                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 12-4396


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

THEOPHILUS AKWEI,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:11-cr-00199-JCC-6)


Argued:   February 1, 2013                 Decided:   March 14, 2013


Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion.        Judge Duncan wrote      the
opinion, in which Judge Niemeyer and Judge Diaz joined.


ARGUED: Gregory E. Stambaugh, GREGORY E. STAMBAUGH LAW OFFICE,
Manassas, Virginia, for Appellant.  James Philip Gillis, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.   ON BRIEF: Neil H. MacBride, United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

      This appeal arises from Theophilus Akwei’s conviction on

three heroin-related counts.            Akwei contests the sufficiency of

the evidence sustaining his convictions.                 He also challenges

aspects   of   his   trial   and    sentencing,   including       the   district

court’s evidentiary rulings, flight instruction, denial of his

motion for a minor role adjustment, and forfeiture order.                    For

the reasons that follow, we affirm the judgment of the district

court.



                                        I.

                                        A.

      Akwei is a resident of Maryland and native of Ghana.                   His

convictions    arise    from      his   involvement   with   the    “Macauley”

organization, a Ghanaian heroin smuggling operation commanded by

Edward Macauley.       In 2010 and 2011, Macauley directed members of

the   conspiracy     based   in    Ghana,    including    Frank    Ehiobu,    to

arrange heroin shipments from Ghana to the United States.

      In February 2011, Ehiobu and Macauley planned a shipment in

which Emmanuel Annor, a courier who was working as an undercover

Drug Enforcement Agency (“DEA”) informant, took a carry-on bag

containing heroin from Accra, Ghana to Washington, D.C.                  There,

a second courier was supposed to pick the bag up and transport

it to the appropriate seller.            When Annor arrived in Washington

                                         2
on February 21, however, the second courier failed to appear,

and Annor proceeded to an Alexandria, Virginia hotel with the

heroin-laden    bag.     Ehiobu    promised     to   send    someone      else    to

collect the drugs.

     On the evening of February 21, Akwei had Joseph Duodo, an

associate    familiar    with   northern      Virginia,     drive   him     to   the

Alexandria hotel to meet Annor.             Akwei and Annor verified each

others’     identities    by    telephoning      Ehiobu     in     Ghana;    Annor

recorded the calls.         Akwei greeted Ehiobu as “Uncle Frank” and

Ehiobu told Annor, “[i]t’s him.”             J.A. 74.     The pair discussed

how Annor would transfer the bag to Akwei, who promised to “pay

[Annor] the money later.”         Id.       After several more phone calls

to Ehiobu, Annor placed the bag in the back of Duodo’s car.

     Shortly after the pick-up, the DEA directed local officers

to stop Akwei and Duodo and arrest them.             The arresting officers

recovered the bag, which contained 988.8 grams of heroin.

     On February 22, while Ehiobu remained unaware of Akwei’s

arrest, he and Annor discussed Akwei’s whereabouts in another

recorded    phone   call.       Annor   told    Ehiobu      that    Akwei    never

returned with money, and Ehiobu assured Annor that Akwei was

“our boy,” that he “kn[e]w him very well,” and that “[e]verybody




                                        3
knows     him.      Director,     everybody.          .   .    .   He’s    one    of     his

[Director’s] boys.” 1        J.A. 84-85.

      In another February 22 telephone call, Ehiobu talked with a

second confidential informant, Augustine Ani, to whom Ehiobu had

promised a “100-200” gram heroin sample.                           J.A. 611.       Ehiobu

described the drug pick-up, referred to Akwei as “my boy,” and

told Ani that Akwei “is the guy” who “took money to New York for

me” “the last time.”          Id. at 98.            Ehiobu told Ani that “[w]hat

[Akwei] does is run errands for me,” including collecting and

delivering items such as the bag and money.                        Id. at 102.         When

Ani     expressed    concern      over     Akwei’s        trustworthiness,         Ehiobu

explained    that    Akwei    “has   not       done    this     [disappeared]       to    me

before.”     Id. at 105.

