                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-26-2006

USA v. Oppong
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4112




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                                          NOT PRECEDENTIAL


  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT

                 __________

                 No. 03-4112
                 __________


             UNITED STATES

                      v.

           FELIX YAW OPPONG,
                           Appellant
                __________

On Appeal from the United States District Court
          for the District of New Jersey
(District of New Jersey Criminal No. 02-455-2)

District Judge: The Honorable Mary L. Cooper
                 __________

               No. 03-4378
               __________
             UNITED STATES

                      v.

               JOE MENSAH,
                           Appellant
                __________

On Appeal from the United States District Court
          for the District of New Jersey
(District of New Jersey Criminal No. 02-455-1)


                      1
                     District Judge: The Honorable Mary L. Cooper


            Submitted under Third Circuit LAR 34.1(a) – November 15, 2005
                                     __________


                      Before: BARRY and AMBRO, Circuit Judges,
                              and POLLAK,* District Judge.

                                        ________

                            (Opinion Filed: January 26, 2006)
                                        ________

                                        OPINION
                                        ________
POLLAK, District Judge:

       Defendants-appellants Felix Yaw Oppong and Joe Mensah were convicted on drug

conspiracy charges and subsequently sentenced in the United States District Court for the

District of New Jersey. They now timely appeal from those final judgments.

       Mr. Oppong and Mr. Mensah were charged in a two-count indictment with

conspiracy to distribute and to possess with intent to distribute more than five kilograms

of cocaine, and with conspiracy to export more than five kilograms of cocaine. The

District Court found that Mr. Oppong voluntarily waived his Miranda rights and therefore

denied Mr. Oppong’s motion to suppress his post-arrest statement to the police. The

District Court also denied defendants’ motions to dismiss the indictment based on



       *
        Honorable Louis H. Pollak, District Judge for the United States District Court of
the Eastern District of Pennsylvania, sitting by designation.

                                             2
claimed withdrawal from the conspiracy before the limitations period. In March 2003, a

jury found Mr. Oppong and Mr. Mensah guilty on both counts. They were sentenced in

October 2003, prior to United States v. Booker, 543 U.S. 220 (2005).

                                             I.

       Mr. Oppong raises several challenges to his conviction based on (1) his

identification by a witness; (2) the admission of his post-arrest statement and the

exclusion of additional evidence from the District Court’s suppression hearing; and (3)

the jury’s determination that he did not withdraw from the conspiracy. Mr. Mensah

challenges the “willful blindness” instruction given to the jury regarding the knowledge

element of the conspiracy charges against him. We find these challenges meritless and

will affirm both convictions. We will, however, remand for resentencing, in accordance

with our practice with respect to sentences imposed prior to Booker. See, e.g., United

States v. Benjamin, 125 Fed. Appx. 438, 2005 WL 546647 (3d Cir. Mar. 9, 2005).

                             A. Appellant Oppong’s Claims

       1. Witness identification

       Ramon Ramos was involved in the supply of cocaine to the drug trafficking

conspiracy in which Mr. Oppong and Mr. Mensah were convicted of participating. Mr.

Ramos was arrested in July 1999 and entered into a cooperation agreement with the

Government in 2000. He testified against the appellants. At the time, Mr. Ramos was

awaiting sentencing by the New York courts.

       Before trial, the Government informed defense counsel that Mr. Ramos positively

                                             3
identified photographs of a number of alleged conspirators, but did not positively identify

photographs of Mr. Oppong or Mr. Mensah.

       Prior to Mr. Ramos’s in-court testimony, the Government learned that Mr. Ramos

had seen Mr. Oppong in the courthouse lock-up and recognized him as a former business-

mate. The Government disclosed this information to counsel, adding that Mr. Ramos was

prepared to identify Mr. Oppong in court. The Government further explained that Mr.

Ramos had not previously made a positive identification of Oppong, but had “indicated

that a photograph [of Mr. Oppong] looked like the person named Cuaco that he had dealt

with.” Trial Tr., App. at 750; see also id. at 857-858.

