     Case: 09-10088    Document: 00511072722        Page: 1     Date Filed: 04/07/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          April 7, 2010

                                      No. 09-10088                       Lyle W. Cayce
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee
v.

EMMANUEL CHUKWUDI EKWURUKE,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:08-CR-201


Before GARWOOD, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Emmanuel Ekwuruke challenges his sentence and conviction for separate
counts of theft by a bank employee, theft of public money, and aggravated
identity theft. We affirm Ekwuruke’s conviction as to counts I and II. Because
the government concedes that the aggravated identity theft conviction was
improper, we vacate in part and remand for resentencing.
                          FACTS AND PROCEEDINGS
        Ekwuruke worked at an Internal Revenue Service “lock box,” which was

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR . R. 47.5.4.
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located in a Bank of America facility in Richardson, Texas. Bank of America had
contracted with the IRS to receive and process tax payments on behalf of the IRS
at the facility. As a temporary contract employee in the facility’s “exceptions”
division, Ekwuruke had access to taxpayer payment checks.
      After Ekwuruke tried to deposit a crudely altered stolen check at the
Mesquite, Texas branch of Compass Bank, bank employees notified the Mesquite
Police Department. The check was machine printed and made out to the IRS.
Ekwuruke had altered the payee line by hand with a black marker. Officers
arrested Ekwuruke and an inventory search of Ekwuruke’s car revealed more
stolen checks and money orders. The officers also found various IRS forms,
papers containing other people’s social security numbers and names, as well as
several photocopies of checks, on which Ekwuruke appears to have practiced
altering the name of the payee. The face value of the stolen checks found in
Ekwuruke’s possession was approximately $485,000.
      Ekwuruke was charged with one count of embezzling, abstracting,
purloining, or misapplying $485,059.76 from Bank of America, in violation of 18
U.S.C. § 656 (“count I”); one count of embezzling, stealing, purloining, or
converting to his use tax payer remittance checks in excess of $1,000, in violation
of 18 U.S.C. § 641 (“count II”); and one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A (“count III”). At trial, the government concluded
its case with the testimony of special agent Winters, the agent assigned to
Ekwuruke’s investigation.       Winters testified about the findings of his
investigation, and in the process, occasionally paraphrased the testimony of
previous witnesses. Ekwuruke called no witnesses in his defense. The jury
returned a verdict of guilty on all three counts. At sentencing, the district court


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imposed a guidelines sentence of 42 months as to counts I and II, and a
mandatory sentence of 24 months as to count III. See 18 U.S.C. § 1028(a)(1). As
required by statute, the district court judge imposed the 24 month sentence on
count III to be served consecutively to the 42 month sentence on counts I and II.
See id. § 1028A(b)(2). This timely appeal followed.
                                  DISCUSSION
        Ekwuruke’s first two arguments on appeal relate to his conviction on count
III for aggravated identity theft, which the government agrees must be vacated.
He also argues that the testimony of special agent Winters was impermissible
summary testimony and that his 42 month sentence as to counts I and II is
substantively unreasonable. Because we vacate Ekwuruke’s conviction and
sentence on count III and remand for resentencing, we need only resolve the
summary testimony issue here.
A.      Summary Testimony
        At the outset, the parties dispute the correct standard of review on this
issue. The government argues for plain error review because Ekwuruke did not
object to many of the allegedly summary statements. See United States v.
Fullwood, 342 F.3d 409, 413 (5th Cir. 2003). Relying on his objection to a
question posed early in Winters’s examination that “[a]ll of these questions have
been asked and answered,” Ekwuruke maintains that the summary testimony
issue is properly before the court. Because we find that any error by the district
court was harmless, we need not determine what standard is appropriate.




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      Federal Rule of Evidence 1006 provides for the use of summary evidence
in some circumstances.1        The rule “does not specifically address summary
witnesses or summarization of trial testimony.” Fullwood, 342 F.3d at 413.
Finding this omission “significant,” this court has held that Rule 1006 “does not
contemplate summarization of live testimony presented in court.” Id. ( quotation
omitted). When a case is particularly complex, we have nevertheless allowed
“summary witnesses in a limited capacity.” Id.             The government may not,
however, use a witness to summarize “portions of the live testimony previously
introduced in the government’s case.” United States v. Castillo, 77 F.3d 1480,
1499 (5th Cir. 1996). Moreover, summary testimony cannot be used “to allow the
Government to repeat its entire case-in-chief shortly before jury deliberations.”
Fullwood, 342 F.3d at 413.
      Some of Winters’s testimony recapitulated the testimony of others, as the
government concedes. Winters testified about the number and dollar amounts
of the checks found in Ekwuruke’s car, even though these undisputed facts were
covered by previous government witnesses. Other testimony was impermissible
for different reasons. Winters testified that certain non-testifying taxpayers
mailed checks to the facility where Ekwuruke worked. In addition to being
hearsay, offering the non-testifying taxpayers’ statements regarding where they
mailed their checks was impermissible summary testimony because supporting
evidence must be “presented previously to the jury” to be used properly under



      1
        F ED R. EVID . 1006 states: The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in court may be presented in the form
of a chart, summary, or calculation. The originals, or duplicates, shall be made available
for examination or copying, or both, by other parties at reasonable time and place. The
court may order that they be produced in court.

