twelve at issue. Mr. Ekpeti then took them to Mr. Inyang’s office, which

ultimately lead agents to seize another vehicle and arrest Mr. Inyang.



      A grand jury returned a twelve-count indictment against Mr. Ekpeti

for the unlawful interstate transportation of twelve stolen motor vehicles from

Florida to Oklahoma in violation of 18 U.S.C. §§ 2312 and 2(b). At trial, Mr.

Ekpeti testified in his own defense. Mr. Ekpeti testified he paid Mr. Inyang

approximately $207,000 to buy twelve vehicles he believed Mr. Inyang purchased

at government actions. Except for one check payment in the amount of $8,179,

Mr. Ekpeti stated he paid Mr. Inyang cash. Although Mr. Ekpeti experienced

difficulty obtaining financing for the twelve vehicles, he testified he paid Mr

Inyang cash from loan proceeds received from family, friends and two financing

companies as well as from other Ausnet customers’ check payments, which he had

his secretary cash rather than deposit into the company account. During his

testimony, Mr. Ekpeti did not know how much, if any, of the $135,000 loan from

one of the financing companies was spent on the vehicles. He also did not offer

any documentary evidence establishing he acquired these loans.



      Mr. Ekpeti also testified Mr. Inyang registered and tagged the vehicles, but


                                         -5-
Mr. Ekpeti admitted he provided Mr. Inyang the names used for registration of the

vehicles. These included: his own name; his wife’s maiden name, Connie

Ingram; Mr. Inyang’s name; his secretary’s name, LaToya Sands; the fictitious or

unknown persons “Khalil (or Calisle) Glover,” “Hugh F. Smith” and “Clinton

West”; and “Ausnet Sec[u]rities, Inc.” and “Ausnet Security, Inc.” In explaining

why he instructed Mr. Inyang to register one vehicle in his secretary’s name, Mr.

Ekpeti testified he planned to give it to her after performance of the contract. Mr.

Ekpeti also testified he never saw the vehicle registration statements or knew the

vehicles were stolen or that their identification numbers were altered. Finally, he

explained he never possessed titles to eleven of the vehicles because he expected

to receive them from the auctioneer.



       The jury found Mr. Ekpeti guilty on all counts, except for the vehicle

described in count three. 2 Mr. Ekpeti filed motions for a new trial and judgment

of acquittal, which the district court denied. Following a sentencing hearing, the

district court sentenced Mr. Ekpeti to concurrent twenty-one month terms of

imprisonment for each of the eleven counts, followed by concurrent three-year



       2
        Count three involved a Dodge Ram pickup – the only vehicle for which Mr.
Ekpeti possessed a bill of sale and title and actually participated in the purchase of with
Mr. Inyang from an individual in South Carolina.


                                             -6-
terms of supervised release, and ordered restitution of $101,136.75 and a special

monetary assessment of $1,100.



                           A. Sufficiency of the Evidence

      We review de novo the sufficiency of the evidence supporting a conviction.

See Magleby, 241 F.3d at 1311. When reviewing sufficiency of the evidence

claims, “we must ask only whether taking the evidence – both direct and

circumstantial, together with the reasonable inferences to be drawn therefrom – in

the light most favorable to the government, a reasonable jury could find [the]

Defendant guilty beyond a reasonable doubt.” Id. (quotation marks, citation and

alteration omitted). “We will only overturn a jury verdict if ‘no reasonable juror

could have reached the disputed verdict.’” Id. (quoting United States v. Whitney,

229 F.3d 1296, 1300-01 (10th Cir. 2000). “In a sufficiency challenge, we review

the record as a whole and consider the collective inferences reasonably drawn

therefrom.” Id. Where conflicting evidence exists or when the record allows for

conflicting findings, “we do not question the jury’s conclusions regarding the

credibility of witnesses or the relative weight of evidence,” but instead “presume

that the trier of fact resolved any such conflicts in favor of the prosecution.” Id.

(quotations marks and citations omitted).




