United States v. Sylvester Gayekpar

Filing

OPINION FILED - THE COURT: KERMIT E. BYE, LAVENSKI R. SMITH and STEVEN M. COLLOTON. -Steven M. Colloton, Authoring Judge- (PUBLISHED) [3908693] [11-1285, 11-1333]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1285
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United States of America,

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Appellee,
v.
Sylvester Richards Gayekpar,
Appellant.
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Appeals from the United States
District Court for the
District of Minnesota.

No. 11-1333
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United States of America,
Appellee,
v.
Timothy Sewro Boe,
Appellant.

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Submitted: October 21, 2011
Filed: May 7, 2012
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Before BYE, SMITH, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Sylvester Gayekpar and Timothy Boe were convicted by a jury of conspiracy
to possess altered currency with intent to defraud, in violation of 18 U.S.C. §§ 371
and 472. The jury also found Boe guilty on two counts of possession of altered
currency with intent to defraud, in violation of 18 U.S.C. § 472. The district court1
sentenced Gayekpar to 21 months in prison, and Boe to a total of one year and one
day in prison.
On appeal, Gayekpar challenges the district court’s admission of testimony by
a law enforcement agent about a prior conviction, and the district court’s admission
of Boe’s post-arrest confession as evidence against Gayekpar. Boe also challenges
the district court’s admission of his post-arrest statement. Gayekpar and Boe both
argue that the district court committed procedural error in determining their
sentences. We affirm the judgments of the district court.
I.
The prosecutions in this case involved a scheme to alter United States currency
with intent to defraud. It first came to the attention of law enforcement on February
1, 2010, when Boe and Benjamin Karbadeh approached Robert Martin at a gas station
in St. Paul, Minnesota. Unbeknownst to Karbadeh and Boe, Martin was working as
an informant for the Hennepin County Sheriff’s Office. Karbadeh gave Martin his
telephone number and an envelope with a $20 bill inside. Martin later opened the
envelope, saw the $20 bill, and called Karbadeh, who told Martin that he could get

1

The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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him “some more.” Martin reported the suspicious contact to the police, who in turn
contacted the United States Secret Service.
Two days later, Karbadeh and Boe met Martin in a room at the Ramada Inn in
Richfield, Minnesota. Martin agreed to wear a recording device, and law
enforcement officers recorded the audio of the meeting. During the meeting,
Karbadeh and Boe purported to create two new $100 bills from pieces of black paper
cut to the shape and size of genuine bills.
Karbadeh sandwiched a $100 bill provided by Martin between two pieces of
black paper, poured a white substance and red dye on the bill and paper, wrapped the
bill and paper in aluminum foil, and directed Martin to stand on the package for a few
minutes. Karbadeh then unwrapped the foil package and pretended to wash the
original black paper with water and another clear substance. Then Boe ironed the
bills to dry them out, and Karbadeh showed Martin two additional $100 bills
supposedly created through this conversion process. Through sleight of hand,
Karbadeh had replaced the two pieces of black paper with genuine $100 bills that had
been blackened previously with iodine. The substance used on the bills was a vitamin
C solution, which reversed the discoloration caused by the iodine.
During the demonstration, Boe told Martin that if he provided $50,000, all in
$100 bills, then he and Karbadeh would use this conversion process to create
$100,000 in new money and give Martin half of it. Martin agreed.
On February 11, 2010, Karbadeh and Boe met Martin in the parking lot of a
Perkins Restaurant in Minneapolis to discuss the details of the conversion of Martin’s
money. Karbadeh and Boe arrived at the meeting in a green Toyota Camry driven by
a black male whom surveillance officers were unable to identify.