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Rule 1006. United States v. Hart, 295 F.3d 451, 458 (5th Cir. 2002) (quotation
omitted).
         Much of the testimony that Ekwuruke finds most objectionable, however,
cannot be described as summary, or was excluded on other grounds. Ekwuruke
states    that—“most    significantly”—Winters    impermissibly   testified   that
taxpayers did not give Ekwuruke permission to negotiate their checks and that
the taxpayers’ checks were not posted to their IRS accounts.         Ekwuruke’s
objection to the former statements was sustained on hearsay grounds. The
latter statements by Winters were based on his independent review of the
taxpayers’ accounts.     A summary witness is allowed to testify about facts
“personally experienced” by him, even though the testimony “bolsters” the
government’s other evidence. United States v. Moore, 997 F.2d 55, 59 (5th Cir.
1993). Such testimony is not improper summary testimony for purposes of Rule
1006. See Castillo, 77 F.3d at 1499.
         Winters was testifying from personal experience when he stated that it
appeared that Ekwuruke practiced altering checks on some documents found in
Ekwuruke’s car; the documents were admitted into evidence and were before
Winters as he testified. Ekwuruke characterizes this testimony as “spinning”
the statements of previous witness, but it is clear that Winters was simply giving
his lay opinion about the documents in front of him. See F ED. R. E VID. 701.
Ekwuruke does not contend that Winters’s testimony impermissibly relied on
specialized knowledge. See id.
         In sum, it appears that Winters did offer some summary testimony, but
Ekwuruke overstates the amount of the summary testimony and, ultimately, the
effect of this testimony on his conviction.      The government’s case against


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Ekwuruke was essentially uncontradicted, and Winters did not unfairly
characterize the testimony of those witnesses he did summarize. We have
affirmed convictions, despite finding some impermissible summary testimony,
in similar circumstances. See United States v. Nguyen, 504 F.3d 561, 572–73
(5th Cir. 2007); Castillo, 77 F.3d at 1500. Because we conclude that there is no
reasonable possibility that Winters’s summary testimony contributed to
Ekwuruke’s conviction, we find no reversible error.       See United States v.
Williams, 957 F.2d 1238, 1242 (5th Cir. 1992) (“‘[U]nless there is a reasonable
possibility that the improperly admitted evidence contributed to the conviction,
reversal is not required.’” (quoting Schneble v. Florida, 405 U.S. 427, 432
(1972))).
B.      Remand for Resentencing
        Count III of the indictment charges Ekwuruke with identity theft “during
and in relation to” the bank theft alleged in count I. Because the events charged
in count I ceased well before the identity theft charged in count III, the
government concedes that Ekwuruke’s conviction and sentence for count III
must be vacated.
        The government requests that the court remand for resentencing as to
counts I and II. Ekwuruke contends that remand would be inappropriate,
relying on 18 U.S.C. § 1028A(b)(3). That provision prohibits a sentencing judge
from giving a defendant a reduced sentence for the conviction of a predicate
crime to an aggravated identity theft conviction, such as the bank theft
enumerated in count I, “to compensate for” a mandatory sentence imposed for
an aggravated identity theft conviction.      According to Ekwuruke, § 1028A
required the district court to calculate the sentences for counts I and II


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separately from count III, and so remand is unnecessary. Instead, Ekwuruke
asks the court to simply subtract the 24 months attributable to count III from
his existing sentence.
      We hold that a remand for resentencing is proper.          “Sentencing is a
fact-sensitive exercise that requires district court judges to consider a wide array
of factors when putting together a ‘sentencing package.’”         United States v.
Campbell, 106 F.3d 64, 68 (5th Cir. 1997). When an appellate court vacates one
of several related convictions, remand is proper so that the district court can
“reconsider the entirety of the (now-changed) circumstances and fashion a
sentence that fits the crime and the criminal.” Id.; see also United States v.
Shue, 825 F.2d 1111, 1114 (7th Cir. 1987) (“When . . . one or more counts of a
multicount conviction are reversed . . . , the result is an “unbundled” sentencing
package.”).   The district court should have the opportunity to reevaluate
Ekwuruke’s sentence in light of the fact that Ekwuruke no longer faces an
additional 24 month sentence for a separate but related crime. The district court
may find that a different total sentence would achieve the goals set forth in 18
U.S.C. § 3553 under these new circumstances, or it may not. But the district
court should have the opportunity to make this determination in the first
instance.
      Because we remand for resentencing, the court declines to address
Ekwuruke’s substantive reasonableness challenge to his sentence on counts I
and II. United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005). We can
reject, however, Ekwuruke’s argument that the district court erroneously
considered the other checks found in his car when it determined the amount of
loss attributable to the fraud. It was proper for the district court to consider


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intended loss when calculating Ekwuruke’s sentence. United States v. Wimbish,
980 F.2d 312, 316 (5th Cir. 1992), abrogated on other grounds by Stinson v.
United States, 508 U.S. 36, 40 n.2 (1993); see also United States v. Quertermous,
946 F.2d 375, 376–77 (5th Cir.1991) (affirming an intended loss calculation that
included the face value of checks that the defendant had stolen from the mail
and forged, but had not yet cashed). Ekwuruke has not shown that the district
court clearly erred when it found that the intended loss exceeded $400,000,
United States v. Sowels, 998 F.2d 249, 251 (5th Cir. 1993), and the same finding
may serve as the basis for Ekwuruke’s sentence on remand.
                                CONCLUSION
      For the reasons stated, we AFFIRM Ekwuruke’s conviction as to counts
I and II.   We VACATE his conviction as to count III, and REMAND for
resentencing.




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