Petition for Writ of Certiorari — Olufolajimi Abegunde, Petitioner v. United States
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NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0035n.06
No. 19-6229
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OLUFOLAJIMI ABEGUNDE,
Defendant-Appellant.
BEFORE:
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FILED
Jan 14, 2021
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN
DISTRICT OF TENNESSEE
OPINION
WHITE, STRANCH, and MURPHY, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Olufolajimi Abegunde appeals his conviction and
sentence for witness tampering and for conspiracy to commit wire and bank fraud, money
laundering, and marriage fraud. In this direct appeal, Abegunde contends that: (1) the district court
erred in denying his motion to sever the conspiracy to commit marriage fraud count from the other
counts pursuant to Federal Rules of Criminal Procedure 8 and 14; (2) the evidence was insufficient
to support the jury’s verdict of guilty as to the convictions for conspiracy to commit wire fraud
and conspiracy to commit money laundering; (3) the venue was improper; (4) the district court
abused its discretion by not providing a jury instruction and demarcation between witnesses’ dual
roles as fact and expert witnesses; and (5) the district court erred in using a “loss chart” to
determine the economic loss for the proper sentencing range .for Abegunde. For the reasons
discussed below, we AFFIRM the judgment of the district court.
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No. 19-6229, United States v. Abegunde
I.
A.
BACKGROUND
Facts
This case grows out of business email compromise schemes (BEC). The schemes involved
hacking into a company’s email servers and creating fake emails directing the company’s
employees to wire funds into bank accounts controlled by the perpetrators. Typically, after a sum
is wired from a BEC, the money is transferred to multiple other bank accounts before reaching its
final destination.
This “network” of bank accounts exchanges smaller portions of the initial
transfer amount in an attempt to clean the money and to avoid detection by banks and law
enforcement.1 Members of the network often do not know one another; they “simply fill a role for
some sort of payment along the way.” Banks will sometimes contact account owners that are
suspected participants in these networks to alert them to fraud on their account. If the account
owner lies about the source of the funds, law enforcement considers the statements as evidence
that the owner may be a knowing participant.
One of the businesses targeted in a BEC scheme in this case was Crye-Leike, a real estate
company in the Western District of Tennessee. A hacker directed a real estate agent to wire
$154,000 to a bank account controlled by the perpetrators. The FBI traced the fraudulent CryeLeike transfer to Javier Luis Ramos-Aionso, Abegunde’s co-defendant. Law enforcement then
subpoenaed additional bank records associated with Ramos-Aionso and found other suspicious
transactions, including suspected BECs involving other businesses. A scheme involving another
business, Whatcom, followed a similar pattern. Company emails were compromised, and a fake
email instructed an employee to wire funds to an account in the hackers’ control. Believing the
1 Transactions to the network bank accounts are smaller because banks are required by law to report transactions of
more than $ 10,000.
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No. 19-6229, United States v. Abegunde
email was authentic, a Whatcom employee wired more than $60,000 to an account controlled by
Ramos-Alonso.
Ramos-Alonso’s bank records also indicate that he attempted to divide the large amount of
money received from the BECs into smaller transfers into other accounts. Wells Fargo flagged
Ramos-Alonso’s bank account for suspicious activity and a bank investigator contacted him about
the large wires and repeated smaller transactions. The investigator also reviewed bank accounts
that received wires from Ramos-Alonso. Some of the money was wired to bank accounts with
Abegunde’s address, and one account also listed Abegunde’s phone number.
When the
investigator called the phone number, Abegunde answered and stated that he had received the
money from a friend in Nigeria.
Suspecting fraud, Wells Fargo recalled the funds from the
account.
Although Abegunde’s name was not on the bank accounts, at trial the Government offered
evidence that Abegunde was in control of the accounts because they were attached to his address
and phone number; Abegunde directed individuals to transfer money into the account; and the
individuals whose names were on the account were not in the United States when some of the
transactions were processed.
The Government sought to prove that Abegunde used these accounts, as well as nearly 40
other third-party accounts, because many of his personal accounts were closed. These accounts
were “used or given out by Mr. Abegunde for other people to put money into [and] were not his
own.” In Abegunde’s own words, he had to “beg, incentivize, [and] lobby people to give [him]
their account,” to continue his participation in the scheme. Most of this coordination occurred
over an encrypted messaging application, WhatsApp.
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The Government also provided testimony that Abegunde coordinated currency exchanges,
for people seeking exchanges from Nigerian naira to United States dollars, to clean money received
from the BEC schemes. Ramos wired $9,000 tied to a BEC scheme to a bank account alleged to
be under Abegunde’s control.
As to the Whatcom BEC. Abegunde provided the account
information for one of the accounts he allegedly controlled when a conspirator requested a bank
account “fast.”
Evidence regarding the bank accounts receiving fraudulent funds showed that some were
attached to Abegunde’s phone number and address. At least one such account bore the name of
an alleged co-conspirator, Ayodeji Ojo. The FBI contacted Abegunde at his home to inquire about
suspected fraud.
When asked about an “illegal money transfer” on the account, Abegunde
condemned people that committed fraud, but claimed that people using or transferring proceeds
from a fraudulent scheme were not involved in criminal activity. Even after the officer warned
Abegunde about potential liability for receiving and transferring fraudulent proceeds, Abegunde
“emphatically disagreed.” Abegunde also misrepresented his knowledge of Ojo’s involvement in
the scheme, but later messaged Ojo and laughed about this concealment. In one communication,
Abegunde expressed his fear about allowing “money to be paid into an account that can be tracked”
and asked about mitigating the risk of conspiracy to commit fraud.
In another exchange,
Abegunde said that he really does not know the others involvedor- the source for the funds, but
they “pay into accounts,” and he admitted that his exchanges “clean the cash and eliminate the
risk.”
Regarding the marriage fraud count, the evidence showed that Abegunde married Edchae
Caffey, a member of the United States Army, in 2016. Caffey testified that Abegunde paid her to
enter into the marriage so that he could “get a green card.” During trial the Government also
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provided proof that Abegunde entered the marriage to receive Caffey’s military benefits and that
Abegunde opened joint accounts with Caffey to transfer fraudulent funds.
B.
Procedural History
A grand jury charged Abegunde and several others in a multi-count indictment involving
cybercrimes and fraud. Abegunde’s case was ultimately severed from all other defendants, except
Javier Luis Ramos-Alonso. The grand jury returned a superseding indictment charging Abegunde
and Ramos-Alonso with wire fraud conspiracy, in violation of 18 U.S.C. § 1349, and conspiracy
to launder money by conducting a financial transaction involving property that represented the
proceeds of a specified unlawful activity, in violation of 18 U.S.C. § 1956(h). Ramos-Alonso was
also charged with wire fraud, in violation of 18 U.S.C. § 1343. Abegunde was further charged
with conspiracy to enter into a marriage for the purpose of evading immigration laws, in violation
of 18 U.S.C. § 371, and witness tampering, in violation of 18 U.S.C. § 1512(b). The district court
denied Abegunde’s motion to sever the marriage-fraud conspiracy count.
The Government presented two law enforcement officers, Marcus Vance and David
Palmer, who each testified twice at trial providing evidence as both expert and fact witnesses.
Prior to sending the case to the jury, the district court gave the jury an instruction on how to
consider the testimony of Agents Vance and Palmer.
After a seven day trial, a jury convicted Abegunde of wire-fraud conspiracy, in violation
of 18 U.S.C. § 1349; money-laundering conspiracy, in violation of 18 U.S.C. § 1956(h); conspiracy
to enter afnarriage for the purpose of evading immigration laws, in violation of 18 U.S.C. § 371;
and witness tampering, in violation of 18 U.S.C. § 15 12(b). After a three-day sentencing hearing,
the district court sentenced Abegunde to 78 months of imprisonment.
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n.
DISCUSSION
Abegunde challenges: (1) the district court’s denial of his motion to sever the marriage
fraud count from the other counts; (2) the sufficiency of the evidence for his wire fraud conspiracy
and money laundering conspiracy convictions; (3) venue; (4) the district court’s lack of
demarcation between witnesses’ dual roles as fact and expert witnesses; and (5) the district court’s
use of a 'loss chart” during sentencing. We will address each separately.
A.
Improper Joinder
Abegunde contends that the district court’s failure to sever his marriage fraud count from
the other counts resulted in prejudice that prevented the jury from making a reliable judgment
about his guilt or innocence. “Misjoinder is a question of law that we review de novo.” United
States v. Deitz, 577 F.3d 672, 692 (6th Cir. 2009). Even where joinder is proper, a defendant may
move to sever offenses on the basis that he will be prejudiced by a joinder of the offenses. United
States v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006). We review denial of a severance
motion based on a claim of prejudice for abuse of discretion. United States v. Jacobs, 244 F.3d
503,506 (6th Cir. 2001).
Joint trials for defendants listed in the same indictment are preferred to “conserve ... funds,
diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those
accused of crime to trial.” United States v. Lane, 474 U.S. 438, 449 (1986) (quoting Bruton v.
United Stales, 391 U.S. 123, 134 (1968)). Indeed, joinder ensures that an alleged criminal act need
only be proven once. United States v. Swift, 809 F.2d 320, 322 (6th Cir. 1987).
Joinder Under Rule 8(b)
Federal Rule of Criminal Procedure 8 governs the conditions under which multiple
offenses and defendants may be joined in a single indictment. Because this Rule is designed to
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promote judicial economy and avoid “multiplicity of trials” and the “scandal and inequity of
inconsistent verdicts,” Zafiro v. United States, 506 U.S. 534, 537, 540 (1993) (quoting Bruton, 391
U.S. at 131 n.6, and Richardson v. Marsh, 481 U.S. 200, 210 (1987)), a district court should
construe Rule 8 in favor of initial joinder, United States v. Moreno, 933 F.2d 362, 370 (6th Cir.
1991). Rule 8(a) governs the joinder of multiple offenses and Rule 8(b) governs the joinder of
multiple defendants. Although we have left the issue open, many courts have held that Rule 8(b)
(rather than Rule 8(a)) governs a defendant’s claim that multiple offenses were improperly joined
in a multi-defendant case. See United States v. Frost, 125 F.3d 346, 389 (6th Cir. 1997); United
States v. Johnson, 763 F.2d 773, 776 (6th Cir. 1985). As in Frost, we need not conclusively decide
the rule that applies in this setting because Abegunde’s claim fails even under Rule 8(b)’s stricter
joinder rules. Rule 8(b) provides:
The indictment or information may charge 2 or more defendants if they are alleged
to have participated in the same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses. The defendants may be charged
in one or more counts together or separately. All defendants need not be charged
in each count.
Under Rule 8(b), multiple defendants are properly joined only where each count arises out of the
“same act or transaction” or “same series of acts or transactions.” United States v. Hatcher, 680
F.2d 438, 441 (6th Cir. 1982).
Acts or transactions constitute a series “if they are logically
interrelated” or “part of a common scheme or plan.” Johnson, 763 F.2d at 776. We have also
determined that joinder is proper where there is “overlapping proof.” Swift, 809 F.2d at 322.
Even if all counts have a common defendant, the indictment on its face must allege a
connection between a co-defendant and the additional count charged to the other defendant.
Hatcher, 680 F.2d at 441. However, not all defendants need to be charged with the same counts.
In Johnson, Johnson and four other co-defendants were charged in a conspiracy to produce
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fraudulent car titles and sell stolen vehicles. Johnson, 763 F.2d at 773-75. In addition to the
conspiracy related to the car titles, Johnson and her husband were also charged with mail fraud for
sending a false insurance claim based on a fraudulent title. Id. at 775. Even though the two other
co-defendants were not charged with mail fraud, we concluded that joinder was not improper under
Rule 8(b) because Johnson perpetrated the mail fraud through the overarching conspiracy. Id. at
776 (stating that “the mail fraud was logically interrelated with the other acts charged in the
indictment”).
The district court denied Abegunde’s motion to sever the marriage fraud count. In the
indictment, the Government made several allegations supporting the logical interrelatedness of the
conspiracy counts (to commit wire fraud, bank fraud, and money laundering) to the conspiracy to
commit marriage fraud. The indictment alleged that Abegunde would pay Caffey to marry him
and help him obtain immigration status, and “Abegunde would use the access provided by his
fraudulently obtained immigration status to open multiple financial accounts” used to facilitate the
conspiracy. Immediately after Abegunde and Caffey were married, they opened two joint Bank
of America accounts and Caffey added Abegunde as a co-signor to a USAA account. Days later,
there were a series of incoming and outgoing transfers in one Bank of America account in amounts
just under $ 10,000, the threshold for triggering reporting obligations under anti-money laundering
laws. Approximately two months after opening, the Bank of America accounts were closed by the
bank due to suspicion of fraudulent activity. Moreover, Caffey had expressed her discomfort with
being “linked to” those transfers.
As alleged in the indictment, it is reasonable to infer that Abegunde used his marriage to
Caffey to facilitate the transfer and receipt of funds obtained through the alleged conspiracies, in
which Ramos-Alonso was participant. The evidence of Abegunde’s transfers in his joint accounts
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with Caffey serve as “overlapping proof’ of conspiracy to commit bank fraud and his conspiracy
to commit marriage fraud. Evidence that Abegunde used the joint bank accounts from the marriage
to transfer money obtained from the BEC schemes, moreover, was also proof of the fraud charges
because it demonstrated how Abegunde laundered the money at issue. The district court did not
err in denying the motion to sever under Rule 8.
2.
Severance Under Rule 14
Abegunde also argues that even if joinder was proper under Rule 8, the court should have
granted severance under Rule 14. Where joinder is proper under Rule 8(b), under Rule 14(b), a
“strong showing of prejudice” may justify severance. United States v. Gallo, 763 F.2d 1504, 1525
(6th Cir. 1985). Severance is within the court’s discretion and is required “only if there is a serious
risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent
the jury from making a reliable judgment about guilt or innocence.” United States v. Ross,
703 F.3d 856, 884 (6th Cir. 2012) (quoting Zafiro, 506 U.S. at 539). To show the court abused its
discretion, Abegunde must demonstrate “compelling, specific, and actual prejudice.” Thomas v.
United States, 849 F.3d 669, 675 (6th Cir. 2017); see also United States v. Martinez, 432 F. App’x
526, 529 (6th Cir. 2011) (noting that a risk of “simple prejudice” is insufficient to warrant separate
trials of co-defendants).
Even if a defendant demonstrates prejudice, courts must balance that with “the interest of
the public in avoiding a multiplicity of litigation.” United States v. Saadey, 393 F.3d 669, 678 (6th
Cir. 2005) (quoting United States v. Wirsing. 719 F.2d 859, 864-65 (6th Cir. 1983)). Indeed, even
when risk of prejudice is high, it may be cured by “less drastic measures, such as limiting
instructions.” Ross, 703 F.3d at 884. “[I]f a jury can properly compartmentalize the evidence as
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it relates to the appropriate defendants,” a motion for severance should be denied. United States
V.
Causey, 834 F.2d 1277, 1287 (6th Cir. 1987).
At trial, the Government presented evidence to demonstrate that Abegunde used his
allegedly fraudulent marriage with Caffey to open joint bank accounts and conduct transactions
related to the overarching conspiracies. Abegunde contends that the marriage fraud count should
have been severed because the “intricate nature of the offenses and the voluminous amounts of
evidence to be presented” may cause jury confusion. But the complexity of the evidence alone
does not guarantee severance; rather, Abegunde must explain how and why this evidence would
“mislead and confuse the jury in the absence of a separate trial.” United States v. Fields, 763 F.3d
443, 458 (6th Cir. 2014) (quoting United States v. Walls, 293 F.3d 959, 966 (6th Cir. 2002)). In
this case, the Government presented evidence that indicates a direct and overlapping connection
between the allegations of marriage fraud and the conspiracies to commit fraud and money
laundering.
Government witnesses provided testimony that Abegunde relied on financial
resources obtained from the fraudulent marriage to further the wire fraud and money laundering
conspiracies. Moreover, the court instructed the jury to consider evidence on each count separately
and “decide whether the government has presented proof beyond a reasonable doubt that a
particular defendant is guilty of a particular charge.” See United States v. Cody, 498 F.3d 582, 588
(6th Cir. 2007) (recognizing that a limiting instruction can overcome the prejudicial effect of
improper joinder). Abegunde has not demonstrated compelling, specific, and actual prejudice.
Given Abegunde’s failure to offer compelling examples of how the Government’s evidence may
have misled the jury and the district court’s limiting instruction, the court did not abuse its
discretion in denying the motion for severance under Rule 14.
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B.
Sufficiency of Evidence
Abegunde challenges the sufficiency of the evidence supporting his convictions of wiretraud conspiracy, in violation of 18 U.S.C. § 1349, and money laundering conspiracy, in violation
of 18 U.S.C. § 1956(h). We review a district court’s denial of a motion for judgment of acquittal
de novo. United States v. Ramirez, 635 F.3d 249, 255 (6th Cir. 2011). “When considering a
challenge to the sufficiency of the evidence, ‘the relevant question is whether, after viewing the
evidence 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 Slates v. Osborne, 886
F.3d 604, 608 (6th Cir. 2018) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The Court
may not “weigh the evidence presented, consider the credibility of witnesses, or substitute [its]
judgment for that of the jury.” Id. (quoting United States v. Graham, 622 F.3d 445, 448 (6th Cir.
2010)).
Wire fraud requires proof of three elements.