       In court, Mr. Ramos testified to this earlier, tentative identification of a man in a

photograph as “Cuaco” and then proceeded to identify Mr. Oppong as Cuaco. Mr.

Ramos’s testimony during both direct examination and cross-examination emphasized the

tentative nature of his photo identification of Cuaco. See Trial Tr., App. at 865-66 (direct

examination); 8787-79 (cross-examination).

       Defense counsel objected that this testimony contradicted the Government’s pre-

trial representation that Mr. Ramos did not positively identify photographs of the

defendants. The District Court overruled this objection. In so finding, the District Court

distinguished between “positive” and “tentative” identifications; both the Government

and the District Court characterized Mr. Ramos’s photo identification as merely tentative.

See, e.g., Trial Tr., App. at 861, 863, 2942.

       On appeal, Mr. Oppong argues that the Government engaged in a “blatant Giglio

                                                4
violation” when it stated in a letter to defense counsel that Mr. Ramos did not positively

identify Mr. Oppong. Cf. Giglio v. United States, 405 U.S. 150 (1972); Brady v.

Maryland, 373 U.S. 83 (1963). Mr. Oppong maintains that the District Court, in order to

sanction the Government, should have suppressed Mr. Ramos’s testimony regarding his

prior tentative photo identification of Mr. Oppong (as Cuaco). The crux of Mr. Oppong’s

claim is that the Government “intentionally gave [him] the misleading impression that

Ramos had not previously identified [him] from a photo array,” causing his counsel to be

“unfairly surprised” at trial by Mr. Ramos’s testimony. Oppong Br. at 63. Although

defense counsel refers to this as a“Giglio violation,”1 it does not fulfill the basic criteria

for either a Giglio or Brady violation. In both cases, the Supreme Court sought to avoid

prejudicing the accused by requiring that favorable evidence––either for exculpatory or

impeachment purposes––be disclosed. See Giglio, 405 U.S. at 151, 154 (finding a Brady-

type due process violation when the government suppressed material evidence of a

leniency agreement with an accomplice witness); Brady, 373 U.S. at 87 (holding that

suppression by the prosecution of material evidence favorable to and requested by the

accused violates due process).

       Mr. Oppong’s complaint is not that favorable material evidence was not



       1
         The Government argues that during the trial Mr. Oppong’s counsel expressly
stated that he was not claiming a Giglio violation, and therefore any such argument was
waived. However, after reviewing the record, we conclude that the colloquy between the
judge and defense counsel was not sufficiently unambiguous as to constitute such a
waiver. Trial Tr., App. at 861-62.

                                               5
disclosed––but rather that evidence, which ultimately was not entirely favorable to him,

was disclosed in such a way that defense counsel may have anticipated that it would be

entirely favorable. Specifically, Mr. Oppong asks this court to conclude that the District

Court abused its discretion when it admitted testimony regarding Mr. Ramos’s tentative

photo identification of Mr. Oppong, despite the Government’s earlier representation that

Mr. Ramos did not positively identify Mr. Oppong.2 Cf. Trial Tr., App. at 863.

       We cannot so conclude in this case. We have previously acknowledged the

distinction between tentative and positive identifications. See, e.g., Baker v. Barbo, 177

F.3d 149, 156 (3d Cir. 1999) (describing a victim’s initial photo identification of the

defendant as tentative, while the in-court identification was definitive); Landano v.

Rafferty, 856 F.2d 569, 574 (3d Cir. 1988) (describing conflicting characterizations of an

out-of-court identification as either tentative or positive); United States v. Gaines, 450

F.2d 186, 195, 198 (3d Cir. 1971) (noting that the witness initially tentatively identified

the defendant but was unable to provide a positive identification). Moreover, we note that

there is no general constitutional right to discovery in criminal cases. See Weatherford v.

Bursey, 429 U.S. 545, 559 (1977); see also Fed. R. Crim. P. 16(a) (identifying categories

of evidence that must be disclosed before trial). Further, the Government fully disclosed,


       2
         Mr. Ramos’s tentative identification of Mr. Oppong cannot be classified as
exculpatory. In addition, Mr. Oppong does not present any way in which the tentative
identification reflects upon Mr. Ramos’s credibility or could be used for impeachment
purposes. Cf. Kyles v. Whitley, 514 U.S. 419, 434 (1995) (finding due process violation
only where government’s non-disclosure of evidence undermines confidence in trial
outcome).

