United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 10, 2001 Decided June 29, 2001
No. 00-3025
United States of America,
Appellee
v.
Olanike Kayode, a/k/a Laura Black,
a/k/a Nikkie Kayode,
a/k/a Kayode Olanike,
a/k/a Sandra Foster,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 98cr00395-02)
Lexi Negin-Christ, appointed by the court, argued the
cause for the appellant.
Mary B. McCord, Assistant United States Attorney, ar-
gued the cause for the appellee. Wilma A. Lewis, United
States Attorney at the time the brief was filed, and John R.
Fisher and Elizabeth Trosman, Assistant United States At-
torneys, were on brief for the appellee.
Before: Ginsburg and Henderson, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: A jury convict-
ed Olanike O. Kayode of conspiracy to commit money laun-
dering in violation of 18 U.S.C. s 1956(h), money structuring
in violation of 31 U.S.C. s 5324(a)(3), access device fraud in
violation of 18 U.S.C. s 1029(a)(2) and possession of false
identification in violation of 18 U.S.C. s 1028(a)(3). On ap-
peal she challenges certain evidentiary rulings of the district
court, asserts the evidence was insufficient to support two
counts of her conviction and argues her sentence was errone-
ously imposed. For the reasons set forth below, we affirm.
I.
In October 1998 Christopher Miller, posing as an individual
named Peter Taschner, applied for a $10,000 unsecured loan
with a Nationsbank branch office located in Washington, D.C.
Because of mistakes in the application, the loan officer be-
came suspicious and contacted the real Peter Taschner.
Upon learning the real Taschner had not applied for a loan,
the bank informed the Metropolitan Area Fraud Task Force
(Task Force)1 which arranged to be on the premises on the
date the loan check was scheduled to be picked up.
On October 13, 1998 Miller, together with Jonathan Adeo-
sun and Ayodele Hambolu, arrived at the bank in a black
Toyota Camry. After the vehicle was parked briefly in an
illegal space and circled the block once, Miller got out,
entered the bank and met with the loan officer. A few
minutes later, Adeosun also entered the bank and waited in
__________
1 The Task Force consists of agents from the United States
Secret Service and the Federal Bureau of Investigation as well as
local law enforcement officers.
line for a teller to make a deposit and get some change.
While in the bank, Adeosun looked around continuously but
did not have any contact with Miller. After Miller completed
his transaction, Task Force members placed both him and
Adeosun under arrest.
In the meantime, outside the bank, other Task Force
members learned of the arrests. Approaching the Camry
where Hambolu was waiting, one of the Task Force members
saw two "victim profiles"2 (including one for Peter Taschner)
on the center console. They then arrested Hambolu and
searched the vehicle. In the glove compartment, Task Force
members found a car rental agreement that listed Kayode as
the lessee, provided her home address and named Adeosun,
her husband, as an authorized driver. In the trunk they
found a briefcase containing documents with names and bio-
graphical information about various people.
After the arrests, Miller admitted he was involved in bank
fraud3 and, pursuant to information obtained from him, Task
Force members were able to recover other evidence located
at a room in a Days Inn motel in the District. They also
learned Adeosun's real identity (he had given them a false
name when arrested) and reviewed information about Adeo-
sun's activities provided by two confidential informants.
Based on this information as well as the evidence seized from
the Camry, the Task Force sought a warrant to search
Adeosun's apartment, a storage unit next to his apartment
and Kayode's car. Upon obtaining a signed warrant later
that day, they began their search.
From the apartment and the storage unit the Task Force
recovered hundreds of items, including a notebook containing
__________
2 A victim profile was described at trial as a document containing
identifying information about a person such as his name, Social
Security number, address, date of birth, previous address, employ-
er, annual income and nearest relative. Joint Appendix (JA) tab T
at 360.
3 Miller later pleaded guilty to one count of bank fraud in
violation of 18 U.S.C. s 1344 and agreed to testify for the govern-
ment during the trial.
approximately 500 individuals' personal profiles. Also recov-
ered were Massachusetts and California driver's licenses in
the name "Laura Black" and bearing Kayode's photograph; a
New Jersey driver's license in the name "Sandra Foster" and
bearing Kayode's photograph; as well as Neiman Marcus,
Saks Fifth Avenue, World Perks and Macy's credit cards in
the name "Sandra Foster." The Task Force also seized a
Mercedes-Benz and a Toyota Camry both registered in Kay-
ode's name.
