United States v. Olaniyi-Oke

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ m 98-51124 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS JACKSON AYOBAM OLANIYI-OKE, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Western District of Texas _________________________ December 30, 1999 Before HIGGINBOTHAM and SMITH, We address only the facts relevant to the Circuit Judges, and DUPLANTIER, two money laundering counts as to which District Judge.* Olaniyi-Oke asserts there was insufficient evidence. One Richard Porter was issued a JERRY E. SMITH, Circuit Judge: MasterCard by Maryland Bank of North America (“MBNA”). Olaniyi-Oke impersonated Porter in notifying MBNA that Jackson Olaniyi-Oke was convicted of Porter’s address had changed to a mailbox conspiracy, fraud in connection with access owned by Olaniyi-Oke. MBNA later mailed devices, mail fraud, fraud involving fictitious three convenience checks to the new address, name and address, bank fraud, money one of which later was found at Olaniyi-Oke's laundering, and fraudulent use of a social residence. security number. He contends that the evidence is insufficient on two of the money One of the checks was used partially to pay laundering counts and that, as to the other off the balance of another credit card owned counts, the court erred in denying motions for by Porter, a NationsBank Visa card. The continuance based on the inability to locate a address for the Visa had also been changed by prospective witness and the desire to challenge Olaniyi-Oke, and a requested replacement card the racial composition of the jury venire. We had been sent to that new address. After the find no error in the the denial of continuance credit balance was partially paid by the MBNA but reverse, for insufficient evidence, the check, the Visa was used to purchase one convictions on the two subject money computer at each of two Houston businesses, laundering counts. Computer City and Office Max. The computers were found in Olaniyi-Oke’s I. residence, and his calling card had been used to make calls to the Computer City location. * District Judge of the Eastern District of Olaniyi-Oke argued that another man whom Louisiana, sitting by designation. he had met at a nightclub committed the crimes. According to Olaniyi-Oke, that man statute requires the government to prove that had stayed at Olaniyi-Oke's home, leaving the defendant conducted or attempted to evidence of the fraud scheme including the two conduct a financial transaction that he knew computers. involved the proceeds of unlawful activity. See United States v. Burns, 162 F.3d 840, 847 Olaniyi-Oke contends there is insufficient (5th Cir. 1998), cert. denied, 119 S. Ct. 1477 evidence on counts 14 and 15, which charge (1999). money laundering for the purchase of the two computers with Richard Porter's Visa. Olaniyi-Oke does not contend that the Olaniyi-Oke argues that there is no evidence government failed to provide sufficient that the purchases were made to promote evidence of these elements. The statute further fraud, or to conceal the proceeds of further requires the government to prove unlawful activity, and therefore that there is either (1) that the defendant so acted with the insufficient evidence to support his conviction intent to promote or further specified unlawful on those counts. He contends that the activity (the “promotion prong”) or (2) that he purchases were merely acts of money knew the transaction was designed to conceal spending, in which funds generated by fraud or disguise the nature, location, source, were used to buy computers for personal use. ownership, or control of the proceeds of the He also avers that the court erred in denying unlawful activity (the “concealment prong”). his motions for continuance based on his See 18 U.S.C. §§ 1956(a)(1)(A)(i), inability to locate a prospective defense 1956(a)(1)(B)(i); Brown, 186 F.3d at 667-68; witness and to investigate an alleged Burns, 162 F.3d at 847. Olaniyi-Oke avers underrepresentation of minorities on the jury that the evidence is insufficient to demonstrate venire. either the promotion prong or the concealment prong, and we agree. II. We first consider the claim of insufficient The government argues that the computer evidence. “In evaluating a challenge to the purchases were intended to promote a sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and uphold the verdict if, but only if, a rational juror could have found each element (...continued) of the offense beyond a reasonable doubt.” activity, conducts or attempts to conduct United States v. Brown, 186 F.3d 661, 664 such a financial transaction which in fact (5th Cir. 1999). This review is de novo, and involves the proceeds of specified unlawful activitySS “[i]f the evidence viewed in the light most favorable to the prosecution gives equal or (A)(i) with the intent to promote the nearly equal circumstantial support to a theory carrying on of specified unlawful activity; or of guilt and a theory of innocence, a defendant ... is entitled to a judgment of acquittal.” Id. (internal quotation marks omitted). (B) knowing that the transaction is designed in whole or in partSS Both counts charge money laundering in violation of 18 U.S.C. § 1956(a)(1).2 The (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; . . . 