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One week later, on February 18, 2010, Karbadeh and Boe met with Martin at
a Comfort Inn Hotel in Bloomington, Minnesota, to demonstrate the conversion again
and to perform the purported final conversion of Martin’s money. Gayekpar drove
Karbadeh and Boe to this meeting in a green Toyota Camry, which was owned by
Boe. Gayekpar waited in the car while Karbadeh and Boe met with Martin in a room
at the hotel. Law enforcement officers recorded the audio and video of the meeting
with a camera hidden in the room. At the meeting with Martin, Boe and Karbadeh
demonstrated the conversion process again, using sleight of hand to make it appear
that they had created six new $100 bills.
Before performing the final purported conversion of Martin’s money, Karbadeh
and Boe left the hotel to obtain additional supplies. Followed by police surveillance
officers, Gayekpar drove Karbadeh and Boe to a house, leased by Boe, in Coon
Rapids, Minnesota. At the house, Karbadeh and Boe retrieved a black suitcase
containing supplies for the conversion. Gayekpar drove Karbadeh and Boe back to
the hotel, and waited in the car while they went back to the room.
Karbadeh and Boe returned to the room with the suitcase full of supplies and
prepared to perform the purported conversion. After Martin produced the $50,000
from its hidden location, police officers entered the room and arrested Karbadeh and
Boe. Meanwhile, officers arrested Gayekpar outside the hotel where he was waiting
in the car. The officers searched Gayekpar and found 18 genuine $100 bills in his
pocket. The police impounded the car and later searched it pursuant to a search
warrant. Inside the car (the precise location was not established), police found two
genuine $100 bills blackened with iodine, Boe’s wallet containing a receipt for the
purchase of various forms of cleaner, an empty box of aluminum foil, gauze, rubber
gloves, and a bag of rubber bands.
Immediately after their arrests, Karbadeh, Boe, and Gayekpar were taken to the
Minnesota field office of the Secret Service for interviews. Karbadeh and Boe agreed
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to be interviewed, but Gayekpar declined. Secret Service Agent Michael Olson read
Boe his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and gave him a form
listing those rights. Boe orally acknowledged that he understood his rights, and
signed a form waiving his rights and consenting to the interview.
Agent Olson conducted the interview in English, Boe answered questions in
English, and Agent Olson testified that Boe appeared to understand English. During
the interview, Boe admitted his knowing involvement in the scheme to defraud
Martin of $50,000. He also stated that the proceeds would be split three ways: the
main person who set up the deal would receive the most, the person who went into
the hotel to help with the scheme would receive 10-15%, and the person who waited
in the car would receive approximately three percent. After giving the oral statement,
Boe refused to provide a written statement. Karbadeh also waived his Miranda rights
and admitted to his role in the scheme to defraud Martin.
II.
A grand jury charged Karbadeh, Boe, and Gayekpar with conspiracy to possess
altered currency with intent to defraud. The indictment also charged Karbadeh and
Boe with possession of altered currency with intent to defraud.
Before trial, Boe moved to suppress his post-arrest statements. After an
evidentiary hearing, the district court denied the motion, adopting the report and
recommendation of a magistrate judge.2
Prior to trial, the government gave notice of its intent to introduce evidence of
Gayekpar’s conviction for possession of altered obligations of the United States with

