Oral argument — United States v. Olayinka Sunmola

Next case before the court is the fourth case United States v. Sunmola May it please the court, counsel, my name is Daniel Hellis, I'm with the Federal Public Defender's Office, I represent Mr. Sunmola He raises six issues, time permitting I'll get to them all, with the exception of the sixth issue I'll stand on my brief unless the court has questions, I'll be happy to answer any questions of course along the way For the first issue Mr. Millett, I'd like to go right to the loss calculation if that's okay Sure, of course Regarding that, are you seeking a remand to review the loss calculation list with the full names of the victims rather than just the initials? Yes, Your Honor, because that poses a due process problem which caused the loss amount maybe to be unnecessarily high which then affects lots of other things in the case So if given that opportunity, do you have any reason to expect that the defendant will present objections to calculations as to some of those individual victims? I do, Your Honor, because the loss amounts were so unspecific and the lack of descriptive information was so apparent in the list that was used by the court, and incidentally it appears from the record that the district court used still a different list than this one that we say is too unreliable to satisfy due process How many are on that list? On this list, Judge, I think this had the 39 victims, the individual victims, and of course a lot of that is done in ways that we just can't figure out who the people are, what the basis is for the loss And we know that some of the loss amounts, even when the government did try to verify them, were wildly wrong One lady claimed, I think it was a $58,000 loss, the government said it could only verify $21,000 of that And of course the postal inspector said that he relied on people's word, trusted them at their word We know we can't rely on somebody at their word when there's evidence elsewhere that says that people did not report correct and verifiable information So your honor, that affects restitution, that affects guidelines, it also makes the case look far worse than it is if the amount is higher than what it should be If Mr. Sinmola did not cause losses close to $2 million and caused some amount of loss that is far less than that, that puts this case on different footings and would affect sentencing So we think that that due process issue warrants a remand for a full resentencing in and of itself Did you have additional questions on that topic your honor? No, I'm sorry So as for the vulnerable victim enhancement and the enhancement for five or more victims who experience substantial financial hardship That's our first issue and we think that there's a clear problem here The vulnerable victim enhancement was applied because certain victims were said to be lonely No court in the country that I've been able to find and I saw no citations in the government's brief have ever held that this is a valid basis to impose the vulnerable victim enhancement The government points to the Callum case, I hope I'm pronouncing that correctly, as grounds for this And in that case says that when a person has a certain descriptor that causes them to be prone to this sort of being taken advantage of, then that's a rule It's a little more than just that they were lonely The victims in the case were chosen randomly, they were targeted because they were in a demographic that was perceived as susceptible to such a scam Middle-aged women with profiles on dating websites who were seen as vulnerable And I think we've upheld the enhancement in analogous cases And the enhancement would apply even if he was aware that one victim was particularly vulnerable And there certainly is evidence that he was aware of facts rendering that one woman, you know, who'd been shot, etc, etc That she was highly vulnerable given her history Your Honor, the government alleged that she was a vulnerable victim for her romantic attachments But then in the brief they suggest that she has debilitating brain injury And I don't think that there's proof of that, she's partially blind, that's true enough And says she was recently, or she was divorced We have a pool of people who were then part of dating sites and things And he did use that to gain victims But the rule that the government proposes is lacking in definition and contours It will apply to everybody There will always be somebody who has some characteristic, if we don't have a limiting principle That makes every victim vulnerable So we gave the example of the overly optimistic investors in financial fraud cases And so one person expects a greater return, they're optimistic So their optimism now becomes a basis for vulnerable victim, where are the limits? I think there are none under the government's rule Callum Lim has an instance where you have illegal aliens Who because of their status are unable to really resort to law enforcement for help and for assistance And that's not the case here These people did, they went to law enforcement They participated in the prosecution, they even participated at sentencing This is a far cry from that case and for that type of rule It doesn't apply here, if it does, it's going to apply everywhere And that certainly couldn't have been the commission's intent Because the commission intended for this to apply under particular circumstances Under the government's interpretation of the law, it will apply in every circumstance It is not hard to find somebody in a group who is sad, who is overly optimistic Who has some feature that allows them to be then said to be especially vulnerable As for the five or more victims, if I may transition to that The government hasn't presented five or more victims based on reliable evidence The government presents evidence of trial testimony, but that's not a judicial finding The government presents evidence off of its own pleadings and things of that nature Those are not judicial findings Not to mention some of the losses and things We've got problems with substantiation So the government may be able to prove this But the problem here is that it didn't And so there should be a remand for an appropriate assessment Based on judicial determinations Not