                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-15771         ELEVENTH CIRCUIT
                                        Non-Argument Calendar      AUGUST 15, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                            D.C. Docket No. 1:08-cr-00351-JEC-JFK-4

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                versus

CHIDEBE ORIZU,
a.k.a. Captain,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (August 15, 2011)

Before BARKETT, MARCUS and FAY, Circuit Judges.

PER CURIAM:
      Chidebe Orizu appeals his conviction and sentence for conspiracy to

commit money laundering, 18 U.S.C. § 1956(h). Orizu argues that the district

court erred by refusing to allow him to cross-examine a government witness,

Raymond Nsoedo, concerning out-of-court statements that Nsoedo had made

exculpating Orizu. Orizu also contends that the district court erred in imposing a

six-level sentencing enhancement under U.S.S.G. § 2S1.1(b) because there was

insufficient evidence to prove that he knew that the laundered funds were the

proceeds of drug trafficking. For the reasons stated below, we affirm.

                                         I.

      Orizu was charged in a second superseding indictment with conspiracy to

commit money laundering, in violation of 18 U.S.C. § 1956(h). Nsoedo, a

cooperating codefendant, was a key witness at Orizu’s trial. Nsoedo testified that

he met Orizu at a social event for Nigerians living in Atlanta. The two men

discovered that their families were from the same village in Nigeria, and they soon

became close friends. At the time, Nsoedo was working as a taxi driver. In 1992,

Nsoedo began to transport heroin in order to supplement his income. A few years

later, Nsoedo located his own source of heroin and set up a distribution network in

Detroit, Michigan. Chikaodinaka Ahanonu was Nsoedo’s chief lieutenant and was

responsible for selling Nsoedo’s heroin in the Detroit area.

                                         2
      Nsoedo explained that he used some of his drug proceeds to purchase

vehicles. He set up a company, Atlantic Imports, that bought cars at auctions in

the Atlanta area. Orizu also owned a vehicle-buying business, Valu-Auto, and on

various occasions, Orizu purchased vehicles for Nsoedo using Valu-Auto’s line of

credit. Nsoedo would then repay Orizu with proceeds from the sale of heroin.

Orizu also sold vehicles to Ahanonu, with Nsoedo acting as an intermediary.

Nsoedo and Ahanonu paid for the vehicles using cash and money orders. Orizu

also assisted Nsoedo and Ahanonu through informal money transfers. He would

accept U.S. currency from them and would deposit an equivalent amount of

currency in accounts in Nigeria.

      On one occasion, Ahanonu’s assistant, Uchenna Obi, was stopped by the

police while trying to deliver a bag of currency to Orizu’s office. Orizu drove by

the scene to find out what was happening. Orizu called Nsoedo and told him that

the police were searching Obi’s vehicle. He also remarked that Nsoedo needed to

tell Ahanonu “to look for something else more pertinent to do to earn a living.”

      On cross-examination, Nsoedo acknowledged that he kept his drug

trafficking activities a secret from everyone, including Orizu. Once, when Orizu

asked where Nsoedo had received a money order, Nsoedo lied that he had

obtained the money from friends. Nsoedo also conceded that he expected to

                                         3
receive a sentence reduction in exchange for his testimony. Defense counsel then

sought to question Nsoedo concerning some letters that Nsoedo had written to

Orizu following his arrest. In the letters, Nsoedo declared that Orizu was innocent

and that Orizu had no knowledge of Nsoedo’s drug trafficking activities. The

letters also discussed Nsoedo’s Sentencing Guidelines calculations and how his

plea agreement would affect his sentence. The government objected to any

cross-examination concerning the letters.

      The district court ruled that Nsoedo’s letters were inadmissible hearsay.

The court pointed out that the letters could not come in as prior inconsistent

statements because they were consistent with Nsoedo’s testimony on

cross-examination that Orizu had no knowledge of Nsoedo’s drug activities. The

district court further observed that the defense could not introduce the letters as

prior consistent statements unless the government were to impeach the relevant

portions of Nsoedo’s testimony. Defense counsel objected that the exclusion of

any cross-examination concerning the letters violated Orizu’s Sixth Amendment

right to confrontation and his Fifth Amendment right to due process.

