United States v. EkwurukeUnited States v. Ekwuruke
Case Information
*1 Before GARWOOD, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: [*]
Emmanuel Ekwuruke challenges his sentence and conviction for separate counts of theft by a bank employee, theft of public money, and aggravated identity theft. We affirm Ekwuruke’s conviction as to counts I and II. Because the government concedes that the aggravated identity theft conviction was improper, we vacate in part and remand for resentencing.
FACTS AND PROCEEDINGS
Ekwuruke worked at an Internal Revenue Service “lock box,” which was located in a Bank of America facility in Richardson, Texas. Bank of America had contracted with the IRS to receive and process tax payments on behalf of the IRS at the facility. As a temporary contract employee in the facility’s “exceptions” division, Ekwuruke had access to taxpayer payment checks.
After Ekwuruke tried to deposit a crudely altered stolen check at the Mesquite, Texas branch of Compass Bank, bank employees notified the Mesquite Police Department. The check was machine printed and made out to the IRS. Ekwuruke had altered the payee line by hand with a black marker. Officers arrested Ekwuruke and an inventory search of Ekwuruke’s car revealed more stolen checks and money orders. The officers also found various IRS forms, papers containing other people’s social security numbers and names, as well as several photocopies of checks, on which Ekwuruke appears to have practiced altering the name of the payee. The face value of the stolen checks found in Ekwuruke’s possession was approximately $485,000.
Ekwuruke was charged with one count of embezzling, abstracting,
purloining, or misapplying $485,059.76 from Bank of America, in violation of
DISCUSSION
Ekwuruke’s first two arguments on appeal relate to his conviction on count III for aggravated identity theft, which the government agrees must be vacated. He also argues that the testimony of special agent Winters was impermissible summary testimony and that his 42 month sentence as to counts I and II is substantively unreasonable. Because we vacate Ekwuruke’s conviction and sentence on count III and remand for resentencing, we need only resolve the summary testimony issue here.
A. Summary Testimony
At the outset, the parties dispute the correct standard of review on this issue. The government argues for plain error review because Ekwuruke did not object to many of the allegedly summary statements. See United States v. Fullwood , 342 F.3d 409, 413 (5th Cir. 2003). Relying on his objection to a question posed early in Winters’s examination that “[a]ll of these questions have been asked and answered,” Ekwuruke maintains that the summary testimony issue is properly before the court. Because we find that any error by the district court was harmless, we need not determine what standard is appropriate.
witnesses or summarization of trial testimony.”
Fullwood
, 342 F.3d at 413.
Finding this omission “significant,” this court has held that
Some of Winters’s testimony recapitulated the testimony of others, as the
government concedes. Winters testified about the number and dollar amounts
of the checks found in Ekwuruke’s car, even though these undisputed facts were
covered by previous government witnesses. Other testimony was impermissible
for different reasons. Winters testified that certain non-testifying taxpayers
mailed checks to the facility where Ekwuruke worked. In addition to being
hearsay, offering the non-testifying taxpayers’ statements regarding where they
mailed their checks was impermissible summary testimony because supporting
evidence must be “presented previously to the jury” to be used properly under
Much of the testimony that Ekwuruke finds most objectionable, however,
cannot be described as summary, or was excluded on other grounds. Ekwuruke
states that—“most significantly”—Winters impermissibly testified that
taxpayers did not give Ekwuruke permission to negotiate their checks and that
the taxpayers’ checks were not posted to their IRS accounts. Ekwuruke’s
objection to the former statements was sustained on hearsay grounds. The
latter statements by Winters were based on his independent review of the
taxpayers’ accounts. A summary witness is allowed to testify about facts
“personally experienced” by him, even though the testimony “bolsters” the
government’s other evidence.
United States v. Moore
,
Winters was testifying from personal experience when he stated that it
appeared that Ekwuruke practiced altering checks on some documents found in
Ekwuruke’s car; the documents were admitted into evidence and were before
Winters as he testified. Ekwuruke characterizes this testimony as “spinning”
the statements of previous witness, but it is clear that Winters was simply giving
his lay opinion about the documents in front of him.
See
In sum, it appears that Winters did offer some summary testimony, but
Ekwuruke overstates the amount of the summary testimony and, ultimately, the
effect of this testimony on his conviction. The government’s case against
Ekwuruke was essentially uncontradicted, and Winters did not unfairly
characterize the testimony of those witnesses he did summarize. We have
affirmed convictions, despite finding some impermissible summary testimony,
in similar circumstances.
See United States v. Nguyen
,
B. Remand for Resentencing
Count III of the indictment charges Ekwuruke with identity theft “during and in relation to” the bank theft alleged in count I. Because the events charged in count I ceased well before the identity theft charged in count III, the government concedes that Ekwuruke’s conviction and sentence for count III must be vacated.
The government requests that the court remand for resentencing as to
counts I and II. Ekwuruke contends that remand would be inappropriate,
relying on
We hold that a remand for resentencing is proper. “Sentencing is a
fact-sensitive exercise that requires district court judges to consider a wide array
of factors when putting together a ‘sentencing package.’”
United States v.
Campbell
,
Because we remand for resentencing, the court declines to address
Ekwuruke’s substantive reasonableness challenge to his sentence on counts I
and II.
United States v. Akpan
,
CONCLUSION
For the reasons stated, we AFFIRM Ekwuruke’s conviction as to counts I and II. We VACATE his conviction as to count III, and REMAND for resentencing.
Notes
[*] Pursuant to 5 TH C IR . 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 5 TH C IR . R. 47.5.4.
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