The Government must prove that the
defendant: (1) “devised or willfully participated in a scheme to defraud”; (2) “used or caused to
be used an interstate wire communication ‘in furtherance of the scheme’”; and (3) “intended ‘to
deprive a victim of money or property.’” United States v. Faulkenbeny, 614 F.3d 573, 581 (6th
Cir. 2010) (quoting United States v. Prince, 214 F.3d 740, 748 (6th Cir.2000)). To support a
conspiracy to commit wire fraud, the evidence must show that “the defendant ‘knowingly and
willfully joined in an agreement with at least one other person to commit an act of [wire] fraud
and that there was at least one overt act in furtherance of the agreement.’”
United States v.
Cunningham, 679 F.3d 355, 373 (6th Cir. 2012) (quoting United States v. Jamieson, 427 F.3d 394,
402 (6th Cir. 2005)).
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Similarly, for the money laundering conspiracy the Government had to prove that two or
more persons conspired or agreed to commit the crime of money laundering; and that the defendant
knowingly and voluntarily joined the conspiracy. See United States v. Hynes, 467 F.3d 951,964
(6th Cir. 2006) (noting that the Government only had to prove that the defendant '‘agreed with
another person to violate the substantive provisions of the money-laundering statute during the
period alleged in the indictment”). A money laundering conspiracy does not require proof of an
overt act. Id.
Here, the Government presented evidence that some of the proceeds from the overarching
fraudulent schemes were received by Abegunde. Agent Vance testified that in similar conspiracy
cases, it is typical for conspirators to “chop” large sums of money and distribute it through a chain
to conceal or. disguise the nature, source, or control of the money. See United States v. AgundizMontes, 679 F. App’x 380, 387 (6th Cir. 2017). A Wells Fargo financial crimes consultant, Brian
Ancona, testified that proceeds received from fraudulent schemes were sent to Ramos-Alonso,
Abegunde’s co-defendant, who then distributed the money into accounts opened by Abegunde or
under his control. The criminal agreement from these chain transfers of proceeds “can be inferred
from the interdependence of the enterprise.” See United States v. Warman, 578 F.3d 320, 333 (6th
Cir. 2009).
The Government also provided evidence that Abegunde had knowledge of and agreed to
participate in the conspiracy. On the date of one of the BECs, Abegunde directed an individual to
transfer money into an account linked to his phone number and address. In a conversation with a
colleague over WhatsApp, Abegunde admitted that he does not know the men coordinating the
scheme, but said that they put money into his accounts, and his exchanges “clean the cash and
eliminate the risk.” And when the FBI questioned him about his knowledge regarding fraud
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occurring on the account, Abegunde’s WhatsApp messages indicate that he lied about his
involvement and then contacted a co-conspirator to joke about his concealment.
This evidence also supports the money-laundering conspiracy. Abegunde coordinated
several transfers of fraudulent proceeds to accounts under his control or the control of his co
conspirators indicating it would clean the money. Abegunde also lied to the FBI and later spoke
to his friend about taking advantage of an opportunity. A reasonable trier of fact could find that
Abegunde knowingly participated in the distribution cleaning of the proceeds to seek his own
financial benefit and that he lied to law enforcement and used a messaging application to conceal
his participation in the scheme.
Abegunde does not challenge the existence of the overarching fraudulent schemes,
claiming only that “the government failed to present direct evidence of an agreement or consent
on the part of Mr. Abegunde to commit the crime of wire fraud or money laundering.” Abegunde
argues that he did not know every member of the conspiracy, nor did he undertake all of the
conspiracy’s activities. In discussing the knowledge requirement in a drug conspiracy, however,
we have determined that “it is not necessary to show that a defendant knew every member of the
conspiracy or knew the full extent of the enterprise.” United States v. Maliszewski, 161 F.3d 992,
1006 (6th Cir. 1998) (quoting United States v. Lloyd, 10 F.3d 1197, 1210 (6th Cir. 1993)); see also
Wannan, 578 F.3d at 332 (“[P]roof of a formal agreement is not necessary; ‘a tacit or material
understanding among the parties’ will suffice.” (quoting United States v. Martinez, 430 F.3d 317,
330-31 (6th Cir. 2005))); Martinez, 430 F.3d at 333 (noting that a defendant need not “be an active
participant in every phase of the conspiracy, so long as he is a party to the general conspiratorial
agreement” (quoting United States v. Hodges, 935 F.2d 766, 773 (6th Cir. 1991))).
Given
Abegunde’s conduct in directing fraudulent proceeds, communications indicating he was aware
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that the proceeds might not be legitimate, and his attempts to conceal the nature of his relationship
with Ojo, a reasonable factfinder could find Abegunde guilty of wire fraud conspiracy and money
laundering conspiracy. The district court did not err in denying the motion for judgment of
acquittal.
C.
Venue
Abegunde argues that his prosecution for wire fraud in the Western District of Tennessee
was improper because there was not a direct link to the jurisdiction. Because Abegunde did not
raise this venue objection in the district court, we review his objection to venue for plain error
United States v. Parlier, 570 F. App’x 509, 512 (6th Cir. 2014). To prevail under plain error,
Abegunde must show “an error that is clear or obvious, affecting [his] substantial rights, and
seriously affecting the fairness, integrity or public reputation of judicial proceedings.” United
States v. LopeZ'Medina, 461 F.3d 724, 746 (6th Cir. 2006).
The Constitution and the Federal Rules of Criminal Procedure require that a crime be
prosecuted and tried in the district where the crime was committed. See U.S. Const, art. Ill § 2;
U.S. Const, amend. VI; Fed. R. Crim. P. 18. Asa continuing offense, wire fraud is subject to the
provisions of 18 U.S.C. § 3237 and thus can be “prosecuted in any district in which such offense
was begun, continued, or completed.”
18 U.S.C. § 3237(a); see United States v. Grenoble,
413 F.3d 569, 573 (6th Cir. 2005) (stating that under 18 U.S.C. § 3237, wire fraud is a continuing
offense). Conspiracy to commit wire fraud is also a continuing offense and may be prosecuted “in
any district where the conspiracy was formed or in any district where an overt act in furtherance
of the conspiracy was performed.” United States v. Scaife, 749 F.2d 338, 346 (6th Cir. 1984).
“A conspiracy defendant need not have entered the district so long as this standard is met.” Id.
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Abegunde does not dispute that the Government’s evidence linked him to an account that
received $9,000 of $154,000 in fraudulent funds from a company in the Western District of
Tennessee. Abegunde’s counsel acknowledged that those proceeds related to the Western District
of Tennessee. The trial record shows that overt acts committed in furtherance of the conspiracy
were performed in this district. Venue was proper.
D.
Jury Instructions
Abegunde contends that the district court abused its discretion by failing to provide a
cautionary jury instruction regarding the dual witness roles of Agents Vance and Palmer.
“Evidentiary determinations, including whether a district court failed to differentiate between a
witness’s fact and expert testimony, are reviewed for an abuse of discretion.” United States v.
Barron, 940 F.3d 903, 920 (6th Cir. 2019). Even when a court abuses its discretion, however,
evidentiary errors are subject to harmless error review. United States v. Kilpatrick, 798 F.3d 365,
378 (6th Cir. 2015). An error is not to be deemed harmless if it affects substantial rights or affects
the outcome of the court’s proceedings. United States v. Inman, 666 F.3d 1001, 1006 (6th Cir.
2012) (per curiam).
When a law enforcement officer testifies as both a lay witness and an expert witness, there
is risk that: (1) the expert will later “receive[] ‘unmerited credibility’ for lay testimony,” (2) the
“witness’s dual role . . . confuse[s] the jury,” and (3) “the jury may unduly credit the opinion
testimony of an investigating officer based on a perception that the expert was privy to facts about
the defendant not presented at trial.” United States v. Rios, 830 F.3d 403, 414 (6th Cir. 2016)
(quoting United Stales v. Freeman, 498 F.3d 893, 903 (9th Cir. 2007) and United States v. York,
572 F.3d 415, 425 (7th Cir. 2009)). “[T]he district court and the prosecutor should take care to
assure that the jury is informed of the dual roles of a law enforcement officer as a fact witness and
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an expert witness, so that the jury can give proper weight to each type of testimony.” LopezMedina, 461 F.3d at 743 (quoting United States v. Thomas, 74 F.3d 676, 683 (6th Cir. 1996)).
In United States v. Barron, a criminal defendant challenged the dual role of testimony
provided by a law enforcement officer. 940 F.3d at 920. Prior to submitting the case to the jury,
the court gave an instruction distinguishing the dual roles of the law enforcement officer’s
testimony and the proper weight to give to each testimony. Id. at 920-21. The instructions
mirrored the Sixth Circuit’s pattern jury instruction on dual witnesses. See Sixth Circuit Pattern
Jury Instruction 7.03A. On facts substantially similar to this case, we found the jury instructions
were adequate and that the district court did not abuse its discretion or plainly err in giving the
pattern instruction. Id. at 921.
During trial, the Government presented FBI Agents Marcus Vance and David Palmer as
both expert and lay fact witnesses. Vance’s testimony as an expert began on the second day of
.
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trial, and two days later, he testified as a fact witness. Similarly, Palmer testified as an expert on
the third day of trial, and testified as a fact witness two days later. At the close of Vance’s expert
testimony, the Government asked the district court to explain the change in the nature of his
testimony before he returned as a fact witness. The court declined to communicate a specific
demarcation, stating that an instruction during trial would not “mean[] that much to the jury” and
that “it is hard to draw the line.” At the close of evidence, however, the court explained that Agents
Vance and Palmer testified as both expert and fact witnesses and instructed the jury on the proper
weight to give to each form of testimony:
As to the testimony on facts, consider the factors discussed earlier in these
instructions for weighing the credibility of witnesses. As to the testimony on
opinions, you do not have to accept Special Agents Vance and Palmer’s opinions.
In deciding how much weight to give it, you should consider the witnesses’
qualifications and how they reached their conclusions, along with the other factors
discussed in these instructions for weighing the credibility of witnesses.
16
No. 19-6229, United States v. Akegitnde
(R.252, Jury Instructions, Page ID 996) This instruction is consistent with the Sixth Circuit Pattern
Jury Instruction 7.03A. The court further reminded the jury that they “alone decide how much of
a witness’s testimony to believe, and how much weight it deserves.” Moreover, the opinion and
fact testimonies were provided on different days. See United States v. Tocco, 200 F.3d 401, 419
(6th Cir. 2000) (noting that dual roles of a witness can be properly demarcated when testimony
occurs at different times during trial in conjunction with limiting instructions).
Abegunde points to United States v. Lopez-Medina to contend that since there was not a
clear demarcation during the testimony, he is entitled to relief. Though a district court can cure
potential challenges to jury confusion by providing a “clear demarcation between expert and fact
witness roles,” Lopez-Medina, 461 F.3d at 744, this harm may also be cured by providing “an
adequate cautionary jury instruction,” United States v. Young, 847 F.3d 328, 357 (6th Cir. 2017).
That is what happened here. There was no abuse of discretion here because the court temporally
separated opinion and fact testimony and provided a clear instruction before jury deliberations
explaining the roles of each dual witness and the proper weight to assign to each.
E.
Loss Chart
Finally, Abegunde argues that the district court erred in using the loss chart to determine
his sentencing range because there were no allegations made that established that the transactions
were in any way illegal. We review whether actions or events are “relevant conduct” under §
1B1.3(a)(1)(A) de novo; factual findings underlying the district court’s determination that conduct
is “within the scope” of, “in furtherance” of, and “reasonably foreseeable” in connection with
jointly undertaken criminal activity are reviewed for clear error. United States v. Tocco, 306 F.3d
279, 284 (6th Cir. 2002). At sentencing, the district court may consider any relevant evidence as
long as it is supported by sufficient indicia of reliability. USSG § 6A1.3(a).
17
No. 19-6229, United States v. Abegunde
Sentencing Guideline § 2B 1.1 (b)(1), the loss provision, directs a court to increase an
offense level based on the amount of economic “loss” that resulted from the defendant’s conduct.
“In calculating the Guidelines loss under U.S.S.G. § 2B1.1(b)(1), district courts include losses
sustained from relevant conduct under U.S.S.G. § IB 1.3.” United States v. Catchings, 708 F.3d
710, 720 (6th Cir. 2013). This “relevant conduct” may be considered if it is “part of the same
course of conduct or common scheme or plan as the offense of conviction.” United States v. Hill,
19 F,3d 1477, 1481 (6th Cir. 1996) (quoting USSG § 161.3(a)(2)).
“To qualify as part of a
‘common scheme or plan’ under the ‘relevant conduct’ guideline, the offenses ‘must be
substantially connected to each other by at least one common factor, such as common victims,
common accomplices, common purpose, or similar modus operandi.’”
Id. (quoting USSG
§ IB 1.3, cmt. n.9(A) (1995)). The district court “need only make a reasonable estimate of the loss
. . . based on available information,” and its “loss determination is entitled to appropriate
deference.” USSG § 2B1.1 cmt. n.3(C).
Relevant conduct includes all criminal conduct committed, aided, abetted, counselled,
commanded, induced, procured or willfully caused by Abegunde.
USSG § 1B1.3(a)(1)(A).
Conduct of others is only relevant when it is “within the scope” of, “in furtherance” of, and
“reasonably foreseeable” in connection with jointly undertaken criminal activity. USSG § 1B1.3
cmt. n.3(A). District courts must make “particularized findings with respect to both the scope of
the defendant’s agreement and the foreseeability of his co-conspirators’ conduct before holding
the defendant accountable for the scope of the entire conspiracy.” United States v. Campbell, 279
F.3d 392, 400 (6th Cir. 2002) (emphases omitted).
Abegunde’s initial Presentence Report determined that the loss caused was $793,447.69.
The calculation was based, in part, on a loss chart that included 81 transactions involving
18
No. 19-6229, United States v. Abegunde
Abegunde and his alleged co-conspirators. The chart included the date of the transaction, the bank
and account information of the transaction, the third-party name on the account, and the amount
that was transferred. Most of the transactions were under $10,000. On the second day of the
sentencing hearing, the district court allowed both parties to present their arguments concerning
the loss chart. Based on the evidence demonstrating the same modus operandi, the district court
concluded that Abegunde was a “downstream middleman money launderer” where his role was to
help “clean the funds” obtained by the overarching BECs. The court calculated the loss amount
associated with Abegunde’s offense conduct at $596,926.1 1 and ultimately determined that the
loss chan could be used to determine economic loss and the appropriate sentencing range for
Abegunde.
On appeal, Abegunde argues that the Government failed to provide evidence that the
transactions were illegal or that he knew or should have known that the transactions were from
funds illegally obtained. The Government’s witness admittedly could not pinpoint the original
source of the funds, other than one $9,000 transfer that occurred in October 2016. The Government
argues that Abegunde conducted currency exchanges with a fee to third-parties to clean the money
received through the illegal conspiracy.
It notes that the record contains evidence that each
transaction was directly linked to a communication in Abegunde’s phone where he solicited a third
party to use their account to transfer funds. Each transaction had a similar pattern: someone would
approach Abegunde saying he had a certain amount of money and wanted to do a deal, the two
would work out an exchange rate, and Abegunde would provide a third-party account to conduct
the transaction. Of the 81 transactions, there were 10-12 “repeat customers.” Abegunde’s written
communications expressed frustration with his personal accounts being closed and his interest in
conducting transactions that could not be tracked.
19
No. 19-6229, United Slates v. Abegunde
The district court did not err in determining that Abegunde’s conduct was “within the
scope” of, “in furtherance” of, and “reasonably foreseeable” in connection with jointly undertaken
criminal activity. Abegunde’s participation in the conspiracy, even if limited, was a necessary
component for cleaning money obtained fraudulently and a part of a chain commonly seen in fraud
and money laundering schemes. Given the repeated nature and pattern of the transactions, the
known relations of some of the parties in the transactions, and the communications tying Abegunde
directly to' each transaction, the district court appropriately found by a preponderance of the
evidence that the third-party transactions were commanded by Abegunde and were “relevant
conduct” for the purposes of sentencing. United States v. Donadeo, 910 F.3d 886, 901 (6th Cir.
2018) (“the government must prove the amount of loss attributable to a defendant ... by a
preponderance of the evidence”).
III.
CONCLUSION
For the reasons explained above, we AFFIRM Abegunde’s convictions and sentence
20
APPENDIX B
f
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540
POTTER STEWART US. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Deborah S. Hunt
Clerk
Tel. (513) 564-7000
www.ca6.uscourts.gov
Filed: April 06, 2021
Olufolajimi Abegunde
C.I. Reeves III
P.O.Box 2038
Pecos, TX 79772
Re: Case No. 19-6229, USA v. Olufolajimi Abegunde
Originating Case No.: 2:17-cr-20238-7
Dear Mr. Abegunde,
The Court issued the enclosed Order today in this case.
Sincerely yours,
s/Beverly L. Harris
En Banc Coordinator
Direct Dial No. 513-564-7077
cc: Mr. Timothy Charles Flowers
Ms. Debra Lynn Ireland
Mr. John Keith Perry Jr.
Enclosure
No. 19-6229
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Apr 06, 2021
DEBORAH S. HUNT, Clerk
)
)
Plaintiff-Appellee,
)
)
)
v.
ORDER
)
OLUFOLAJIMI ABEGUNDE,
)
)
Defendant-Appellant.
)
Before: WHITE, STRANCH, MURPHY, Circuit Judges.
