United States v. Odicho, Sulayman

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 7, 2007

Decided February 8, 2007

Before

Hon. JOHN L. COFFEY, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-4423

UNITED STATES OF AMERICA, Appeal from the United States

Plaintiff-Appellee, District Court for the Northern

District of Illinois, Eastern Division

v.

No. 04-CR-1031

SULAYMAN ODICHO,

Defendant-Appellant. Samuel Der-Yeghiayan,

Judge.

ORDER

Sulayman Odicho signed a written confession admitting that he and two

friends used $18,500 in counterfeit currency to purchase a kilogram of cocaine from

Dyana Eisha, who was then 17, and that he later sold part of that cocaine for

$8,700. Odicho was charged with conspiracy to possess and deliver cocaine, see 21

U.S.C. §§ 846, 841(a)(1); possession of cocaine with intent to distribute, see id.

§ 841(a)(1); and passing counterfeit currency, see 18 U.S.C. § 472. His indictment

also sought forfeiture of the $8,700. See 21 U.S.C. § 853(a). A jury found Odicho

guilty on all three charges in September 2005. He then moved for a judgment of

acquittal or, alternatively, a new trial, but both motions were denied. The district

court sentenced Odicho within the guidelines range to a total of 84 months’

imprisonment and ordered him to forfeit the $8,700. Odicho filed a notice of appeal,

but his appointed counsel moves to withdraw because she cannot discern a

No. 05-4423 Page 2

nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). We

invited Odicho to respond to counsel’s motion, see Cir. R. 51(b), and he has done so.

Our review is limited to the potential issues identified in counsel’s facially adequate

brief and in Odicho’s response. See United States v. Schuh, 289 F.3d 968, 973-74

(7th Cir. 2002).

Eisha, having received immunity, testified for the government at trial. She

explained that “Carlos,” a man she had met only twice, recruited her to sell a

kilogram of cocaine. She testified that she arranged the deal with Odicho, that she

took the cocaine out to his car when he arrived at her house with two other men,

that Odicho in return handed a package of money to the passenger in the front seat,

and that this passenger handed the money to her. That evening, however, she

realized the money was counterfeit and hid it in her closet. Her mother found it

there, and her brother-in-law, a Chicago police officer, made her turn herself and

the counterfeit bills into authorities. She testified that she agreed to cooperate with

the government and, as part of that cooperation, placed a recorded phone call to

Odicho. During the conversation, which was played for the jury, Odicho told Eisha

that he learned the money was fake only after the sale had occurred.

Ryan Moore, a Secret Service agent, then testified for the government.

Moore explained that he interviewed Odicho after giving him Miranda warnings,

and then memorialized his oral statements in a written confession that Odicho

reviewed and signed. In this confession, which was read to the jury without

objection from defense counsel, Odicho admitted that he lied when he told Eisha

that he was unaware the money he gave her was counterfeit. He acknowledged

that all along he knew the money was fake, that he arranged the deal because his

friend who produced the counterfeit money asked him to find someone to “rip off,”

and that he rubber-banded the money in preparation for the sale. Odicho also

admitted that he sold some of the cocaine from Eisha for $8,700.

Nonetheless, Odicho’s theory of defense was that Eisha lied about his

involvement in the scheme in order to escape prosecution. In cross-examining

Eisha, counsel focused partly on whether she actually had seen Odicho handling or

passing the counterfeit money. Counsel also attempted to ask Agent Moore

whether the government had substantiated her story by investigating Carlos or the

other men involved in the transaction, but the court sustained the government’s

objection to this line of questioning. Finally, counsel insinuated while cross-

examining Moore that the agent had induced Odicho’s confession by falsely

promising to help with his immigration status.

At the close of the evidence, the prosecutor submitted an “aiding and

abetting” jury instruction that he had overlooked when he tendered proposed

instructions at the pretrial conference. Defense counsel objected, but the district

No. 05-4423 Page 3

judge, finding the instruction to be a “correct statement of the law,” included it in

the jury charge because the court did not want the jurors to be misled into thinking

they could convict only if Odicho himself had handed the counterfeit money to

Eisha.

In her Anders submission, appellate counsel first considers whether Odicho

might argue that his confession was coerced and therefore should have been

suppressed. When a defendant raises a suppression argument for the first time on

appeal, and there is no indication that he intentionally failed to raise it previously,

the issue is forfeited, so we would review only for plain error. Fed. R. Crim. P.