      On March 18, 2011, the government released Akwei to protect

the ongoing investigation of the larger conspiracy, dismissing

the charges against him without prejudice.                         On July 14, 2011,

federal    agents    began    a   series       of     coordinated      global     arrests

related to the Macauley organization.                         DEA agents arrived at

Akwei’s front door before six a.m.                   Akwei’s wife answered.              She

led     officers    upstairs,     where     she       said     Akwei      was    sleeping.

Meanwhile, Special Agent Mark Murtha, who was positioned behind


      1
       “Director” is one of many names used to refer to Edward
Macauley.



                                           4
the house, saw Akwei open the basement door, peer outside, and

exit the home.         Agent Murtha arrested Akwei, who was wearing a

light shirt, sweat pants, gym shoes, and no underwear.                         Akwei

claimed he was on his way to work, but subsequently admitted he

began work later in the day.            Agents searched his residence and

seized $3200 in cash.

                                        B.

       On August 24, 2011, a federal grand jury returned a six-

count       superseding        indictment       against         eight        Macauley

coconspirators        alleging    involvement     in    a     series    of     heroin

importation efforts.           The three counts involving Akwei charged

him with conspiracy to import heroin, 21 U.S.C. § 963, (the

“conspiracy count”), distribution for the purpose of unlawful

importation      of    heroin,     21   U.S.C.     §§        959(a),    960,    (the

“distribution count”), and possession with intent to distribute

heroin, 21 U.S.C. § 841(a)(1), (the “possession count”), based

on his involvement in the conspiracy and participation in the

February 21, 2011 transaction in particular.                  Ehiobu and several

alleged Macauley coconspirators pleaded guilty and testified for

the     government     at   Akwei’s     trial.         The     two     confidential

informants, Annor and Ani, also testified.

       At trial, Ehiobu affirmed that Akwei had agreed to pick up

the bag and knew it contained heroin.              Annor and Ani testified

to    the   recorded   phone     conversations.        Ani    explained      that   he

                                        5
understood Ehiobu’s description of Akwei as someone who “run[s]

errands” to mean that Akwei performed drug-related messenger and

courier work for Ehiobu.                   Evidence further revealed that the

Macauley      organization           had     orchestrated        three    other    heroin

importation efforts in 2010 and 2011, each involving a courier

transporting        over       one   kilogram      of   heroin     from   Ghana   to   the

United States.           The government presented evidence that Akwei and

Macauley knew each other by submitting Macauley’s phone contact

list, which, at the time of Macauley’s arrest, contained Akwei’s

name    and   phone       number.          Agent    Murtha     testified     to   Akwei’s

behavior on the morning of his July 14 arrest, describing how

“mounds of clothes” and “other debris” blocked the path through

the basement to the back door where Akwei exited.                         J.A. 587.

       After trial, Akwei moved for judgment of acquittal with

respect       to        his     conspiracy         conviction,       challenging       the

sufficiency        of    the    evidence     supporting      the    jury’s    conclusion

that the conspiracy involved one or more kilograms of heroin.

Akwei also moved for a new trial, arguing that the evidence of

his behavior on the morning of his July 14 arrest insufficiently

supported the flight instruction the district court gave the

jury.

       The district court found that sufficient evidence supported

the     conclusion        that       Akwei    could     have     foreseen     that     the

conspiracy involved a kilogram or more of heroin, considering

                                               6
that the bag Akwei picked up contained 988.8 grams and that

recorded    conversations        revealed       that    he    ran   “errands”      for

Ehiobu.    With respect to the flight instruction, the court found

Akwei’s     attempt       to     flee     sufficiently          related    to      his

consciousness of guilt of the heroin importation crimes at issue

to support the instruction.

     Consistent     with       the   forfeiture        notice   included    in     the

indictment,   the     government        moved   for    a    preliminary    order    of

forfeiture pursuant to 21 U.S.C. § 853(a) and Federal Rule of

Criminal Procedure 32.2.             It sought a $5,000 judgment against

Akwei and forfeiture of the $3,200 seized during his arrest to

partially satisfy that judgment. 2               Akwei argued that he never

received proceeds from his participation in the conspiracy.                        The

court granted the forfeiture order after finding the requisite

nexus    between    the    $5,000     judgment        and    Akwei’s   offense     and

applied the $3,200 to the judgment as “substitute property.”