The court received a petition for panel rehearing or rehearing en banc from
Olufolajimi Abegunde. Upon careful consideration, the original panel concludes that with
two exceptions the petition simply reargues the issues already decided, which the panel
did not misapprehend or overlook any point of law or material fact in issuing the order
denying Abegunde’s appeal. See Fed. R. App. P. 40(a)(2). As to the first exception—
the venue challenge pertaining to Abegunde’s marriage-fraud conspiracy count
rehearing is improper because no venue challenge pertaining to this count was raised in
his brief on appeal. As to the second exception—that plain-error review should'not have
applied to the wire-fraud conspiracy venue challenge—rehearing is similarly improper
because Abegunde did not address the government’s argument that Abegunde had
forfeited the challenge. Cf. United States v. Ramer, 883 F.3d 659, 682 (6th Cir. 2018).
Accordingly, the original panel adheres to its original disposition and denies the request
for a panel rehearing. We express no opinion on the merits of these issues and this denial
is without prejudice to any collateral-review claims of ineffective assistance of counsel.
No. 20-5996
-2 -
The petition then was circulated to the full court. No judge has requested a vote on
the suggestion for rehearing en banc. Therefore, en banc rehearing is denied.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
APPENDIX C
*
%
t
*
Case: 19-6229
Document: 36
Filed: 06/04/2020
Page: 1
No. 19-6229
IN THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
United States of America,
Plaintiff-Appellee,
V.
Olufolajimi Abegunde,
Defendant-Appellant.
On Appeal from the United States District Court for the Western
District of Tennessee, No. 2: 17-cr-20238 (Lipman, D.J.)
BRIEF FOR APPELLEE UNITED STATES OF AMERICA
D. Michael Dunavant
United States Attorney
Western District of Tennessee
Brian A. Benczkowski
Assistant Attorney General
Criminal Division
Debra L. Ireland
Assistant United States Attorney
Western District of Tennessee
Assistant United States Attorney
167 North Main Street, Suite 800
Memphis, Tennessee 38103
(901)544-4231
deb.ireland@usdoj.gov
Timothy C. Flowers
Senior Trial Attorney, Computer
. Crime and Intellectual Property
Section
Criminal Division
United States Department of Justice
1301 New York Avenue, N.W.
Suite 600
Washington, DC 20530
(202) 353-0684
Timothy.Flowers2@usdoj.gov
Case: 19-6229
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Table of Authorities
vi
Statement Regarding Oral Argument
vui
Statement of Jurisdiction
1
Issues Presented
2
I.
Whether the district court appropriately exercised discretion in refusing
to sever a count of conspiracy to commit marriage fraud from charges
of wire-fraud conspiracy, money-laundering conspiracy, and witness
tampering, where the defendant used the marriage to gain access to
bank accounts, conspirators, and criminal resources associated with his
fraud scheme.
II.
Whether sufficient evidence proved that the defendant was a member
of a conspiracy to launder the proceeds of fraudulent internet schemes
where money associated with the scheme had been moved to accounts
controlled by defendant, and where defendant’s encrypted messages
showed that he knowingly brokered financial exchanges involving
illicit funds.
III.
Whether the government established venue for the wire-fraud
conspiracy in the Western District of Tennessee.
IV.
Whether the district court properly instructed the jury on its
consideration of witnesses who testified as to both fact and opinion
when it issued the relevant Sixth Circuit pattern instruction.
V.
Whether, at sentencing, the district court properly determined the
amount of loss attributable to the defendant under U.S.S.G. § 2B1.1
when it included, as “relevant conduct,” additional transactions that had
the same indicia of fraud, reflected a common modus operandi, and
moved through accounts under the control of the defendant during the
conspiracy period.
Statement of the Case
u
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Page: 3
I.
Procedural History.
3
II.
Statement of Facts.
3
III.
A.
Hackers targeted a Memphis real-estate company and redirected
3
thousands of dollars in escrowed funds.............................
B.
Co-defendant Ramos collected funds from this and other
similar schemes, and redistributed them to other accounts.......4
C.
Accounts controlled by Abegunde received the diverted
funds
6
D.
Abegunde lied to the FBI about his role in these
transactions...........................................................
8
E.
The government charged Abegunde............
9
F.
The jury convicts Abegunde of all charges.
10
Rulings Presented For Review.
10
Summary of the Argument
12
Argument.
13
I.
The district court properly denied severance of the conspiracy to
commit marriage fraud charge because Abegunde used the fraudulent
marriage to gain access to bank accounts through which to launder
fraud proceeds..................................................................................... 13
A.
Standard of Review................................................................. 13
B.
Joinder was proper under Rule 8(a).
C.
Denial of severance was well within the court’s discretion.... 16
in
14
Case: 19-6229
II.
III.
IV.
V.
Document: 36
Filed: 06/04/2020
Page: 4
Ample evidence supports the jury’s verdict that Abegunde entered a
conspiracy to receive and launder the proceeds of fraudulent internet
schemes................................................................................................. 19
19
A.
Standard of Review.
B.
The proof documented Abegunde’s participation in the charged
conspiracies .............................................................................. 19
C.
Abegunde’s contrary arguments lack merit.........................
24
The government established venue for the wire-fraud conspiracy
count in the Western District of Tennessee................................ ....
15
A.
Standard of Review.................................................................. 25
B.
Because an object of the wire-fraud conspiracy occurred in
Memphis, venue was appropriate in the Western District of
Tennessee.................................................................................. 26
The district court adequately instructed the jury on its consideration of
two law-enforcement witnesses who provided fact and opinion
28
testimony.
A.
Background.
28
B.
Standard of Review.
30
C.
The district court adequately distinguished the dual nature of
the witness testimony through its cautionary instruction and
demarcation efforts............................ *....................................... 31
D.
Any error was harmless.............................................
33
The record supports the district court’s loss calculation at
sentencing..............................................................................
34
A.
34
Background.
IV
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35
B.
Standard of Review.
C.
The record supports the district court’s finding that Abegunde’s
transactions through third-party accounts constitute “relevant
36
conduct” for purposes of the loss calculation.
Conclusion
40
Certificate of Compliance
41
Designation of Relevant District Court Documents
42
Certificate of Service
44
V
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TABLE OF AUTHORITIES
Pagefs)
Cases:
Jackson v. Virginia, 443 U.S. 307 (1979)...........................................
Smith v. United States, 568 U.S. 106 (2013)......................................
Thomas v. United States, 849 F.3d 669 (6th Cir. 2017)....................
Unger v. Bergh, 742 F. App’x 55 (6th Cir. 2018).............................
United States v. Agundiz-Montes, 679 F. App’x 380 (6th Cir. 2017)
United States v. Avery, 128 F.3d 966 (6th Cir. 1997)........................
United States v. Barron, 940 F.3d 903 (6th Cir. 2019).....................
United States v. Beddow, 957 F.2d 1330 (6th Cir. 1992)..................
United States v. Brika, 416 F.3d 514 (6th Cir. 2005)........................
United States v. Catchings, 708 F.3d 710 (6th Cir. 2013).................
United States v. Cody, 498 F. 3d 582 (6th Cir. 2007)........................
United States v. Crozier, 259 F.3d 503 (6th Cir. 2001).....................
United States v. Daniel, 329 F.3d 480 (6th Cir. 2003)......................
United States v. Dietz, 577 F.3d 672 (6th Cir. 2009).........................
UnitedStates v. Faulkenberry, 614 F.3d 573 (6th Cir. 2010)..........
United States v. Fonseca, 193 F. App’x 483 (6th Cir. 2006)...........
United States v. Gallo, 763 F.2d 1504 (6th Cir. 1985)......................
United States v. Greco, 734 F.3d 441 (6th Cir. 2013).......................
United States v. Grenoble, 413 F.3d 569 (6th Cir. 2005)..................
United States v. HangLe-Thy Tran, 433 F.3d 472 (6th Cir. 2006)...
United States v. Howard, 621 F.3d 433 (6th Cir. 2010)....................
United States v. Hynes, 467 F.3d 951 (6th Cir. 2006).......................
United States v. Johnson, 763 F.2d 773 (6th Cir. 1985)....................
UnitedStates v. Kennedy, 714 F.3d 951 (6th Cir. 2013)...................
United States v. Lopez—Medina, 461 F.3d 724 (6th Cir. 2006)........
UnitedStates v. Maliszewski, 161 F.3d 992 (6th Cir. 1998).............
UnitedStates v. Martinez, 430 F.3d 317 (6th Cir. 2005)...................
UnitedStates v. Myers, 854 F.3d 341 (6th Cir. 2017).......................
United States v. Rogers, 769 F.3d 372 (6th Cir. 2014)......................
United States v. Saadey, 393 F.3d 669 (6th Cir. 2005).....................
United States v. Scaife, 749 F.2d 338 (6th Cir. 1984).......................
United States v. Sliwo, 620 F.3d 630 (6th Cir. 2010)........................
VI
19
27
14, 15
22
21,23
.24
30,31,32
26
25
34
18
.27
19,21
13, 14
20
25
13
38
26
13, 16, 17
19
.20
14, 16
19
26
25
24
28,30
20
16, 18
27
19
Case: 19-6229
Document: 36
Filed: 06/04/2020
United States v. Smith, 320 F.3d 647 (6th Cir. 2003).......
United States v. Soto, 794 F.3d 635 (6th Cir. 2015).........
United States v. Tocco, 200 F.3d 401, (6th Cir. 2000).....
United States v. Tocco, 306 F.3d 279 (6th Cir. 2002)......
United States v. Vannerson, 786 F.2d 221 (6th Cir. 1986)
United States v. Walls, 293 F.3d 959 (6th Cir. 2002).......
United States v. Warman, 578 F.3d 320 (6th Cir. 2009)...
United States v. Young, 847 F.3d 328 (6th Cir. 2017)......
United States v. Zidell, 323 F.3d 412 (6th Cir. 2003).......
Zafiro v. United States, 506 U.S. 534 (1993)....................
Page: 7
23
17
32
36, 37
19
18
22,23
30,33
26,28
13, 18
Statutes
1
3
3
3
3
26, 28
1
1
18U.S.C. 3231..................
18U.S.C. §371.................
18U.S.C. § 1349...............
18U.S.C. § 1512(b).........
18U.S.C. § 1956(a)(1)(B)
18 U.S.C. § 3237(a).........
18 U.S.C. § 3742(a).........
28 U.S.C. § 1291...............
Rules
Vlt
Fed. R.App.P. 34(a)(2)(C)
Fed. R. Crim. P. 8(a)..........
Fed. R. Crim. P. 14(a)........
Fed. R. Crim. P. 18.............
Fed. R. Evid. 701.... :..........
Fed. R. Evid. 702...............
U.S.S.G. § 1B1.3.................
U.S.S.G. § IB 1.3(a)(1)(A).
U.S.S.G. §2B1.1................
U.S.S.G. §2Bl.l(b)(l).....
14
16
26
31
31
34
..34,36
ii, 2, 34
34
Other Authorities
30
32
ID 996.......................................
Pattern Jury Instruction 7.03A
Vll
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STATEMENT REGARDING ORAL ARGUMENT
The Government believes that “the facts and legal arguments are adequately
presented in the briefs and record ” Fed. R. App. P. 34(a)(2)(C), and that oral
argument is unnecessary in this case.
Vlll
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STATEMENT OF JURISDICTION
Defendant Olufolajimi Abegunde appeals the district court’s final judgment
in this criminal case. The district court (Lipman, J.), which had jurisdiction under
18 U.S.C. 3231, entered judgment on October 23,2019. R.323: Judgment, atPagelD
1596. Abegunde filed a timely notice of appeal on October 25, 2019. R.324: Notice
of Appeal, at PagelD 1604. This Court has jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a).
1
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ISSUES PRESENTED
I.
Whether the district court appropriately exercised discretion in refusing
to sever a count of conspiracy to commit marriage fraud from charges
of wire-fraud conspiracy, money-laundering conspiracy, and witness
tampering, where the defendant used the marriage to gain access to
bank accounts, conspirators, and criminal resources associated with his
fraud scheme.
n.
Whether sufficient evidence proved that the defendant was a member
of a conspiracy to launder the proceeds of fraudulent internet schemes
where money associated with the scheme had been moved to accounts
controlled by defendant, and where defendant’s encrypted messages
showed that he knowingly brokered financial exchanges involving
illicit funds.
HI.
Whether the government established venue for the wire-fraud
conspiracy in the Western District of Tennessee.
rv.
Whether the district court properly instructed the jury on its
consideration of witnesses who testified as to both fact and opinion
when it issued the relevant Sixth Circuit pattern instruction.
V.
Whether, at sentencing, the district court properly determined the
amount of loss attributable to the defendant under U.S.S.G. § 2B1.1
when it included, as “relevant conduct,” additional transactions that had
the same indicia of fraud, reflected a common modus operandi, and
moved through accounts under the control of the defendant during the
conspiracy period.
2
r
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STATEMENT OF THE CASE
I.
Procedural History.
A jury convicted Olufolajimi Abegunde of wire-fraud conspiracy, in violation
of 18 U.S.C. § 1349; money-laundering conspiracy, in violation of 18 U.S.C.
§ 1956(a)(1)(B) and § 1956(h); conspiracy to enter a marriage for the purpose of
evading immigration laws, in violation of 18 U.S.C. § 371; and witness tampering,
in violation of 18 U.S.C. § 1512(b). The district court sentenced Abegunde to 78
months of imprisonment.
II.
Statement of Facts.
A.
Hackers targeted a Memphis real-estate company and redirected
thousands of dollars in escrowed funds.
In the summer of 2016, Ciye-Leike, a Memphis-based real estate company,
suffered repeated attempts by hackers to access the company’s email servers, also
located in Memphis. R.346: David Palmer Testimony, at PagelD 2811; id. at 2813;
see also R.353: Geoffrey Fargo Testimony, at PagelD 2935-37.
scheme targeted the company’s real-estate agents.
The hacking
R.345: Angie Kirkpatrick
Testimony, at PagelD 2642^16. As they finalized a real-estate transaction, the
agents received a fraudulent email directing them to send funds escrowed for the
transaction to bank accounts controlled by malicious actors. Id. at PagelD 2644-45;
R.353: Fargo Testimony, at PagelD 2936. This scheme—commonly known as a
.
3
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business email compromise (“BEC”)—stole the buyer’s down payments. R.345:
Kirkpatrick, at PagelD 2646; R.353: Marcus Vance Testimony, at PagelD 3061-62;
R.332: David Palmer Testimony, PagelD 1918-19. Crye-Leike lost thousands of
dollars due to this hacking effort. R.345: Angie Kirkpatrick Testimony, at PagelD
2647.
In one instance, a closing attorney in Memphis received an email from an
individual purporting to be Angie Kirkpatrick, a Crye-Leike agent. Id. at PagelD
2643^16.
The email directed the attorney to wire approximately $154,000.00 in
closing funds to a bank account in the name of “John Hester Alonso,” who was not
a party to the transaction. Id. at PagelD 2646; R.353: Marcus Vance Testimony, at
PagelD 3059-66. This email was fake; malicious actors had hacked Kirkpatrick’s
email, monitored the account for pending transactions, and sent a fake email
prompting the closing attorney wire money to the Alonso account rather than to the
intended beneficiary. R.345: Angie Kirkpatrick Testimony, at PagelD 2646-47.
B.
Co-defendant Ramos collected funds from this and other similar
schemes, and redistributed them to other accounts.
The FBI traced the redirected funds to Javier Luis Ramos-Alonso (“Ramos”)
in California. R.353: Marcus Vance Testimony, at PagelD 3066; 3108. When
investigators queried law enforcement databases, they identified other suspicious
4
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real estate transactions connected to Ramos. See id. at PagelD 3108-09; see also
R.346: David Palmer Testimony, at PagelD 2814.
Of note, Ramos had received a large deposit in October 2016 from Whatcom
Land Title Company in Bellingham, Washington. R.353: Marcus Vance Testimony,
at PagelD 3073-74; id. at PagelD 3108-11; see also id., Colleen Baldwin
Testimony, at PagelD 2959-63; id. at PagelD 2949. Whatcom had also been the
victim of a business email compromise involving Ramos. R.353: Marcus Vance
Testimony, at PagelD 3108-11; see also id., Colleen Baldwin Testimony, at PagelD
2959-63. The scheme followed the same pattern. Shortly before the closing date
on a real-estate transaction, a fraudulent email purportedly from the seller’s agent
directed a Whatcom employee to wire more than $60,000.00 to a Wells Fargo
account in the name of “Luis Alonso” rather than to the intended destination. R.353:
Colleen Baldwin Testimony, at PagelD 2959-63. Ramos controlled this account
(Id., Marcus Vance Testimony at PagelD 3059; 3066; see also id., Brian Ancona
Testimony, PagelD 3019-24; 3032), and Whatcom suffered significant financial and
reputational consequences. Id., Colleen Baldwin Testimony, at PagelD 2961-65.
Ramos did not work in real estate; he was a cook at a local restaurant who
received and disbursed fraudulently obtained money at the direction of “Tammy
Dolan”—a fake online persona of someone who had recruited, groomed, and
5
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directed Ramos as part of a romance scam. R.353: Michael Hinton Testimony at
PagelD 2985-86; id. at PagelD 3001-02; id. at PagelD 3012-13; R:346,-Marcus
Vance Testimony, at PagelD 2765. By 2016, Ramos had earned the confidence of
his criminal counterparts. R.353: Marcus Vance Testimony, at PagelD 3108-10.