How the Mercedes-Benz came to be registered in Kayode's
name merits some discussion. According to the government,
around September 18, 1998 Adeosun and Hambolu attempted
without success to purchase a Mercedes-Benz at American
Service Center in Virginia. On September 24, however,
Adeosun--identifying himself as Joseph Cole--successfully
negotiated the purchase of a 1999 Mercedes-Benz at Euro
Motorcars in Bethesda, Maryland. He executed the purchase
order in Kayode's name and gave the salesperson a $1000
cash deposit. The following day, after receiving credit for a
trade-in vehicle, Adeosun and Kayode gave the dealership a
$44,300 cashier's check drawn on Kayode's Citibank account
and obtained possession of the vehicle.4
II.
On February 19, 1999 a federal grand jury returned an
eight-count superseding indictment against Kayode, Adeosun,
Hambolu and Miller. All of the defendants were charged
with four counts of bank fraud and aiding and abetting as
part of a scheme to defraud financial institutions in violation
of 18 U.S.C. ss 2, 1344 (counts one through four). Kayode,
__________
4 In order to cover the cashier's check, during the preceding two
weeks, Kayode had made five cash deposits into her account. On
September 11 Kayode made a $9500 deposit at the Reston, Virginia
Citibank branch. On September 12 Kayode made two $9500 depos-
its at two Citibank branches in the District within a 90-minute
period. On September 14 Kayode made an $8500 deposit at one of
the District branches that was followed on September 24, 1998 by a
$7300 deposit at the Reston branch.
Adeosun and Hambolu were charged with one count of con-
spiracy to commit money laundering in violation of 18 U.S.C.
s 1956(h) (count five). Kayode and Adeosun were charged
with one count of possession of false documents with intent to
use unlawfully in violation of 18 U.S.C. s 1028(a)(3) (count
seven). Finally, Kayode was charged with one count of
structuring transactions to evade reporting requirements in
violation of 31 U.S.C. s 5324(a)(3) (count six) and one count of
access device fraud in violation of 18 U.S.C. s 1029(a)(2)
(count eight).
Kayode moved to suppress the evidence seized at her
apartment and storage unit and to sever her trial from the
other defendants and to sever some of the counts against her
from others. Both motions were denied. See United States
v. Adeosun, 49 F. Supp. 2d 7 (D.C.C. 1999), aff'd, 2000 WL
1838220 (D.C. Cir. Nov 13, 2000) (No. 99-3136). Kayode
renewed her motion for severance on the day of the trial. It
was denied once again.
A jury trial began on July 12, 1999. Kayode pleaded not
guilty to all charges. She testified that she rarely used the
storage unit, that all the boxes had been placed there by
Adeosun and that Miller also had a key to the unit and used it
from time to time.
With regard to the false identification documents charge,
she admitted that the California driver's license in the name
of "Laura Black" was hers but denied having ever seen the
Massachusetts driver's license in that name. Moreover, she
claimed she had not seen the other identification documents
and the credit cards in the name of "Sandra Foster" until the
search of the apartment and the storage unit. Finally, she
denied using any of the credit cards mentioned above or
having posed for the "Sandra Foster" New Jersey driver's
licence.
Testifying about the ownership of the Mercedes-Benz, Kay-
ode maintained that the car was purchased for one of her
husband's cousins, a certain Adelani. As a Nigerian business-
man who was only visiting the United States, Adelani could
not register the car in his own name and for that reason
Adeosun asked Kayode to be the nominal owner for about one
year, until the vehicle could be shipped to Nigeria. But, as
far as Kayode knew, the money deposited in her account
came from traveler's checks Adelani had cashed.
As already noted, Kayode was convicted on counts five
through eight and acquitted on counts one through four.5 On
March 3, 2000 she was sentenced to thirty months' imprison-
ment followed by three years of supervised release. This
appeal followed.
III.
On appeal, Kayode raises six arguments: (1) she challenges
the district court's denial of her motion to suppress the
evidence uncovered from the search of the rental car; (2) she
argues the district court erred in denying her misjoinder and
severance motion; (3) she contends the district court erred in
permitting a government "summary witness" to characterize
the evidence and to testify about evidence without first-hand
knowledge or a proper foundation; (4) she asserts the district
court erred when it denied her motion for judgment of
acquittal on counts seven (false identification documents) and
eight (access device); (5) she finds fault with the district
court's refusal to give the jury a unanimity instruction on
count seven (false identification documents); and (6) she
challenges the district court's sentencing conclusion that her
case fell within the "heartland" of money laundering cases.
We address each argument in turn.