                                          -7-
      To convict under 18 U.S.C. § 2312, 3 the government had to prove the

eleven vehicles were stolen, Mr. Ekpeti transported the vehicles in interstate

commerce, and Mr. Ekpeti knew the vehicles were stolen. See United States v.

Brazeal, 464 F.2d 1, 2 (10th Cir. 1972). On appeal, Mr. Ekpeti only contests the

last element; he claims the evidence failed to show he knew the eleven vehicles at

issue were stolen when he transported them to Oklahoma. We and other circuits

have held a presumption of knowledge may be drawn from the unexplained, or

unsatisfactorily explained, possession of recently stolen vehicles recently

transported in interstate commerce. See United States v. Mansaw, 714 F.2d 785,

792 (8th Cir.), cert. denied, 464 U.S. 986 (1983); United States v. Prazak, 623

F.2d 152, 155 (10th Cir.), cert. denied, 449 U.S. 880 (1980); United States v.

Calloway, 562 F.2d 615, 617 (10th Cir. 1977); United States v. Casey, 540 F.2d

811, 816 (5th Cir. 1976).



      In this case, a review of the record shows circumstantial evidence, together

with the collective inferences drawn therefrom, sufficiently support the jury’s

verdict. To begin, it is undisputed Mr. Ekpeti possessed eleven recently stolen

vehicles at the time he transported them through interstate commerce. However,



      3
         This section, along with 18 U.S.C. §§ 10, 2311 and 2313 are commonly known
as the National Motor Vehicle Theft Act or alternatively, the Dyer Act.

                                         -8-
his unsatisfactory explanations on the circumstances surrounding his possession

of stolen vehicles give rise to a presumption he knew they were stolen. See

Calloway, 562 F.2d at 617.



      For instance, Mr. Ekpeti claimed Mr. Inyang registered the vehicles, but

admitted he gave Mr. Inyang the names to use on each registration statement.

Because Mr. Ekpeti obtained the vehicles for his company, his instructions to use

various individual names, instead of Ausnet, for most of the registration

statements is extremely curious. It is especially curious in light of the fact Mr.

Ekpeti could not identify three of the names he provided. Under these

circumstances, a jury could reasonably believe he used fictitious names on three

of the registration statements.



      Mr. Ekpeti also provided inconsistent statements on the circumstances

surrounding the registration of the stolen vehicles. For instance, Mr. Ekpeti told

authorities he used his secretary’s name on the registration statement of one

vehicle because he did not have identification with him when he registered it.

But later, Mr. Ekpeti testified Mr. Inyang registered all the vehicles. Moreover,

Mr. Ekpeti’s statement he used his secretary’s name because he lacked

identification is entirely inconsistent with Mr. Ekpeti’s later testimony that he


                                          -9-
used his secretary’s name because he planned on giving her the vehicle after

performing the contract. This inconsistency is even more troubling given Mr.

Ekpeti’s secretary testified she never knew Mr. Ekpeti registered a vehicle in her

name.



        Heightening these “unsatisfactory” explanations or inconsistencies is Mr.

Ekpeti’s failure to produce titles for eleven of the vehicles he transported. The

jury apparently rejected Mr. Ekpeti’s explanation he was waiting to receive the

titles from the auctioneer. While Mr. Ekpeti now argues it is not unusual to

receive titles in the mail, he failed to explain to the jury why he did not diligently

attempt to obtain the titles months later when he did not receive them.



        The next “unsatisfactory” explanation advanced by Mr. Ekpeti centers on

his suggestion that nine Ausnet company checks, together with Ms. Sands’

testimony, support his contention he cashed the checks and used the proceeds to

pay Mr. Inyang for the eleven vehicles at issue. Although these checks were

admitted into evidence and considered by the jury, they are not in the record on

appeal for our review. Mr. Ekpeti is responsible for insuring all materials on

which he relies are part of the record. See United States v. Stoner, 98 F.3d 527,

530 (10th Cir. 1996). When an appellant asserts a particular error and the record


                                          -10-
does not permit us to evaluate it, we will generally refuse to consider the alleged

error. Id. (relying on United States v. Vasquez, 985 F.2d 491, 495 (10th Cir.