When Dolan needed to transfer a large sum of fraudulently obtained funds, she
turned to Ramos, who divided the funds into smaller amounts and redirected them
to strangers’ accounts at Dolan’s direction. Id.
C.
Accounts controlled by Abegunde received the diverted funds.
A Wells Fargo investigator called Ramos about the Whatcom transaction.
R.353: Brian Ancona Testimony, at PagelD 3022. Ramos responded that he had
sent the money as part of a work-from-home opportunity. Id. The investigator then
reviewed a list of bank accounts to which Ramos had wired portions of the
$60,000.00. Id.
Two of the account holders—Ayodeji Ojo and Oluwabukola
Oguntoye—had the same Georgia address. Id. at PagelD 3024.
These accounts were under Abegunde’s control, as evidenced, in part, by
point-of-sale transactions that took place when the named account holders were not
in the United States. See R.346: Marcus Vance Testimony, PagelD 2664-65; id. at
2795-96; R.353: Carlos Carrasquillo Testimony, PagelD 3148-52; R.346: David
Palmer Testimony, PagelD 2893-94.
The phone number associated with one
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account also belonged to Abegunde, When the investigator called it, the speaker
claimed that he had received the money from a friend in Nigeria. R.353: Brian
Ancona Testimony at PagelD 3025; R.346: David Palmer Testimony, at PagelD
2875. After receiving this information, Wells Fargo recalled the wire transfer based
on fraudulent conduct. R.353: Brian Ancona Testimony, at PagelD 3026.
This episode tracked Abegunde’s dealings with banks. Because many of his
own accounts had been closed, R.346: Marcus Vance Testimony, at PagelD 278588, Abegunde used accounts in the names of others to accept funds and convert
United States currency to Nigerian Naira. Id. at PagelD 2785-89. Abegunde
conducted this business over WhatsApp, an encrypted messaging service, and he had
to “beg, incentivize, and lobby” to use others’ accounts because he did not have
accounts of his own. R.333: Marcus Vance Testimony, at PagelD 2302; R.346:
Marcus Vance Testimony, at PagelD 2780; id. at PagelD 2785-88. And despite
claiming to be a legitimate businessman, he did not want funds to be paid into
accounts that could be “tracked” back to him. R.346: Marcus Vance Testimony, at
PagelD 2685.
By October 2016, Abegunde had full access and control over the accounts
where Ramos had deposited the fraud proceeds. Id. at PagelD 2794-96. In fact, on
the day of the Whatcom BEC, Abegunde provided the details of the Ojo account to
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a conspirator who needed an account “fast.” Id. at PagelD 2795; R.333: Marcus
Vance Testimony, at PagelD 2219-21. Nine days later, Abegunde provided the
wiring details for this account, which had since been locked by the bank, and
lamented that “I just thought that if the money eventually entered the account, we
will figure a way for me to get it.” R.333: Marcus Vance Testimony, at 2268-69.
At that point, he provided the details of the Oguntoye account. Id. at PagelD 2270.
D.
Abegunde lied to the FBI about his role in these transactions.
In early 2017, the FBI interviewed Abegunde at the Georgia address listed on
the Ojo account. R.353: Kevin Hall Testimony, at PagelD 3173-75. Abegunde
lived at that address with his ex-wife and daughter. Id. at PagelD 3182; R.334:
Olufolajimi Testimony, at PagelD 2439. During the interview, Abegunde lied about
his relationship with Ojo, R.333: Marcus Vance Testimony, at PagelD 2283,
misrepresented the nature of his business, R.346: Marcus Vance Testimony, at
PagelD 2779, and instructed the agent that there was nothing wrong with using
fraudulently obtained funds to conduct his transactions; only the person who had
stolen the money by fraud was culpable. R.353: Kevin Hall Testimony, at PagelD
3179-80.
After this conversation, Abegunde messaged Ojo over WhatsApp and
discussed how he had lied. R.333: Marcus Vance Testimony, at PagelD 2282-83.
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Ojo claimed that Abegunde had acted correctly by lying, and that there was “no
crime on seeing [an] opportunity and taking it.” Id. at PagelD 2283. To this,
Abegunde simply stated, “LOL,” the common abbreviation for “laughing out loud.”
Id.
• E.
The government charged Abegunde.
The grand jury charged Abegunde, Ojo, Ramos, and eight others in a
largescale conspiracy to defraud. R.3: Indictment, PagelD 3. Abegunde moved
for—and the Government consented to—severance because the eight co-defendants
remained fugitives or were in extradition proceedings. R. 156: Mot. to Sever, PagelD
621. Abegunde was detained pending trial. See R.83: Minute Entry.
During his detention, Abegunde contacted Edchae Caffey—his then-wife who .
was a member of the United States Army. R.354: Edchae Caffey Testimony, PagelD
3254; 3260; 3262. Investigators learned that Abegunde used his joint accounts with
Caffey to facilitate BEC transactions and to launder the proceeds of their brokered
marriage. Id. at PagelD 3274-75; see also R.333: Marcus Vance Testimony, PagelD
2262-64. Abegunde further directed friends and conspirators to send emails and
documents to Caffey to maintain the fa£ade of a legitimate relationship, and he tried
to dissuade Caffey from cooperating with the government.
R.354: Caffey
Testimony, at PagelD 3294-96. He also tried to make her believe the case was not
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going to proceed by posing as his attorney, writing a motion to dismiss, and sending
it to Caffey. Id. at PagelD 3295-96. The attorney had not written, or approved the
wr iting of, such a motion. R.333: Testimony of William Massey, at PagelD 2212.
Based on this evidence, the grand jury returned a superseding indictment and
added charges of witness tampering and conspiracy to commit marriage fraud. R.
164, Superseding Indictment, at PagelD 638.
F.
The jury convicts Abegunde on all charges.
On the eve of trial, Abegunde filed a pretrial motion to sever the marriage
fraud conspiracy count from the remaining charges. R. 238, Mot. to Sever, at PagelD
935. The district court denied Abegunde’s motion. R.240: Minute Entry.
After the government presented its case, Abegunde testified in his defense that
he ran a legitimate money exchange service; that his marriage to Caffey was
legitimate; that the funds from the Whatcom BEC had been wired by mistake; and
that he had admonished his friend Ojo about the transaction. R.334: Olufoliajimi
Abegunde Testimony, PagelD 2356—57; 2361—64; 2368; 2378—80; 2384, 2387—88,
2394-99. At the close of the evidence, the jury found Abegunde guilty on all
counts.1 R.259: Verdict, PagelD 1052. The district court subsequently sentenced
Abegunde to 78 months in prison. R.323: Redacted Judgment, PagelD 1598.
1 The jury found Ramos guilty of wire fraud but acquitted him of conspiracy
to commit wire fraud and conspiracy to commit money laundering.
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Rulings Presented For Review.
On appeal, Abegunde raises five issues. He argues that: the district court
abused its discretion in denying him severance of the marriage fraud count from the
other fraud charges; the government did not present direct evidence of an overt
agreement to participate in the conspiracy; his connection to the Western District of
Tennessee was insufficient to establish venue there; the district court did not
properly instruct the jury on witnesses who provide both fact and opinion testimony;
and the district court’s determination of relevant conduct for sentencing purposes
resulted in an improperly calculated advisory guideline range.
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SUMMARY OF THE ARGUMENT
This Court should affirm the verdict and sentence. The government presented
ample evidence showing that Abegunde knowingly participated in a scheme to
defraud. Abegunde agreed with other individuals to launder fraud proceeds through
an ever-changing series of bank accounts bearing the names'of people and entities
that had no relationships to the transactions. Whether the money originated with a
business email compromise in the Western District of Tennessee or in the state of
Washington, or with a fraudulent marriage, Abegunde knew the origins.
The district court’s decision to deny severance of the conspiracy to commit
marriage fraud charge reflected an appropriate exercise of its discretion because the
marriage-fraud activity bore a direct relationship to the other charges.
The government established venue in the Western District of Tennessee for
the wire-fraud conspiracy because an overt act in furtherance of the conspiracy
occurred in the district.
The district court adequately instructed the jury on the manner in which it
should consider two law-enforcement witnesses who provided fact and opinion
testimony. In fact, the court issued the Sixth Circuit’s pattern instruction discussing
this matter.
Finally, the district court found that additional transactions by Abegunde
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qualified as “relevant conduct” for purposes of the loss calculation at sentencing.
Over three hearings, the court weighed the proof, raised questions, and collected
additional information before deciding what Abegunde was responsible for, and
what he owed. Abegunde has shown no clear error in the court’s findings.
ARGUMENT
I.
The district court properly denied severance of the conspiracy to commit
marriage fraud charge because Abegunde used the fraudulent marriage to gain
access to bank accounts through which to launder fraud proceeds.
A. Standard ofReview
Whether charges or defendants are properly joined is a question of law,
reviewed de novo.
United States v. Dietz, 577 F.3d 672, 692 (6th Cir. 2009).
Misjoinder, as a matter of law, mandates severance. Id.
Ifjoinder is proper, the court may still consider a defendant’s motion to sever
charges. United States v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006);
United States v. Gallo, 763 F.2d 1504,1524-25 (6th Cir. 1985). Denial of a motion
to sever is reviewed for abuse of discretion, and will stand unless the defendant
makes “a strong showing” of prejudice, Gallo, 763 F.2d at 1525, by demonstrating
that a specific trial right was compromised or that denial of severance kept the jury
from making a “reliable judgment about guilt or innocence” on each count. Zafiro
v. United States, 506 U.S. 534, 539 (1993).
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B. Joinder was proper under Rule 8(a)
An indictment may charge a defendant in separate counts with two or more
offenses if the offenses charged are of the same or similar character, based on the
same act or transaction, or connected with or constitute parts of a common scheme
/
or plan. Fed. R. Crim. P. 8(a). Acts or transactions constitute a series “if they are
logically interrelated.” United States v. Johnson, 763 F.2d 773, 776 (6th Cir. 1985)
(internal citations omitted). Rule 8(a) should be construed in favor ofjoinder. Deitz,
577 F.3d at 692.
The presumption is designed to “promote the goals of trial
convenience and judicial efficiency.” Thomas v. United States, 849 F.3d 669, 67576 (6th Cir. 2017). Whether charges are properly joined is evaluated based on the
“allegations on the face of the indictment.” Id. at 675.
The government properly joined the marriage-fraud conspiracy with the
remaining counts. The indictment alleged that Abegunde and other co-conspirators
opened bank accounts for the purposes of receiving fraudulently obtained funds and
concealing the source of those funds. R.165: Superseding Indictment, at PagelD
664, 668. Critically, Abegunde used the immigration status he obtained through his
fraudulent marriage with Caffey “to open multiple financial accounts for business
and personal use.” Id. at PagelD 671. Those accounts then facilitated Abegunde’s
receipt and transfer of funds obtained through fraudulent activities. Id.
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The indictment further identified overt acts, taken by Caffey and Abegunde in
the course of their marriage, that furthered the overall conspiracy:
• Caffey opened a joint bank account and added Abegunde as a co-signor
to her USAA bank account. Id.
• Caffey and Abegunde opened accounts at Bank of America, but the
accounts were closed due to suspicion of fraud. Id. at PagelD 672.
• Caffey texted Abegunde messages in which she expressed anger at the
ways he was using their bank accounts, writing “I don’t want my name
linked to shit like this all the transfers and shit I don’t like it” and “[i]f
you are going to use the usaa bank account for shit like that I’m going
to close the account.” Id.
• There was a pattern of incoming and outgoing wires in amounts just
, under $10,000. Id. at PagelD 673.
In short, the marriage fraud allowed Abegunde to create additional bank
accounts to receive, disguise, and launder money from victims of internet and
computer fraud. From the face of the indictment, this charge is demonstrably related
to and intertwined with the fraud and money-laundering courts.
Joinder of the
charges was proper as a matter of law.
Abegunde cursorily complains that the indictment charged him, but not co
defendant Ramos, with marriage-fraud conspiracy. R.32: Appellant’s Br. at 13.
That observation does not establish misjoinder. In Johnson, this Court considered
whether a mail fraud charge against one defendant, Rosemary Johnson, should have
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been severed from charges against four other defendants involved in a scheme to
transport and sell stolen vehicles. Johnson was not charged with the same crimes,
and was the sole co-defendant charged with mail fraud. 763 F.2d at 776. The Court
nevertheless held that joinder was appropriate because Johnson and the other
defendants all received fraudulent vehicle titles from the same source and each used
the titles they obtained to perpetrate a fraud. Ail the transactions charged in the
indictment were thus “logically interrelated.” Id. As explained above, the same is
true here.
C. Denial ofseverance was well within the court’s discretion
Even when counts are properly joined under Rule 8(a), a district court may
grant a severance motion ifjoinder “appears to prejudice a defendant. Fed. R. Crim.
P. 14(a). That decision is within the court’s “sound discretion,” and this Court will
find an abuse of discretion only upon a defendant’s “strong showing of prejudice.”
United States v. Tran, 433 F.3d 472,478(6thCir. 2006); see also, e.g., UnitedStates
v. Saadey, 393 F.3d 669, 678 (6th Cir. 2005) (a defendant must show “compelling,
specific and actual prejudice” resulting from the refusal to sever). “Foremost among
the [] circumstances [relevant to a motion to sever] is a balancing of the interest of
the public in avoiding a multiplicity of litigation.” Saadey, 393 F.3d at 678 (internal
quotation marks omitted) (alterations in original).
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Abegunde has not shown that the district court abused its discretion by
refusing to grant a severance under Rule 14(a). The interest injudicial economy was
served by joining all the counts in a single trial. Evidence that Abegunde entered a
fraudulent marriage explained how he obtained access to financial resources,
including bank accounts, which Abegunde then used to receive and launder the
proceeds of the larger wire fraud scheme. For instance, the jury learned Abegunde
used a USAA bank account jointly held with Caffey to conduct transactions, and
that an individual that Abegunde recruited made at least six cash deposits into it.
R.346: Marcus Vance Testimony, at PagelD 2681-83. Indeed, even if the district
court had granted Abegunde’s motion to sever, this proof would have been
admissible in a separate trial on the fraud charges because it demonstrated how
Abegunde was able to launder fraud proceeds.
Such overlapping proof alone
demonstrates that the district court’s decision was not an abuse of discretion.
Abegunde asserts simply that the district court’s denial of severance led to
“overwhelming prejudice” and “[accumulation of prejudice during trial” that had a
“substantial and injurious influence” on the jury. R.32: Appellant’s Br. at 18. Such
conclusory statements are not sufficient to warrant reversal. See United States v.
Soto, 794 F.3d 635, 657 (6th Cir. 2015) (defendant “needs to offer more than
conclusory statements to show that the joinder prejudiced his defense.”); Tran, 433
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F.3d at 478 (“The defendant’s conclusory statement that the joinder of the counts
‘affected’ the jury’s ability to render a fair and impartial verdict does not suffice to
show substantial prejudice.”).
Finally, the district court instructed the jury that it must consider the evidence
as to each count separately and “decide whether the government has presented proof
beyond a reasonable doubt that a particular defendant is guilty of a particular
charge.” R.252: Jury Instructions, at PageED 1000. This Court has previously held
that such an instruction will be “sufficient to overcome the prejudicial effect of [an]
improper joinder,” United States v. Cody, 498 F. 3d 582, 588 (6th Cir. 2007), as the
jury is presumed to follow its instructions. See United States v. Walls, 293 F.3d 959,
966 (6th Cir. 2002) (“[j]uries are presumed to be capable of following instructions,
like those given in this case, regarding the sorting of evidence”); see also Zafiro, 506
U.S. at 539 (even where the risk of prejudice is high, “less drastic measures [than
severance], such as limiting instructions, often will suffice to cure any risk of
prejudice”).
In light of this cautionary instruction, Abegunde’s “unproven
assertion^] [are] not compelling evidence of actual prejudice.” Saadey, 393 F.3d at
679.
The denial of his motion for severance was therefore not an abuse of
discretion.
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Ample evidence supports the jury’s verdict that Abegunde entered a
conspiracy to receive and launder the proceeds of fraudulent internet schemes.
A. Standard ofReview
Abegunde challenges the sufficiency of his convictions for conspiracy to
commit wire fraud and money laundering, but not for marriage-fraud conspiracy or
witness tampering. This Court conducts a de novo review of those challenges.
United States v. Howard, 621 F.3d 433, 459 (6th Cir. 2010). In doing so, the Court
asks whether, when “viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the elements of the crime
beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original); United States v. Kennedy, 714 F.3d 951, 957 (6th Cir. 2013).
The Court must “draw all available inferences and resolve all issues of credibility in
favor of the jury’s verdict.” United States v. 57/wo, 620 F.3d 630, 640 (6th Cir.
2010) (citations and internal quotations omitted). A “defendant bringing such a
challenge bears a ‘very heavy burden.’” United States v. Daniel, 329 F.3d 480, 485
(6th Cir. 2003) (quoting United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.
1986)).
B. The proof documented Abegunde’s participation in the charged
conspiracies.
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Abegunde asserts that “the government failed to present direct evidence of an
agreement or consent on the part of [him] to commit the crime of wire fraud or
money laundering.” R.32: Appellant’s Br. at 23. Not so. Ample evidence—both
direct and circumstantial—proved that Abegunde entered into an agreement, and
thus entered the conspiracies.