A. Suppression Motion
Before trial, Kayode moved to suppress the evidence found
in the black Toyota after Hambolu's arrest. Because no
probable cause existed to arrest Hambolu, she maintained, his
arrest was unlawful; any evidence recovered from the Camry
after the arrest was unlawfully obtained and should be ex-
cluded. The district court denied the motion concluding that
__________
5 The jury convicted Adeosun on all accounts but was unable to
reach a verdict as to Hambolu, with respect to whom the district
court declared a mistrial.
there was probable cause for Hambolu's arrest and that the
search of the passenger compartment of the vehicle was
lawful as a search incident to arrest.6 See Adeosun, 49 F.
Supp. 2d at 11. Kayode contends this was error. Moreover,
she argues that, because the warrant authorizing the search
of the apartment and the storage unit was based upon
evidence obtained from the Camry, any evidence recovered in
the apartment and the storage unit should have been exclud-
ed. See Final Brief of Appellant at 20.
The government supports the district court decision on two
independent grounds. First, Hambolu's arrest was supported
by probable cause and therefore the subsequent search was
valid as a search incident to a lawful arrest. Second, even if
the district court was incorrect on that basis, the warrant
authorizing the search of Kayode's apartment and storage
unit was valid because independent grounds supported its
issuance.
We agree with the government's first argument and need
not reach the second. "We review the legal conclusion of
probable cause de novo, the district court's findings of histori-
cal fact for clear error, and we give due weight to inferences
drawn from the evidence by law enforcement officers and the
district court." United States v. Gilliam, 167 F.3d 628, 633
(D.C. Cir.) (citing Ornelas v. United States, 517 U.S. 690, 699
(1996); United States v. Harrison, 103 F.3d 986, 989 (D.C.
Cir. 1997)), cert. denied, 528 U.S. 845 (1999), and cert. denied,
526 U.S. 1164 (1999). "Whether the police have probable
cause for an arrest is determined by viewing the totality of
the circumstances from the perspective of a prudent police
officer and in light of the police officer's training and experi-
ence." United States v. Catlett, 97 F.3d 565, 573 (D.C. Cir.
1996) (citing Illinois v. Gates, 462 U.S. 213, 230-32 (1983)).
Probable cause exists if the arresting officer possesses infor-
__________
6 The district court also found probable cause for the search of
the trunk of the vehicle. Because Kayode does not appear to
challenge that ruling, see Final Brief of Appellant at 15-20, we limit
our discussion to the search of the passenger compartment. See
Adeosun, 49 F. Supp. 2d at 12-13.
mation "sufficient to warrant a prudent man in believing that
the [suspect has] committed or [is] committing an offense."
Beck v. Ohio, 379 U.S. 89, 91 (1964); accord United States v.
Lincoln, 992 F.2d 356, 358 (D.C. Cir. 1993) (per curiam).
" 'Conduct which appears innocent to a lay person may have
entirely different significance to an experienced ... officer.' "
Catlett, 97 F.3d at 573 (quoting United States v. Hicks, 752
F.2d 379, 384 (9th Cir. 1985)). "Moreover, 'a combination of
factors may establish probable cause even if each factor
standing alone is insufficient.' " Id. (quoting United States v.
Halliman, 923 F.2d 873, 881 (D.C. Cir. 1991)).
At the first suppression hearing, Special Agent Brendan
Pickett of the United States Secret Service testified that a
Task Force member saw a victim profile for Peter Taschner
in plain view when he first approached the Camry. The
arresting Task Force members were aware of the activities
going on inside the bank and knew of the name Peter
Taschner. Based on this information, and the fact that Miller
and Adeosun had arrived at the bank in the car driven by
Hambolu, they concluded Hambolu was involved in criminal
activity and arrested him. The district court credited Pick-
ett's testimony. In our view, the district court did not clearly
err in its factual findings and correctly concluded that there
was probable cause for Hambolu's arrest. Furthermore,
because the passenger compartment search was incident to a
lawful arrest, the evidence recovered therefrom was lawfully
obtained. Accordingly, the district court did not err in
denying Kayode's motion to suppress evidence recovered
from her apartment and storage unit.
B. Motion to Sever Defendants
On the morning of the trial, Kayode renewed her attempt
to have the district court sever her trial from that of Adeosun.
Her lawyer informed the court that Adeosun could provide
testimony favorable to his client and that, according to Adeo-
sun's counsel, "it [was] not likely that Mr. Adeosun [was]
going to be testifying." JA tab T at 210. The district court
denied the motion. Kayode now challenges that decision.
Under Rule 14 of the Federal Rules of Criminal Procedure,
a district court may grant a motion to sever "[i]f it appears
that a defendant ... is prejudiced by a joinder of ...
defendants." Fed. R. Crim. P. 14; see United States v.