1993) and 10th Cir. R. 10.3).



      Moreover, our review of the trial transcript shows several problems existed

with the Ausnet company checks on which Mr. Ekpeti relies. First, it is unclear

whether Mr. Inyang actually received the proceeds of eight of these checks, even

though five of these checks carried a notation they were for purchasing vehicles

for the McAlester contract. For example, Ms. Sands could not verify whether the

proceeds from seven of the checks, made payable to Mr. Ekpeti and signed by

him, were given to Mr. Inyang. 4 In addition, one check for $8,170 was made

payable and given to Mr. Inyang, and the other was payable to Ms. Sands. While

the check to Mr. Inyang carried the notation it was for vehicle purchases, Ms.

Sands could not verify whether Mr. Ekpeti eventually gave the cash proceeds of

her check to Mr. Inyang.



      Additionally, the evidence shows the Ausnet company checks totaled just


      4
         At one point, Ms. Sands testified Mr. Ekpeti left an envelope containing $40,000
in cash for Mr. Inyang, but could not verify whether that money came from these
company checks. We leave to the jury any credibility determinations on this and Ms.
Sands’ other testimony concerning Mr. Ekpeti’s cash payments to Mr. Inyang.


                                          -11-
over $85,000, but Mr. Ekpeti offered no other documentary evidence

substantiating the remaining source for the money allegedly paid to Mr. Inyang.

The jury must have found Mr. Ekpeti’s self-serving testimony he obtained bank

financing, without further evidence, incredible. It is also apparent the jury

disbelieved he cashed Ausnet customer’s checks and gave the proceeds directly to

Mr. Inyang without first depositing them in Ausnet’s account. The jury also

apparently rejected Mr. Ekpeti’s explanation he paid cash to Mr. Inyang, rather

than payment by check, because he wanted to accelerate the purchase time.

Finally, even if Mr. Ekpeti actually paid Mr. Inyang for the vehicles, it is not

conclusive proof Mr. Ekpeti did not know the vehicles he purchased were stolen.



      Under the circumstances presented, it is clear the jury found Mr. Ekpeti’s

and Ms. Sands’ testimony incredible and rejected the notion the documentary

evidence presented substantiated Mr. Ekpeti’s contentions. This, together with

the other evidence presented, shows Mr. Ekpeti failed to provide a satisfactory

explanation to the jury concerning his possession of eleven of the twelve stolen

vehicles. 5 Instead, circumstantial evidence and inferences drawn therefrom


      5
         We find Mr. Ekpeti’s reliance on United States v. Mann, 557 F.2d 1211 (5th Cir.
1977), unpersuasive and the facts distinguishable. In Mann, the defendant repaired and
then purchased a vehicle from one of his customers, which turned out to be stolen. Id. at
1216. However, the evidence was either 1) insufficient to show the defendant knew the
vehicle was stolen, or 2) improperly had a prejudicial impact on the jury. Id. at 1213-15,

                                           -12-
establish sufficient evidence existed to support the jury’s verdict.



           B. Application of United States Sentencing Guideline § 2B1.1

       Over Mr. Ekpeti’s objection, the district court applied a two-level

enhancement under U.S.S.G. § 2B1.1(b)(4)(A) for “more than minimal planning”

in committing the interstate transportation of eleven stolen vehicles. The district

court based this enhancement, in part, on the fact Mr. Ekpeti “committed repeated

acts of knowingly transporting stolen motor vehicles in interstate commerce.” On

appeal, Mr. Ekpeti contends the district court erred because only two shipments of

stolen vehicles cannot constitute “repeated acts.” In support, Mr. Ekpeti relies on

United States v. Bridges, 50 F.3d 789, 792 (10th Cir. 1994), in which we defined

“repeated acts” to mean more than two.