Wire fraud consists of three elements. The government must prove “that the
defendant devised or willfully participated in a scheme to defraud[,] that he used or
caused to be used an interstate wire communication in furtherance of the scheme [,]
and ... that he intended to deprive a victim of money or property.” United States v.
Faulkenberry, 614 F.3d 573, 581 (6th Cir. 2010) (internal quotation marks omitted).
Because the Government charged Abegunde with conspiracy to commit wire fraud,
the government had to prove that “two or more persons conspired, or agreed, to
commit the crime of [wire fraud]” and “that the defendant knowingly and voluntarily
joined the conspiracy.” United States v. Rogers, 769 F.3d 372, 377 (6th Cir. 2014).
With respect to the money-laundering conspiracy, the government had to
similarly prove that two or more persons conspired or agreed to commit the crime
of money laundering; and that Abegunde knowingly and voluntarily joined the
conspiracy. See United States v. Hynes, 467 F.3d 951, 964 (6th Cir. 2006). Because
the government proceeded on a concealment theory, it had to show that Abegunde
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conspired to “conduct[ ] a financial transaction with criminal proceeds, with
knowledge that the money was the proceeds of unlawful activity, and with
knowledge that the transaction was designed, in whole or in part, to conceal or
disguise the nature, location, source, ownership, or control of the money.” United
States v. Agundiz-Montes, 679 F. App’x 380, 387 (6th Cir. 2017) (alteration in
original).
Abegunde does not challenge the overall existence of the conspiracies; just
his connections to them. R.32: Appellant’s Br. at 23. And for good reason. The
trial evidence showed two schemes—premised on business email compromises
that “intended] to deprive another ... of money or property by means of false or
fraudulent pretenses, representations, or promises.” United States v. Daniel, 329
F.3d 480,485 (6th Cir. 2003) (defining a scheme to defraud). The first scheme stole
$154,000 from a Memphis-based real-estate sale; the second diverted more than
$60,000 from a similar transaction in Bellingham, Washington. The jury heard that
Tammy Dolan—herself a sweetheart scammer—funneled these proceeds through
Ramos, who then redistributed them in smaller amounts to bank accounts controlled
by multiple people, including Abegunde. That effort—collecting illegal proceeds,
dividing them up into small amounts, and funneling them through a network of
intermediaries—makes the money difficult to track.
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Testimony, at PagelD 3099; see also id. at 3104 (“[Y]ou quickly get to 15 or 20
people that you have to track from a single business e-mail compromise.”). These
facts amply establish the charged wire-fraud and money-laundering-concealment
conspiracies. In fact, the conduct follows a classic “chain” conspiracy, commonly
found in drug cases, where the criminal agreement “can be inferred from the
interdependence of the enterprise.” See United States v. Warman, 578 F.3d 320, 333
(6th Cir. 2009); see also R. 333: Testimony of Marcus Vance, at PagelD 2297 (“I
won’t withhold your money. I know it’s a chain.”).
The trial evidence further documented Abegunde’s participation in, and
knowledge of, this conspiracy. When the Wells Fargo investigator and the FBI
questioned him about the Whatcom BEC, Abegunde lied about his involvement and
said he was merely moving money. See e.gUnger v. Bergh, 742 F. App’x 55, 68
(6th Cir. 2018) (“A jury may infer consciousness of guilt from evidence of lying or
deception.”). He then contacted Ojo and laughed about there being “no crime in
seeing an opportunity and taking it.” See R.333: Marcus Vance Testimony, at
PagelD 2283.
This sequence directly incriminates Abegunde in the fraud
conspiracy. He received the proceeds of a crime, lied about it to the FBI, and joked
about his conduct with a co-conspirator. The jury rightly concluded as much.
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The same evidence implicates Abegunde in the money-laundering conspiracy.
He accepted small transfers of fraud proceeds in bank accounts bearing the names
and identifiers of other individuals—just as he did on previous occasions. Abegunde
arranged the transactions through encrypted WhatsApp communications, which are
difficult to track. R.346: Marcus Vanuce Testimony, at PagelD 2685. That conduct
supplied the jury with the proof of Abegunde’s participation in a concealment-based
conspiracy to commit money laundering. See, e.g., Agundiz-Montes, 679 F. App’x
at 387-88 (sufficient evidence of concealment where “Lara-Chavez held six
accounts at Chase Bank, directed his coconspirators to deposit cash in even, wholedollar amounts no greater than $ 10,000, and shuffled funds between his personal and
business accounts”).
In response, Abegunde asserts a lack of “direct” evidence of a conspiratorial
agreement, but “proof of a formal agreement is not necessary; a tacit or material
understanding among the parties’ will suffice.”
Warman, 578 F.3d at 332-33
An agreement may be proven by
(internal quotation marks omitted).
“circumstantial evidence such as inferences from the conduct of the alleged
participants or from circumstantial evidence of a scheme.” See United States v.
Smith, 320 F.3d 647, 653 (6th Cir. 2003). That is precisely what the government did
here, and the jury fairly credited that proof.
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C. Abegunde’s contrary arguments lack merit.
None of Abegunde’s responses undermine the sufficiency of the trial
evidence. For instance, Abegunde proffers innocent explanations for his conduct.
R.32: Appellant’s Br. at 22-24. But he presented these same explanations when
testifying on his own behalf. See R.334: Abegunde Testimony, at PagelD 2405- 07.
The jury accordingly considered his version of events and rejected it. See United
States v. Avery, 128 F.3d 966, 971 (6th Cir. 1997) (jury fairly credited circumstantial
evidence of wrongdoing over the “innocent explanation^] for the incriminating facts
proved by the government”). This Court does not second-guess such credibility
determinations when conducting a sufficiency review.
Abegunde also proclaims innocence because he did not commit the CryeLeike or Whatcom BECs. That is beside the point. A defendant need not “be an
active participant in every phase of the conspiracy, so long as he is a party to the
general conspiratorial agreement. United States v. Martinez, 430 F.3d 317, 333 (6th
Cir. 2005). The trial proof documented Abegunde’s involvement in accepting and
laundering the proceeds of those frauds.
That conduct was consistent with
Abegunde’s pattern of financial dealings—which involved involuntary bank account
closures, transactions through approximately 40 accounts owned by third parties,
Abegunde’s efforts to “beg, incentivize, and lobby” with other people to allow him
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access to their accounts, and Abegunde’s remarks preferring a “cash structure”
because those transactions were easier to “clean.” R.333: Marcus Vance Testimony,
atPagelD 2302; id. atPagelD 2307. Even if Abegunde did not personally participate
in the Crye-Leike or Whatcomm BECs, the jury had ample evidence to conclude
that he knowingly participated in the broader conspiracy to divert and launder those
fraud proceeds.
Finally, Abegunde maintains that he did not know Ramos—the individual
who transferred the fraud proceeds into bank accounts that Abegunde controlled.
That observation ignores blackletter conspiracy law: “it is not necessary to show that
a defendant knew every member of the conspiracy or knew the full extent of the
enterprise.” United States v. Maliszewski, 161 F.3d992, 1006 (6th Cir. 1998). Even
if Abegunde’s assertion were true, it does nothing to dispel the jury’s verdict that he
joined the larger conspiracy.
III.
The government established venue for the wire-fraud conspiracy count in the
Western District of Tennessee.
A. Standard ofReview
Abegunde objects that the government failed to establish venue in the Western
District of Tennessee for the wire-fraud conspiracy. Typically, this Court reviews
for abuse of discretion the district court’s decision whether to dismiss for lack of
venue. United States v. Fonseca, 193 F. App’x483,492 (6th Cir. 2006) (per curiam)
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(citing United States v. Brika, 416 F.3d 514, 527 (6th Cir. 2005)).
Because
Abegunde did not raise this venue objection in the district court, however, this Court
reviews only for plain error, “requiring an error that is clear or obvious, affecting a
defendant’s substantial rights, and seriously affecting the fairness, integrity or public
reputation ofjudicial proceedings.” United States v. Lopez—Medina, 461 F.3d 724,
746 (6th Cir. 2006).
At bottom, the precise standard of review is academic because Abegunde fails
to show error, plain or otherwise.
B.
Because an object of the wire-fraud conspiracy occurred in Memphis,
venue was appropriate in the Western District of Tennessee.
Both the Sixth Amendment and Fed. R. Crim. P. 18 require that defendants
be tried in the district where their crime was “committed.” U.S. Const, amend. IV;
Fed. R. Crim. P. 18; see also U.S. Const, art. iii, § 2, cl. 3. When multiple counts
are alleged in an indictment, as in this case, the government must prove that venue
is proper on each count by a preponderance of the evidence.
United States v.
Beddow, 957 F.2d 1330, 1335 (6th Cir. 1992); see also United States v. Zidell, 323
F.3d 412, 420-21 (6th Cir. 2003) (noting that the government need only present
proof sufficient to allow a rational trier of fact to conclude that venue was proper by
a preponderance of the evidence).
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Because wire fraud is a “continuing offense,” see United States v. Grenoble,
413 F.3d 569, 573 (6th Cir. 2005), it “may be ... prosecuted in any district in which
such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a); see also
Zidell, 323 F.3d at 422. A conspiracy to commit wire fraud or money laundering is
also, by extension, a continuing offense. See Smith v. United States, 568 U.S. 106,
111 (2013) (“Conspiracy is a continuing offense.”).
As a consequence, conspiracy crimes may be prosecuted “in any district where
an overt act in furtherance of the conspiracy was performed.” United States v. Scaife,
749 F.2d 338, 346 (6th Cir. 1984); see also United States v. Crozier, 259 F.3d 503,
519 (6th Cir. 2001) (“[V]enue is proper in any district where the conspiracy was
formed or where an overt act in furtherance of the conspiracy was performed.”).
That rule resolves this claim. The indictment alleged multiple overt acts in
furtherance of the wire-fraud conspiracy. Of note, a co-conspirator sent a fraudulent
email directing a Memphis-based attorney to wire approximately $154,000.00 in
closing funds to a bank account controlled by Ramos. See R.165: Superseding
Indictment, at PagelD 665. Because that overt act occurred in the Western District
of Tennessee, the government properly charged the wire-fraud conspiracy in that
district.
Venue is accordingly “proper as to all co-conspirators, including
[Abegunde].” Crozier, 259 F.3d at 519.
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Abegunde emphasizes that his personal connection to the Western District of
Tennessee was “minimal and indirect”—he simply obtained $9,000 in proceeds
from a conspiracy that included acts that took place in Memphis. R.32: Appellant’s
Br. at 26. That assertion is irrelevant for purposes of the venue inquiry, which simply
asks whether an overt act occurred in the district. See Zidell, 323 F.3d at 422 (“To
satisfy the terms of [18 U.S.C. § 3237(a)], it is not essential that the defendant ever
have been physically present in the district in question, so long as ‘the offense
continued into’ this district.”).
Abegunde further asserts that his prosecution in the Western District of
Tennessee is unconstitutional. That claim lacks merit. As noted above, this Court
has long held that conspiracies qualify as “continuing offenses,” and 18 U.S.C.
§ 3237(a) accordingly authorizes their prosecution in any district where an overt act
in furtherance of the conspiracy was performed. Such a “venue provision is not
unconstitutional because a conspiracy is a continuing offense that is committed
everywhere the overt acts are committed.” United States v. Myers, 854 F.3d 341,
354 (6th Cir. 2017).
IV.
The district court adequately instructed the jury on its consideration of two
law-enforcement witnesses who provided fact and opinion testimony.
A.
Background
During the government’s case, FBI Special Agent Marcus Vance testified
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about his specialized knowledge regarding complex financial crimes, explained how
such schemes were perpetrated, described the types of transactions that indicate
fraud, and informed the jury about investigative strategies.
Days later, the
government recalled Agent Vance to testify about the actions that he personally took
during this investigation.
FBI Special Agent David Palmer—a cybercrimes specialist—similarly
testified about cybercrime schemes, such as business email compromises and
romance or “advance fee” scams. He also explained the process of forensically
examining digital devices like smartphones, computers, and tablets, and how
investigators can confirm that the extracted digital contents are reliable copies of the
information on the device. Agent Palmer was later recalled as a fact witness to
testify about his work on this case.
The government asked the district for permission to proceed in this fashion.
R.235: Mtn. in Limine, at PagelD 912; R.236: Trial Brief, at PagelD 925.2
The government asked the district court to explain the nature of the agents’
. testimony to the jury while they remained on the witness stand. Although the court
declined to categorize the agents as “opinion” witnesses, it instructed the jury that
agents had testified at different points, and that the jury would be given an instruction
2 Neither the United States nor Mr. Abegunde requested transcripts ofjury
selection or final pre-trial discussions before the district court.
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about the difference between fact and opinion testimony. R.353: Marcus Vance
Testimony, at PagelD 3132; see also R.333: Marcus Vance Direct, at PagelD 2216
(“And, Members of the Jury, if you remember, I told you that the two agents may be
allowed to be recalled by the Government.”).
Before deliberations began, the district court reminded the jury that it had
“heard testimony of Special Agents Vance and Palmer, who testified as to both facts
and opinions.” R.252: Jury Instructions, at Page ID 996. The court then instructed
the jury that “[e]ach of these types of testimony should be given the proper weight”:
As to the testimony on facts, consider the factors discussed earlier in
these instructions for weighing the credibility of witnesses. As to the
testimony on opinions, you do not have to accept Special Agents Vance
and Palmer’s opinions. In deciding how much weight to give it, you
should consider the witnesses’ qualifications and how they reached
their conclusions, along with the other factors discussed in these
instructions for weighing the credibility of witnesses.
Id. Finally, the court reminded the jury that “you alone decide how much of a
witness’s testimony to believe, and how much weight it deserves. Id.
B.
Standard ofReview
This Court reviews “[ejvidentiary determinations, including whether a district
court failed to differentiate between a witness’s fact and expert testimony,... for an
abuse of discretion.” United States v. Barron, 940 F.3d 903, 920 (6th Cir. 2019). If
such an evidentiary error occurred, this Court will ask whether it was harmless, id.
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i.e., whether the government can show “by a preponderance of the evidence that the
error did not materially affect the verdict.” United States v. Young, 847 F.3d 328,
350 (6th Cir. 2017). Without an objection from the defendant though, review is for
plain error. Id.
C.
The district court adequately distinguished the dual nature of the
witness testimony through its cautionary instruction and demarcation
efforts.
Federal Rule of Evidence 701 limits opinion testimony of a lay witness to that
which is based on the witness’s perception, helpful to understanding their testimony
or a fact at issue, and not based on “scientific, technical, or other specialized
knowledge.” Fed. R. Evid. 701. Otherwise, opinion testimony is reserved for a
person who has particular training, education, skill, knowledge or experience may
offer an opinion if that opinion will help the trier of fact understand the witness’s
testimony or determine a fact at issue. Fed. R. Evid. 702.
The Sixth Circuit permits a witness to offer both fact and opinion testimony.
United States v. Barron, 940 F.3d 903, (6th Cir. 2019) (internal citations omitted).
This is so even for law enforcement witnesses. Id. As long as the court and
prosecutors take care to instruct the jury as to the dual role of the witness, the jury
will be able to give proper weight to each type of testimony. Id.
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There are two primary ways to ensure the jury is adequately advised: by
providing a cautionary jury instruction and by providing “clear demarcation”
between the witness’s fact and opinion testimony. Id. The district court used both
techniques in this case.
First, the district court issued a cautionary instruction—specifically, Sixth
Circuit Pattern Jury Instruction 7.03A—as part of its jury charge. This Court has
held that such an instruction adequately informs the jury about the dual nature of a
witness’s testimony and how it should weigh that different testimony. See Barron,
940 F.3d at 920-921.
Second, the district court provided clear demarcation between the witness’s
fact testimony and opinion testimony. When each witness first took the stand and
offered opinion testimony, the court instructed the jury that it would hear from that
witness later during trial as to his personal involvement in the case. R.353: Marcus
Vance Testimony, at PagelD 3140; R.332: David Palmer Testimony, at PagelD
2002. The court also temporally separated the opinion and fact testimony from each
witness—Agent Vance testified on March 12 and March 14-15,2019; Agent Palmer
on March 13 and March 15, 2019. See United States v. Tocco, 200 F.3d 401, (6th
Cir. 2000) (noting with approval that dual roles of a witness can be properly
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demarcated and emphasized when the witness’s fact testimony and witness
testimony occur at different times during trial).
On appeal, Abegunde complains only that “there was no jury instruction
regarding Agent Vance and Agent Palmer’s dual witness roles nor a clear
demarcation between their expert opinion and fact testimony.” R.32: Appellant’s
Br. at 29.
That is factually incorrect.
As discussed above, the district court
demarcated the testimony and used the Sixth Circuit pattern instruction to explain
that dual nature to the jury. No abuse of discretion occurred.
D. Any error was harmless.
Even if this Court were to find the district court abused its discretion, in
bifurcating the testimony of Special Agents Vance and Palmer, Abegunde is not
entitled to relief because the error was non-constitutional in nature, and any “error,
defect, irregularity, or variance that does not affect substantial rights must be
disregarded.” United States v. Youngs 847 F.3d 328, 349 (6th Cir. 2017) (internal
citations omitted).
Here, no substantial right was violated—as to both agents, the jury heard the
same testimony in two segments that it would otherwise have heard in one longer
period of testimony. The opinion portion provided a foundation for interpretation of
evidence to come; the fact testimony laid out the development of the case.