2

The Honorable Jeffrey J. Keyes, United States Magistrate Judge for the
District of Minnesota.
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intent to defraud, in violation of 18 U.S.C. § 472, “and the underlying circumstances
giving rise to that conviction.” Gayekpar moved in limine to exclude the evidence,
but the district court ruled that the evidence was admissible, and the government
introduced it at trial. In addition to presenting the certified judgment of Gayekpar’s
prior conviction, the government elicited testimony from Special Agent Lawrence
Propes that Gayekpar tried to perpetrate a “traditional black money scheme” in 2005,
that Abdullar Nzih Abdullah was the intended victim, and that Gayekpar attempted
to get $90,000 from Abdullah. Gayekpar objected to some, but not all, of the
questions about “underlying circumstances” on the ground that even if the substance
of the answers would be admissible under Rule 404(b), the agent’s testimony would
be inadmissible hearsay. The court overruled the objections. At first, the court
appeared to believe that the government was laying a foundation for expert testimony,
but when the government disclaimed that purpose, the court ruled that the agent’s
testimony was “just background information” and that the evidence was admissible
under Rule 404(b).
Gayekpar also moved in limine to redact any post-arrest statements of
Karbadeh or Boe that mentioned Gayekpar directly or indirectly. The government
agreed to redact the post-arrest statements, so that the agent would testify only that
the proceeds of the scheme would be “split three ways,” without specific reference
to the driver as a recipient of one share. Gayekpar objected that the proposed
redaction was insufficient to protect his rights under the Confrontation Clause of the
Sixth Amendment. During a pre-trial conference, the district court ruled that the
government could introduce the redacted statements with a limiting instruction
requested by the government, and directed counsel to remind the court about the
limiting instruction. The government then introduced the redacted statement at trial,
but counsel did not request the limiting instruction, and the court did not give it.
On the eve of trial, Karbadeh pleaded guilty. Gayekpar and Boe proceeded to
trial, and a jury returned verdicts of guilty on all counts. The district court sentenced
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Gayekpar to 21 months in prison, and sentenced Boe to one year and one day in
prison on each of the three counts, to be served concurrently.
III.
Gayekpar contends that the district court erred by admitting evidence of his
prior conviction for possession of altered obligations of the United States with intent
to defraud, and testimony of Special Agent Propes concerning the “underlying
circumstances giving rise to that conviction.” We conclude that the court properly
admitted evidence of the prior conviction under Federal Rule of Evidence 404(b) to
prove Gayekpar’s knowledge of the charged conspiracy in this case. Gayekpar’s
knowledge was an important issue in the case. The government was required to prove
that although Gayekpar was not present for the demonstrations or discussions with
Martin, he knowingly joined the conspiracy. The prior offense was similar in kind
to the charged conspiracy, and it occurred within five years of the charged offense.
Under these circumstances, it was not an abuse of discretion to admit the prior
conviction. See United States v. Stroud, 673 F.3d 854, 860-61 (8th Cir. 2012); United
States v. James, 564 F.3d 960, 963 (8th Cir. 2009).
The admission of Agent Propes’s testimony raises a more difficult issue, but
Gayekpar did not object to the critical questions and answers, and we conclude that
there was no plain error. Propes testified without objection that (1) he was involved
in 2005 in an investigation of a traditional black money scheme, (2) that Gayekpar
was the person involved in that scheme, (3) and that Gayekpar tried to perpetrate the
scheme on an immigrant shop owner, and (4) and that Gayekpar was found guilty in
2006 for conducting that scheme. Tr. 323-329. Gayekpar argues that Propes’s
testimony was inadmissible hearsay, but Gayekpar did not seek to voir dire the
witness, and the witness’s basis of knowledge is not clear from the record. Even
assuming that Propes merely learned the information about which he testified from