                                              6
prior to Mr. Ramos’s testimony, that Mr. Ramos had “indicated that a photograph [of Mr.

Oppong] looked like the person named Cuaco that he had dealt with.” Trial Tr., App. at

750. There is no reason to believe that Mr. Oppong’s counsel would have conducted his

case any differently if this information had been provided earlier. Cf. United States v.

Higgs, 713 F.2d 39, 44 (3d Cir. 1983).

       Mr. Oppong also claims that Mr. Ramos’s in-court identification was tainted by

the fact that the two men had a chance encounter in lock-up. Mr. Oppong has not shown,

however, that the encounter was “so unnecessarily suggestive as to give rise to such a

substantial likelihood of irreparable misidentification that admitting the identification

testimony [was] a denial of due process.” United States v. Clausen, 328 F. 3d 708, 713

(3d Cir. 2003); see also United States v. Emanuele, 51 F.3d 1123, 1129 (3d Cir. 1995).

       In sum, we find that the District Court’s decisions to admit Mr. Ramos’s testimony

regarding his tentative photo identification of Mr. Oppong and to allow Mr. Ramos’s in-

court identification of Mr. Oppong did not constitute abuse of discretion.

       2. Admissibility of evidence

       The District Court found that Mr. Oppong properly received his Miranda warning

and voluntarily waived the rights enumerated therein. We have plenary review of the

ultimate question of the voluntariness of Mr. Oppong’s Miranda waiver, but we only

review the District Court’s factual findings for clear error. See United States v. Pruden,

398 F.3d 241 (3d Cir. 2005).

       The District Court held a pre-trial evidentiary suppression hearing to determine the

                                              7
admissibility of Mr. Oppong’s post-arrest statement. Mr. Oppong and various United

States Customs Agents (“Agents”) involved in the arrest testified. It is undisputed that no

Miranda warning was administered to Mr. Oppong until approximately four hours after

he was arrested and after he had had multiple encounters with Agents. According to Mr.

Oppong’s brief, consistent and undisputed testimony established the following: after he

was arrested, Mr. Oppong was placed in a holding cell. Two Agents entered the cell and

advised Mr. Oppong, in detail, of the charges against him, of evidence acquired during

the investigation implicating him, and of potential penalties. Mr. Oppong was allegedly

told to think about what he had been told. Approximately two hours later, the Agents re-

entered and advised Mr. Oppong of his Miranda rights. At that point he signed a waiver

and gave a statement.

       In arguing that his post-arrest statement should have been suppressed, Mr. Oppong

relies principally on Missouri v. Seibert, 542 U.S. 600 (2004), in which the Supreme

Court held that the police’s deliberate withholding of Miranda warnings while engaged in

preliminary interrogation was unconstitutional. In Seibert, the defendant made an

unwarned confession, shortly followed by a warned confession. The Supreme Court held

that neither confession was admissible. The Court reasoned that the police technique was

improper because it was intended to elicit the suspect’s waiver by reading the Miranda

rights at a time when a reasonable person “would not have understood them to convey a

message that she retained a choice about continuing to talk.” 542 U.S. at 617 (emphasis

added).

                                             8
       The facts of Seibert differ markedly from the facts found by the District Court in

the instant case. Here, the Agents testified––and the District Court credited their

testimony on these issues––that Mr. Oppong did not request an attorney, was not

interrogated prior to receiving Miranda warnings, and did not make any statements prior

to being advised of his rights. The District Court’s credibility assessment is substantiated

and reveals no clear error.3

       While Mr. Oppong acknowledges the substantial differences between the facts

found by the District Court here and those in Seibert, he argues that by providing him

with information about his arrest and then leaving him in the holding cell to “digest” it,

the Agents engaged in an “objectionable ‘question first and warn later’ technique.”