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Separating opinion from fact by time helped provide clarity, something that is in the
best interest of all parties. This Court should not find prejudice to the defendant on
these grounds.
V. .
The record supports the district court’s loss calculation at sentencing.
A.
Background
Sentencing Guideline § 2B1.1 directs sentencing courts to impose an
enhancement based on the loss amount associated with the offense. “In calculating
the Guidelines loss under U.S.S.G. § 2B1.1(b)(1), district courts include losses
sustained from relevant conduct under U.S.S.G. § 1B1.3.”
United States v.
Catchings, 708 F.3d 710, 720 (6th Cir. 2013). “Relevant conduct” includes “all acts
and omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A).
The Probation Office calculated the loss attributable to Abegunde at nearly
$800,000. R.274: PSR, at Page ID 1142. The amount comprised (1) losses from the
two BECs; (2) $7,429.59 in benefits that Abegunde received through his fraudulent
marriage to Caffey; and (3) approximately $570,000.00 in transactions that he
conducted through third-party accounts that he did not want traced to him. See id.
at PagelD 1152-54.
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At sentencing, FBI Agent Vance created a chart of the third-party transactions
showing the $570,000.00 that flowed through third-party accounts. R.316-1: Exhibit
A, at PagelD 1501-03. Agent Vance testified that this was a “conservative” estimate
of the Abegunde’s conduct. See R.329: Marcus Vance Testimony, at PagelD 1656.
Because Abegunde objected to the chart, the district court continued the
hearing and allowed the parties to supplement the factual and legal record
surrounding the chart. See id. at PagelD 1685-86. Of note, the government provided
excerpts of WhatsApp messages between Abegunde and coconspirators about the
disputed transactions. When the parties reconvened, the district court methodically
reviewed Agent Vance’s chart line by line, and conspirator by conspirator,
explaining in detail why each transaction involved conduct on Abegunde’s part that
was relevant to the charged conspiracies.
The district court accordingly calculated the loss amount associated with
Abegunde’s offense conduct at $596,926.11. R.331: October 22, 2019 Hr’g, at
PagelD 1872 (“So together that’s $596,926.11.”). That finding, along with other
relevant Guidelines provisions that are not in dispute here, resulted in a Guidelines
range of 78 to 97 months. The district court sentenced the Defendant to 78 months—
at the low end of this range.
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Abegunde appeals on one ground: whether the district court, in calculating his
loss amount, erred by including the third-party transactions as relevant conduct. See
R.32: Appellant’s Br. at 31.
B.
Standard ofReview
Whether certain actions or events qualify as relevant conduct under
§ IB 1.3(a)(1)(A) is reviewed by this Court de novo, while the factual findings
underlying the district court’s determination that conduct is “within the scope” of,
“in furtherance” of, and “reasonably foreseeable” in connection with jointly
undertaken criminal activity are reviewed for clear error. United States v. Tocco,
306 F.3d 279, 284 (6th Cir. 2002).
C.
The record supports the district court's finding that Abegunde’s
transactions through third-party accounts constitute “relevant
conduct” for purposes of the loss calculation.
The district court classified the $570,000.00 in transactions that Abegunde
conducted through third-party accounts as “relevant conduct” under Section
1B1.3(a)(1)(A). Because the record amply supports that factual finding, the district
court properly included that figure in its loss amount.
The jury convicted Abegunde of conspiracies to commit wire fraud and
money laundering that spanned from 2014 through 2018. The trial evidence showed
that Abegunde used various third-party bank accounts to further these conspiracies.
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At sentencing, the government introduced a chart of 81 transactions involving
Abegunde and his co-conspirators. Each transaction resembled the Whatcom BEC
discussed at trial, and involved the encrypted messaging platform WhatsApp. See
R.329: Marcus Vance Testimony, at PagelD 1655-57.
The government also
attached communications in conjunction with each participant
including those
introduced to Abegunde by coconspirator Ayodeji Ojo—to demonstrate that they
should be included in Abegunde’s relevant conduct determination.
Based on these similarities, the district court found that these transactions
constituted “relevant conduct.”
The court stated that Abegunde similarly
“structure^] these transactions in ways that . . . attempt)] to allude anyone from
looking into the transactions, whether they be banks or law enforcement. ” R.330:
September Sentencing Hr’g, at PagelD 1709.
The court further noted that
Abegunde, despite purporting to run a legitimate business, conducted these
transactions over an encrypted messaging platform and used the names and accounts
of individuals who were unrelated to the underlying business deals. Id. at PagelD
1709-10. The court accordingly found that these transactions followed “the modus
operand! of the scheme,” specifically observing that Abegunde “didn t know the
people whose money he was moving” and used “strangers and acquaintances to
move the money into accounts in other peoples’ names who were not connected to
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the transactions.” Id at PagelD 1710; see also R.331: October Sentencing Tr., at
Page ID 1858.
Abegunde has shown no clear error in these findings. The district court
carefully examined each of the 81 transactions identified by the government line
by line and actor by actor. The court then articulated the reasons—which included
Abegunde’s own words—why it included the particular transaction as relevant
conduct in the loss amount. See R.331: October Sentencing Tr., at Page ID 1858
(describing importance of Abegunde’s own words). Abegunde’s brief fails to even
discuss (much less challenge) the district court’s factual findings regarding each
individual transaction.
Instead, Abegunde cursorily asserts that the government failed to “establish[]
\
that the transactions were in any way illegal.” See R.32: Appellant Br. at 31. With
respect to each transaction, however, the district court found “enough indicia of...
the same modus operandi that is more likely than not to include criminal conduct.
i
R.330: September Sentencing Hr’g, at Page ID 1740-41 (emphasis added). And the
pain-staking detail that the district court offered in arriving at the loss amount
undercuts any argument that the court’s “evaluation of the loss was not only
inaccurate, but was outside the realm of permissible computations.” See United
States v. Greco, 734 F.3d 441, 446^17 (6th Cir. 2013) (explaining that a court’s
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estimate of loss is entitled to deference, and that a defendant must show that the
calculation was outside the realm of permissible computations).
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CONCLUSION
This Court should affirm the district court’s judgment.
Respectfully submitted,
D. Michael Dunavant
United States Attorney
Western District of Tennessee
Brian A. Benczkowski
Assistant Attorney General
Criminal Division
Debra L. Ireland
Assistant United States Attorney
Western District of Tennessee
Assistant United States Attorney
Timothy C. Flowers
Senior Trial Attorney, Computer
Crime and Intellectual Property
Section
Criminal Division
United States Department of Justice
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CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation provided in
Rule 32(a)(7)(C)(i) of the Federal Rules of Appellate Procedure. The brief contains
9 815 words of Times New Roman (14-point) proportional type, from the Statement
of Jurisdiction through the Conclusion. Microsoft Word is the word-processing
software that I used to prepare this brief.
/s/ Debra L. Ireland
DEBRA L. IRELAND
Assistant United States Attorney
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DESIGNATION nF RFI FVANT DISTRICT COURT DOCUMENTS
Appellee, pursuant to Sixth Circuit Rules 28(c) & 30(b), hereby designates
the following filings in the District Court's record as entries that are relevant to this
appeal:
RECORD
ENTRY #
PAGE
ID #’s
8/24/2017
3
3
Minute Entry
2/20/2018
83
N/A
Motion to Sever
8/24/2018
156
621
Superseding Indictment
8/29/2018
164
638
Superseding Indictment Penalty 8/29/2018
Copy
165
664-673
Motion in Limine
3/3/2019
235
912
Trial Brief
3/3/2019
236
925
Motion for Separate Trial on 3/6/2019
Counts
238
935
3/11/2019
240
N/A
Jury 3/19/2019
252
996-1000
Jury Verdict
3/20/2019
259
1052
Presentence Report Final
6/13/2019
274
1142-1154
Sentencing Memorandum
10/11/2019
316-1
1501-03
DESCRIPTION OF ENTRY
DATE
Indictment
Minute Entry
First
Supplemental
Instructions
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Filed: 06/04/2020
Page: 51
Redacted Judgment
10/23/2019
323
1596-1598
Notice of Appeal
10/25/2019
324
1604
Sentencing Hearing
7/24/2019
329
1655-1686
Sentencing Hearing
9/6/2019
330
1709-10,
1740-41
Sentencing Hearing
10/22/2019
331
1858-1872
Trial Transcript 3-13-19
12/6/2019
332
1918-2002
Trial Transcript 3-14-19
12/6/2019
333
2212-2307
Trial Transcript 3-18-19
12/6/2019
334
2356-2407
Trial Transcript 3-11-19
12/13/2019
345
2642-2647
Trial Transcript 3-15-19
12/13/2019
346
2664-2894
Trial Transcript 3-12-19
12/31/2019
353
2935-3182
Trial Transcript 3-14-19
12/31/2019
354
3254-3296
03/19/2020
32
13-31
I
Appellant Brief
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Brief for Plaintiff-Appellee
United States was served upon counsel for Olufolajimi Abegunde,
John Keith Perry, Jr., Esq.
5699 Getwell Road, Bldg. G5
Southaven, MS 38672
(662) 536-6868
by filing with the Court’s CM/ECF system this 4^ day of June, 2020.
Is/ Debra L. Ireland
DEBRA L. IRELAND
Assistant United States Attorney
44
F
APPENDIX D
t
t
Case 2:17-cr-20238-SHL Document lob Piled 08/29/18 Page l of 20
PapeiU 6b/
IRELAND
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
UNITED STATES OF AMERICA,
)
SUPERSEDING INDICTMENT
)
Plaintiff,
)
)
vs.
)
OLUFALOJIMI ABEGUNDE,
a/k/a “FJ”
a/k/a “EFJAY”
)
)
)
)
)
and
)
Criminal No.: 17-CR-20238-SHL
18 U.S.C. § 1349
18 U.S.C. §1343
18 U.S.C. § 1956(h)
18 U.S.C. §371
18 U.S.C. § 1512(b)
)
JAVIER LUIS RAMOS ALONSO,
)
Defendants.
)
SUPERSEDING INDICTMENT
THE GRAND JURY CHARGES:
Background
i
At ail times relevant to this information:
1.
A “business email compromise” (BEC) is a type of computer intrusion that
occurs when an employee of a company is fooled into interacting with an email message
that appears to be, but is not, legitimate. The bogus email usually contains either an
attachment or a link to a malicious website. Clicking on either will release a virus, worm,
spyware, or other program application (also known as “malware”) that subsequently
infects the employee's email account and/or computer. Frequently, the malware spreads
throughout the business' entire computer network. The malware, once executed, can
Case 2:i7-e!'20238-SHL
Dueuii-ieiii 165
Fiteci OS/29/18
Paye 3 oi 20
eayeiD 659
harvest information, including credentials, and give the intruding party access to sensitive
company information.
2.
In one common BEC scam, an intruder monitors email to determine when
a large financial transaction is going to take place.
After initial transfer or wiring
instructions are conveyed between legitimate parties to the transaction, the intruder sends
a follow-up email that appears to be coming from the original legitimate sender. This
“spoofed” email contains a change of plans, instructing that the money being wired go
instead to a different account-one that is under the intruder’s control and set up for the
purpose of receiving the redirected funds.
3.
Electronic mail (email) is sent and received over the Internet. Data sent
over the Internet is broken up into manageable chunks known as "packets.”
4.
Text messages, or simply “texts,” are electronic messages consisting of
alphabetic and numeric characters between two or more mobile devices, desktop/laptop
computers, or other similar electronics.
5.
Facebook was an internet service provider and social networking site whose
normal activities took place in interstate arid foreign commerce, and had an effect on
interstate and foreign commerce. Facebook Messenger was a messaging application that
allowed users to communicate electronically using mobile devices, desktop/laptop
computers, or other similar electronics.
6.
WhatsApp was an encrypted electronic communications' platform whose
normal activities took place in interstate and foreign commerce, and had an effect on
interstate and foreign commerce. The application, which can be operated from mobile
2
Case 2:17-cr-20238-SHL Document 165 Filed 08/29/18 Page 4 of 20
Page'D 660
devices or desktop/laptop computers, allowed for the sending of text messages and voice
calls, as well as video calls, images and other media, documents, and user location.
7.
Google LLC (“Google”) was an internet service provider whose normal
activities took place in interstate and foreign commerce, and had an effect on interstate
and foreign commerce. Gmail is a free email service developed and hosted by Google.
8.
Hotmail was a free email platform developed and hosted by Microsoft
Corporation.
9.
"Company A” is a full-service real estate company headquartered in
Memphis, Tennessee, with 115 offices and more than 3,000 licensed sales associates
located throughout its nine-state area of service.
Company A’s email servers are
maintained in Memphis.
10.
Bank of America Corporation is a multinational banking and financial
services corporation headquartered in Charlotte, North Carolina, operating in the United
States and approximately 40 other countries. Bank of America is a member of and
insured by the Federal Deposit Insurance Corporation (FDIC).
11.
The United Services Automobile Association (USAA) is a diversified
financial services group of companies that is headquartered in San Antonio, Texas, with
subsidiaries that offer banking, investing,.and insurance services to people and families
who serve, or have served, in the United States military.
12.
Wells Fargo is a multinational banking and financial services corporation
headquartered in San Francisco, California, that operates in the United States and in
approximately 35 other countries. Wells Fargo is a member of and insured by the FDIC.
3
Case 2:17-cr-20238-SHL Document 16b Piled 08/29/18 Page 5 ol 20
13.
PaqeiD 661
PNC Financial Services Group, commonly known as PNC Bank, is a bank
holding company and financial services corporation based in Pittsburgh, Pennsylvania.
PNC Bank is a member of and insured by the FDIC.
14.
Tricare is a health care program of the United States Department of
Defense Military Health System. Tricare provides civilian health benefits for U.S. Armed
Forces military personnel, military retirees, and their dependents.
15.
OLUFOLAJIM! ABEGUNDE is a citizen of Nigeria who resided in Atlanta,
Georgia, United States, after being paroled into the United States for an “Alien Relative"
adjustment to his immigration status. ABEGUNDE used and controlled several email
accounts,
folajimiabegunde@gmail.com,
fj.abegunde@fjwilliamsltd.com,
ayodejiabegunde1@gmaiI.com, and folajimi.abegunde@fjwilliamsltd.com.
16.
Ayodeji Olumide Ojo (“Ojo”) was a Nigerian citizen residing in Nigeria, but
who also stayed with ABEGUNDE in Atlanta, Georgia, when visiting the United States.
Ojo used and controlled the email account as dejiojoo@yahoo.com.
17.
resided
JAVIER LUIS RAMOS ALONSO was a resident of the United States who
in
California:
Ramos
used
and
controlled
the
account
alonsoluis32@gmail.com.
18.
in
Atlanta,
Olubunmi Makinwa was a citizen of Nigeria who resided with ABEGUNDE
Georgia.
Makinwa
used
and
controlled
the
account
olubunmimakinwa@yahoo.com.
19.
Edchae Caffey was a United States Citizen and a member of the United
States Army, who, during the relevant time period, was stationed in either the United
4
Case 2:I7-cr-20238-SH
Document 165 Filed 08/29/18 Page 6 of 20
States or deployed to Korea.
PagelD 662
Caffey used and controlled the email account
yesitscaffey@gmail.com.
20.
A.A. was an American citizen and member of the United States Army, who
resided in the Fayetteville, North Carolina.
21.
W.H. was a Nigerian citizen visiting the United States. W.H. used and
controlled the email account [REDACTED]@gmail.com.
22.
A.K. is a citizen of the United States, residing within the Western District of
Tennessee.
23.
W.M. was an attorney and citizen of the United States, residing within the
Western District of Tennessee.
24.
W.D.M. was an attorney and citizen of the United States, residing within the
Western District of Tennessee.
COUNT ONE
Wire Fraud Conspiracy -18 U.S.C. § 1349
Paragraphs 1 through 24 are re-alleged and incorporated by reference as if fully
set forth herein.
25.
From at least on or about July 2014, through August 28, 2018, in the
Western District of Tennessee and elsewhere, the defendants,
OLUFOLAJIMI ABEGUNDE, a/k/a “FJ” and “EFJAY”
and
JAVIER LUIS RAMOS ALONSO
knowingly and willfully conspired and agreed, with other persons known and unknown to
the grand jury, to commit the offenses of wire fraud and bank fraud; that is, the defendant:
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PagelD GG3
(a) Pursuant to Title 18, United States Code, Section 1343, devised and intended to
devise a scheme and artifice to defraud and to obtain money and property by
means of false and fraudulent pretenses, representations, and promises, and for
the purpose of executing and attempting to execute such scheme and artifice,
transmitted and caused to be transmitted in interstate and foreign commerce
certain wire communications;
(b) Pursuant to Title 18, United States Code, Section 1344, knowingly executed and
attempted to execute a scheme and artifice to obtain funds under the custody and
control of financial institutions, by means of false and fraudulent pretenses,
representations, and promises.
Object of the Conspiracy
26.
It was the object of the conspiracy that the defendant and his coconspirators
would unjustly enrich themselves and each other from multiple complex financial fraud
schemes conducted via the internet. The various fraud schemes included, among others,
business email compromise, romance scams, advance-fee scams, and fraudulent
marriages.
The proceeds of these scams were transmitted within the United States
and/or to Africa through a network of both complicit and unwitting individuals recruited
through the various scams.
Manner and Means
The object of the conspiracy was to be accomplished by the following manner and
means, among others:
27.