Washington, 12 F.3d 1128, 1133 (D.C. Cir.), cert. denied, 513
U.S. 828 (1994). Because of the permissive language of Rule
14, "we accord great deference to a district court's decision to
deny severance." Washington, 12 F.3d at 1133 (citing United
States v. Harrison, 931 F.2d 65, 67 (D.C. Cir.), cert. denied,
502 U.S. 953 (1991)).
In United States v. Ford, 870 F.2d 729 (D.C. Cir. 1989), the
court set forth "four preconditions necessary for a movant to
establish a prima facie case for severance based on an
asserted need for a co-defendant's testimony." Washington,
12 F.3d at 1133. The movant must show "(1) a bona fide need
for the testimony; (2) the substance of the testimony; (3) the
exculpatory nature and effect of the testimony; and (4) the
likelihood that the co-defendant will testify if the cases are
severed." Ford, 870 F.2d at 731; accord Washington, 12
F.3d at 1133. "A failure to demonstrate any one of these
elements is dispositive." Washington, 12 F.3d at 1133 (citing
Harrison, 931 F.2d at 67). "Once the movant makes that
threshold showing, the trial court must then: (1) examine the
significance of the testimony in relation to the defendant's
theory of the case; (2) assess the extent of prejudice caused
by the absence of the testimony; (3) consider the effects on
judicial administration and economy; and (4) give weight to
the timeliness of the motion." Ford, 870 F.2d at 731 (cita-
tions omitted). In this balancing analysis, the court also
considers "the extent to which proffered exculpatory testimo-
ny could be impeached." Id. at 732-33.
Kayode argues the district court correctly found her prof-
fer sufficient to satisfy the threshold showing required by
Ford but abused its discretion when it failed to carry out the
four-factor balancing analysis. The government responds
that the district court merely assumed, but did not decide,
that Kayode had made the threshold showing but, in any
event, the court did carry out the appropriate balancing
analysis and concluded the four factors weighed against sev-
erance.
Ruling on Kayode's request, the district court stated:
I'm not sure I can evaluate the likelihood that the
codefendant would actually give this testimony if the
cases were severed. And most important, in the context
of the case pretrial before other testimony has been
received, I am not really in a position to rule on whether
there is a bona fide need for the testimony. Assuming
for the sake of the discussion that the prima facie case
outlined in United States versus Ford has been prof-
fered, I have to find at this point that the significance of
the testimony, the extent of prejudice without the testi-
mony, are [sic] unclear. The effect on judicial adminis-
tration and economy are [sic] negative, and I've said I
won't rule on the basis of the timeliness of the motion,
and I won't, but they certainly come late.
JA tab T at 235. The record plainly manifests the district
court performed the required balancing analysis and, in our
view, did not abuse its discretion in denying Kayode's re-
quest. As the district court concluded, the interest in judicial
economy militated against severance, especially in view of the
fact that the renewed motion was made on the morning of the
trial. Accordingly, the district court's ruling stands.7
C. Summary Witness
At the trial, the government relied on Pickett to testify
both as a fact witness and as a "summary witness."8 As a
__________
7 Because of our disposition of this issue, we need not resolve
whether Kayode's proffer met the threshold showing required
under Ford.
8 Rule 1006 of the Federal Rules of Evidence provides:
The contents of voluminous writings, recordings, or photo-
graphs which cannot conveniently be examined in court may be
presented in the form of a chart, summary, or calculation. The
originals, or duplicates, shall be made available for examination
summary witness, he identified a number of documents found
in the apartment or storage unit and often referred to those
documents using law enforcement terms like "templates" or
"phone scripts." Kayode challenges the district court's deci-
sion to allow Pickett's testimony on two grounds. First, she
argues the testimony consisted of speculation as to the signifi-
cance and the characterization of exhibits, allowing the gov-
ernment in effect to present two closing arguments. Second,
Pickett's testimony about the location from which the exhibits
were seized was inadmissible hearsay because Pickett himself
did not seize all of the evidence and he did not have personal
knowledge of the location where each exhibit was found (i.e.,
the apartment or the storage unit). Moreover, later in the
trial, the government failed to establish a foundation for the
exhibits Pickett introduced.
As to the characterization argument, the government coun-
ters that Kayode made no specific objection at trial and
therefore review should be for plain error only. We agree.
Despite the assistance of the district court, JA tab T at 488-
90, Kayode never objected to Pickett's use of law enforcement
terms. Nor did she timely object to the testimony as a
whole. Pickett's use of the terms "templates" and "phone
scripts" did not invade the province of the jury and on this
record we find no plain error.9
As to the hearsay and foundation issues, although we agree
with Kayode that the government failed to provide a proper
foundation to introduce the exhibits because Pickett had no
firsthand knowledge of the exact location from which they
__________
or copying, or both, by other parties at reasonable time and
place. The court may order that they be produced in court.
