     Case: 09-10434     Document: 00511243188          Page: 1    Date Filed: 09/23/2010




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

                                                 FILED
                                                                        September 23, 2010
                                     No. 09-10434
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

IGNATIUS AKPAN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 3:08-CR-3-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Ignatius Akpan, proceeding pro se, appeals his jury conviction of one count
of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and eight
counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. The district court
sentenced him to 57 months in prison and to two years of supervised release on
each count, to be served concurrently.
        First, Akpan argues that the evidence was insufficient to show that he
knew about James Yarclay’s misrepresentations to American Express and that

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-10434

he willfully agreed with Yarclay to intentionally defraud American Express. By
moving for judgment of acquittal at the close of the Government’s case and by
renewing his motion after he presented his defense, Akpan preserved his claim
for de novo appellate review. See United States v. Williams, 602 F.3d 313, 315
(5th Cir. 2010); F ED. R. C RIM. P. 29(a).
      To convict Akpan of the conspiracy charge, the Government was required
to prove beyond a reasonable doubt: (1) an agreement between Akpan and one
or more persons (2) to commit the crime of wire fraud, and (3) an overt act by one
of the conspirators in furtherance of that agreement. United States v. Ingles, 445
F.3d 830, 838 (5th Cir. 2006). The Government must also demonstrate that
Akpan acted with the intent to defraud. Id.
      The evidence was sufficient to show that Akpan, owner of Union
Communication and Utilities Corporation (UCUC), and Yarclay, owner of
Universal Internet Concepts, Inc. (UICI), devised a scheme to defraud American
Express. Trial testimony revealed that Akpan charged UICI’s American Express
corporate account for approximately $664,360 in eight separate transactions in
March and April of 2004, that American Express transferred $648,082 to
Akpan’s bank account based on the charges, and that Akpan eventually
transferred a total of $319,000 to Yarclay. The jury heard testimony that Akpan
inflated UICI’s checking account balances by depositing a series of worthless
checks, that both Akpan and Yarclay called American Express numerous times
to request approval for charges that exceeded UICI’s credit limit, that Akpan
failed to produce any documents or other evidence to the Government to
substantiate the charges to UICI’s American Express account, and that Akpan
gave inconsistent explanations to investigators for the charges. In light of this
testimony, the evidence is sufficient to support Akpan’s conviction for conspiracy
to commit wire fraud. See Ingles, 445 F.3d at 838; United State v. Bieganowski,
313 F.3d 264, 276-77 (5th Cir. 2002).



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       Relatedly, Akpan asserts that he was convicted simply because of his
association with Yarclay, and, as such, that his due process rights were violated.
The Government may not attempt to prove a defendant’s guilt by showing that
he associates with “unsavory characters.” United States v. Singleterry, 646 F.2d
1014, 1018 (5th Cir. 1981). Because Akpan did not object at trial to any guilt-by-
association evidence, our review is for plain error. United States v. Thompson,
454 F.3d 459, 464 (5th Cir. 2006).
       The record reflects that Akpan was not convicted simply because he
associated with Yarclay, but rather because the Government presented strong
evidence that he conspired with Yarclay to defraud American Express. Cf.
United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008), cert. denied, 129 S.
Ct. 2018 (2009). Akpan has not shown any plain error. Thompson, 454 F.3d at
464.
       Akpan next argues that the jury instructions failed to include a Pinkerton 1
charge. We review this newly raised claim for plain error. F ED. R. C RIM. P. 30,
52(b); United States v. Redd, 355 F.3d 866, 874–75 (5th Cir. 2003). “Error in a
[jury] charge is plain only when, considering the entire charge and evidence
presented against the defendant, there is a likelihood of a grave miscarriage of
justice.” United States v. Sellers, 926 F.2d 410, 417 (5th Cir. 1991). In the
instant case, the Government was not prosecuting Akpan for any substantive
offenses committed by Yarclay in furtherance of the conspiracy.              Thus, no
Pinkerton charge was necessary. Because the jury charge on conspiracy was
proper, Akpan has failed to show the likelihood of a grave miscarriage of justice.
See id.
       Akpan also complains that the district court erred in failing to admit
defense exhibit # 5, the pro forma invoice, into evidence. This misstates the
record. When sustaining the objection to the introduction of the invoice, the