J.A. 991; 21 U.S.C. § 853(p).

     The district court denied Akwei’s motion for a minor role

adjustment and sentenced him to the mandatory minimum of ten

years’ imprisonment for his conspiracy conviction, as well as



     2
       Although trial testimony established the street value of a
kilogram of heroin at between $70,000 and $120,000, the
government sought only $5,000 from Akwei.



                                          7
ninety-seven        months    each   on   the    distribution    and   possession

convictions, to run concurrently.               This appeal followed.



                                          II.

      On appeal, Akwei contends that the district court (1) erred

in holding that sufficient evidence supported his convictions,

particularly with regard to whether he could have foreseen that

the conspiracy involved a kilogram or more of heroin; (2) abused

its discretion in allowing evidence of Macauley’s phone contact

list; (3) abused its discretion in allowing evidence of flight

and   giving    a    flight    instruction;      (4)   erred    in   entering   the

forfeiture order; and (5) erred in denying his motion for a

minor role adjustment.          We consider each contention in turn.

                                          A.

      We review the denial of a motion for judgment of acquittal

de novo.       United States v. Penniegraft, 641 F.3d 566, 571 (4th

Cir. 2011).      In so doing, we “construe the evidence in the light

most favorable to the government, assuming its credibility, and

drawing all favorable inferences from it, and will sustain the

jury’s verdict if any rational trier of fact could have found

the essential elements of the crime charged beyond a reasonable

doubt.”    Id.        (citation omitted).           Further, we “cannot make

[our] own credibility determinations but must assume that the



                                           8
jury resolved all contradictions in testimony in favor of the

Government.”       Id. at 572 (citation omitted).

                                             1.

      Akwei     first        challenges     the   sufficiency     of     the       evidence

sustaining         his       conspiracy,      distribution,        and        possession

convictions.            In    particular,    he    maintains    that     the       district

court   erred      in    denying    his     motion   for     judgment    of    acquittal

because the primary evidence connecting him to the conspiracy

and to the knowledge that the bag contained heroin came from

Ehiobu’s trial testimony, testimony he argues is “unworthy of

belief.”      Appellant’s Br. at 13.

      We have repeatedly recognized that “a fundamental rule of

the jury system is that ‘this court is bound by the credibility

choices of the jury.’”              United States v. Lamarr, 75 F.3d 964,

973   (4th    Cir.       1996)   (citation       omitted).      Even    if     a   witness

testifies hoping to receive favor for “substantial assistance,”

id., credibility evaluations remain the province of the jury.

Further, “the settled law of this circuit recognizes that the

testimony     of     a       defendant’s    accomplices,       standing       alone    and

uncorroborated, can provide an adequate basis for conviction.”

United States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993)

(citation omitted).

      Thus, the jury was entitled to evaluate Ehiobu’s testimony

and could have concluded that Akwei agreed to engage in the

                                             9
conspiracy      with     knowledge      that     the   scheme        involved    the

importation and distribution of heroin.                This is so even though

Ehiobu testified pursuant to his plea agreement with the hope of

earning a recommendation for a reduced sentence.                       We defer to

the jury’s credibility determinations with respect to Ehiobu,

including consideration of his motives.                  Accordingly, we find

that     sufficient       evidence          supports     Akwei’s       conspiracy,

distribution, and possession convictions.

                                           2.

       With    respect   to    the   conspiracy    conviction,        Akwei   argues

that the government failed to present sufficient evidence that

he could have reasonably foreseen that the conspiracy involved

more than one kilogram of heroin.               The government responds that

the    sheer    amount    of    heroin      involved     in    the    February   21

transaction, as well as testimony identifying Akwei as someone

who ran “errands” for Ehiobu in other instances, suffice to meet

the weight threshold.

       We agree.       We have recognized that “in a drug conspiracy

case, the jury must determine that the threshold drug amount was

reasonably      foreseeable     to   the    individual     defendant.”        United

States v. Brooks, 524 F.3d 549, 558 (4th Cir. 2008) (citation

omitted); see United States v. Collins, 415 F.3d 304, 314 (4th

Cir. 2008) (holding that district court must instruct jury to

use    Pinkerton   principles        when    determining      the    drug   quantity

                                           10
attributable       to     a     particular         defendant          in       a    conspiracy).