Fed. R. Evid. 1006.
9 We are not persuaded by Kayode's argument that Pickett's
testimony about the "significance" of the exhibits was in essence an
extra closing argument. His testimony on this point was merely
attempting to show, albeit awkwardly, how the numerous exhibits
were related to each other, an appropriate function of a "summary"
witness. See United States v. Lemire, 720 F.2d 1327, 1348 (D.C.
Cir. 1983), cert. denied, 467 U.S. 1226 (1984).
were seized and subsequent government witnesses failed to
fill this gap, see United States v. Lemire, 720 F.2d 1327, 1349
(D.C. Cir. 1983), cert. denied, 467 U.S. 1226 (1984), we none-
theless conclude the error was harmless. See United States
v. Williams, 212 F.3d 1305, 1310 (D.C. Cir. 2000) (summariz-
ing our standard of review). Regardless whether the docu-
ments were all found in the storage unit, the driver's license
bearing Kayode's picture and the name "Sandra Foster" is
overwhelming evidence of her complicity in the criminal
scheme. There is no plausible alternative explanation: in-
deed, to find otherwise, the jury would have had to believe
that Adeosun appropriated Kayode's picture and then ob-
tained the driver's license by forgery. Yet Kayode made no
claim that the license was a forgery. On this record, in light
of the overwhelming evidence of Kayode's violation of 18
U.S.C. s 1029(a)(2), see infra pages 12-13, we conclude the
district court's error was harmless.
D. Motion for Judgment of Acquittal
1. Count Eight (Access Device Fraud)
At the end of the trial, Kayode moved for judgment of
acquittal on count eight arguing the government failed to
present sufficient evidence to support a conviction for access
device fraud.10 The district court denied the motion and
Kayode now challenges that decision.
"We review a trial court's denial of [a motion for judgment
of acquittal] de novo, considering the evidence in the light
most favorable to the government and determining whether,
so read, it is sufficient to permit a rational trier of fact to find
all of the essential elements of the crime beyond a reasonable
__________
10 18 U.S.C. s 1029(a)(2) provides "Whoever ... knowingly and
with intent to defraud traffics in or uses one or more unauthorized
access devices during any one-year period, and by such conduct
obtains anything of value aggregating $1,000 or more during that
period ... shall, if the offense affects interstate or foreign com-
merce, be punished [as provided in another subsection of the
statute]." The statute defines "access devices" to include credit
cards. See 18 U.S.C. s 1029(e)(1).
doubt." United States v. Harrington, 108 F.3d 1460, 1464
(D.C. Cir. 1997) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979); United States v. Lucas, 67 F.3d 956, 959 (D.C. Cir.
1995)). Here, the government presented overwhelming evi-
dence of Kayode's guilt, including the following items found in
the storage unit: (1) four handwritten sheets containing
biographical information about Sandra M. Foster, (2) a New
Jersey driver's license in the name of Sandra Foster bearing
a picture of the defendant, (3) credit cards in the name of
Sandra M. Foster, (4) an account statement in the name of
Sandra Foster from Macy's, (5) a receipt from Neiman Mar-
cus and an accompanying credit card application in the name
of Sandra Foster and (6) a confirmation of a CompUSA credit
card in the name of Sandra Foster as well as a CompUSA
receipt. The government also showed that the Nieman Mar-
cus credit card was obtained through the use of a New Jersey
driver's license and Visa card for identification. Finally, the
government established that the credit cards were used to
obtain items having an aggregate value of $1000 or more
during a one year period. Based on these facts, the jury
could rationally find each element of the crime beyond rea-
sonable doubt. We accordingly conclude that, "considering
the evidence in the light most favorable to the government,"
the evidence "is sufficient to permit a rational trier of fact to
find all of the essential elements of the crime beyond a
reasonable doubt," Harrington, 108 F.3d at 1464, and the
district court did not error in denying Kayode's motion for
judgment of acquittal on count eight.
2. Count Seven (Five False Identification Cards)
Kayode also sought judgment of acquittal on count seven.
The district court denied her motion and again she appeals.
18 U.S.C. s 1028(a)(3) prohibits "knowingly possess[ing]
with intent to use unlawfully ... five or more identification
documents (other than those issued lawfully for the use of the
possessor) or false identification documents," 18 U.S.C.
s 1028(a)(3), when the possession "is in or affects interstate
or foreign commerce." Id. s 1028(c). Kayode contends the
government failed to prove that she had "an intent to use [the
identifications] unlawfully." See Final Brief of Appellant at
35. She argues the government was required to demonstrate
that one or more of the intended uses was unlawful and to
point out what federal, state or local law would be violated
through the particular use. Kayode's argument relies on
United States v. Rohn, 964 F.2d 310 (4th Cir. 1992).
