                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                IN THE UNITED STATES COURT OF APPEALS            December 5, 2003
                        FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                                                                      Clerk

                               No. 03-20188



UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

MORRIS BROWN OKOLO,

                                        Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Texas
                          (No. H-01-765)


Before DAVIS, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Morris Brown Okolo was convicted of one

count of conspiracy to commit bank fraud, one count of conspiracy

to launder funds, and thirty-five counts of aiding and abetting

bank fraud. On appeal, Okolo (1) challenges the sufficiency of the

evidence supporting his conviction, (2) contests the denial of his

motion   for   new   trial,   (3)   asserts   that   the   district    court

erroneously admitted lay opinion testimony, and (4) disputes the



     *
        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that this opinion should not be published and is not precedent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.
district court’s sentencing.1     For the reasons explained below, we

affirm Okolo’s conviction and sentencing.

                        I.     BACKGROUND FACTS

     A grand jury returned a thirty-seven count indictment against

Defendant-Appellant Okolo and several codefendants. Each defendant

was charged with one count of conspiracy to commit bank fraud in

violation of 18 U.S.C. § 371, one count of conspiracy to launder

funds in violation of 18 U.S.C. § 1956(h), and 35 counts of aiding

and abetting bank fraud in violation of 18 U.S.C. §§ 1344 and 2.

The charges were the culmination of an extensive investigation into

an elaborate check-fraud scheme involving Bank One and other banks.

     In 1999, a fraud examiner at Bank One began researching

fraudulent activity relating to several line-of-credit accounts.

The examiner discovered that someone had accessed each account and

changed the address of record without the knowledge of the account

holder. Next, checks reflecting the false address had been ordered

specifying delivery to the false address.          After the checks were

delivered to the bogus address, forged checks were drawn on the

account   and   subsequently    deposited   into    various   other   bank

accounts.   Then, after these checks cleared, the deposited funds




     1
       As we struggle to comprehend much of Okolo’s appellate
brief, to any extent that we misapprehend Okolo’s appellate
points, they have been inadequately argued and thus are abandoned
on appeal. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993).

                                    2
were withdrawn.      Bank One suffered approximately $3.7 million in

losses as a result of this scheme.

       Postal Inspector Matthew Boyden assisted Bank One’s fraud

examiner. Inspector Boyden traced the checks and account activity,

which led him to a number of co-conspirators who then cooperated

with    law   enforcement.        Eventually    each   such     co-conspirator

“flipped” in exchange for a lighter sentence.                Inspector Boyden

ultimately reached James Anderson who also agreed to cooperate.