       “We review the district court’s application of the Sentencing Guidelines de

novo and the district court’s factual determinations for clear error, giving due

deference to the district court’s application of the guidelines to the facts.” United

States v. Vallo, 238 F.3d 1242, 1250 (10th Cir. 2001) (quotations marks and




1217-18. In contrast, in this case, sufficient circumstantial evidence, together with Mr.
Ekpeti’s unsatisfactory explanation for his possession of eleven of the twelve stolen
vehicles, supported the jury’s determination he knew they were stolen.


                                            -13-
citation omitted). “A district court’s factual finding is clearly erroneous only if it

is without factual support in the record or if this court, after reviewing all the

evidence, is left with a definite and firm conviction that a mistake has been

made.” Id. (quotation marks, alteration, and citation omitted).



      In applying this standard of review, we note U.S.S.G. § 2B1.1(b)(4)(A)

requires a two-level increase in offense level if the offense involved “more than

minimal planning.” Under the Sentencing Guidelines, “more than minimal

planning” occurs “(1) where there are one or more acts involving more planning

than is typical for committing the offense in its simple form; (2) where

affirmative steps are taken to conceal one or more acts; and (3) where there is a

series of acts over a period of time, regardless of the level of planning involved in

each, unless each is purely opportunistic.” Bridges, 50 F.3d at 791. Instances

involving any one of these three criteria is sufficient to warrant an enhancement

for “more than minimal planning.” Id.



      Directing our attention to the third criteria, with which Mr. Ekpeti is most

concerned, the Sentencing Guidelines define “more than minimal planning” as

present in any case involving repeated acts over a period of time, unless it is clear

that each instance was purely opportune.” U.S.S.G. § 1B1.1, comment. n.1(f)


                                          -14-
(emphasis added); see also U.S.S.G. § 2B1.1, comment. n.1 (referring to the

definition of “more than minimal planning” in the commentary to § 1B1.1); cf.

United States v. Yost, 24 F.3d 99, 105 (10th Cir. 1994) (relying on same definition

in applying § 2F1.1(b)(2), which contains a similar reference to § 1B1.1’s

commentary). As Mr. Ekpeti contends, we have defined “repeated acts” as

meaning “more than two instances of the behavior in question.” Bridges, 50 F.3d

at 793. In applying this definition to the instant case, it is important to note that

we and other circuit courts have determined the transportation of each

individually stolen vehicle is subject to individual prosecution under 18 U.S.C. §

2312, even though the vehicles proceed in a single convoy. See United States v.

Kitowski, 729 F.2d 1418, 1423 (11th Cir. 1984) (relying on United States v. Van

Cleave, 599 F.2d 954, 956 (10th Cir. 1979) and other circuit cases supporting the

same proposition).



      Given our standard of review and the applicable law, it is clear in this case

that the district court did not error in applying the two-level enhancement to Mr.

Ekpeti’s sentence. Because each stolen vehicle constitutes a single offense under

§ 2312, it follows that the district court may likewise consider each stolen vehicle

in determining whether Mr. Ekpeti committed repeated acts of interstate

transportation of stolen vehicles. In this case, Mr. Ekpeti’s transportation of


                                          -15-
eleven stolen vehicles represents eleven repeated acts of transporting stolen

vehicles. This constitutes “more than minimal planning” under § 2B1.1(b)(4)(A)