      Officer Trevor Primo of the Roswell, Georgia, Police Department testified

that he interviewed Orizu following his arrest. Orizu acknowledged that he had

provided currency exchange services for individuals who wanted to send money to

                                          4
Nigeria. He also admitted that he had conducted vehicle transactions with

Nsoedo. When Officer Primo asked about Nsoedo’s involvement with drugs,

Orizu responded that Nsoedo “was a cousin, family, and that he could not tell on

family.” Orizu explained that he had told Nsoedo that he needed to stop what he

was doing. He conceded that he knew when someone was doing something wrong

and when their money was not “straight.” Orizu admitted that he never asked

about Nsoedo’s activities because that would have made him involved. The

government also introduced evidence that Orizu knew that he was required to

report cash transactions worth over $10,000 to the Internal Revenue Service, but

had failed to report any of his transactions with Nsoedo or Ahanonu. The jury

convicted Orizu of conspiracy to commit money laundering.

      The presentence investigation report (“PSI”) determined that Orizu had a

base offense level of 22 under U.S.S.G. § 2S1.1(a)(2). The PSI added six levels

under § 2S1.1(b)(1) because Orizu knew or believed that the laundered funds were

the proceeds of, or were intended to promote, a controlled substance offense.

After imposing additional enhancements, the PSI arrived at a total offense level of

32, a criminal history category of I, and a guideline range of 121 to 151 months’

imprisonment.




                                         5
      Orizu objected to the six-level enhancement under § 2S1.1(b)(1). He

argued that there was insufficient evidence to show that he knew the laundered

funds to be the proceeds of drug trafficking. He pointed to Nsoedo’s testimony

that Nsoedo had kept his drug trafficking activities a secret. He observed that the

amount of money involved was not so large as to suggest that drugs were

involved. He asserted that the funds could have been derived from other forms of

illegal activity, such as fraud.

      The district court overruled Orizu’s objection to the § 2S1.1(b)(1)

enhancement. The district court observed that Orizu “is an intelligent man and I

think any intelligent person under these circumstances would have deduced what

was going on.” The court noted that Orizu dealt mostly with small amounts of cash

and money orders, which suggested that the funds were derived from drug

trafficking rather than from a fraud scheme. The district court also cited the

“coded nature” of the conversations between Orizu and Nsoedo and the fact that

Orizu became personally involved when Obi’s vehicle was stopped in Atlanta.

Although it was possible that Nsoedo never directly told Orizu about the heroin,

the court observed, it was “just common sense . . . that he would have known that

what was going on here was drug dealing and that is what the proceeds were.”




                                          6
After the district court overruled Orizu’s objection, it granted a downward

variance and sentenced Orizu to a term of 72 months’ imprisonment.

                                           II.

      Orizu raises two arguments with respect to Nsoedo’s letters. First, he

asserts that he should have been permitted to ask Nsoedo whether he was willing

to adopt the letters. Because Orizu did not raise that argument below, we are

reviewing it for plain error. See United States v. Baker, 432 F.3d 1189, 1202 (11th

Cir. 2005) (“[W]hen a party raises a claim of evidentiary error for the first time on

appeal, we review it for plain error only.”). Under the plain error standard, a

defendant must establish (1) error, (2) that is plain, and (3) that affects his

substantial rights. Id. at 1202-03. An error affects a defendant’s substantial rights

if there is a reasonable probability that it altered the outcome of the case. United

States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). If the defendant can

satisfy the first three prongs of the plain error standard, we may exercise our

discretion to correct an error that “seriously affects the fairness integrity, or public

reputation of judicial proceedings.” Baker, 432 F.3d at 1203 (quotation omitted).

Orizu’s second argument is that the district court’s ruling violated his right to due

process because the letters were essential to his defense and were accompanied by

adequate assurances of reliability. Because Orizu raised that argument below, we

                                           7
are reviewing it de novo. See United States v. Underwood, 446 F.3d 1340, 1345

(11th Cir. 2006) (noting that we review questions of constitutional law de novo).

      Hearsay is an out-of-court statement offered to prove the truth of the matter

asserted. Fed.R.Evid. 801(c). A prior consistent statement by a witness is not

considered to be hearsay if it “is offered to rebut an express or implied charge

against the declarant of recent fabrication or improper influence or motive.”