the trial record in 2006, Gayekpar cites no decisional authority holding that such
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“background information” about a prior conviction is inadmissible. One court has
found no abuse of discretion in admitting similar evidence. United States v. Savoy,
972 F.2d 343, 1992 WL 172669, at *5 (4th Cir. 1992) (per curiam). Given the lack
of clarity in this record and the paucity of precedent to support Gayekpar’s
contention, we cannot say that the district court made an obvious error.
IV.
Gayekpar next asserts that the admission of Boe’s redacted post-arrest
statement violated his rights under the Confrontation Clause of the Sixth Amendment.
In particular, he complains about Boe’s out-of-court statement that the proceeds of
the conspiracy would be “split three ways.” Gayekpar moved in limine for a more
substantial redaction that would eliminate reference to the three-way split, and the
district court’s definitive ruling to allow the evidence was sufficient to preserve the
issue for appeal. Fed. R. Evid. 103(a); United States v. Collier, 527 F.3d 695, 699
(8th Cir. 2008).
The Confrontation Clause dictates that “where two defendants are tried jointly,
the pretrial confession of one cannot be admitted against the other unless the
confessing defendant takes the stand.” Richardson v. Marsh, 481 U.S. 200, 206
(1987). There is a general assumption in the law, however, that juries follow their
instructions. As such, the general rule is that “a witness whose testimony is
introduced at a joint trial is not considered to be a witness against a defendant if the
jury is instructed to consider that testimony only against a codefendant.” Id. Bruton
v. United States, 391 U.S. 123 (1968), recognized what the Court later termed a
“narrow exception to this principle,” namely, that “a defendant is deprived of his
Sixth Amendment right of confrontation when the facially incriminating confession
of a nontestifying codefendant is introduced at their joint trial, even if the jury is
instructed to consider the confession only against the codefendant.” Richardson, 481
U.S. at 207; see Bruton, 391 U.S. at 135-36.
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Richardson applied the general rule, rather than the exception, and held that
“the Confrontation Clause is not violated by the admission of a nontestifying
codefendant’s confession with a proper limiting instruction when, as here, the
confession is redacted to eliminate not only the defendant’s name, but any reference
to his or her existence.” 481 U.S. at 211. Yet not all redactions are sufficient to make
the limiting instruction reliable. A defendant’s constitutional rights are violated when
the court admits the out-of-court statements of a codefendant, which, “despite
redaction, obviously refer directly to someone, often obviously the defendant, and
which involve inferences that a jury ordinarily could make immediately, even were
the confession the very first item introduced at trial.” Gray v. Maryland, 523 U.S.
185, 196 (1998).
If the only question in this case were the sufficiency of the redaction, then we
would find no error. In Richardson, the Court reasoned that where one defendant’s
confession does not incriminate a codefendant on its face, but becomes incriminating
“only when linked with evidence introduced later at trial,” then a limiting instruction
is sufficient to avoid a violation of the Confrontation Clause. 481 U.S. at 208.
Although Gray held that a confession may be facially incriminating even when
inference is required, 523 U.S. at 195-96, the Court reaffirmed the key holding of
Richardson. Where a defendant’s redacted confession does not refer directly to the
codefendant himself, and becomes incriminating only in combination with other
evidence, the Constitution permits the normal presumption that a jury will follow an
instruction to disregard the confession when considering a verdict for the
codefendant. Id. at 196. Here, the evidence that Boe said the proceeds of the scheme
would be “split three ways” incriminated Gayekpar only when combined with other
evidence at trial that Gayekpar was the driver for Boe and Karbedeh and the likely
third member of a three-member conspiracy. As such, the redaction was sufficient
to allow the pragmatic presumption that a jury would follow a limiting instruction.
See United States v. Logan, 210 F.3d 820, 822-23 (8th Cir. 2000) (en banc).