despite the fact all eleven vehicles were transported in just two convoys. 6

Because the “repeated acts” criteria is sufficient to support the two-level

enhancement, we need not address the other two criteria in determining whether

Mr. Ekpeti’s behavior or conduct show he did “more than minimal planning.” 7

       6
         On appeal, Mr. Ekpeti concludes we need not determine whether his acts were
engaged in “over a period of time” because the two shipments were not “repeated.”
Having determined repeated acts occurred, we also conclude they occurred “over a period
of time.” U.S.S.G. § 1B1.1 comment. n.1(f). Mr. Ekpeti’s actions in receiving
possession of the stolen vehicles, painting and equipping them, arranging their
transportation, and ultimately transporting them, occurred over a twenty-five day period.
Under the circumstances in this case, we believe this period is sufficient to meet the “over
a period of time” requirement. See, e.g., United States v. Hill, 197 F.3d 436, 445-46 (10th
Cir. 1999) (holding check fraud scheme developed over two days and executed over ten
days constituted repeated acts over a period of time); Yost, 24 F.3d at 105 (insurance
fraud scheme evolving over period of one month sufficient to support “more than
minimal planning” enhancement); United States v. Mullins, 996 F.2d 1170, 1170-71 (11th
Cir. 1993) (holding theft and transportation of three vehicles in thirty days, in violation of
18 U.S.C. § 2312, constituted “repeated acts over a period of time.”).
       7
          Even though we need not address the other two criteria for showing “more than
minimal planning,” we nevertheless conclude Mr. Ekpeti’s actions meet both criteria.
First, Mr. Ekpeti’s conduct in taking possession, painting, equipping, assisting in the
registration, and initiating the transportation, of the stolen vehicles shows he took
“affirmative, premeditated steps” before transporting them across state lines. Mullins,
996 F.2d at 1171. Thus, his actions involved more planning than is typical for
committing the offense of stealing a vehicle, as required by the first criteria. See Bridges,
50 F.3d at 791. Second, Mr. Ekpeti’s behavior in painting the vehicles and registering
them in various names, including fictitious names, is sufficient to show he took
affirmative steps to conceal the fact the vehicles were stolen, as required by the second
criteria. See id. While the district court’s decision to apply the enhancement centered
primarily on the “repeated acts” criteria, we may nevertheless affirm “‘on any grounds for
which there is a record sufficient to permit conclusions of law, even grounds not relied

                                            -16-
                            C. Failure to Depart Downward

       Mr. Ekpeti filed his own motion for a downward departure which the

government opposed and the district court denied. On appeal, Mr. Ekpeti claims

the government improperly failed to request a downward departure motion under

U.S.S.G. § 5K1.1 because it applied the “wrong standard.” Specifically, Mr.

Ekpeti argues the prosecutor’s objection to his motion at the sentencing hearing

reflects his mistaken conclusion § 5K1.1 requires the defendant to assist in

connection with the case with which he was charged.



       Generally, we lack jurisdiction to review a sentencing court’s refusal to

depart downward. See United States v. Fortier, 180 F.3d 1217, 1231 (10th Cir.

1999). We further point out that § 5K1.1 requires the district court to consider

downward departure for substantial assistance only on a motion by the

government, and not on Mr. Ekpeti’s own motion. See United States v. Duncan,

242 F.3d 940, 944 (10th Cir. 2001); United States v. Lee, 989 F.2d 377, 379 (10th

Cir. 1993). While certain limited exceptions to this requirement exist, Duncan,

242 F.3d at 946-47, we need not address them in this appeal. This is because the

record before us does not show Mr. Ekpeti raised his “wrong standard” argument



upon by the district court.’” Schaffer v. Clinton, 240 F.3d 878, 886 (10th Cir. 2001)
(quoting United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994)).


                                           -17-
before the district court and, therefore, he did not preserve it for appeal. 8 Id.



      For the reasons stated, we AFFIRM the district court’s judgment. Mr.

Ekpeti is represented by the Office of the Public Defender, but has nevertheless

filed a pro se motion to proceed in forma pauperis which we deny. We grant Mr.

Ekpeti’s motion to file his reply brief “out of time.”



                                         Entered by the Court:

                                         WADE BRORBY
                                         United States Circuit Judge




      8
         We note Mr. Ekpeti refers to the egregious case exception to the government
motion requirement under § 5K1.1 for the first time on appeal. This argument is
unavailing, because we held this exception was eliminated by the Supreme Court in Wade
v. United States, 504 U.S. 181 (1992).


                                          -18-