12(b), (e); United States v. Johnson, 415 F.3d 728, 730 (7th Cir. 2005). Here,

nothing in the record even hints that Odicho’s confession was coerced. On cross-

examination, Agent Moore conceded that he told Odicho that he would “look into”

straightening out Odicho’s immigration status if he cooperated with the

investigation. But investigators are not forbidden altogether from offering

inducements for a confession, e.g., a promise to tell the prosecutor about the

defendant’s cooperation, see United States v. Walker, 272 F.3d 407, 412

(7th Cir. 2001), so long as the offer is not an outright and material lie, see Hadley v.

Williams, 368 F.3d 747, 749 (7th Cir. 2004). Agent Moore explained that he indeed

ran Odicho’s records through the system and stopped pursuing the matter only

when he realized that Odicho had missed his administrative hearing. See Lord v.

Duckworth, 29 F.3d 1216, 1222 (7th Cir. 1994) (defendant’s mistaken belief about

scope of police officer’s promise did not render confession involuntary). We agree

with counsel, then, that an argument about the confession would be frivolous.

Counsel also considers arguing that the trial court should have granted

Odicho’s motion for a judgment of acquittal or ordered a new trial on the ground

that Eisha’s testimony was inherently unreliable. But we agree with counsel that

this argument would be patently frivolous. While Eisha admitted to being an

occasional drug dealer, and admitted to several inconsistencies between her trial

testimony and prior sworn statements, it is within the province of the jury to choose

to believe “confessed law-breakers or known liars.” United States v. Algee, 309 F.3d

1011, 1016 (7th Cir. 2002). We will overturn a conviction based on a credibility

determination only if the witness’ testimony was incredible as a matter of

law—meaning “impossible under the laws of nature.” United States v. Hayes, 236

F.3d 891, 896 (7th Cir. 2001). This certainly does not characterize Eisha’s

testimony; in fact, Odicho’s confession substantiated her story.

Counsel next considers whether Odicho could argue that it was error for the

district court to preclude trial counsel from questioning Agent Moore about Carlos,

the purported source of the cocaine. We would review that evidentiary ruling for an

abuse of discretion. United States v. Leahy, 464 F.3d 773, 797 (7th Cir. 2006). Trial

counsel insisted that it was imperative for the jury to know what the government

No. 05-4423 Page 4

did—or did not do—to substantiate Eisha’s story, but appellate counsel is correct

that it would be frivolous to press this contention on appeal because the proposed

inquiry was irrelevant. See Fed. R. Evid. 401 (relevant evidence is that “evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence”); Leahy, 464 F.3d at 798. Even if it was true that the government

never investigated whether Eisha actually got the cocaine from Carlos, that would

not tend to undermine her testimony that she delivered it to Odicho and his cohorts.

Cf. United States v. Moore, 936 F.2d 1508, 1521-22 (7th Cir. 1991) (police officer’s

initial opinion as to whether defendant should have been charged deemed irrelevant

as to defendant’s guilt). Furthermore, we are not concerned when the government

declines to prosecute potential co-defendants unless it is alleged that the

differential treatment was bestowed on a constitutionally impermissible basis such

as race or religion. See United States v. Blake, 415 F.3d 625, 627-28 (7th Cir. 2005).

Counsel and Odicho next consider arguing that the trial court erred by giving

the “aiding and abetting” jury instruction as to the counterfeiting charge. Odicho

objected to this instruction at trial, so we would review the jury charge in its

entirety in order to ascertain whether the jury was misled. See United States v.

Lanzotti, 205 F.3d 951, 956 (7th Cir. 2000). Odicho’s trial attorney argued that it

would be unfair to give the instruction because the § 472 count in the indictment

does not include a reference to the aiding and abetting statute, 18 U.S.C. § 2, and

the government waited until after the close of the evidence to propose the

instruction. Trial counsel contended that “aiding and abetting” had never been the

government’s theory of the case, and that if the instruction had been proposed

before trial he would have put on a different defense (although he did not indicate

what that defense would have been).

Reiterating this argument on appeal would be frivolous. An aiding and

abetting instruction is proper, even if aiding and abetting is not specifically pleaded,

so long as the government introduced evidence at trial that would support

conviction under that theory, and the instruction creates no unfair surprise. United

States v. Fauls, 65 F.3d 592, 599 (7th Cir. 1995). Odicho’s own statement supports

a conviction under an aiding and abetting theory, see United States v. Allen, 390

F.3d 944, 952 (7th Cir. 2004) (finding aiding and abetting instruction proper where

evidence suggested that defendant was not merely present at scene of crime but

instead actively participated in it), and Odicho was not unfairly surprised because

the law is very clear that “[e]very indictment implicitly includes an aiding and

abetting charge,” United States v. Renner, 238 F.3d 810, 814 (7th Cir. 2001).