Oppong Br. at 72. However, the District Court reasonably determined, based on the

record, that there was no formal questioning first. We conclude, moreover, that the

information provided to Mr. Oppong by the Agents and the manner in which it was

offered did not constitute the “functional equivalent” of an interrogation. Cf. Rhode

Island v. Innis, 446 U.S. 291, 292 (1980) (holding that “Miranda safeguards come into

play whenever a person in custody is subjected to either express questioning or its

functional equivalent”); id. at 294-95, 301-03. There is no basis for rejecting the District



       3
         The District Court found Mr. Oppong to be less credible than the Agents, in part
because of his “prior misdemeanor conviction for a crime involving false swearing.”
Trial Tr., App. at 431; see id. 432-34. The District Court also noted that the Agents’
testimony was unanimous regarding the fact that Mr. Oppong was not interrogated and
gave no pre-Miranda statement. Id. at 430.

                                              9
Court’s finding that the Agents’ conduct did not elicit an incriminating response from Mr.

Oppong. Cf. United States v. Allen, 247 F.3d 741, 765-66 (8th Cir. 2001) (“keeping a

suspect informed of the progress of the investigation and the status of the charges against

him should be encouraged rather than discouraged, so long as the communication is

truthful, and is not designed, nor is it likely to elicit, an incriminating response”).

Accordingly, we find no error in the District Court’s determination that Mr. Oppong’s

post-arrest statement was admissible.

       Relatedly, we reject Mr. Oppong’s argument that he should have been allowed to

offer testimony at the suppression hearing regarding a negative experience with the police

in 1997. The pre-trial evidentiary suppression hearing discussed above began on January

28, 2003; it was re-opened for a second day, on February 5, 2003, so that the parties could

further address factual conflicts in testimony concerning Mr. Oppong’s time in custody.

On the second day, defense counsel requested leave to recall Mr. Oppong to the stand to

testify to this additional negative experience. Mr. Oppong argued that the proffered

testimony was relevant to his state of mind at the time of his arrest for the instant charges,

and affected his ability to make a voluntary, knowing, and intelligent waiver. The

District Court, acting in its discretion, denied the request, finding that the testimony was

outside the scope of issues to be addressed.4 There is no proper basis for disapproving the


       4
         In support of this ruling, the Government asserts that the proffered testimony
could have been developed on the first day of the hearing and that similar evidence based
on a 1999 arrest was elicited. The Government also argues that it would have been
unfairly prejudiced had the testimony been permitted.

                                               10
District Court’s decision, as there is no indication of any abuse of discretion. Cf. United

States v. Skulsky, 786 F.2d 558, 562 (3d Cir. 1986); United States v. Somers, 496 F.2d

723, 735 (3d Cir. 1974).

       3. Jury determination regarding withdrawal

       Mr. Oppong challenges the jury’s verdict by arguing that the evidence was

insufficient to support a conviction. “Our review of the sufficiency of the evidence after a

conviction is ‘highly deferential.’” United States v. Hart, 273 F.3d 363, 371 (3d Cir.

2001). We have plenary power to determine, after drawing all reasonable inferences in

the light most favorable to the Government, whether the evidence would allow a rational

jury to convict. See id. The jury’s verdict must be upheld if “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” United

States v. Dent, 149 F.3d 180, 188 (3d Cir. 1998).

       Mr. Oppong contends that he made a prima facie case of withdrawal by

communicating his withdrawal to a co-conspirator and argues that the Government did

not offer an adequate rebuttal. In United States v. Steele, we set out the requirements for

a prima facie case of withdrawal: “defendant must present evidence of some affirmative

act of withdrawal on his part, typically either a full confession to the authorities or

communication to his co-conspirators that he has abandoned the enterprise and its goals.”

685 F.2d 793, 803-04 (3d Cir. 1982). Mr. Oppong testified that he had a falling out with

a co-conspirator, Mr. Kittoe, in April 1997 and made a statement to Mr. Kittoe that he

wanted to cease his involvement in Mr. Kittoe’s drug activities. See Trial Tr., App. at

                                              11
4246-50. The Government argues, notwithstanding the District Court’s finding to the

contrary, that Mr. Oppong did not establish a prima facie case of withdrawal because his

evidence was limited to his own testimony and was not sufficiently clear and

unambiguous.