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Unfortunately, however, there was no limiting instruction in this case.
Although the government requested a limiting instruction before trial, and the court
asked for a reminder to give it, the jury was not advised to disregard Boe’s confession
when deciding Gayekpar’s fate. With no cautionary instruction, the jury was free to
consider Boe’s statements when it decided the sufficiency of the government’s case
against Gayekpar. Indeed, the court instructed the jury that it should consider “all of
the evidence” in the case. R. Doc. 183, Jury Instructions Nos. 1, 19. This evidence
included Agent Olson’s testimony that Boe said the profits from the scheme would
be “split three ways,” together with circumstantial evidence that Gayekpar was a third
member of the conspiracy. Under the instructions, Boe became a witness “against”
Gayekpar whom Gayekpar could not confront. The admission of Boe’s statement
thus violated Gayekpar’s rights under the Sixth Amendment, and the error was plain.
See Richardson, 481 U.S. at 206; see also Hoon v. Iowa, 313 F.3d 1058, 1061 n.1
(8th Cir. 2002); Fowler v. Ward, 200 F.3d 1302, 1307 (10th Cir. 2000) (“[A]
redaction, no matter how perfect, nevertheless requires an appropriate limiting
instruction immediately following admission of the confession.”), overruled on other
grounds by Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir. 2001).
Gayekpar did not object to the district court’s failure to give the limiting
instruction, and our precedent thus confines our review to the plain error standard.
United States v. Rashid, 383 F.3d 769, 775 (8th Cir. 2004), vacated on other grounds
by Abu Nahia v. United States, 546 U.S. 803 (2005); see also United States v. SauzaMartinez, 217 F.3d 754, 759 (9th Cir. 2000). The rationale for this rule seems to be
that because Boe’s confession was relevant to an issue in the case (i.e., Boe’s
culpability), and Gayekpar’s rights could be protected by a cautionary instruction, it
was Gayekpar’s responsibility to request that limitation. See generally 1 Kenneth S.
Broun, McCormick on Evidence § 59 (6th ed. 2009); cf. United States v. Conley, 523
F.2d 650, 654 n.7 (8th Cir. 1975). We also note that Gayekpar did not raise the lack
of a limiting instruction on appeal—not even in a reply brief after the government
acknowledged the error in its appellate brief. See United States v. Granados, 168
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F.3d 343, 346 (8th Cir. 1999) (“Although Granados failed to raise these arguments
in the district court or before this court, we have authority to review this issue for
plain error.”); but cf. United States v. Ingram, 594 F.3d 972, 978-79 (8th Cir. 2010).
To obtain relief under the plain-error standard, Gayekpar must show a
reasonable probability that the outcome would have been different but for the error.
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). We do not think he
meets that burden. The government presented a strong circumstantial case against
Gayekpar. He drove Boe and Karbedeh to the scene of the demonstration for Martin,
and then drove them back and forth to a stash house leased by Boe where the
conspirators obtained more supplies. Gayekpar waited in the car while Boe and
Karbedeh entered Martin’s hotel room for the transaction that would complete the
scheme. Officers arrested Gayekpar in the car with eighteen genuine $100 bills on
his person, and two genuine $100 bills that had been blackened with iodine elsewhere
in the car. Gayekpar’s defense that he lacked knowledge of the conspiracy in 2010
was undermined by his prior conviction in 2006 for carrying out a similar scheme.
The testimony about Boe’s statement that the proceeds would be split three ways did
tend to implicate Gayekpar, and it could have affected Gayekpar’s substantial rights
if the prosecution’s case had been weaker. But with the strength of the other evidence
presented in this case, we see no reasonable probability that a proper limiting
instruction would have resulted in a different outcome for Gayekpar.
IV.
Boe contends that his statements to Secret Service agents must be suppressed
because his waiver of rights under Miranda, 384 U.S. 436, was not voluntary,
knowing, and intelligent. There are “two distinct dimensions” to the inquiry whether
a suspect’s waiver of his Miranda rights was voluntary, knowing, and intelligent.
Moran v. Burbine, 475 U.S. 412, 421 (1986). First, the waiver “must have been
voluntary in the sense that it was the product of a free and deliberate choice rather
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than intimidation, coercion, or deception.” Id. Second, the suspect must have waived
his rights “with a full awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.” Id. We consider the totality of the
circumstances in determining whether a suspect’s waiver is valid. Id.
Reviewing the district court’s legal conclusion de novo, we conclude that Boe’s
waiver was valid. There is no allegation or showing that agents intimidated, coerced,
or threatened Boe prior to or during his interview. Boe argues instead that he was not
