United States of America v. Chimene Hamilton Onyeri

New Orleans, LA - Criminal defense lawyer represented defendant with a conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO”) charge.

Onyeri's criminal activities involved a multitude of misdeeds that

spanned almost half a decade. Pertinent to this appeal is his criminal

misconduct from late 2011 to 2015, the years during which Onyeri gathered

and led his associates to engage in racketeering activity, which he cavalierly

nicknamed the "Chimene, Incorporation.” Because of the nature of

Onyeri's challenges on appeal, a summary of some of the evidence adduced

at his trial aids our discussion.

Onyeri recruited his friend Bernard Akwar to assist him in stealing

credit card numbers through the use of a skimmer. As they perfected their

craft, Onyeri also brought Henry Yehe into the enterprise, and Yehe would

steal gift cards from the various stores they visited. Next, the conspirators

would emboss the stolen credit card numbers onto the stolen gift cards and

then encode the gift cards with the same credit card information. They

converted these gift cards into cash by using them to purchase electronics

and then selling the electronics for cash, or by using them to buy legitimate

gift cards. Onyeri also engaged a bank employee to open a bank account for

them using stolen identities. The conspirators placed some of their proceeds

into that account.

Emboldened by their successes, Onyeri and Akwar also stole

identities—"[n]ames, socials, and dates of birth”—to fabricate tax returns.

They connected with Sherica Price, who would file the fraudulent returns for

them. And, in the course of this scheme, they sought the assistance ofseveral

mailmen, bribing them into intercepting tax-refund checks on their behalves.

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During the same period, Onyeri expanded this enterprise to include

debit card fraud as well. He and Akwar researched "bezels,” devices that

would capture a debit card's information while it was used at an ATM, and

they had one made to further their scheme. They also engaged Rasul Scott

and Marcellus Burgin to assist them. The combination of these activities

proved lucrative for Onyeri and his associates, resulting in ATM withdrawals

of $20,000 and $40,000 at a time. But Onyeri's and Akwar's luck was not

limitless: they were arrested and charged in Texas state court forsome of this

fraudulent misconduct in 2012. When they were apprehended, Onyeri was

out on bond for other charges, including violent crimes. And, prior to facing

those charges, Onyeri had been incarcerated for three years. As a result,

Onyeri was not released on bond again and remained in custody for one

year—but he attempted to continue to lead his criminal enterprise, even from

prison.

It was at this point that the Honorable Julie H. Kocurek, a Texas state

judge for the 390th District Court in Austin, was assigned to Onyeri's case.

Little did Onyeri know, this was the beginning of the end for him. Onyeri

ultimately pled guilty to the charges stemming from his and Akwar's 2012

arrest, and Judge Kocurek placed him on a three-year deferred adjudication

probation, under which—"[p]rovided [he] obey[ed his] condition of

probation and . . . successfully complete[d] probation”—he would not face

conviction for these charges.

Only two and a half years later, however, the government filed a

motion to proceed with an adjudication of guilt, following allegations that

Onyeri had engaged in the fraudulent use of debit cards in Calcasieu Parish,

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Louisiana.

1

Judge Kocurek later testified at Onyeri's trial that she insisted

the District Attorney's Office move quickly with Onyeri's case and reset the

case for hearing on November 8, 2015. She further testified that she

suggested Onyeri may face six to seven years in prison.

Onyeri acted quickly after this, fearing that he was going to be sent to

prison. On November 6, 2015, two days before the scheduled hearing, Onyeri

struck. Before Judge Kocurek and her family returned home that Friday

night, he placed a trash bag in front of her driveway to create a diversion.

When the vehicle stopped outside the house's gate so that Judge Kocurek's

son could move the bag, Onyeri made his move, shooting Judge Kocurek

through the passenger side window of her car. Although he seriously injured

Judge Kocurek, he "missed,” and she survived.

Despite his failed attempt to assassinate the Judge, Onyeri bragged

about his role in her shooting. This led the authorities to suspect he was

responsible, as an informant relayed this information.

2 A computerized

check also revealed a pending warrant for Onyeri's arrest. At this point, the

officers tried a Houston address where they believed Onyeri may be located.

Finding it to be a "bad address,” they turned next to Onyeri's father's house.

An interview at his father's house alerted the authorities that Onyeri

was likely travelling in a silver Dodge Charger with black rims, and shortly

thereafter, a task force member identified the vehicle in the neighborhood,

headed toward Onyeri's father's house. Officer Derek Uresti testified at trial

that the officers followed the vehicle through the neighborhood, ultimately

1 This was technically the government's second motion to proceed with an

adjudication of guilt. The first had been withdrawn.