We find Kayode's reliance on Rohn misplaced. As the
government correctly points, unlike Rohn--where the sole
charge against the defendant was the violation of 18 U.S.C.
s 1028(a)(3) and where the jury was not instructed on how
the defendant's intended use of the false identifications would
violate the law--here Kayode was concurrently charged with,
and tried before the jury on, an intended unlawful use of the
false identification, namely access device fraud. Thus, the
jury was adequately informed both of "the uses to which
appellant intended to put the identifications" and that the
"intended uses would violate one or more federal ... laws."
Rohn, 964 F.2d at 313. Moreover, as already discussed,
evidence of her access device fraud was compelling, thus more
than adequately grounding her conviction. See Holland v.
United States, 348 U.S. 121, 139-40 (1954). Accordingly, the
district court's ruling on the motion for acquittal on count
seven stands.
E. Unanimity Instruction
Kayode argues the district court erred in denying her
request for a unanimity instruction. The argument runs as
follows. She was charged with the possession of false identi-
fication documents with the intent to use them unlawfully.
See 18 U.S.C. s 1028(a)(3). The statute makes unlawful the
possession of five or more false documents. In order to
convict, the jury must find as to each identification document
that the document was false, that the defendant possessed it
and that the defendant intended to use that document unlaw-
fully. Here, the jury heard evidence about more than five
identification documents and Kayode offered different defens-
es with respect to each. Thus, she asserts, the district court
should have given a unanimity instruction requiring all mem-
bers of the jury to agree as to which five documents satisfied
all elements of the statute.
We review the denial of a requested jury instruction de
novo. See United States v. Dickerson, 163 F.3d 639, 641 n.3
(D.C. Cir. 1999) (citing Joy v. Bell Helicopter Textron, Inc.,
999 F.2d 549, 556 (D.C. Cir. 1993)). The government con-
cedes that Kayode requested the instruction at issue, see
Final Brief for Appellee at 42, but argues that the Sixth
Amendment does not require the jury to agree unanimously
on which five false identification documents Kayode possessed
with intent to use unlawfully. And, in any event, any error in
failing to give the instruction was harmless. We agree with
the government's first proposition and need not reach the
second.
In United States v. Harris, 959 F.2d 246 (D.C. Cir.) (per
curiam), cert. denied, 506 U.S. 932 (1992), the defendant was
convicted of engaging in a continuing criminal enterprise
(CCE), a crime requiring action "in concert with five or more
other persons." 21 U.S.C. s 848(c). The district court there
instructed the jury that it must unanimously agree on which
five (or more) persons belonged to the enterprise. See Har-
ris, 959 F.2d at 254. The government appealed arguing that
neither the CCE statute nor the Sixth Amendment required
such particularized agreement among jurors. We agreed.
Relying on Schad v. Arizona, 501 U.S. 624 (1991), we conclud-
ed that all the jury was required to agree on was that the
defendant had committed the offense as defined in the stat-
ute, not how the defendant had done so. See Harris, 959
F.2d at 255 ("Because each member of the jury found that
Palmer had acted in concert with 'five or more persons,' the
jury unanimously agreed that he had committed the offense
as Congress defined it."). The reasoning of Harris is applica-
ble here as well. The statute makes relevant only the
number of false identification documents intended to be used,
not the identity of each particular document. The district
court therefore did not err in declining to give a unanimity
instruction.
F. Sentencing
Finally, Kayode argues the district court erred in refusing
to grant a downward departure in sentencing her. As the
Supreme Court explained in Koon v. United States, 518 U.S.
81 (1996), when reviewing sentencing departure decisions, "in
most cases" we owe the district court "substantial deference."
Id. at 98; accord United States v. Bridges, 175 F.3d 1062,
1065 (D.C. Cir. 1999). "We must uphold a district court's
findings of fact unless clearly erroneous[ ] and must give due
deference to its application of the Guidelines to the facts."
Bridges, 175 F.3d at 1069 (citing Koon, 518 U.S. at 97 (citing
18 U.S.C. s 3742(e)); United States v. Dozier, 162 F.3d 120,
123 (D.C. Cir. 1998)). But, when a district court makes an
error of law, it " 'by definition abuses its discretion' " and we
" 'need not defer to the district court's resolution' " of such
legal issues. Id. (quoting Koon, 518 U.S. at 100). Rather,
"our review of questions of law is de novo." Id. (citing
United States v. Becraft, 117 F.3d 1450, 1451 (D.C. Cir.