       Anderson divulged that, in the early 1990s, his sister,

Patricia      Roebuck,    dated   Okolo,     with   whom    Anderson    became

acquainted.     Although Okolo and Roebuck stopped dating after a few

years, Anderson remained friendly with Okolo.               In 1999, Anderson

was suffering financial difficulties and approached Okolo to find

out if he knew of a way that Anderson could make money.                  Okolo

offered to pay Anderson for locating people who would agree to

deposit fraudulent checks into their bank accounts and withdraw the

funds after the checks cleared.              From that time until he was

arrested, Anderson’s extensive involvement in the scheme included

recruiting depositors, acting as an intermediary between Okolo and

the    depositors,      and   transmitting     proceeds    of   the   deposited

fraudulent     checks    to   Okolo.   Anderson     was    arrested   after   he

delivered checks from Okolo to one of the depositors.                  Anderson

later confessed to Inspector Boyden and agreed to cooperate by




                                       3
recording conversations with Okolo and participating in a sting

operation.2

      Roebuck was also involved in the scheme.    She testified that

on three or four occasions in 2001, Okolo came to her apartment and

asked her for assistance.     She stated that Okolo acknowledged to

her that he had ordered fraudulent checks while pretending to be

the   account    holder.    Roebuck   helped   Okolo   write   checks,

occasionally filling out the names of the payees or amounts of the

checks, and signing the checks as Okolo directed.        According to

her, Okolo sometimes filled out the checks himself and asked her to

sign them.     For her assistance, Okolo paid Roebuck a few hundred

dollars for each check.3

      In September 2001, Anderson set up a meeting with Okolo at the

direction of law enforcement agents, ostensibly to deliver pay-off

money that Anderson had purportedly received from another scheme

participant.    When Okolo arrived at the scene, Anderson got out of

his car, unlocked its trunk, removed the funds, and got into

Okolo’s vehicle.    When Anderson gave Okolo the pay-off money, law

enforcement officers —— wearing jackets identifying them as agents

from various federal and state agencies —— announced their presence

      2
       Anderson pleaded guilty to conspiracy and bank fraud and,
pursuant to a written plea agreement, agreed to testify about his
involvement in the check-fraud scheme. In return, Anderson hoped
to receive a lighter sentence.
      3
       The government solicited Roebuck’s cooperation and
testimony in exchange for an immunity agreement barring
prosecution for her involvement in the scheme.

                                  4
and attempted to surround Okolo’s vehicle.             In response, Okolo

accelerated, driving over a curb and sidewalk, cutting through a

parking lot, and racing away from the scene.          After a brief chase,

however, officers arrested Okolo and recovered the pay-off money.

                                II.   DISCUSSION

A.   STANDARDS   OF   REVIEW

     We apply different standards of review to the various issues

raised by Okolo.         To Okolo’s challenge to the sufficiency of the

evidence supporting his conviction, we apply a reasonableness

standard; that is, we ask whether any reasonable trier of fact

could have found that the evidence established the essential

elements of the offense beyond a reasonable doubt.4           We apply the

deferential abuse-of-discretion standard in reviewing the district

court’s denial of Okolo’s motion for new trial based on newly

discovered evidence.5          We apply that same standard in reviewing

Okolo’s evidentiary complaint that the district court improperly

admitted lay opinion testimony.6            Finally, we review de novo the

district court’s application and interpretation of the sentencing

guidelines, and we review its findings of facts for clear error.7

     4
         United States v. Reyna, 148 F.3d 540, 543 (5th Cir. 1998).
     5
         United States v. Villarreal, 324 F.3d 319, 325 (5th Cir.
2003).
     6
         United States v. Sanchez-Sotelo, 8 F.3d 202, 210 (5th Cir.
1993).
     7
         United States v. Jimenez, 323 F.3d 320, 322 (5th Cir.
2003).

                                        5
B.   SUFFICIENCY   OF THE   EVIDENCE

     After the government’s case-in-chief and again at the close of

evidence, Okolo moved for a judgment of acquittal on all counts,

pursuant to Federal Rule of Criminal Procedure 29(a).                  In both

instances, the district court denied Okolo’s motion.

     1.     Conspiracy to Defraud and Bank Fraud

     Okolo’s       challenge     to    the   sufficiency   of   the    evidence

supporting his conviction for conspiracy to commit bank fraud

(count 1) and aiding and abetting bank fraud (counts 3-37) amounts

to little more than a request that we reexamine the credibility of

the witnesses who testified against him. For example, Okolo points

to the bias of the government’s two principal witnesses, Anderson

and Roebuck, and complains that “Anderson testified that he wanted

leniency to avoid dying in prison. Patricia Roebuck testified that

she wanted to help her brother.”

     It is universally recognized that we resolve all credibility

determinations and reasonable inferences in favor of the verdict.8

Beyond his conclusional assertion that Anderson’s and Roebuck’s

testimony cannot be considered reliable, Okolo’s appellate brief

fails to articulate why the evidence adduced at trial is not

sufficient to support his conviction on these counts.                 We cannot




     8
         United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.
1995).

                                         6
re-weigh the evidence or independently assess the credibility of

the witnesses,9 so this argument is frivolous.

     2.      Conspiracy to Launder Money

     In count 2, the government charged Okolo with engaging in a

conspiracy to launder money based on the manner in which he

conducted financial transactions with the proceeds of the check-

fraud scheme. The government proffered two alternative theories to

prove that Okolo had the requisite intent.         First, the government

advanced a promotion theory under § 1956(a)(1)(A)(1), arguing that

Okolo managed the bank fraud scheme with the intent either to

promote or further the bank fraud.10 Second, the government alleged

a   concealment-of-proceeds     theory     under   §   1956(a)(1)(B)(i),

asserting that Okolo intended to conceal or disguise the nature,

location, source, or ownership of the funds derived from the check-

fraud scheme.11    We glean from Okolo’s appellate brief two distinct

challenges to the government’s alternative theories. Okolo asserts

that the government failed to prove that he had the necessary

specific intent to support a conviction under the promotion theory.