pointing to the government's pleadings and not pointing to testimony Which may or may not be accepted by the district court That's not a judicial finding So apparently there's some kind of a group back where he came from That are, I don't want to call them acolytes or whatever But this is of course a warning to them, I guess A deterrent, that's what he says Yes This says, you know when I look at this and say this really can't happen And yet it did, people giving up their estate, their insurance proceeds Right No, I'm a blank when it comes to social media But there certainly seems to be all sorts of gimmicks and ways of taking advantage of people And people who are exposing themselves voluntarily to lots of information Yes, and it is sad when this happens But when it does, for the district court to impose a sentence as a general deterrent When we know through the scholarly literature that general deterrence is not really an effective theory It's been criticized, that's a problem too We can't put a 324 month sentence on this guy because we can't prosecute others And say let this be a warning and then this will stop It doesn't work that way And so this leads to a necessarily long sentence How old is this guy? He was in his 30s when this happened, as I recall, your honor He's 33 Yes, and your honors, I'm down to about a minute If you have additional questions, I'll answer them Otherwise I'd like to reserve the remaining time for rebuttal Thank you Good morning, may it please the court, Nathan Stump on behalf of the United States I want to go right to the... How can a defendant properly contest a loss calculation If not given access to the information as to what amount of losses attributed to each victim? Were the initials exactly like would Alana Rovner be IR? Yes, your honor So we did use initials that went with their names And I want to be clear too The report that the defendant appellant is now contesting Is a report that was generated by the probation office And attached to the PSR as an addendum So what happened was our case agent, the postal inspector Generated a report that had all the names first and last The home addresses, contact information, and individual amounts of loss Provided that full complete detailed spreadsheet to the probation office For their development of the PSR How many people were on that? Well, so there were... the initial one had over a hundred But what happened was we knew the names of these folks From the discovery and from things that we collected in the investigation Then the inspector would call these people, try to locate them, hunt them down And say, can you tell me, did you lose anything, what did you lose? And a lot of them didn't return his phone call, didn't submit anything And so their names just fell off the list And we couldn't confirm that they had a loss, we took them off So that list got whittled down It ended up being about 52 victims 13 of them, the PSR specifically enumerated So it walks through, you know, Jane Doe 6 and K.O. And there were a bunch of them And so the other 39 then were put in the addendum So they didn't have a specific description as to them They just had what the probation office included Which was just initials and amounts And to answer your question, Judge Rovner I don't know exactly how the defense could have Investigated those specific loss calculations without coming to us And saying, could you please tell us about these Specifically this one and this one Who are these people, what is this based on And we would have done that But they never did, there was no objection made to this addendum Ever by the defendant This really wasn't an issue at the sentencing Whether these victims were in fact victims Whether the amounts were reliable, none of that I will say too, just to make sure it's clear That a lot of this was based on Not just what the victims told us But what we were able to confirm From Western Union and MoneyGram records And those records were provided to the defense Both in normal course of discovery And they were used as an exhibit at the trial Before it ended And those were not redacted So it would have been possible for some of these victims For the defendant to at least be able to look at those records And say, okay, I can see where this person lost that much To address Mr. Hillis' comment about the one victim that we had She claimed a $50,000 loss And that was in an interview with us She never came to court to testify at the trial Because it ended before she had a chance to testify What we were able to do is confirm $21,000 That she sent to the defendant in South Africa Through the wire transfer records that we had We had nothing else from her To corroborate the remaining $50,000 And a lot of the victims that we had in our cases It would end up being victimized multiple times So they might have been a victim of this man And then their names and their information gets passed around And next thing you know, they're sending money out to other people So we really didn't doubt that she had lost $50,000 Somehow in this whole scheme We weren't entirely confident that she lost it to this man In this conspiracy And just to be conservative Just to make sure that we weren't tagging him with losses That weren't fair to him We agreed that we would go with only what we could confirm In the wire transfer records Which was $21,000 So we did our best Is really what I'm trying to say We did our best this whole way through To make sure that this was a conservative approach To the loss calculation And no time was this an issue No time was this objected to So I think it's difficult now on appeal With the record that we have For me to be able to defend all these individual amounts That Mr. Hillis wants to pick apart Well the only question I guess would be He's not being punished for other people's wrongs Right Apparently when you say that some of these people were Would give money to other people That's exactly right This is really an amazing thing And this guy never came near the United States, right? No, he didn't Everything's over the wire Right Of these various people Promised marriage Right I hope it came through in the briefs Because I think when it comes up on appeal You don't see the victims And you don't hear necessarily