2 On November 7, the authorities received an anonymous tip that Onyeri was

responsible for shooting Judge Kocurek, but, at the time, they concluded the tip was

unfounded. The second tip came shortly thereafter, on November 9.

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initiating a traffic stop when the Charger made an errant right-hand turn.

The officers apprehended Onyeri when they called the passengers out of the

vehicle. Among other evidence, they recovered a "smashed” Samsung

Galaxy cell phone from the rear floorboard of the vehicle.

Not long thereafter, Onyeri was charged in a seventeen-count

indictment for RICO violations, including one count for conspiracy to

commit RICO violations. The racketeering acts charged were: (1) mail fraud,

(2) bribery of a public official, (3) wire fraud, (4) identity theft, (5) access

device fraud, (6) conspiracy to commit money laundering, (7) money

laundering, and (8) attempted murder. After a jury trial lasting twenty days,

the jury found Onyeri guilty on all counts.

3

Onyeri timely appealed.

Following his conviction, Onyeri's father died. Because his father had

been a teacher, Onyeri was to receive benefits from the Teacher Retirement

System of Texas ("TRST”). Included in the district court's judgment,

however, was an order to pay restitution, and the government sought to

collect the restitution through a writ of garnishment that attached to Onyeri's

monthly annuity payments. Onyeri objected to the garnishment, but the

district court ordered that the TRST pay Onyeri's benefits toward his

restitution obligation.

On appeal, Onyeri argues that the district court erred by admitting

evidence obtained from the traffic stop because it was not supported by

probable cause or reasonable suspicion. He further contends that there was

not sufficient evidence to support his RICO conspiracy conviction and that

the district court erred by denying his motion for a judgment of acquittal.

3 Also among the seventeen counts in the indictment were six counts of tampering

with a witness, in violation of 18 U.S.C. § 1512. For example, a law enforcement officer

testified at trial that Onyeri attempted to "direct Marcellus Burgin and Rasul Scott to not

talk to any of [the] authorities.”

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Finally, he challenges the district court's order to garnish the monthly

annuity payments he receives, contending they are exempt from garnishment

under 15 U.S.C. § 1672(a). We disagree with Onyeri at each turn.

II.

A.

We first address Onyeri's challenge to the district court's conclusion

that the officers had probable cause to make the initial traffic stop and the

resulting denial of Onyeri's motion to suppress the information obtained

from his Samsung Galaxy.

4 He contends that Officer Uresti's testimony

regarding the traffic stop was not credible. Analyzing the stop in its entirety,

we conclude the district court was correct.

We review the district court's legal conclusions de novo, but its factual

findings are reviewed for clear error. United States v. Ibarra, 493 F.3d 526,

530 (5th Cir. 2007). "A factual finding is not clearly erroneous if it is

plausible in light of the record as a whole.” United States v. Jacquinot, 258

F.3d 423, 427 (5th Cir. 2001). "[W]e may consider all of the evidence

presented at trial, not just that presented before the ruling on the suppression

motion, in the light most favorable to the prevailing party, which in this case

is the Government.” Ibarra, 493 F.3d at 530.

"As a general matter, the decision to stop an automobile is reasonable

where the police have probable cause to believe that a traffic violation has

occurred.” Whren v. United States, 517 U.S. 806, 810 (1996). Probable cause

is a "practical, nontechnical conception.” Illinois v. Gates, 462 U.S. 213, 231

(1983) (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). It is a

4 Initially, the government asserted that Onyeri did not have standing to challenge

the seizure and subsequent search of this cell phone, but it ultimately withdrew its

objection.

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"fluid concept” guided by a totality of the circumstances analysis. Id. at 230,

232. We have said that "the constitutionality of [an] officer's stop of [a]

vehicle must stand or fall based on whether [the defendant] violated Texas

law[.]” United States v. Cole, 444 F.3d 688, 689 (5th Cir. 2006). That is, the

"legal justification for the traffic stop must be 'objectively grounded.'”

United States v. Khanalizadeh, 493 F.3d 479, 482 (5th Cir. 2007) (per curiam)

(quoting Cole, 444 F.3d at 689).