1997)).
A district court makes a mistake of law, inter alia, "when it
misconstrues the language of a guideline and consequently
mischaracterizes the boundaries of the heartland created by
the guideline." United States v. Jaderany, 221 F.3d 989, 995
(7th Cir. 2000), cert. denied, 121 S. Ct. 1095 (2001); see also
United States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993)
("Plenary review is ... appropriate where the appellate
court, in deciding whether the allegedly special circumstances
are of a 'kind' that permits departure, will have to perform
the 'quintessentially legal function' of interpreting a set of
words, those of an individual guideline, in light of their
intention or purpose, in order to identify the nature of the
guideline's 'heartland' (to see if the allegedly special circum-
stance falls within it)." (citations omitted)); United States v.
Collins, 122 F.3d 1297, 1303 n.4 (10th Cir. 1997) (review of
determination of guideline's heartland not deferential because
inquiry is legal in nature; citing Rivera, 994 F.2d at 951)).
Kayode's sentencing argument essentially challenges the
district court's interpretation of the "heartland" of section
2S1.2 of the United States Sentencing Guidelines (Guidelines),
under which she was sentenced.11 She contends section 2S1.2
applies only when a defendant knowingly launders large sums
of money from drug trafficking or serious organized crime.
Because this case involved neither drug nor organized crime
proceeds, it was "atypical" within the meaning of Appendix A
(as it existed at her sentencing) and, she continues, the
district court should have computed her sentence under the
fraud or money structuring guideline instead. See U.S.S.G.
ss 2F1.1, 2S1.3. Reviewing de novo, we find no error in the
district court's refusal to depart.12
__________
11 In relevant part, U.S.S.G. s 2S1.2 provides:
Engaging in Monetary Transactions in Property Derived from
Specified Unlawful Activity
(a) Base Offense Level: 17
Because Kayode was sentenced in 1998, all references are to the
1998 version of the Guidelines unless otherwise noted.
12 Because we find Kayode's argument unpersuasive under the
1998 version of the Guidelines, we need not consider the effect of
Amendment 591 to the Guidelines, U.S.S.G. App. C, amend. 591,
effective November 1, 2000, which changes the introduction to the
Statutory Index (Appendix A) and makes Kayode's position even
more untenable. See also United States v. Diaz, 245 F.3d 294, 301-
33 (3d Cir. 2001) (highlighting changes). Compare United States v.
Smith, 186 F.3d 290 (3d Cir. 1999) (concluding that guidelines
require sentencing court to perform heartland analysis in making
initial choice of appropriate guideline to apply in order to determine
whether conduct being punished falls within set of typical cases
embodying conduct described in each guideline) with United States
v. Mustafa, 238 F.3d 485, 496 (3d Cir. 2001) (recognizing that
Amendment 591 "directs the sentencing court to focus on the
offense of conviction and apply the 'applicable' guideline as deter-
mined by the Statutory Index in Appendix A without conducting the
heartland analysis we required under Smith") and Diaz, 245 F.3d at
302 ("The amendment reflects a change from the permissive to the
mandatory. The sentencing court no longer uses the Statutory
Index (Appendix A) as an aid in finding the most applicable
guideline among several possibilities; the Statutory Index (Appen-
At the time of Kayode's sentencing, the Statutory Index
(Appendix A) to the Guidelines explained that "[t]his index
specifies the guideline section or sections ordinarily applicable
to the statute of conviction." U.S.S.G. App. A, intro. com-
ment. The Statutory Index (Appendix A) also directed that
"[i]f, in an atypical case, the guideline section indicated for
the statute of conviction is inappropriate because of the
particular conduct involved" the sentencing court should "use
the guideline section most applicable to the nature of the
offense conduct charged in the count of which the defendant
was convicted." Id.
Kayode was convicted of violating 18 U.S.C. s 1956(h)
which provides that a conspiracy to commit the offenses
defined in 18 U.S.C. s 1957 is subject to the same penalties
as the completed offense. The Statutory Index (Appendix A)
provides that U.S.S.G. s 2S1.2 applies to a defendant convict-
ed of violating 18 U.S.C. s 1957.13 Section 2S1.2 is entitled
__________
dix A) now conclusively points the court to the one guideline
applicable in a given case.").