fully aware of the nature of his rights and the consequence of his decision to abandon
those rights. He points to his refusal to make a written statement immediately after
he had given an unrecorded oral statement, arguing that this refusal shows that he
believed the legal consequences of a written statement differed from those of an oral
statement. This argument is foreclosed by precedent. Connecticut v. Barrett, 479
U.S. 523, 530 (1987); United States v. Rohrbach, 813 F.2d 142, 145 n.2 (8th Cir.
1987). A defendant may have any number of reasons for refusing to provide a written
statement, but that refusal does not indicate an incomplete understanding of the
consequences of waiving Miranda rights. Barrett, 479 U.S. at 530 & n.4. To the
contrary, in this case, Boe was advised that “[a]nything you say can be used against
you in court, or other proceedings,” (emphasis added), and Boe responded that he
understood.
Boe also explains that he is a Liberian national for whom English is not a
primary language, and that he is unfamiliar with the criminal justice system in the
United States. The record shows, however, that Boe spoke English during the entire
interview, and Agent Olson had no problem understanding him. There is no evidence
that Boe had a limited ability to read, speak, or understand English. Agents advised
Boe of his Miranda rights, and no further knowledge of the criminal justice system
is required to demonstrate validity of the waiver. After considering the totality of the
circumstances, we conclude that Boe’s Miranda waiver was voluntary, knowing, and
intelligent.
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V.
Boe and Gayekpar also challenge the sentences imposed by the district court.
We review the court’s factual findings for clear error and its interpretation and
application of the guidelines de novo. United States v. Lyons, 556 F.3d 703, 706-07
(8th Cir. 2009).
First, Boe and Gayekpar both contend that the district court clearly erred in
denying a downward adjustment under the advisory guidelines for a mitigating role
in the offense. See USSG § 3B1.2. Each of them claims that he was a “minor
participant” in the conspiracy, such that his offense level should have been decreased
by two levels. See id. § 3B1.2(b). This adjustment applies to a defendant “who is
less culpable than most other participants, but whose role could not be described as
minimal.” Id. § 3B1.2, comment. (n.5). Even a defendant who is decidedly less
culpable than his co-defendants, however, is not entitled to the minor participant
reduction if he is deeply involved in the criminal acts. United States v. Alvarez, 235
F.3d 1086, 1090 (8th Cir. 2000). It is the defendant’s burden to establish that a
minor-participant reduction is warranted. United States v. Pruneda, 518 F.3d 597,
606 (8th Cir. 2008).
Boe argues that he was entitled to a minor-participant reduction because he was
the last to enter the conspiracy, did not have full knowledge of the scheme, and
performed only a limited function. But Boe was present at every meeting with the
putative victim, assisted in demonstrating the fictitious conversion process, leased the
stash house, and would have received a share of the proceeds. Given this significant
involvement in nearly all aspects of the conspiracy, the district court did not clearly
err in finding that Boe was not a minor participant.
Gayekpar asserts that he was entitled to the reduction because he was merely
the driver of the vehicle, and the conspirators agreed that he would receive only three
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percent of the proceeds. Yet transportation to gather additional supplies and to meet
the targeted victim was a necessary part of this black money scheme, cf. United States
v. Martinez, 168 F.3d 1043, 1048 (8th Cir. 1999), and Gayekpar was to be
compensated for his participation. We cannot say that the district court clearly erred
in finding that Gayekpar’s role was substantial enough to preclude an adjustment for
minor role in the offense.
Second, Boe contends that the district court committed procedural error by
failing to consider the factors set forth in 18 U.S.C. § 3553(a). A district court is not
required to make specific findings about each § 3553(a) factor, so long as the record
shows that the court considered them. United States v. Vinton, 631 F.3d 476, 487 (8th
Cir. 2011); United States v. Deegan, 605 F.3d 625, 630 (8th Cir. 2010). Here, the
sentencing transcript reflects that the district court considered the § 3553(a) factors.
The district court stated that it found the sentence “appropriate and reasonable” in
light of the § 3553(a) factors, and that it had taken into account several of the factors:
the nature and circumstances of the offense, the history and characteristics of Boe,
and the sufficiency of the sentence to afford adequate deterrence. We conclude that
the district court did not commit procedural error.
*

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The judgments of the district court are affirmed.
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