Officer Uresti testified at trial that he observed the vehicle that Onyeri

was riding in commit a minor traffic violation, making a wide right-hand turn

into an adjacent lane. He explained how a proper right-hand turn should be

made, according to the Texas Transportation Code: "when making a right

turn, the operator shall approach and complete the turn closest to the . . .

right-hand curb or the edge of the roadway.” In this case, Officer Uresti

testified, the number two lane was the proper lane for completing a right turn;

"[t]he inside lane closest to the median is the number one lane, and the

outside lane is the number two lane.” But, he told the district court, he saw

the vehicle make an improper turn "into the number one lane” in violation

of Texas Transportation Code § 545.101. Officer Uresti's observation of this

traffic violation therefore gave him an objectively grounded legal

justification—and sufficient probable cause—to initiate the stop. See Whren,

517 U.S. at 819 ("Here[,] the District Court found that the officers had

probable cause to believe that petitioners had violated the traffic code. That

rendered the stop reasonable under the Fourth Amendment, the evidence

thereby discovered admissible, and the upholding of the convictions . . .

correct.”).

Onyeri disputes the district court's finding that Officer Uresti's

testimony was credible. The crux of his argument centers on Officer Uresti's

responses that he didn't remember certain details of the traffic stop. Onyeri

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argues that Officer Uresti's failure to recall aspects of the stop undermines

the district court's credibility finding, and therefore, any probable cause.

Onyeri's contentions are misleading. Officer Uresti also answered,

with certainty, many other questions about the traffic stop. For example, he

testified that traffic was permitted to flow during the traffic stop and that the

road was not obstructed. He also stated that his line of sight to the silver

Charger was not obstructed in any way and that he had no doubt that he saw

the Charger turn into the number one lane. These details are crucial to the

determination of whether to stop the Charger, and whether the officers had

probable cause. In contrast, many of the aspects of the stop that Officer

Uresti could not remember were unimportant to the propriety of initiating

the traffic stop.

It is eminently plausible that the traffic stop occurred just as Officer

Uresti explained; nothing in the record suggests otherwise. And the district

court twice stated for our review that it found Officer Uresti credible.

Furthermore, "the clearly erroneous standard is particularly strong because

the judge had the opportunity to observe the demeanor of the witnesses” at

the suppression hearing and at trial. United States v. Santiago, 410 F.3d 193,

197 (5th Cir. 2005). We cannot identify any clear errors in the district court's

factual findings. Accordingly, we conclude that the district court correctly

denied Onyeri's motion to suppress.5

5 Onyeri also contends that the district court erred in concluding that the officers

had reasonable suspicion to make the traffic stop because, despite the warrant for his arrest,

they did not have a sufficient basis to believe Onyeri was in the vehicle at the time they

made the stop. Either ground—probable cause or reasonable suspicion—is sufficient to

support the district court's denial of Onyeri's motion to suppress. Thus, because Officer

Uresti had sufficient probable cause to believe a traffic violation occurred, and therefore to

initiate the traffic stop, and because the district court did not clearly err in determining that

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B.

Onyeri preserved his challenge to the sufficiency of the evidence by

moving for a judgment of acquittal at the close of the Government's case.

We review these claims de novo, according "substantial deference to the jury

verdict.” See United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018)

(Owen, J.) (quoting United States v. Delgado, 672 F.3d 320, 330 (5th Cir.

2012) (en banc)). We "must affirm a conviction if, after viewing the evidence

and all reasonable inferences in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299,

301 (5th Cir. 2014) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

Onyeri's challenge is specific to one offense of conviction: conspiring

to violate the RICO statute. The elements of a RICO conspiracy are: (1) an

agreement between two or more people to commit a substantive RICO

offense; and (2) knowledge of and agreement to the overall objective of the

RICO offense. United States v. Rosenthal, 805 F.3d 523, 530 (5th Cir. 2015);

see 18 U.S.C. § 1962. These elements may be established by circumstantial

evidence. United States v. Delgado, 401 F.3d 290, 296 (5th Cir. 2005).

First, there is sufficient evidence to find that two or more people

agreed to violate § 1962(c), which criminalizes racketeering activity.

Evidence presented at trial showed that Onyeri engaged associates to assist

him in carrying out his many fraudulent schemes. They met to discuss the

organization and plan activities in furtherance of the enterprise, including

mail fraud, wire fraud, and murder, as prohibited by RICO. This evidence

Officer Uresti's testimony was credible, we need not address Onyeri's argument that the

officers lacked reasonable suspicion to make the stop.

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supports the jury's determination that two or more people agreed to violate

§ 1926(c).