It was a part of the conspiracy that a member of the conspiracy would obtain,
or cause to be obtained, unauthorized access into potentially vulnerable email and
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PayelD 664
business servers, masking their presence and identities through Virtual Private Networks
(VPNs) and other means. After gaining unauthorized access, members of the conspiracy
would monitor the email accounts of professionals in the real estate field to determine
when fund transfers were scheduled to take place. Thereafter, a member of the
')
conspiracy would, in general, spoof emails and send communications, or cause emails to
be spoofed and sent, under the identity of the target of the spoof, and in particular, the
emaifs of parties to financial transactions involving real estate. These spoofed emails
would redirect wires and transfers of funds to accounts under the control of members of
the conspiracy.
28.
It was a part of the conspiracy that members of the conspiracy would seek
out and identify potential money mules—both witting and unwitting—through the
perpetuation of various online scams, including romance scams. Coconspirators would
carry on, or cause to be carried on, fictitious online romantic relationships with the victims
in order to convince them to carry out various acts that furthered the objective of the
conspiracy. These acts included, among other things, transferring the proceeds of the
conspiracy via wire transfer, U.S. Mail, and other means.
29.
It was a part of the conspiracy that the defendant and others would open,
or cause to be opened, bank accounts for the purpose of receiving fraudulently obtained
funds, and then send fraudulently obtained funds to other accounts under the control of
the defendant and other co-conspirators or unwitting victims. When bank accounts were
closed due to suspicion of fraudulent activity, coconspirators lied to bank investigators
and/or law enforcement, and then perpetuated the conspiracy by opening additional
accounts.
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30. . It was a part of the conspiracy that members of the conspiracy would
instruct individuals who received fraudulently obtained funds to forward most or all the
proceeds to other members of the conspiracy, both witting and unwitting, for further
transfers in order to obfuscate the source and/or the ultimate destination of the funds.
31.
To accomplish the object of the conspiracy, coconspirators committed the
following acts, among others, in furtherance of the conspiracy:
a.
In or about January 2015, Ojo opened bank accounts ending in 3770 and
0845 with Bank of America. In or about June 2016, these accounts were flagged for
suspicion of fraud and subsequently closed.
b.
In or about August 2016, Ojo opened a new account ending in 9962 at Wells
Fargo and, with permission, used ABEGUNDE’s address and phone number to register
the account. ABEGUNDE knew that Ojo needed a United States address to associate
because Ojo was a resident of Nigeria and did not reside in the United States.
c.
On or about July 25, 2016, W.M., a Memphis-based lawyer, acted as the
closing attorney for a real estate transaction involving A.K., a realtor for Company A. As
W.M. prepared the transfer of proceeds from the sale of a property to a seller’s bank
account, he received an email from A.K. directing that the proceeds be redirected to a
different bank account. A.K. had neither sent, nor been asked by the client to send, the
different account information.
d.
On or about July 25, 2016, approximately $154,000, with those funds
representing the BEC of Company A described in the subparagraph above, was
transferred to a Bank of America bank account ending in 7688 that was controlled by
RAMOS ALONSO.
8
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e.
Pagein 666
in or about July 2016 “Tammy Dolan,” an online moniker for a romance
scammer who claimed to live In Africa, alerted RAMOS ALONSO to the incoming
$154,000 deposit to his Bank of America account ending in 7688.
f.
On or about October 3, 2016, approximately $61,000—with those funds
representing the BEC of a Washington company—was transferred to a Wells Fargo bank
account ending in 9483 that was controlled by RAMOS ALONSO. Like with the July BEC,
Tammy” alerted RAMOS ALONSO that the funds would be deposited into his account.
9-
On or about October 4 through 6, 2016, RAMOS ALONSO conducted
approximately seven (7) wire transfers of $10,000 or less that were sent to bank accounts
around the country, including to one controlled by Ojo and bearing ABEGUNDE’s
address and contact information.
h.
On or about October 11,2016, during a telephone conversation with a Wells
Fargo investigator about the Washington BEC, ABEGUNDE—posing as Ojo—lied and/or
misrepresented the source and disposition of the funds in the account.
i.
On or about October 11,2016, during a telephone conversation with a Wells
Fargo investigator about the Washington BEC, RAMOS ALONSO admitted to receiving
large wire transfers and then sending smaller amounts to individuals whose true identities
were unknown to him.
J-
On or about November 2, 2016 ABEGUNDE registered FJ Williams, a
company allegedly devoted to alcohol importation, with the Georgia Secretary of State,
listing himself as Chief Executive Officer and Ayodeji Olumide Ojo as Chief Financial
Officer.
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. k.
PagelD 667
On or about November 1,2016 ABEGUNDE arranged for Ojo to travel from
Nigeria to the United States. Ojo resided with ABEGUNDE during this visit.
On or about March 15, 2017, ABEGUNDE, when confronted by agents of
the Federal Bureau of Investigation, lied and/or misrepresented his knowledge of
fraudulent conduct, his relationship with Ojo, and the business activities of FJ Williams.
Following the interview with FBI agents, ABEGUNDE contacted Ojo via WhatsApp
messenger and told Ojo “Your name is in FJ Williams. I lied about that.”
m.
In or about July 2017, while discussing numerous financial transactions,
ABEGUNDE warned Ojo that “[t]he Anti-Money Laundering policy reason for flagging is
10k." Despite this warning, ABEGUNDE conducted numerous transactions over the life
of the conspiracy of just below the $10,000 threshold.
COUNT TWO
Wire Fraud -18 U.S.C. § 1343
The facts set .forth in paragraphs 1 through 24 and paragraphs 27 through 31 are
re-alleged and incorporated by references as if fully set forth herein.
32.
In or about July 2016, in the Western District of Tennessee and elsewhere,
the defendant, JAVIER LUIS RAMOS ALONSO, devised and intended to devise a
scheme to defraud and to obtain money and property by means of materially false and
fraudulent pretenses, representations and promises.
33.
On or about July 25, 2016, for the purpose of executing the scheme
described above, and attempting to do so, the defendant caused to be transmitted by
means of wire communication in interstate commerce, the signals and sounds described
below for Count Two as follows:
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z
7/25/16
PagelD 668
JAVIER LUIS RAMOS ALONSO accepted a $154,371
wire, representing the proceeds of a BEC of Company A
in Memphis, TN, into his Bank of America account ending
7688, and then subsequently deposited the proceeds of
this and/or subsequent BECs electronically into an
account controlled by Ayodeji Olumide Ojo in Atlanta,
GA.
All in violation of Title 18, United States Code, Sections 1343 and 2.
COUNT THREE
Money Laundering Conspiracy -18 U.S.C. § 1956(h)
The facts set forth in paragraphs 1 through 24 and paragraphs 27 through 31
above are re-alleged and incorporated by reference as if fully set forth herein.
34.
Beginning in at least July 2014, and continuing thereafter until at least
March 2018, in the Western District of Tennessee and elsewhere, the defendants,
OLUFOLAJIMI ABEGUNDE, a/k/a “FJ” and “EFJAY”
and
JAVIER LUIS RAMOS ALONSO
did knowingly combine, conspire and agree with other persons known and unknown to
the grand jury, to commit offenses against the United States in violation of Title 18, United
States Code, Section 1956, specifically to knowingly conduct and attempt .to conduct,
financial transactions affecting interstate and foreign commerce, which transactions
involved the proceeds of specified unlawful activity, that is, wire fraud, mail fraud, and
unauthorized access of a protected computer, knowing that the transactions were
designed in whole or in part to conceal and disguise the nature, location, source,
ownership, and control of the proceeds of specified unlawful activity, and that while
conducting and attempting to conduct such financial transactions, knew that the property
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PagelD 669
involved in the financial transactions represented the proceeds of some form of unlawful
activity; all in violation of Title 18, United States Code, Section 1956(a)(1)(B)(i). The
manner and means used to accomplish the objectives of the conspiracy included, among
others, all of the acts described in paragraphs 27 through 31 of this Indictment, all in
violation of Title 18, United States Code, Sections 1956(h).
COUNT FOUR
Conspiracy -18 U.S.C. § 371
Paragraphs 1 through 24 and paragraphs 27 through 31 are re-alleged and
incorporated by reference as if fully set forth herein.
35.
From at least on or about April 2016, through up and until the time of
Indictment, in the Western District of Tennessee and elsewhere, the defendant,
OLUFALOJIMI ABEGUNDE, a/k/a “FJ” and “EFJAY”
and others known and unknown, unlawfully, willfully, and knowingly agreed, combined,
and conspired, to violate Section 1325(c), Title 8 United States Code—that is, having
devised and intended to devise a scheme and artifice to enter into marriage for the
purpose of evading a provision of the immigration laws of the United States.
Object of the Conspiracy
36.
It was the object of the conspiracy that the defendant and his co-
conspirators would unjustly enrich themselves through using the proceeds, fruits, and/or
access provided by their criminal conduct. It was further the object of the conspiracy that
the defendant and his co-conspirators would use the proceeds, fruits, and/or access
provided by their criminal conduct to provide an air of legitimacy to their lifestyles.
Manner and Means of the Conspiracy
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The object of the conspiracy was to be accomplished by the following manner and
means:
37.
It was a part of the conspiracy that ABEGUNDE would purport to divorce
his wife, Makinwa, but continue to reside with Makinwa in Georgia, United States. It was
also part of the conspiracy that Makinwa would purport to divorce her husband,
ABEGUNDE, but continue to reside with ABEGUNDE in Georgia, United States.
Makinwa would purport to be married to M.G. over the life of the conspiracy.
38.
It was a part of the conspiracy that A.A. would introduce ABEGUNDE to a
United States citizen who would be willing to enter into marriage with ABEGUNDE, but
not reside or have a marital relationship with ABEGUNDE.
39.
It was a part of the conspiracy that Caffey would enter into marriage with
ABEGUNDE, but not reside with or have a marital relationship with ABEGUNDE.
40.
It was part of the conspiracy that Caffey and ABEGUNDE would memorize
fictitious answers to interview questions that were commonly asked by United States
i
immigration officials.
Caffey and ABEGUNDE memorized these answers to trick
immigration officials and law enforcement into believing that the marriage was legitimate.
41.
It was a part of the conspiracy that Caffey would facilitate the provision of
benefits that Caffey was entitled to receive through her active-duty status in the U.S. Army
for the benefit of ABEGUNDE and his child, including health care coverage through
Tricare.
42.
It was a part of the conspiracy that Caffey would receive payment in
exchange for marrying ABEGUNDE.
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43.
PageiD 671
It was part of the conspiracy that Caffey would assist ABEGUNDE in
opening bank accounts for his and their use.
44.
It was a part .of the conspiracy that ABEGUNDE' would use the access
provided by his fraudulently obtained immigration status to open multiple financial
accounts for business and personal use.
45.
It was also part of the conspiracy that ABEGUNDE would use his
fraudulently obtained immigration status in the United States to open bank accounts, or
cause bank accounts to be opened, to facilitate the receipt and transfer of funds obtained
through fraudulent activities.
Overt Acts
46.
In order to accomplish the object of the conspiracy, the defendant and his
co-conspirators committed the following acts, among others, in furtherance of the
conspiracy:
a.
On or about May 6, 2016, ABEGUNDE and Caffey were married in North
Carolina.
b.
On or about May 6, 2016, Caffey opened a joint bank account ending in
0875 at Bank of America in her and ABEGUNDE’s names.
c.
On or about May 31,2016, Caffey added ABEGUNDE as a co-signor to her
account at USAA. Regarding this USAA account, ABEGUNDE texted Caffey, “We need
a joint account for the purpose of making all these payments. That is why we have the
USAA.” Over the life of the conspiracy, ABEGUNDE sent Caffey’s marriage payments
to the Bank of America account.
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d.
PagelD 672
In or about June 30, 2016, after sending Caffey a marriage payment,
ABEGUNDE texted Caffey that he would be “grateful if [she] took [the money] out in
piecemeal” because he wanted to [try] to create the perception of realistic activities on
the account.” ABEGUNDE further said that removing “all of the money at one swoop . .
. raises some eyebrows.”
e.
On or about May 6, 2016, Caffey obtained a military-spouse identification
document for ABEGUNDE. In or around that date, Caffey also asked ABEGUNDE if he
would be requesting a military-dependent ID for his daughter. ABEGUNDE responded,
“Let me speak with my wife. I will let you know.”
f.
On or about May 6, 2016, Caffey obtained access to Tricare for
ABEGUNDE and his daughter from his relationship with Makinwa. \
9-
On or about May 6,2016, Caffey and ABEGUNDE opened accounts ending
in 0875 and 0888 with Bank of America. On or about July 2016, the accounts ending in
0875 and 0888 were closed due to suspicion of fraudulent activity.
h.
On or about June 9, 2016, Caffey texted ABEGUNDE in relation to the
closed Bank of America accounts. She said, “I don’t want my name linked to shit like this
all the transfers and shit I don’t like it," and that “[i]f you are going to use the usaa bank
account for shit like that I’m going to close the account.”
i.
In July 2016, when discussing an apparent missed marriage payment to
Caffey, ABEGUNDE stated, “I get the sense that you are doing me a favour. Let me state
it as clearly as possible that you are not doing me a favour. There are benefits for both
parties.”
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PagelD 673
On or about May 13, 2016, ABEGUNDE received $9,865 in the joint bank
account ending in 0875 from Zainab A. Arowolo from Nigeria.
k.
On or about May 19, 2016, ABEGUNDE withdrew $9,160 in cash from the
joint bank account ending in 0875.
On or about May 20, 2016, ABEGUNDE received $9,855 in the joint bank
account ending in 0875 from Zainab A. Arowolo from Nigeria.
m.
On or about May 24, 2016, ABEGUNDE wrote a cashier’s check for $9,800
to Ranson Corp. from the joint bank account ending in 0875.
n.
On or about February 2018, ABEGUNDE and W.H. discussed Caffey's
possible reactions in the event that her criminal activities with ABEGUNDE’s became
known. In Nigerian Pidgin, ABEGUNDE instructed W.H. to speak.with Caffey and attempt
to get her to see things in a positive way; otherwise it would “affect both sides” if she
decided to “scatter the bin.”
o.
On or about March 6,2018, W.H., on behalf of ABEGUNDE, emailed Caffey
two Microsoft Word documents titled, respectively, “PR Interview Questions and Answers
1” and “PR Interview Questions and Answers 2.”
the subject of the email read
“Documents for Abegunde FJ,” with the substance of the message as follows: “Please
see attached for your referencef.] You may be asked any of the following questions just
in case your[sic] forgot.”
P-
On or about April 14,2018, W.H., on behalf of ABEGUNDE, emailed Caffey
a 25-page document containing a document entitled “Reflections,” as well as a Motion to
Dismiss that had been purportedly drafted by W.D.M.
The Motion to Dismiss bore
W.D.M.’s name and professional association, but had neither been drafted nor ratified by
16
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W.D.M.
PagelD 674
The “Reflections” document contained several misleading and/or untruthful
statements regarding ABEGUNDE’s criminal activities, as well as a section describing
“issuing my wife a Grand-Jury Target Letter," where ABEGUNDE stated thai the
government was trying to get Caffey to turn against him.
. q-
On or about May 9, 2018, Caffey and ABEGUNDE had a phone
conversation discussing their fraudulent marriage. Caffey admitted that ”[t]his shit is not
sitting well with me,” and that “I think the cat is out of the bag already.”
r.
On or about July 2, 2018, ABEGUNDE filed a “letter from Olufaiojimi
Abegunde” that contained several attachments. In those writings, ABEGUNDE continued
to maintain that Caffey, a U.S. service member, was his legitimate wife.
s.
On or about July 7, 2018, ABEGUNDE received an email stating, “Jbim
Washington. Joint Base Lewis-McChord (McChord air [sic] Force Base.”
All in violation of Title 18, United States Code, Section 371.
COUNT FIVE
Witness Tampering -18 U.S.C. § 1512(b)
Paragraphs 37 through 46 are re-alleged and incorporated by reference as if fully
set forth herein.
47.
On or about the 14th day of April, 2018, in the Western District of
Tennessee, the defendant, OLUFALOJIMI ABEGUNDE, did knowingly engage in
\
misleading conduct toward Edchae Caffey by causing documents to be sent to her that
contained falsities and misrepresentations in an effort to cause and induce Caffey to
withhold her testimony from an official proceeding, specifically the trial of ABEGUNDE,
all in violation of Title 18, United States Code, Sections 1512(b)(2)(A) & 2.
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PagelD 675
NOTICE OF INTENT TO SEEK FORFEITURE
1.
The allegations contained in Counts One through Five of this Indictment are
hereby realleged and incorporated by reference for the purpose of alleging forfeitures
pursuant to Title 18, United States Code, Section 981 (a)(1)(C) and Title 28, United States
Code, Section 2461(c).'