13 Section 1957 provides in relevant part:
Engaging in monetary transactions in property derived from
specified unlawful activity
(a) Whoever, in any of the circumstances set forth in subsec-
tion (d), knowingly engages or attempts to engage in a mone-
tary transaction in criminally derived property of a value
greater than $10,000 and is derived from specified unlawful
activity, shall be punished as provided in subsection (b).
...
(c) In a prosecution for an offense under this section, the
Government is not required to prove the defendant knew that
the offense from which the criminally derived property was
derived was specified unlawful activity.
(d) The circumstances referred to in subsection (a) are--
(1) that the offense under this section takes place in the
United States or in the special maritime and territorial
jurisdiction of the United States ...
...
"Engaging in Monetary Transactions in Property Derived
from Specified Unlawful Activity" and establishes an offense
level of 17. Application note 1 explains that "specified unlaw-
ful activity" is defined in 18 U.S.C. s 1956(c)(7) and includes
inter alia racketeering offenses. See U.S.S.G. s 2S1.2, com-
ment. (n.1). 18 U.S.C. s 1961(1), in turn, defines "racketeer-
ing activity" to include an act indictable under 18 U.S.C.
s 1344 (relating to financial institution fraud).
In our view, this case falls within the heartland outlined in
U.S.S.G. s 2S1.2. Kayode engaged in monetary transactions
involving property derived from defrauding federally insured
financial institutions. On five separate occasions, she deposit-
ed fraudulently obtained funds in her bank account. She
then used a certified check to withdraw the deposited funds
and purchase a vehicle registered in her name. The plain
language of section 2S1.2 includes her activity within its scope
and we are not persuaded the money laundering guideline
covers only proceeds from drug or organized crimes. See
United States v. Ford, 184 F.3d 566, 587-88 (6th Cir. 1999)
(affirming refusal to depart from section 2S1.2; gambling
within section 2S1.2 heartland because commentary to section
expressly refers to 18 U.S.C. s 1961(1) which includes gam-
__________
(f) As used in this section--
(1) the term "monetary transaction" means the deposit, with-
drawal, transfer, or exchange, in or affecting interstate or
foreign commerce, of funds or a monetary instrument (as
defined in section 1956(c)(5) of this title) by, through, or to a
financial institution (as defined in section 1956 of this title),
including any transaction that would be a financial transac-
tion under section 1956(c)(4)(B) of this title, but such term
does not include any transaction necessary to preserve a
person's right to representation as guaranteed by the sixth
amendment to the Constitution;
(2) the term "criminally derived property" means any prop-
erty constituting, or derived from, proceeds obtained from a
criminal offense; and
(3) the term "specified unlawful activity" has the meaning
given that term in section 1956 of this title.
bling as indictable offense; fact that proceeds did not come
from drugs or organized crime by itself not sufficient to take
offense out of heartland), cert. denied, 528 U.S. 1161 (2000);
see also United States v. Prince, 214 F.3d 740, 768-69 (6th
Cir.) (application of s 2S1.1 proper where defendants at-
tempted to conceal proceeds of wire fraud), cert. denied, 121
S. Ct. 417 (2000); United States v. Adams, 74 F.3d 1093, 1102
(11th Cir. 1996) ("We agree with our colleagues in the First
and Eighth Circuits that Congress intended to criminalize a
broad array of money laundering activity," including launder-
ing of misapplied funds belonging to Resolution Trust Corpo-
ration and district court erred when it departed from section
2S1.1 on ground that case before it did not involve "classic
money laundering."); United States v. LeBlanc, 24 F.3d 340,
346-47 (1st Cir.) (error not to sentence depositor of gambling
proceeds under money laundering guidelines since section
1956 covers broader array of crimes than "classic money
laundering" involving drug proceeds), cert. denied, 513 U.S.
896 (1994); United States v. Morris, 18 F.3d 562, 569 (8th
Cir. 1994) (remanding for resentencing after district court
failed to apply U.S.S.G. s 2S1.1 to defendant who committed
bank fraud and who for purpose of concealment transferred
proceeds of bank fraud into separate account; noting that
Congress intended cumulative punishment for unspecified
unlawful activities). But see United States v. Woods, 159
F.3d 1132, 1134-37 (8th Cir. 1998) (affirming departures
based in part on fact that underlying offenses, although
literally within statute, were not drug-trafficking, "organized
crime," "serious money-laundering," or "unusually severe
fraud"); United States v. Hemmingson, 157 F.3d 347, 361-63
(5th Cir. 1998) (same). We therefore hold that the offense of
money laundering arising from a violation of 18 U.S.C. s 1344
falls within the heartland of section 2S1.2 and the district
court did not err in refusing to depart downward.
IV.
For the foregoing reasons, the district court's judgment is
Affirmed.