Second, there is sufficient evidence that Onyeri agreed to the overall

objectives of the conspiracy; indeed, he orchestrated it. At trial, Akwar told

the jury that he and Onyeri agreed that Akwar "would come with [Onyeri] to

make money,” which meant "going to various stores, and purchasing iPads

with gift cards with stolen credit card information on it.” Akwar further

testified that he and Onyeri agreed to perpetrate the tax fraud together as

well. The jury also heard another of Onyeri's associates, Scott, testify that

he "was thinking [he was] about to get rich” once he agreed to help Onyeri

with debit card and credit card skimming.

Finally, the evidence at trial showed that Onyeri himself traveled to

Judge Kocurek's home to kill her and that he carried out this attempt, another

one of the overall objectives of the conspiracy. The jury heard evidence of

this not only from Burgin, and Scott, but the jury also heard Onyeri's own

testimony that he was in Judge Kocurek's neighborhood that night, placed

the trash bag in front of her gate, waited for the Judge and her family to return

home, and was standing by her vehicle when the gun that he was holding

"burst out.” What's more, the jury heard evidence that Onyeri bragged

about it. In sum, there is more than sufficient evidence for a rational trier of

fact to find beyond a reasonable doubt that Onyeri agreed with several of his

associates to further the overall objectives of the RICO conspiracy. See

Vargas-Ocampo, 747 F.3d at 301. Therefore, upon review of the record, we

conclude that the district court did not err in denying Onyeri's motion for a

judgment of acquittal as the jury heard sufficient evidence to find Onyeri

guilty of the RICO conspiracy count.

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C.

Onyeri brings one more challenge on appeal. He contests the

garnishment of his monthly annuity payments, which the government sought

in order to fulfill his restitution obligations. In deciding this issue, some

review of the posture is instructive.

The district court ordered Onyeri to pay restitution in the amount of

$178,374.41, as well as a special assessment of $1,700.00.

6 To effectuate this

order, the government sought a writ of garnishment, and the clerk of the

court issued the writ. The garnishee, TRST, filed an answer to the writ of

garnishment, and the government responded. In its response, the

government also requested an order from the district court permitting the

government to garnish 100% of Onyeri's monthly annuity, which the district

court granted. Onyeri requested a hearing, claiming that his monthly annuity

payments were exempt from garnishment. In an order dated February 27,

2019, the district court denied Onyeri's request for a hearing and entered a

final order of garnishment. Although Onyeri had taken an appeal from the

final judgment issued on October 2, 2018, Onyeri did not file a second notice

of appeal challenging the propriety of the ordered garnishment.

Onyeri does not contest the garnishment in its entirety; instead, he

argues that the district court should not have granted the government's

motion and permitted it to garnish 100% of his monthly annuity. The

government contends that we do not have jurisdiction to consider this aspect

of Onyeri's appeal because he was required to file a second timely notice of

appeal following the final order of garnishment on February 27, 2019.

6 Onyeri is jointly and severally liable for the restitution sum along with codefendants Marcellus Burgin and Rasul Scott, would-be fraudulent tax-preparer Sherica

Price, and others.

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It is well-settled that a defendant may not use a garnishment

proceeding to challenge the underlying judgment and restitution order in his

case. See United States v. Clayton, 613 F.3d 592, 594, 596 (5th Cir. 2010)

(holding that a defendant who filed a notice of appeal following a final order

of garnishment but who did not file a notice of appeal after entry of judgment

had not challenged the underlying restitution order). Whether the reverse is

permissible, however, appears to be an issue of first impression for our court.

Canvassing the legal landscape before us, we conclude that it is not.

The Supreme Court has confronted an analogous situation to the one

we encounter here. See Manrique v. United States, 137 S. Ct. 1266 (2017)

(Thomas, J.). In Manrique, the district court entered an initial judgment of

conviction and sentenced the defendant to 72 months' imprisonment. Id. at

1270. The defendant appealed the judgment. Id. Two months later, the

district court held a restitution hearing and ordered the defendant to pay a

particular sum in restitution, thereby amending the initial judgment. Id. The

defendant did not file a second notice of appeal, id., but he nonetheless

challenged the amount of restitution in his brief on appeal, id. at 1270–71.

The Eleventh Circuit held that he could not challenge the restitution amount,

and the Supreme Court affirmed, explaining that the defendant's "notice of

appeal could not have been for review of the restitution order” because he

"filed only one notice of appeal, which preceded by many months the . . .

judgment imposing restitution.” Id. at 1271 (internal quotation marks and

citation omitted).