Although     the    government            cannot    establish          the         one    kilogram

threshold     by        “reasoning          so     attenuated”             it       borders        on

“mathematical impossibility,” we continue to draw “the available

reasonable    inferences            in    favor    of     the    government.”               United

States v. Hickman, 626 F.3d 756, 764 (4th Cir. 2010).                                             The

government    may       aggregate        transactions        within        a       conspiracy      to

establish the weight threshold, as long as they are reasonably

foreseeable    to       the    defendant.           See    id.    at       765      (aggregating

heroin transactions to determine weight threshold for purposes

of evaluating conspiracy conviction).

      Like    Akwei,          the    defendant       in     Hickman            challenged         the

sufficiency of evidence that the conspiracy in which he took

part involved more than one kilogram of heroin.                                There, officers

had recovered only 176 grams of high-purity heroin, 3 and the

government     presented            “meager”       evidence           of    other         “unknown

transactions”       which       “offered         virtually       no    guide         as    to     the

amounts that may have been involved.”                      Id. at 770.               Even giving

the   government        credit      for    the     maximum      conceivable              amount    of

heroin in those unknown transactions, the evidence still fell

      3
        The high-purity heroin seized in Hickman would have
yielded 681 street-ready grams. 626 F.3d at 765. Although the
dilution evidence was unique to testimony elicited at Hickman’s
trial, we note that the 988.8 grams recovered in this case were
high-purity, undiluted grams by Hickman standards.



                                              11
short of the one kilogram threshold.                 Id. at 766.          We therefore

reversed the jury’s one kilogram finding as unsupported by the

evidence.

       Despite Akwei’s attempts to analogize his case to Hickman,

here, the government presented sufficient evidence to sustain

the one kilogram threshold.               The court properly instructed the

jury    that    “a    defendant      is   accountable      for     the    quantity   of

controlled substance of heroin that he personally distributed or

imported       or    aided     and   abetted      others      in   distributing      or

importing       or    could     reasonably       foresee       that      others   would

distribute or import during and in furtherance of a conspiracy.”

J.A. 863.       The evidence clearly showed that Akwei picked up a

bag    containing     988.8     grams     of    heroin   at    Ehiobu’s     direction.

Additionally,        the     government    introduced         ample   evidence    that

Akwei knew about, and participated in, the distribution of other

amounts of heroin in furtherance of the conspiracy.                        In Ehiobu’s

recorded telephone conversations, he stated that Akwei: is “not

the one who sells” but the one who “run[s] errands for me,” id.

at 620; is “his boy” and known to Macauley, id. at 381; is

willing “to take it [the heroin] to the other boy, the boy who

will sell it . . . .             Then if it is to collect money, I will

send him [Akwei].            He will collect money from that person if he

is told,” id. at 620; “has not done this [disappeared] to me

before,” id. at 624; and had taken money to New York for Ehiobu

                                           12
prior   to    February       2011,        id.   at    617.      The     jury      justifiably

concluded      that     Akwei        could        have    foreseen          the   conspiracy

involving one kilogram of heroin.                     The fact that Ehiobu planned

to send a “100-200 gram[]” heroin sample to Ani, id. at 611,

further      supports        this        conclusion.           As    distinguished        from

Hickman, the amount of heroin recovered here combined with the

specificity of evidence of Akwei’s involvement in the conspiracy

lead    us   to     conclude    that        sufficient       evidence        supported     the

jury’s weight determination.

                                                B.

       We next consider Akwei’s argument that the district court

abused its discretion by admitting evidence that Macauley’s cell

phone   contact       list    contained         Akwei’s      name     and    phone    number,

which    Akwei      contends        is    irrelevant.          We     review      evidentiary

rulings for abuse of discretion.                      United States v. Blake, 571

F.3d 331, 346 (4th Cir. 2009).

       Evidence is relevant if it has “any tendency to make the

existence      of     any      fact        that      is   of        consequence      to    the

determination of the action more probable or less probable.”