The remaining potential issues arise from Odicho’s sentencing, and here

counsel and Odicho first consider whether to challenge the calculation of the total

offense level, which included no reduction for acceptance of responsibility, see

No. 05-4423 Page 5

U.S.S.G. § 3E1.1, nor for minor participation, see id. § 3B1.2. Although advisory,

the guidelines still must be properly calculated. United States v. Robinson, 435

F.3d 699, 701 (7th Cir. 2006). But we agree with counsel that the proposed

arguments would be frivolous.

First, we could not conclude that the district court clearly erred by denying a

reduction for acceptance of responsibility. See United States v. Partee, 301 F.3d 576,

580 (7th Cir. 2002). Odicho sought the reduction on the premise that he

acknowledged his wrongdoing when he gave his inculpatory statement. But he

ultimately disavowed that statement and put the government to its burden of proof

at trial, thereby rendering himself generally ineligible for the reduction. See

U.S.S.G. § 3E1.1 cmt. n.2; United States v. Hicks, 368 F.3d 801, 808 (7th Cir. 2004).

It makes no difference—despite what Odicho insisted at sentencing—that he did

not testify; his theory at trial was that Eisha lied about his wrongdoing to cover up

her own guilt. See United States v. Travis, 294 F.3d 837, 840 (7th Cir. 2002)

(defendant who blamed others failed to accept responsibility).

We likewise could not conclude that the district court clearly erred by

denying Odicho’s request for a minor participant reduction. See United States v.

Mendoza, 457 F.3d 726, 729 (7th Cir. 2006). The district court understandably

found that Odicho played a significant——even central——role in the charged

offenses: he located the drug supplier, arranged the deal, purchased the cocaine

with what he knew was counterfeit money, and made $8,700 selling it later. See

United States v. McKee, 389 F.3d 697, 700 (7th Cir. 2004) (defendant who was

“essential component” of conspiracy was not entitled to minor participant reduction

regardless of roles of co-conspirators); United States v. Sandoval-Vasquez, 435 F.3d

739, 745 (7th Cir. 2006) (sizable profit earned from role in conspiracy suggested

defendant was not a minor participant).

Counsel next considers whether Odicho could challenge the reasonableness of

his overall prison sentence. We agree with counsel that such an argument would be

frivolous. Odicho’s sentence falls within the properly calculated guidelines range

and is therefore presumed reasonable. See United States v. Gama-Gonzalez, 469

F.3d 1109, 1110 (7th Cir. 2006). We would, however, find Odicho’s sentence

reasonable even without that presumption. See United States v. Rita, No. 05-4674,

2006 WL 1144508 (4th Cir. May 1, 2006), cert. granted, 75 U.S.L.W 3246 (U.S. Nov.

3, 2006) (No. 06-5754). The district court gave meaningful consideration to the

relevant factors under 18 U.S.C. § 3553(a), see United States v. Laufle, 433 F.3d

981, 987 (7th Cir. 2006), noting, for example, the need for a strong deterrent in light

of Odicho’s five previous convictions and 33 other arrests. See 18 U.S.C.

§ 3553(a)(2)(B). Trial counsel argued that a sentence at the low end of the advisory

range would be sufficient for this purpose because Odicho was likely going to be

deported—itself a form of punishment. The district court considered this argument,

No. 05-4423 Page 6

but reasonably concluded Odicho’s illegal status rendered his criminal history all

the more egregious. See United States v. Orozco-Vasquez, 469 F.3d 1101, 1109

(7th Cir. 2006) (approving of increasing sentence based on, among other things,

defendant’s illegal reentry); see also United States v. Guzman, 236 F.3d 830, 833-34

(7th Cir. 2001) (stating pre-Booker that “double punishment” argument

nonsensically implies that “any alien who commits a crime should receive a shorter

sentence than a citizen”).

Finally, counsel considers appealing the forfeiture ruling, but we agree with

counsel that it would be frivolous to do so. The government need only prove by a

preponderance of the evidence that property qualifies under 21 U.S.C. § 853(a) as

forfeitable drug proceeds. See United States v. Melendez, 401 F.3d 851, 856 (7th

Cir. 2005). Odicho waived his right to have a jury make this finding, see Fed. R.

Crim. P. 32.2(b)(4), and the judge based his ruling on Odicho’s confession where it

states in no uncertain terms that he sold part of the purchased cocaine for $8,700.

That was a sufficient basis for the judge’s ruling.

Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is

DISMISSED.