Regarding the concealment-of-proceeds theory, Okolo advances that

it is an “unwarranted reaching” to infer that concealment occurred


     9
          United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
     10
          See United States v. Rivera, 295 F.3d 461, 467 (5th Cir.
2002).
     11
       See United States v. Pipkin, 114 F.3d 528, 533-34 (5th
Cir. 1997).

                                   7
just because some of the fraudulently obtained checks were payable

to cash.

     Again, we need not engage in an extended discussion of these

contentions as our review of the record confirms that there is more

than ample evidence to support the jury’s conviction verdict under

either theory.          The jury easily could have inferred from the

evidence that Okolo used proceeds from the check-fraud scheme to

pay various participants in the operation —— Roebuck and Anderson,

for example —— to perpetuate the scam and ensure its success.                          The

jury just as easily could have concluded that Okolo and the other

conspirators conducted the financial transactions to conceal his

ownership of and control over the unlawful proceeds.                           From the

scheme’s very nature —— Okolo’s employment of third parties to

forge and deposit the checks rather than doing so himself —— the

jury could have deduced that the scheme was designed to avoid

Okolo’s being detected.              His challenge to the sufficiency of the

evidence supporting his conviction for conspiracy to launder money

is without merit.

C.   DENIAL   OF   MOTION   FOR   NEW TRIAL BASED   ON   NEW EVIDENCE

     A district court may grant a motion for new trial based on

newly     discovered        evidence      “if    the      interests     of   justice    so

require.”12    To prevail on such a motion, Okolo had to show that:

(1) The evidence was newly discovered and was unknown to him at the


     12
          FED. R. CRIM. P. 33.

                                             8
time of trial; (2) his failure to detect the new evidence earlier

was not the result of a lack of diligence on his part; (3) the new

evidence was not merely cumulative or impeaching; (4) the new

evidence was material; and (5) the new evidence, if introduced at

a new trial, would probably produce an acquittal.13

     Okolo contends that, after trial, he learned of evidence that

three     Bank   One   employees   had    supplied   confidential   account

information of Bank One customers —— individuals whose lines-of-

credit were tapped —— directly to Anderson.          At trial, though, the

evidence had shown that Okolo received the account information and

subsequently provided the completed checks to Anderson.              Okolo

argues that this “new” evidence controverts Anderson’s testimony

and demonstrates that Anderson’s involvement with the scheme was

far deeper than he led the jury to believe.          Okolo argues further

that this evidence supports his defense theory that he had no

involvement with the scheme whatsoever and that it was orchestrated

by Anderson and the other defendants.

     The district court correctly ruled that Okolo was not entitled

to a new trial.         In ruling against Okolo, the district court

determined that, even though this information was new to the

government, it was not new to Okolo because he had dealt directly

with one of the Bank One employees to obtain confidential bank

customer information. But even if we were to assume arguendo that


     13
          See Villarreal, 324 F.3d at 325 (citations omitted).

                                      9
this    information     was       newly     discovered,      it   was   essentially

impeachment      evidence         to     undermine       Anderson’s     credibility.

Furthermore, we are not convinced that this “new” evidence could

raise a reasonable doubt about Okolo’s guilt, and, if introduced at

a new trial, would probably produce an acquittal. Okolo has failed

to carry his burden of showing that the district court abused its

discretion when it denied his motion for new trial, so Okolo is not

entitled to relief on this issue.

D.     IMPROPER ADMISSION   OF   LAY OPINION TESTIMONY

       Over an objection by Okolo, the district court allowed Roebuck

to testify about whether the handwriting on some of the forged

checks was that of Okolo.              He contends that this was error because

the government did not lay a predict qualifying Roebuck as an

expert on handwriting.