Fed. R. Evid. 401.           Although relevant evidence “‘may be excluded

if its probative value is substantially outweighed by the danger

of unfair prejudice,’” we “review the lower court’s application

of this balancing test with the broad deference that the abuse



                                                13
of discretion standard requires.”             United States v. Myers, 280

F.3d 407, 413 (4th Cir. 2002) (quoting Fed. R. Evid. 403).

     The cell phone contact list is relevant because it tends to

show a connection between Macauley, the undisputed kingpin of

the importation operation, and Akwei.            The government needed to

prove at least “a slight connection between the defendant and

the conspiracy” to make its case.             United States v. Burgos, 94

F.3d 849, 861 (4th Cir. 1996) (citation omitted).                  Macauley’s

contact   list   was   one   way   in   which   the   government   sought   to

connect Akwei to the conspiracy.             Therefore, the district court

did not abuse its discretion in admitting the relevant phone

contact list.

                                        C.

     Next, Akwei argues that the district court erred by (1)

admitting evidence of his attempted flight during arrest and (2)

giving a flight instruction.            Essentially, Akwei contends that

his July 14 flight was too minor and temporally attenuated from

his initial February 21 arrest to justify a flight instruction.

In response, the government argues that because Akwei knew he

was under investigation for involvement in the instant offense

at the time of his July 14 flight, the district court properly

admitted the evidence and accordingly instructed the jury.

     We review admission of evidence of flight as well as “[t]he

decision to give or not give a jury instruction” for abuse of

                                        14
discretion.   United States v. Allen, 491 F.3d 178, 186 (4th Cir.

2007) (citation omitted).         We will not vacate a conviction on

the basis of an erroneous jury charge if, in light of the above

inquiry, the charge contained an adequate statement of the law

and was not misleading.      Id. at 187.

     Evidence of an accused’s flight is generally admissible as

an indication of guilt.         United States v. Obi, 239 F. 3d 662,

665 (4th Cir. 2001) (“It cannot be doubted that in appropriate

circumstances,    a    consciousness      of   guilt     may   be    deduced   from

evidence of flight.”).       However, evidence of flight as proof of

consciousness of guilt “would be completely unfounded where a

defendant flees after commencement of an investigation unrelated

to the crime charged, or of which the defendant was unaware.”

United   States   v.   Beahm,   664    F.2d       414,   420   (4th   Cir.     1981)

(internal quotation omitted).             Therefore, a flight instruction

alerting   the    jury     that      it     may     infer      the    defendant’s

consciousness of guilt from his flight is only warranted when

evidence supports each link in the causative chain such that the

jury can draw inferences “(1) from the defendant’s behavior to

flight; (2)   from     flight   to    consciousness       of   guilt;    (3)   from

consciousness of guilt to consciousness of guilt concerning the

crime charged; and (4) from consciousness of guilt concerning

the crime charged to actual guilt of the crime charged.”                       Obi,

239 F.3d at 665-66 (citation omitted).

                                       15
     Evidence of Akwei’s flight was properly admitted at trial

and supported the flight instruction.                      First, although Akwei

correctly   asserts      that    he     did    not   run   from   the     house,     the

evidence supports the conclusion that he fled.                         Agent Murtha’s

testimony   revealed      that    while       officers     entered      Akwei’s      home

through the front door and followed his wife upstairs to conduct

their early morning arrest, Akwei opened the back basement door,

peered outside, and exited.             The fact that Akwei sought to leave

the house in sweatpants, a t-shirt, and no underwear at six in

the morning after climbing over a large volume of clothing and

debris    obstructing     the     path        to   the   basement       exit   further

supports a finding of flight, as does the fact that Akwei first

claimed to be on his way to work, then on the way to pick up his

mother-in-law, neither of which was substantiated by the facts.