       1
           Pinkerton v. United States, 328 U.S. 640 (1946).

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district court explained to Akpan that he must first lay a proper foundation.
Akpan, however, did not avail himself of this opportunity as he failed to offer a
qualified witness who could lay the proper foundation as required by F ED. R.
E VID. 803(6) for the admission of the invoice into evidence. Thus, the district
court did not abuse its discretion in refusing to admit the document into
evidence. See United States v. Franklin, 561 F.3d 398, 404 (5th Cir.), cert.
denied, 129 S. Ct. 2848 (2009); United States v. Brown, 553 F.3d 768, 792 (5th
Cir. 2008), cert. denied, 130 S. Ct. 246 (2009).
      Relatedly, Akpan asserts that the district court admitted into evidence all
of the Government’s exhibits “without inquiring into the substance of each and
every evidence as required under Fed. R. Evid. 103.”         Rule 103 is entitled
“Rulings on Evidence” and addresses the procedures by which parties object to
evidence and other evidentiary procedures. Akpan, however, fails to explain
which documents should have been excluded and why and how the district court
failed to follow Rule 103. Although pro se briefs are liberally construed, even pro
se litigants must brief arguments in order to preserve them. Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993). Akpan has failed to adequately brief this
argument.
      Turning to his sentence, Akpan challenges the two-level enhancement for
obstruction of justice under U.S.S.G. § 3C1.1. He contends that there was
insufficient evidence to find that he obstructed justice by suborning the false
testimony of Robert Rodriguez and by attempting to introduce a false document,
the pro forma invoice, into evidence at trial and producing it to the Government
during pretrial discovery; he also argues that the district court’s factual findings
were inadequate.
      The district court’s determination that a defendant obstructed justice
under § 3C1.1 is a factual finding that this court reviews for clear error. United
States v. Martinez, 263 F.3d 436, 441 (5th Cir. 2001). Producing a counterfeit
document during an official judicial proceeding and suborning perjury are

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specific examples of conduct to which the enhancement applies.           § 3C1.1,
comment. (n.4(b), (c)).
      There was sufficient evidence from which the district court could have
found that Akpan suborned Rodriguez’s testimony and that the invoice was
fraudulent.   Although Rodriguez testified that he was UCUC’s technical
manager, that he remembered Akpan working on a deal to purchase cell phones,
that he signed the invoice, and that he was involved in executing the invoice, his
testimony was directly contradicted by other witnesses and his own testimony
on cross-examination. Rodriguez admitted that the only work he performed for
UCUC was to install some telephone lines in the ceiling. He offered conflicting,
confusing testimony regarding whether he was the technical manager of UCUC
or had knowledge regarding the agreement between UCUC and UICI to
purchase cell phones.     The court could infer from Rodriguez’s difficulty in
pronouncing the phrase “pro forma” and lack of knowledge as to UCUC’s
business that he had been encouraged to testify to issues about which he knew
nothing. The district court’s finding that Akpan obstructed justice by suborning
Rodriguez’s testimony and producing a fraudulent document is “plausible in
light of the record as a whole.” See United States v. Harms, 442 F.3d 367, 378
(5th Cir. 2006).
      Akpan also argues that the district court failed to make specific factual
findings regarding Rodriguez’s testimony and the pro forma invoice. The district
court adopted the factual findings contained in the PSR, and those findings were
sufficient to encompass the four elements of subornation of perjury. See United
States v. Dunnigan, 507 U.S. 87, 95 (1993). Specifically, the district court found
that Rodriguez’s testimony regarding his job title and the contents of the pro
forma invoice were false. Moreover, we can conclude that the testimony was
material because it was designed to affect the outcome of the trial by showing
that an agreement existed between UCUC and UICI for the purchase of cell
phones, which, in turn, would have substantiated the American Express charges

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and that Rodriguez intended to testify falsely because he knew that he was not
working for UCUC in February 2004. The PSR stated that Akpan presented
Rodriguez as a witness to testify on behalf of UCUC regarding the pro forma
invoice. The PSR also stated that the invoice was produced to the Government
in pretrial discovery and presented at trial “to refute the allegations of the
offense,” which was sufficient to establish that the document was “material” and
had been produced in an attempt to influence the trial. See United States v.
Como, 53 F.3d 87, 90 (5th Cir. 1995); see also United States v. Storm, 36 F.3d
1289, 1295 (5th Cir. 1994). Akpan has not shown any clear error by the district
court.
         Next, Akpan argues that his sentence is procedurally and substantively
unreasonable because the district court miscalculated his guidelines range when
it imposed the obstruction-of-justice enhancement. Although Akpan requested
a sentence at the low end of the guidelines range, he did not object to the
calculation of his guidelines range or to the substantive reasonableness of his
sentence. Accordingly, review is for plain error. United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007). Because we have determined that the district
court did not err by imposing the obstruction-of-justice enhancement, Akpan has
not established that his guidelines range was miscalculated; thus, he has failed
to establish plain error in that regard. In addition, Akpan has not set forth any
argument overcoming the presumption of reasonableness afforded his
within-guidelines sentence. See United States v. Campos-Maldonado, 531 F.3d
337, 339 (5th Cir. 2008). Accordingly, he has not shown that his sentence is
procedurally or substantively unreasonable.
         Finally, Akpan complains that the district court miscalculated the amount
of restitution because it failed to subtract $64,940 for a payment that UICI made
to American Express, the $14,625 that American Express seized from Akpan,
and the $165 charged by American Express for three months of administrative
fees.

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                                   No. 09-10434

         Because Akpan did not object to the restitution amount, we review for
plain error. See United States v. Maturin, 488 F.3d 657, 659-60 (5th Cir. 2007).
The record reflects that UICI’s payment and the amount seized from Akpan were
already subtracted from the total loss. Accordingly, he is not entitled to receive
additional credit for these amounts. Further, Akpan has set forth no cogent
argument explaining why he is entitled to receive credit for the alleged
administrative fees that he paid to American Express. Accordingly, the district
court did not plainly err in requiring Akpan to pay $584,793 in restitution. See
id.
         AFFIRMED.




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