       The government was not obligated to elicit expert testimony to

demonstrate that the handwriting on the forged checks was Okolo’s.14

       14
         In response, the government partly relies on Rule 901’s
recognition that a non-expert may give his opinion about the
genuineness of handwriting based on “familiarity not acquired for
the purpose of litigation.” FED. R. EVID. 901(b)(2). Rule 901
addresses what is necessary to authenticate a document before it
can be admitted into evidence. That rule does not short-circuit
the need for the underlying non-expert testimony to conform to
Rule 701. See United States v. Scott, 270 F.3d 30, 48-50 (1st
Cir. 2001) (explaining the relationship between Rules 901 and 701
in the authentication and admission of documents containing
handwriting). See also 31 WRIGHT & GOLD, FEDERAL PRACTICE AND
PROCEDURE: EVIDENCE § 7103, at 26 (2000) (noting that non-expert
opinions offered under Rule 901(b)(2) to authenticate handwriting
are still subject to the proscriptions of Rule 701). Here, Okolo
is not questioning the admission of the forged checks into
evidence.

                                            10
Federal Rule of Evidence 701, which governs non-expert opinion

testimony, requires such testimony to be based on the witness’s own

perceptions.       In this context, Roebuck could serve as a Rule 701

witness     for    the     government   and   testify    about   whether   the

handwriting was Okolo’s, as long as her testimony was based on her

own first-hand knowledge or observations.15              This requirement is

satisfied here.          Roebuck said that she was familiar with Okolo’s

handwriting because she dated him for two years and because she

observed him writing his name and signing documents.             The district

court did not abuse its discretion in allowing Roebuck to testify

about Okolo’s handwriting.

E.   SENTENCING ISSUES

     Okolo raises two separate sentencing issues, one challenging

a two-level increase under USSG § 3C1.2 and the other challenging

a four-level increase under USSG § 3B1.1(a).             We are not persuaded

by either argument.

     1.     Two-Level Enhancement Under USSG § 3C1.2

     First,       Okolo    challenges   the   district    court’s   two-level

increase under USSG § 3C1.2 for his speeding away from arresting

officers.    Section 3C1.2 prescribes a two-level increase “[i]f the

defendant recklessly created a risk of death or serious bodily




     15
       FED. R. EVID. 701 advisory committee’s note to 1972
proposed rules. See also United States v. Rea, 958 F.2d 1206,
1215 (2d Cir. 1992).

                                        11
injury to another person in the course of fleeing from a law

enforcement officer.”

       The application notes to § 3C1.2 direct the court to the

definition      of   “reckless”   found     in   §   2A1.4,   the    involuntary

manslaughter guideline.16         “Reckless” under § 2A1.4 “refers to a

situation in which the defendant was aware of the risk created by

his conduct and the risk was of such a nature and degree that to

disregard that risk constituted a gross deviation from the standard

of   care     that   a   reasonable   person     would    exercise   in   such   a

situation.”17

       Okolo maintains that he could not have been “aware of the risk

created by his conduct” because he did not realize that he was

fleeing from law enforcement officers.                   Okolo notes that the

officers who attempted to apprehend him and subsequently gave chase

drove unmarked cars.          Okolo adds that, because this incident

occurred on the afternoon of September 11, 2001 —— a day, as he

describes it, when “no one in the country knew who was who” —— his

act of fleeing does not support a § 3C1.2 enhancement.                Okolo asks

us to adopt the reasoning of United States v. Hayes, in which the

Sixth Circuit held that “a § 3C1.2 enhancement is inapplicable if




       16
            USSG § 3C1.2, app. note 2.
       17
            USSG § 2A1.4, app. note 1.      See also Jimenez, 323 F.3d at
323.

                                       12
the defendant did not know it was a law enforcement officer from

whom he was fleeing.”18

     In this case, we need neither adopt nor reject Hayes because

we review a district court’s factual findings for clear error,19 and

three facts foreclose Okolo’s argument.          First, agents surrounded

Okolo’s car immediately after he accepted Anderson’s pay-off.

Second, when they did this, the agents shouted “Police! Stop!

Freeze!”       And, third, as he drove away, Okolo yelled to Anderson,

“You set me up!”        These facts demonstrate that Okolo realized full

well that he was fleeing from law enforcement officers.           We find no

error     in    the    district   court’s   factual   findings   or   in   its

application of the § 3C1.2 enhancement.