Fed.R.Evid. 801(d)(1). In addition, the Advisory Committee notes to Rule 801

explain that a witness’s out-of-court statement is not hearsay if the witness adopts

the statement during his testimony. See Fed.R.Evid. 801 Advisory Committee

Notes, Note to Subdivision (d) (“If the witness admits on the stand that he made

the statement and that it was true, he adopts the statement and there is no hearsay

problem.”).

      The Supreme Court has explained that evidentiary rulings can violate due

process if they have the effect of depriving the defendant of a fair trial. Chambers

v. Mississippi, 410 U.S. 284, 302-03, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973).

In Chambers, a defendant who was charged with murder sought to prove that

another individual, McDonald, had confessed to the murder. Id. at 287-91; 93

S.Ct. at 1041-44. The trial court, however, excluded both McDonald’s written

confession and a series of witnesses to whom McDonald had confessed. Id. at

                                          8
291-94, 93 S.Ct. at 1044-45. The Supreme Court concluded that the cumulative

effect of those evidentiary rulings violated Chambers’ right to due process. Id. at

302-03, 93 S.Ct. at 1049. The Court observed that due process requires that a

defendant be given “a fair opportunity to defend against the State’s accusations”

by cross-examining adverse witnesses and by calling witnesses on his own behalf.

Id. at 294, 93 S.Ct. at 1045. Because the trial court had prevented Chambers from

presenting evidence that was both reliable and critical to his defense, the Supreme

Court determined that Chambers was entitled to a new trial. Id. at 302-03, 93

S.Ct. at 1049.

      In this case, Orizu never asked to show the letters to Nsoedo to see if

Nsoedo was willing to adopt them. Therefore, the district court did not plainly err

by not giving him an opportunity to do so. Even if Orizu were able to satisfy the

first two prongs of plain error review, he cannot show that the exclusion of the

letters violated his substantial rights. In the letters, Nsoedo described his reasons

for cooperating with the government, and he also explained that Orizu had no

knowledge of his drug trafficking activities. This was consistent with Nsoedo’s

testimony on cross-examination. Because the letters simply corroborated

Nsoedo’s testimony, which the government did not impeach, there is no

reasonable probability that the outcome of the case would have been different if

                                          9
the district court had allowed Orizu to cross-examine Nsoedo about the letters.

See Rodriguez, 398 F.3d at 1299. Thus, Orizu has not established plain error with

respect to his adoption argument.

      Orizu’s due process claim fails for similar reasons. Because the letters

merely corroborated Nsoedo’s trial testimony, they were not crucial to Orizu’s

defense. Therefore, the exclusion of the letters did not rise to the level of a due

process violation. See Chambers, 410 U.S. at 302-03, 93 S.Ct. at 1049.

                                         III.

      We review the district court’s factual findings at sentencing for clear error,

and the district court’s application of the Sentencing Guidelines to those facts de

novo. United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009). “A factual

finding is clearly erroneous when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and firm conviction

that a mistake has been committed.” Id. (quotation omitted). Section 2S1.1(b)(1)

of the Sentencing Guidelines provides that a defendant’s offense level should be

increased by six levels if the defendant knew or believed that the laundered funds

were the proceeds of, or were intended to promote, a drug trafficking offense.

U.S.S.G. § 2S1.1(b)(1).




                                          10
      In this case, the district court did not clearly err by finding that Orizu knew

that the laundered funds were the proceeds of drug trafficking. Orizu engaged in a

series of secretive deals involving cash and numerous money orders. As the

district court observed, currency-based transactions are more suggestive of drug

trafficking than of other forms of illegal activity such as fraud. Orizu’s knowledge

also can be inferred from his relationship with Nsoedo. The two men were close

friends, and Nsoedo had been involved in heroin trafficking for many years. Even

if Nsoedo never explicitly told Orizu that he was involved with drugs, Orizu’s

statements to the police suggest that he had some knowledge of Nsoedo’s

activities. When the police asked Orizu about Nsoedo’s involvement in drugs,

Orizu responded that Nsoedo was family and that he could not tell on family.

Orizu also acknowledged that he knew when someone was doing something

wrong and when their money was not “straight.” He admitted that he never asked

Nsoedo about the source of the money because that would have made him

involved. We conclude that the district court properly applied the six-level

enhancement under U.S.S.G. § 2S1.1(b)(1).

      Accordingly, after review of the record and the parties’ briefs, we affirm

Orizu’s conviction and sentence.

      AFFIRMED.

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