Upon conviction for violating Title 18, United States Code, Section 1349,
conspiracy to commit wire fraud, the defendants, OLUFALOJ1MI ABEGUNDE and
JAVIER LUIS RAMOS ALONSO, shall forfeit to the United States, pursuant to Title 18,
United States Code, Section 981(a)(1)(C) and Title 28, United States Code, Section
2461(c), any property, real or personal, which constitutes or is derived from proceeds
traceable to the offense. The property to be forfeited includes, but is not limited to, the
following:
a.
pursuant to Title 18, United States Code, Section 982(a)(2)(A), any
property, real or personal, constituting, or derived from, proceeds obtained directly or
indirectly as a result of such offense; and
If any of property described above, as a result of any act or omission of the
defendants:
i
a.
cannot be located upon the exercise of due diligence;
b.
has been transferred or sold to or deposited with a third party;
c.
has been placed beyond the jurisdiction of the court;
d.
has been substantially diminished in value; or
d.
has been commingled with other property which cannot be divided without
difficulty;
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the United States shall be entitled to forfeiture of substitute property pursuant to Title 21,
United States Code, Section 853(p), as incorporated by Title 18, United States Code
Sections 982(b), all pursuant to Title 18, United States Code, Sections 982(a)(2)(B)
982(b) and Title 21, United States Code, Section 853.
A TRUE BILL:
FOREMAN
D. MICHAEL DUNAVANT
UNITED STATES ATTORNEY
DATE
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PagelD677
IRELAND
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION;
UNITED STATES OF AMERICA,
)
SUPERSEDING INDICTMENT
)
Plaintiff,
)
)
)
vs.
Criminal No.: 17-cr-20238-SHL
)
OLUFALOJIMI ABEGUNDE,
a/k/a “FJ”
a/k/a “EFJAY”
and,
)
)
)
)
)
18 USC §1349
18 USC §1343
18 USC § 1956(h)
18 USC §371
18 USC § 1512(b)
)
JAVIER LUIS RAMOS ALONSO,
)
)
Defendants.
)
NOTICE OF PENALTIES
COUNT 1
(Conspiracy to Commit Fraud -18 U.S.C. § 1349)
OLUFOLAJIMI ABEGUNDE, a/k/a “FJ” and “EFJAY”
and
JAVIER LUIS RAMOS ALONSO
[Nmt 20 years, nmt $250,000 fine, or both, plus a period of supervised
release of nmt 3 years; together with a mandatory special assessment of
$100 per count of conviction.]
Case 2:17-cr-20238-SHL Document 165-1 Filed 08/29/18 Page 2 of 2
PagelD 678
COUNT 2
(Wire Fraud - 18 U.S.C. § 1343)
JAVIER LUIS RAMOS ALONSO
[Nmt 20 years, nmt $250,000 fine, of both, plus a period of supervised
release of nmt 3 years; together with a mandatory special assessment of
$100 per count of conviction.]
COUNT 3
(Money Laundering - 18 U.S.C. § 1956(h))
OLUFOLAJIMI ABEGUNDE, a/k/a “FJ” and “EFJAY”
and
JAVIER LUIS RAMOS ALONSO
[Nmt 20 years, nmt $500,000 fine or twice the value of the property involved
in the transaction, whichever is greater, plus a period of supervised release
nmt 3 years, together with a mandatory special assessment of $100.]
COUNT 4
(Conspiracy to Commit Marriage Fraud -18 U.S.C. § 371)
OLUFOLAJIMI ABEGUNDE, a/k/a “FJ" and “EFJAY”
[Nmt 5 years, nmt $250,000 fine or both, plus a period of supervised release of
nmt 3 years, and a mandatory special assessment of $100.]
COUNTS
(Witness Tampering -18 U.S.C. § 1512(b))
OLUFOLAJIMI ABEGUNDE, a/k/a “FJ” and “EFJAY”
[Nmt 20 years, nmt $250,000 fine or both, plus a period of supervised release of
nmt than 5 years, and a mandatory special assessment of $100.]
APPENDIX E
«
i
t
Case 2:17-cr-20238-SHL Document 252 Filed 03/19/19 Page 1 of 70
PagelD 976
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
OLUFALOJIMI ABEGUNDE and
JAVIER LUIS RAMOS ALONSO,
Defendants.
)
)
)
)
)
CR. NO. 17-20238-SHL
)
)
)
Members of the Jury:
It is now my duty to instruct you on the rules of law that
you must follow and apply in deciding this case.
When I have
finished and after closing arguments, you will go to the jury
room and begin your discussions -- what we call your
deliberations.
I will start by explaining your duties and the general
rules that apply in every criminal case.
Then I will explain some rules that you must use in
evaluating particular testimony and evidence in this case.
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PagelD 977
Then I will explain the elements, or parts, of the crimes
that the defendants are accused of committing.
And last, I will explain the rules that you must follow
during your deliberations in the jury room, and the possible
verdicts that you may return.
Please listen very carefully to everything I say.
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(1.02)
Jurors' Duties
You have two main duties as jurors.
The first one is to
decide what the facts are from the evidence that you saw and
heard here in court.
Deciding what the facts are is your job,
not mine, and nothing that I have said or done during this trial
was meant to influence your decision about the facts in any way.
Your second duty is to take the law that I give you, apply
it to the facts, and decide if the government has proved the
defendants guilty beyond a reasonable doubt.
It is my job to
instruct you about the law, and you are bound by the oath that
you took at the beginning of the trial to follow the
instructions that I give you, even if you personally disagree
with them.
This includes the instructions that I gave you
before and during the trial, and these instructions.
All the
instructions are important, and you should consider them
together as a whole.
Perform these duties fairly.
Do not let any bias, sympathy
or prejudice that you may feel toward one side or the other
influence your decision in any way.
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(1.03)
Presumption of Innocence, Burden
of Proof, Reasonable Doubt
As you know, both of the defendants have pleaded not guilty
to the crimes charged in the indictment.
any evidence at all of guilt.
The indictment is not
It is just the formal way that
the government tells each defendant what crime he is accused of
committing.
It does not even raise any suspicion of guilt.
Instead, the defendants start the trial with a clean slate,
with no evidence at all against them, and the law presumes that
they are innocent.
This presumption of innocence stays with
them unless the government presents evidence here in court that
overcomes the presumption, and convinces you beyond a reasonable
doubt that they are guilty.
This means that the defendants have no obligation to
present any evidence at all, or to prove to you in any way that
they are innocent.
It is up to the government to prove that
they are guilty, and this burden stays on the government from
start to finish.
You must find the defendant you are
considering not guilty unless the government convinces you
beyond a reasonable doubt that he is guilty.
4
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PagelD 980
The government must prove every element of the crime
charged beyond a reasonable doubt.
Proof beyond a reasonable
doubt does not mean proof beyond all possible doubt.
Possible
doubts or doubts based purely on speculation are not reasonable
doubts.
A reasonable doubt is a doubt based on reason and
common sense.
It may arise from the evidence, the lack of
evidence, or the nature of the evidence.
Proof beyond a reasonable doubt means proof which is so
convincing that you would not hesitate to rely and act on it in
making the most important decisions in your own lives.
T
J_ *P
J_
t
YrAi
w k-4.
are convinced that the government has proved the defendants
guilty beyond a reasonable doubt, say so by returning a guilty
verdict.
If you are not convinced,
guilty verdict.
5
say so by returning a not
Case 2:17-cr-20238-SHL Document 252 Filed 03/19/19 Page 6 of 70
PagelD 981
(1.04)
Evidence Defined
You must make your decision based only on the evidence that
Do not let rumors, suspicions,
you saw and heard here in court,
or anything else that you may have seen or heard outside of
court influence your decision in any way.
The evidence in this case includes only what the witnesses
said while they were testifying under oath and the exhibits that
I allowed into evidence.
lawyers
Nothing else is evidence.
statements and arguments are not evidence.
questions and objections are not evidence.
not evidence.
The
Their
My legal rulings are
And my comments and questions are not evidence.
During the trial I did not let you hear the answers to some
of the questions that the lawyers asked.
I also ruled that you
could not see some of the exhibits that the lawyers wanted you
to see.
And sometimes I ordered you to disregard things that
you saw or heard, or I struck things from the record. You must
completely ignore all of these things,
Do not even think about
them. Do not speculate about what a witness might have said or
what an exhibit might have shown.
6
These things are not
Case 2:17-cr-20238-SHL Document 252 Filed 03/19/19 Page 7 of 70
PagelD 982
evidence, and you are bound by your oath not to let them
influence your decision in any way.
Make your decision based only on the evidence, as I have
defined it here, and nothing else.
7
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PagelD 983
(1.05)
Consideration of Evidence
You are to consider only the evidence in the case. You
should use your common sense in weighing the evidence.
Consider
the evidence in light of your everyday experience with people
and events, and give it whatever weight you believe it deserves.
If your experience tells you that certain evidence reasonably
leads to a conclusion, you are free to reach that conclusion.
In our lives, we often look at one fact and conclude from
it that another fact exists. In law we call this an "inference."
A jury is allowed to make reasonable inferences, unless
otherwise instructed. Any inferences you make must be reasonable
and must be based on the evidence in the case.
The existence of an inference does not change or shift the
burden of proof from the government to the defendant.
8
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PagelD984
1.06
Direct and Circumstantial Evidence
Some of you may have heard the terms "direct evidence" and
"circumstantial evidence."
Direct evidence is simply evidence
like the testimony of an eyewitness which, if you believe it,
directly proves a fact.
If a witness testified that he saw it
raining outside, and you believed him, that would be direct
evidence that it was raining.
Circumstantial evidence is simply a chain of circumstances
that indirectly proves a fact.
If someone walked into the
courtroom wearing a raincoat covered with drops of water and
carrying a wet umbrella, that would be circumstantial evidence
from which you could conclude that it was raining.
It is your job to decide how much weight to give the direct
and circumstantial evidence.
The law makes no distinction
between the weight that you should give to either one, or say
that one is any better evidence than the other.
You should
consider all the evidence, both direct and circumstantial, and
give it whatever weight you believe it deserves.
9
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PagelD 985
Also you should not assume from anything I may have said or
done that I have an opinion concerning any of the issues before
you in this case.
Except for my instructions to you, you should
disregard anything I may have said in arriving at your own
decision concerning the facts.
If you have taken notes, please remember that your notes
are not evidence.
You should keep your notes to yourself.
They
can only be used to help refresh your personal recollection of
the evidence in the case.
If you cannot recall a particular piece of evidence, you
should not be overly influenced by the fact that someone else on
the jury appears to have a note regarding that evidence.
Remember, it is your recollection and the collective
recollection of all of you upon which you should rely in
deciding the facts in this case.
10
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PagelD 986
During your deliberations, you must not communicate with or
provide any information to anyone by any means about this case.
You may not use any electronic device or media,
such as a
telephone, cell phone or smart phone, or computer, the Internet,
any Internet service,
or any text or instant messaging service,
any Internet chat room, blog-, or website, to communicate to
anyone any information about this case or to conduct any
research about this case until I accept your verdict. In other
words, you cannot talk to anyone on the phone,
correspond with
anyone, or electronically communicate with anyone about this
case. You can only discuss the case in the jury room with your
fellow jurors during deliberations when all jurors are present.
I expect you will inform me if you become aware of another
juror's violation of these instructions.
You may not use these electronic means to investigate or
communicate about the case because it is important that you
decide this case based solely on the evidence presented in this
courtroom.
Information on the Internet or available through
social media might be wrong,
incomplete, or inaccurate.
You are
only permitted to discuss the case with your fellow jurors
during deliberations because they have seen and heard the same
evidence you have.
In our judicial system,
it is important that
you are not influenced by anything or anyone outside of this
11
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courtroom.
PagelD 987
Otherwise, your decision may be based on information
known only by you and not your fellow jurors or the parties in
the case.
This would unfairly and adversely impact the judicial
process.
A juror who violates these restrictions jeopardizes
the fairness of these proceedings, and a mistrial could result,
which would require the entire trial process to start over.
It is important that you decide this case based solely on
the evidence presented in this courtroom.
12
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PagelD 988
(1.07)
Credibility of Witnesses
Another part of your job as jurors is to decide how
credible or believable each witness was. This is your job, not
mine . It is up to you to decide if a witness's testimony was
believable, and how much weight you think it deserves. You are
free to believe everything that a witness said, or only part of
it, or none of it at all. But you should act reasonably and
carefully in making these decisions. Let me suggest some things
for you to consider in evaluating each witness's testimony.
Ask yourself if the witness was able to clearly see or hear
the events. Sometimes even an honest witness may not have been
able to see or hear what was happening, and may make a mistake.
Ask yourself how good the witness's memory seemed to be.
Did the witness seem able to accurately remember what happened?
Ask yourself if there was anything else that may have
interfered with the witness's ability to perceive or remember
the events.
13
Case 2:17-cr-20238-SHL Document 252 Filed 03/19/19 Page 14 of 70 PagelD 989
Ask yourself how the witness acted while testifying. Did
the witness appear honest? Or did the witness appear to be
lying?
Ask yourself if the witness had any relationship to the
government or the defendant, or anything to gain or lose from
the case that might influence the witness's testimony. Ask
yourself if the witness had any bias, or prejudice, or reason
for testifying that might cause the witness to lie or to slant
the testimony in favor of one side or the other.
Ask yourself if the witness testified inconsistently while
on the witness stand, or if the witness said or did something
(or failed to say or do something) at any other time that is
inconsistent with what the witness said while testifying. If you
believe that the witness was inconsistent, ask yourself if this
makes the witness's testimony less believable. Sometimes it may;
other times it may not. Consider whether the inconsistency was
about something important, or about some unimportant detail. Ask
yourself if it seemed like an innocent mistake, or if it seemed
deliberate.
And ask yourself how believable the witness's testimony was
in light of all the other evidence. Was the witness's testimony
14
Case 2:17-cr-20238-SHL Document 252 Filed 03/19/19 Page 15 of 70
PagelD 990
supported or contradicted by other evidence that you found
believable? If you believe that a witness's testimony was
contradicted by other evidence, remember that people sometimes
forget things, and that even two honest people who witness the
same event may not describe it exactly the same way.
These are only some of the things that you may consider in
deciding how believable each witness was. You may also consider
other things that you think shed some light on the witness's
believability. Use your common sense and your everyday
experience rn dealiny with other people. And then decide what.
testimony you believe, and how much weight you think it
deserves.
15
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PagelD 991
(1.09)
Lawyer's Objections
There is one more general subject that I want to talk to
you about before I begin explaining the elements of the crimes
charged.
The lawyers for both sides objected to some of the things
that were said or done during the trial. Do not hold that
against either side. The lawyers have a duty to object whenever
they think that something is not permitted by the rules of
evidence. Those rules are designed to make sure that both sides
receive a fair trial.
Do not interpret my rulings on their objections as any
indication of how I think the case should be decided. My rulings
were based on the rules of evidence, not on how I feel about the
case. Remember that your decision must be based only on the
evidence that you saw and heard here in court.
16
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PagelD 992
(7.01)
Introduction
That concludes my explanations of your duties and the
general rules that apply in every criminal case.
Next I will
explain some rules that you must use in considering some of the
testimony and evidence in this case.
17
r
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PagelD 993
7.02B
Defendant1s Testimony
You have heard the defendants testify. Earlier, I talked to
you about the "credibility" or the "believability" of the
witnesses. And I suggested some things for you to consider in
evaluating each witness's testimony.
You should consider those same things in evaluating the
defendants' testimony.
18
Case 2:17-cr-20238-SHL Document 252 Filed 03/19/19 Page 19 of 70
PagelD 994
(7.20)
Statement by Defendant
You have heard, evidence that the defendant, Olufolajimi
Abegunde, made a statement in which the government claims he
admitted certain facts. You have also heard evidence that the
defendant Javier Luis Ramos-Alonso made a statement in which the
government claims he admitted certain facts.
In each case, it is for you to decide whether the
defendants made these statements, and if so, how much weight
they deserve. In making these decisions, you should consider all
of the evidence about the statements, including the
circumstances under which the defendants allegedly made them.
You may not convict any defendant solely upon his own
uncorroborated statement or admission.
19
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PagelD 995
Law Enforcement Witnesses
You have heard the testimony of law enforcement officials.
The fact that a witness may be employed by the city, county,
state, or federal government as a law enforcement official does
not mean that his or her testimony is necessarily deserving of
more or less consideration or greater or lesser weight than that
of an ordinary witness.
It is your decision, after reviewing all the evidence,
whether to accept the testimony of each law enforcement witness
and to give to that testimony whatever weight, if any, you find
it deserves.
20
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PagelD996
(7.03A)
Fact and Opinion Testimony
You have heard testimony of Special Agents Vance and
Palmer, who testified as to both facts and opinions. Each of
these types of testimony should be given the proper weight.
As to the testimony on facts, consider the factors
discussed earlier in these instructions for weighing the
credibility of witnesses. As to the testimony on opinions, you
do not have to accept Special Agents Vance and Palmer's
opinions. In deciding how much weight to give it, you should
consider the witnesses' qualifications and how they reached
their conclusions, along with the other factors discussed in
these instructions for weighing the credibility of witnesses.
Remember that you alone decide how much of a witness's
testimony to believe, and how much weight it deserves.
21
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PagelD 997
(7.08)
Testimony of an Accomplice
You have heard the testimony of Ahmed Alimi and Edchae
Caffey. You have also heard that they were involved in the same
crime that Olufolajimi Abegunde is charged with committing. You
should consider their testimony with more caution than that of
other witnesses.
Do not convict the defendant based on the unsupported
testimony of such a witness, standing alone, unless you believe
their testimony beyond a reasonable doubt.
The fact that Ahmed Alimi and Edchae Caffey have pleaded
guilty to a crime is not evidence that the defendant is guilty,
and you cannot consider this against the defendant in any way.
22
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PagelD 998
(7.17)
Translations of Recordings
You have heard some recorded conversations that were
received in evidence, and you were given some written
translations of the recordings.
These translation
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.