     2.        Four-Level Enhancement Under § 3B1.1(a)

     Okolo’s final challenge is directed at the district court’s

four-level increase under USSG § 3B1.1(a) for his leadership role

in the offense.        On this point, he includes a request that we hold

that the district court’s application of § 3B1.1(a) violates

Apprendi v. New Jersey.20

               a.     Factual Support for Concluding that
                      Okolo had a Leadership Role



     18
       49 F.3d 178, 183-84 (6th Cir. 1995). See also United
States v. Moore, 242 F.3d 1080, 1082 (8th Cir. 2001); United
States v. Sawyer, 115 F.3d 857, 859 (11th Cir. 1997).
     19
          Jimenez, 323 F.3d at 322.
     20
          530 U.S. 466 (2000).

                                       13
     In this circuit, “[t]he application of § 3B1.1 is a factual

finding reviewed only for clear error.”21 The Sentencing Guidelines

direct a court to increase a defendant’s offense level by four

“[i]f the defendant was an organizer or leader of a criminal

activity that involved five or more participants or was otherwise

extensive.”22     According   to   §    3B1.1’s   application    notes,   the

sentencing court should consider:

     the exercise of decision making authority, the nature of
     the participation in the commission of the offense, the
     recruitment of accomplices, the claimed right to a larger
     share of the fruits of the crime, the degree of
     participation in planning or organizing the offense, the
     nature and scope of the illegal activity, and the degree
     of control and authority exercise over others.23

     The probation officer recommended the enhancement because the

evidence showed that most of the fraudulently obtained checks were

delivered to bogus addresses under Okolo’s control.             In addition,

Okolo caused the signatures of Bank One account holders to be

forged on the checks, and he arranged for recruited depositors to

be listed as the payees on the checks.            The checks passed from

Okolo to Anderson and from him to the scheme’s participants who

deposited the forged checks into their accounts.          Once the cashed



     21
       United States v. Fullwood, 342 F.3d 409, 415 (5th Cir.
2003). Okolo contends that our review should be de novo,
pursuant to United State v. McGregor, 11 F.3d 1133, 1138 (2d Cir.
1993), but here, the exercise of de novo review would not affect
the outcome.
     22
          USSG § 3B1.1(a).
     23
          USSG § 3B1.1, app. note 4.

                                       14
funds were withdrawn, the proceeds were sent back up the line,

through Anderson, to Okolo.      Including Okolo, seven defendants

participated in the check-fraud scheme.      These facts undeniably

support the district court’s assessment of § 3B1.1(a)’s four-level

enhancement.

             b.   Apprendi and Leadership Enhancement

     The last argument that Okolo advances in his effort to avoid

enhancement under § 3B1.1(a) is that the issue of leadership should

have been charged as an element in the indictment and submitted to

the jury under Apprendi.      He reasons that such a role increase

could have elevated his sentence above the prescribed statutory

maximum.24    We have read Apprendi to hold that “a fact used in

sentencing that does not increase a penalty beyond the statutory

maximum need not be alleged in the indictment and proved to a jury

beyond a reasonable doubt.”25       The application of § 3B1.1(a)

enhancement did not therefore violate Apprendi, because Okolo’s

sentence was below the statutory maximum applicable to each count.

Okolo’s Apprendi challenge is without merit.


     24
       Okolo’s reliance on United States v. Fields, 251 F.3d
1041 (D.C. Cir. 2001), is misplaced. The Fields Court held that
Apprendi does not apply because “a leadership enhancement based
on a role-in-offense finding is not a fact that increases the
penalty for a crime beyond the prescribed statutory maximum.”
Id. at 1046 (quotations omitted).
     25
       United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000)
(emphasis added). Accord United States v. Moreno, 289 F.3d 371,
372 (5th Cir. 2002); United States v. McIntosh, 280 F.3d 479, 484
(5th Cir. 2002).

                                  15
                        III.   CONCLUSION

    For the foregoing reasons, Okolo’s conviction and sentence are

AFFIRMED.




                                16