       Assuming, as the District Court found, that Mr. Oppong succeeded in establishing

a prima facie case, we nonetheless conclude that the Government offered a sufficient

rebuttal. Therefore, after drawing reasonable inferences in favor of the Government, we

must conclude that a reasonable jury could find that Mr. Oppong did not withdraw.

Rebuttal may be achieved either by “impeaching the defendant’s proof or by going

forward with evidence of some conduct in furtherance of the conspiracy subsequent to the

act of withdrawal.” United States v. Antar, 53 F.3d 568, 582 (3d Cir. 1995) (internal

quotation marks omitted). In the case at bar, the Government challenged Mr. Oppong’s

credibility, and offered testimony by Mr. Ramos as to Mr. Oppong’s continuing

involvement in the conspiracy. The cross-examination of Mr. Oppong and examination

of one of the Customs Agents revealed a number of significant inconsistencies in Mr.

Oppong’s testimony, which could have indicated to a jury that his testimony was not

credible. Combined with Mr. Oppong’s prior conviction for lying, a reasonable jury

could conclude that his withdrawal testimony had been impeached. There was also

documentary evidence of phone calls on Mr. Oppong’s cell phone that could reasonably

imply support for the Government’s position. Finally, the phone records could

reasonably be understood to support Mr. Ramos’s testimony regarding drug sales

                                            12
involving Mr. Oppong, which occurred after his alleged withdrawal. For these reasons,

we conclude that the evidence was sufficient to support Mr. Oppong’s conviction.

                               B. Appellant Mensah’s Claim

       Mr. Mensah argues that the District Court erred when it instructed the jury on the

theory of “willful blindness” or “conscious avoidance” with regard to the conspiracy

charges. Mr. Mensah argues that this case should be distinguished from those where we

have upheld the giving of such an instruction, such as United States v. Wert-Ruiz, 228

F.3d 250 (3d Cir. 2000). He contends that “there was no factual predicate for the

instruction, for neither defendant [denied] knowledge; they were instead denying

participation.” Mensah Br. at 21. Mr. Mensah also attacks the instruction as “legally

imprecise verbal characterizations.” Id.

       The Government argues that (a) the instruction was proper, and (b) even if the

evidence had not warranted a “willful blindness instruction” for Mr. Mensah, it was

entitled to make such an argument for Mr. Oppong and to give the instruction in such a

way that would “‘not turn the spotlight on a single defendant.’” Government-Appellee’s

Brief at 67 (quoting United States v. Brandon, 17 F.3d 409, 453 (1st Cir. 1994) (finding

that a general instruction of “willful blindness” was acceptable in multi-defendant case

where it might only apply to one defendant)).

       We have acknowledged that “willful blindness” may apply to conspiracy charges.

See, e.g., Wert-Ruiz, 228 F.3d at 255 n.3 (rejecting the notion that it is “logically

impossible” to be willfully blind to a conspiracy charge). Mr. Mensah does not

                                              13
meaningfully distinguish his case from others where this instruction was properly given.

This court in Wert-Ruiz allowed a willful blindness instruction where, as here, the jury

might have found actual, knowing participation in the conspiracy.

       During Mr. Mensah’s and Mr. Oppong’s trial, the Government presented evidence

of their ongoing knowledge and participation in the drug conspiracy. Mr. Mensah and

Mr. Oppong admitted to some knowledge and participation in the conspiracy prior to their

alleged respective withdrawals in January and April of 1997 (i.e., outside of the

limitations period). The defendants did not, however, admit various facts alleged by the

Government, pertaining to the relevant time period––for example, they testified that they

were present at certain events (such as cocaine deliveries) but did not know these events

were connected to the conspiracy; they testified to a variety of “innocent contacts” with

co-conspirators after their supposed withdrawal. See, e.g., Trial Tr., App. at 3903-05,

3926-29. Since a jury might credit or discredit the Government’s evidence, and might

believe the defendants’ testimony that they were unaware of various facts, there were

some questions as to the defendants’ knowledge; therefore there was a predicate for a

willful blindness charge.