To be sure, Manrique is not this precise case. The two judgments

involved—the initial and amended judgments—were indisputably a part of

the core criminal proceeding. See id. at 1270. The initial judgment pertained

to the defendant's convictions and sentence of imprisonment and ordered

mandatory restitution; the amended judgment clarified the amount of

restitution. Id. In Onyeri's case, the final order of garnishment arose later,

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when the government sought to enforce the restitution order via the Fair

Debt Collection Practices Act ("FDCPA”). The order in Onyeri's case was

issued following a proceeding that "look[ed] more civil than criminal,” even

though it proceeded under the same criminal docket number as the

underlying criminal prosecution. United States v. Lee, 659 F.3d 619, 620 (7th

Cir. 2011). Not to mention, the appeal at issue in Manrique pertained to the

restitution order; Onyeri, on the other hand, now challenges the garnishment

order.

But none of these distinctions persuades us that a different rule should

apply in Onyeri's case. In fact, the juxtaposition only strengthens the

government's position that Onyeri should have filed a second notice of

appeal. First, in contrast to the initial and amended judgments in Manrique,

both of which involved preliminary determinations related to the defendant's

restitution, the order Onyeri seeks to challenge pertains to garnishment,

which is an enforcement mechanism for a restitution obligation. If a notice

of appeal from an initial judgment setting mandatory restitution is not

sufficient also to appeal the amount of restitution, it is difficult for us to see

how a notice of appeal from a judgment ordering restitution could also extend

to the enforcement of that obligation.

Second, the judgments in Manrique each indisputably stemmed from

the same core criminal proceeding. In Onyeri's case, the judgment he seeks

to appeal arguably arose out of a subsequent, civil proceeding.7

Cf. United

7 The basis for the government's authority to seek restitution from Onyeri is the

Mandatory Victims Restitution Act of 1996 ("MVRA”), 18 U.S.C. § 3663A. The MVRA

permits the government to "enforce a judgment imposing a fine in accordance with the

practices and procedures for the enforcement of a civil judgment under Federal law or State

law,” and this extends to orders of restitution. 18 U.S.C. § 3613(a), (f). Accordingly, the

government often uses the garnishment provisions of the FDCPA to collect restitution

obligations imposed in a criminal judgment. See, e.g., United States v. Ekong, 518 F. 3d 285,

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States v. Apampa, 179 F.3d 555, 556 (7th Cir. 1999) (per curiam) ("Some

orders in criminal cases have been treated as civil matters because they are

collateral to criminal punishment.” (collecting cases)). It would make little

sense to require a second notice of appeal for issues within the same core

proceeding but to permit an appeal from that same criminal matter to extend

to collateral issues. And what's more, our court has recognized judgments

of conviction and sentencing as distinct from final orders of garnishment.

See, e.g., United States v. Goyette, 446 F. App'x 718, 720 (5th Cir. 2011) (per

curiam) (treating as distinct the judgment of conviction and sentencing and

the final order of garnishment for the purposes of filing a notice of appeal);

Clayton, 613 F.3d at 593–94.

Thus, we conclude the principle from Manrique readily applies to

Onyeri's case. The district court entered judgment on Onyeri's sentence and

conviction on October 2, 2018. Onyeri filed a notice of appeal ten days later

on October 12, 2018. Over four months later, following further proceedings

on the issue, the district court entered the final order of garnishment. Onyeri

did not file another notice of appeal. And when he raised the issue in this

appeal, the government objected.8

As a result, we need not address the deadlines applicable to Onyeri's

second notice of appeal. It is enough that Onyeri failed to file a second notice

of appeal at all, let alone within any of the deadlines under Rule 4. And,

286 (5th Cir. 2007) (per curiam); United States v. Phillips, 303 F.3d 548, 550–51 (5th Cir.

2002).

8 We have suggested that Rule 4's deadlines for filing a notice of appeal are

jurisdictional in a civil case but may be waived in a criminal case. See United States v.

Martinez, 496 F.3d 387, 388–89 (5th Cir. 2007) (discussing Federal Rule of

Appellate Procedure 4 and citing Bowles v. Russell, 551 U.S. 205, 212–14 (2007)).

To the extent the law in our circuit is unsettled, we need not address the issue because

Onyeri raised the challenge on appeal, and the government objected.

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Onyeri's only "notice of appeal could not have been for review of the

[ordered garnishment]” because he "filed only one notice of appeal, which

preceded by many months the . . . judgment [enforcing the garnishment].”

Manrique, 137 S. Ct. at 1271. Accordingly, we cannot consider this aspect of

Onyeri's appeal.

The judgment of the district court is therefore AFFIRMED. To the

extent that Onyeri now attempts to appeal the final order of garnishment, that

portion of his appeal is DISMISSED.