     Second, evidence supported a link between Akwei’s flight

and consciousness of guilt of the instant offense; Akwei does

not dispute that he knew he was under investigation for the

February incident and that his prior charges had been dismissed

without   prejudice,     nor     does    he    contend     that   an    alternate     or

intervening incident explains his behavior.                       Although several

months    had   passed    between       Akwei’s      February     arrest       and    his

flight, the facts here support the conclusion that his attempt

to flee from police on July 14 related to that prior arrest--the

only pending criminal investigation of which he was aware.                             We

                                          16
can therefore         distinguish     Beahm,   in     which   we   found     that    the

district court erred by giving a flight instruction when the

government presented “no evidence that [the defendant] was aware

that he was the subject of a criminal investigation” at the time

he fled.       664 F.2d at 420.         Therefore, the district court did

not abuse its discretion in admitting evidence of Akwei’s flight

and instructing the jury accordingly.

                                          D.

       Finally,       Akwei    contests      the     forfeiture      order       entered

against him.      He argues that he never received proceeds from the

February 21 transaction and that coconspirators may not be held

jointly and severally liable for conspiracy proceeds, such that

the district court erred in accepting the $3,200 seized during

the search as substitute property to satisfy the judgment.

       In the criminal forfeiture context, we review a district

court’s    findings       of   fact    for     clear    error      and     its    legal

interpretations de novo.            United States v. Oregon, 671 F.3d 484,

490 (4th Cir. 2012).             In order to obtain a forfeiture order

after conviction, “the government must establish a nexus between

the property for which it is seeking forfeiture and the crime by

a preponderance of the evidence.”                  United States v. Martin, 662

F.3d    301,    307    (4th    Cir.    2011)       (citing    Fed.    R.     Crim.   P.

32.2(b)(1)(A)).        Conspirators “are responsible at sentencing for

co-conspirators’ reasonably foreseeable acts and omissions . . .

                                          17
in    furtherance   of     the   jointly       undertaken    criminal      activity.”

United States v. McHan, 101 F.3d 1027, 1043 (4th Cir. 1996)

(internal quotation and citation omitted).                   As forfeiture is an

element of the defendant’s sentence, “[w]e have therefore held

conspirators jointly and severally liable for the forfeiture of

proceeds from a conspiracy.”             United States v. Jalaram, 599 F.3d

347,   351   (4th   Cir.    2010)      (citing    McHan,    101    F.3d    at     1043).

Further, the criminal forfeiture statute allows for forfeiture

of “any other property of the defendant” as substitute property

when conspiracy proceeds cannot be located.                       United States v.

McHan, 345 F.3d 262, 271 (4th Cir. 2003) (citing 21 U.S.C. §

853(p)).

       Applying     these        principles,       Akwei’s        arguments       fail.

Evidence      introduced         at     trial      revealed        that       Macauley

coconspirators      were    offered     thousands     of    dollars     to    work    as

couriers, and that the street value of just one kilogram of

heroin    ranged    from    $70,000      to    $120,000.         Insofar     as    Akwei

challenges the establishment of the nexus between the $5,000

order entered against him and the February 21 transaction, his

argument fails because coconspirators are jointly and severally

liable for the forfeiture of conspiracy property.                          Thus, the

$5,000 order was proper even if Akwei did not receive payment

for    his   participation        in   the      February    21    transaction,       as

evidence at trial supported the conclusion that the Macauley

                                          18
coconspirators obtained at least that amount.                       As Akwei had no

other assets, the government properly applied the seized $3,200

to the judgment, because “[i]f any of the forfeitable property

cannot    be    located    by   the       government    .   .   .   the   court   must,

pursuant       to   [21   U.S.C.]     §    853(p),     order    the   forfeiture    of

‘substitute property’ of the defendant up to the value of the

forfeitable property.”          McHan, 345 F.3d at 268.               We thus affirm

the district court’s forfeiture order. 4



                                           III.

      For the foregoing reasons, Akwei’s conviction and sentence

are

                                                                            AFFIRMED.




      4
       Finally, we reject Akwei’s argument that the district
court erred in denying his motion for a minor role adjustment at
sentencing. As Akwei himself concedes, his sentence “would not
have been affected by the court’s ruling on this issue,”
Appellant’s Br. at 29, rendering any error harmless.       Akwei
received the mandatory minimum 120-month sentence for his
conspiracy conviction; the district court explicitly recognized,
as does Akwei, that a two-level minor role adjustment would not
impact the mandatory minimum.



                                            19