the whole wealth of evidence That we put together You just see what's in the appellate record When Mr. Hillis says that this sentence of 27 years Was unnecessarily long I take great exception to that I think this was a sentence That was reasonable, sufficient But not greater than necessary And of course they haven't challenged The substantive reasonableness of the sentence Except with regard to the court's Consideration of general deterrence Which I note for the record I think this court, even in an opinion Earlier this week Reinforced the need for district courts To consider general deterrence as a factor of sentencing You asked for 30 years, of course We did, we did And I don't think 30 years would have been unreasonable I mean this was a crime that If you read the district court's Sentence And the statement of reasons That the district judge gave He said this was pretty much the most horrific crime You could conceive of Without actually laying hands on another person And that's really what we saw too with this I mean these victims are still recovering They're still devastated So I'm up here trying to defend What was a very reasonable sentence Against attacks on specific sentencing enhancements A lot of which were not objected to At the lower court level And so I didn't have as much of an opportunity Maybe to provide some more detail But we did We litigated the vulnerable victim enhancement We litigated the substantial financial hardship enhancement We litigated the leader organizer Enhancement As well as the enhancement For acting on behalf of a government agency We had sufficient evidence Although I don't see where Mr. Hillis has come up with any evidence To contradict what was in the PSR Or in the record Really what he wants to do is nitpick And say that's not enough That's not enough And I would just say He has to do more than that To show clear error Are there any cases pending Against any of the other Associates I guess We have no open cases in court On any of the other That's what I'm wondering about Other people's wrongs Packed under what he did Obviously the judge had no sympathy for this person And there's a lot of permanent injury For people financially at least And maybe more than that So it's not a question of Damage and injury It's just a matter of Funneling it down to This guy And for what other people Have done as well And I'll just remind the court It was a conspiracy And we put on plenty of evidence That he was the ringleader So what we tagged him with Were the packages that he personally Picked up, you know In the Western Union they'll give you They'll tell you not just who it was directed to But who picked it up Because they've got a record of his passport That he had to provide when he picked up the money Or when he picked up the packages So the conspiracy incorporates The other wrongs under him It does with him as the boss With him as the ringleader And I don't think he would have to be the boss To tag him with those In the law of conspiracy But I think it's perfectly appropriate When he's the one directing their actions That he should be held accountable For what they did as well I do think they should be held accountable too But we had difficulty getting him We were lucky that we were able to extradite him From the UK When he was normally based in South Africa Where is he? Where is he now? I'm not actually sure where he's confined Somewhere over here Yeah, he's in federal custody now His brother, who was a co-conspirator, is not I see I just have about half a minute left I just want to make sure that the court recognizes This rule that Mr. Hill has said The government's rule about vulnerable victims It's not my rule, it's not our rule This was the rule that was explained in Kalemlem In that decision I'm probably pronouncing it wrong But basically that a person who is a member of a group That is typically targeted, typically vulnerable To a particular manifestation of the offense This would be romance scams We should count those people as vulnerable I see I'm out of time Thank you Thank you Begin by noting that the government is wrong To assert clear air applies Clear air applies to factual review But de novo review applies to the application of the guidelines And it was their burden to establish the facts And yes, we will take issue with the facts on the appeal When the facts don't support the enhancements The government was required to prove The government said it was very comfortable With this gentleman spending the rest of his life in prison This is a fraud case 324 months for fraud for a non-violent offense Is an extraordinarily long sentence I'm not comfortable, and I hope this court is not comfortable With non-violent offenders spending the rest of their lives in prison For cases such as this As for the agent list Provided to the government And the government provided the U.S. probation There is a problem with that It wasn't provided to the defense So how do we contest something When it is given to the probation officer From a law enforcement officer For the preparation of PSR That we never get to see or contest That is an additional due process problem here And then finally The judge could conceive of no worse offense I think that it is easily conceived of Could you have gone back Once you got the PSR Could you have gone back to the probation officer And said, look, you know What's this, what's that, who's this Judge, in our brief First of all, the list was objected to There were lots of objections I think there was a January 15th objection letter If I'm recalling the date correctly But when the probation officer was contacted The probation officer said This has to be done to protect the victims here Can't provide the descriptive information So the defense was shut down at that point And furthermore, when the judge is using a different list With more information And we don't have that available to it sentencing That's still another problem here So this reference to lists And to try to tidy things up Actually makes the problem worse The more that I hear about it And I hope that it rings the same to your honor's ears I have nothing else, thank you Unless you have questions, your honor No, thank you Thanks both sides In case you stick it in your advisement