       Finally, the wording of the jury instructions was adequate. The court duplicated

the language used in previous Third Circuit cases––United States v. Titchell, 261 F.3d

348, 351 (3d Cir. 2001); United States v. Caminos, 770 F.2d 361, 366 (3d Cir.




                                            14
1985)––and satisfied the standard set out in Wert-Ruiz.5

       In Wert-Ruiz, we warned that willful blindness instructions “must be tailored . . . to

avoid the implication that a defendant may be convicted simply because he or she should

have known of facts of which he or she was unaware.” 228 F.3d at 255. Indeed, we

noted that the instructions “‘must make clear that the defendant himself was subjectively

aware of the high probability of the fact in question, and not merely that a reasonable man

would have been aware of the probability.’” Id. (quoting Caminos, 770 F.2d at 365). In

this case, the judge extensively instructed the jury as to the requirements for finding



       5
         The District Court here instructed:
       [T]he element of knowledge may be satisfied by inferences from the proof that the
       defendant deliberately closed his eyes to what otherwise would have been obvious
       to him. In other words, you may find such knowledge established if you find that
       the defendant was aware of the high probability of the existence of a fact and
       failed to take action to determine whether or not it was true. The defendant cannot
       be convicted for being stupid, negligent, or mistaken. More is required than that.
       The defendant’s knowledge of a fact may be inferred from willful blindness to the
       existence of fact which indicate that there is a high probability that some forbidden
       or illegal activity is occurring. You may treat such deliberate avoidance . . . as the
       equivalent of knowledge. In short, if the evidence shows that the defendant did not
       know, then he must be acquitted. If the evidence indicates that he was very stupid
       in the actions that the took or ignorant, then he cannot be convicted. But if the
       evidence shows that there was a high probability that the defendant himself knew
       something was amiss and that he acted with deliberate disregard for a high
       probability that illegal activity was occurring, then you may find that the defendant
       had guilty knowledge which is required for the conviction of the offense charged.
Trial Tr., App. at 4737-38. Mr. Mensah argues that the final sentence of this instruction
improperly diluted the “beyond a reasonable doubt” standard and permitted the jury to
convict Mr. Mensah merely for knowing that “something was amiss.” Similar wording
was used in earlier cases affirmed by this court. See Titchell, 261 F.3d at 351 (“deliberate
disregard of the truth”); Caminos, 770 F.2d at 366 (“high probability that he knew
something was amiss”).

                                             15
knowing participation in the conspiracy. The jury instructions delivered by the District

Court clearly and properly directed the jury that knowledge could not be premised on

mere stupidity or negligence. Furthermore, the District Court properly focused on the

defendants’ subjective awareness. We find no basis for rejecting either the propriety of

the District Court’s instruction of willful blindness or its particular wording in this case.

                                              II.

       Mr. Oppong and Mr. Mensah were sentenced prior to the Supreme Court’s

decisions in Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296

(2004). Following Booker, counsel for Mr. Oppong and Mr. Mensah submitted to this

court supplemental letters requesting resentencing. By letter of May 12, 2005, the

Government has advised this court that it does not oppose defendants’ request that this

case be remanded for resentencing in accordance with Booker. Mr. Oppong’s and Mr.

Mensah’s sentences will be vacated and remanded for resentencing.1 Cf. United States v.

Davis, 407 F.3d 162, 163 (3d Cir. 2005) (holding that Booker is applicable to all cases

pending on direct review and requires remanding for resentencing).2

                                             III.



       1
        Mr. Oppong and Mr. Mensah were sentenced under mandatory Guidelines after
receiving sentencing enhancements based on judicially found facts (for example,
estimates of drug quantities), constituting constitutional error under Booker.
       2
         Mr. Oppong’s brief, filed before the Supreme Court’s decision in Booker, argues
that his sentence was improperly calculated under the Guidelines for several reasons. In
light of the need for resentencing under Booker, these arguments are moot.

                                              16
      In sum, we will affirm the convictions of Mr. Oppong and Mr. Mensah, but we

will vacate their sentences and remand for resentencing.




                                           17