2 That section provides: shall be sentenced to a fine . . . or Whoever, knowing that the property imprisonment . . . or both. involved in a financial transaction represents the proceeds of some form of unlawful “Specified unlawful activity” is defined at (continued...) § 1956(c)(7). 2 fraudulent scheme, but it presented no the illegal use of a credit card does not equate evidence that the computers were intended for to money laundering. use in any scheme. There is no evidence that the computers were intended for anything Olaniyi-Oke could not have purchased the other than fully legal personal use; the computers using his own name and Porter's government’s suggestion that the computers credit card. Without evidence to the contrary, were intended for sale is not substantiated by the intent of such a fraudulent purchase is any evidence.3 Absent a showing of specific merely to obtain goods using funds rightfully intent, the promotion prong is not satisfied belonging to another, not to conceal the even by a showing that the financial nature, location, source, ownership, or control transaction did promote the carrying on of of those funds: “If transactions are engaged in unlawful activity. See Brown, 186 F.3d at for present personal benefit, and not to create 670. the appearance of legitimate wealth, they do not violate the [concealment prong of the] The government also argues that the money laundering statute.” United States v. purchases were designed to conceal according Garcia-Emanuel, 14 F.3d 1469 (10th Cir. to the concealment prong. The argument is 1994) (quoted in United States v. Willey, that Olaniyi-Oke used Porter's name and credit 57 F.3d 1374, 1384 (5th Cir. 1995)). card to purchase the computers, making “obvious” his intent to conceal. Contrary to In one sense, the acquisition of any asset the government's contention, the only thing with the proceeds of illegal activity obvious about such a transaction is that conceals those proceeds by converting Olaniyi-Oke was fraudulently using another them into a different and more perso n’s credit card, for which he was legitimate-appearing form. But the convicted on other counts. requirement that the transaction be designed to conceal implies that more The government argues that an intent to than this trivial motivation to conceal conceal can be inferred from the fact that must be proved. Olaniyi-Oke traveled to Houston to make the purchases rather than making them in his home Willey, 57 F.3d at 1384 (internal citation city of Austin. If one desires fraudulently to omitted) (citing Garcia-Emanuel, 14 F.3d use another's credit card to make purchases, it at 1474). is merely logical to travel out of town to do so to lessen the risk of discovery for illegal use of The government’s argument would convert the credit card, but such logic does not convert every purchase of goods with illegally obtained the act into money laundering. Likewise, credit into money laundering, which we have making two separate purchases instead of one rejected: Money spending is not criminal is logical to reduce the likelihood that any under § 1956(a)(1). See Brown, 186 F.3d store personnel would recall details of the at 670-71. The statute is intended to punish purchase.4 Not wanting to be prosecuted for “conduct that is really distinct from the underlying specified unlawful activity[,] . . . [not to] provide overzealous prosecutors with 3 a means of imposing additional criminal At least one of the computers was partially assembled for use. 4 It is logical to think that more individuals (...continued) purchase only one computer than purchase two. the stockpiling of numerous computers might lead The government therefore argues that the purchase to such an inference, it is not even unknown for one of two computers creates an inference beyond a individual to purchase two computers for his own reasonable doubt that the computers were not for personal use, let alone to purchase one or both of personal use. This argument is not credible. While them as gifts, for use in a business, or for a myriad (continued...) of other purposes. 3 liability any time a defendant makes benign expenditures with funds derived from unlawful acts.” Brown, 186 F.3d at 670. As with a drug dealer who purchases cellular phones for unrelated personal use, a mail/bank-fraud operator who purchases two computers for unrelated personal use does not thereby commit money laundering. See Brown, 186 F.3d at 669 (discussing United States v. Jackson, 935 F.2d 832 (7th Cir. 1991)); United States v. Cavalier, 17 F.3d 90, 93 (5th Cir. 1994) (same). III. Olaniyi-Oke contends that the court erred in denying his motion for continuance to secure the presence of a prospective defense witness, his nephew Stephen Adebayo. We review the denial of a continuance for abuse of discretion. See United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir. 1991). When a continuance is requested based on the unavailability of a witness, the party seeking a continuance must demonstrate (1) that due diligence was exercised to obtain the attendance of the witness; (2) that the witness would tender substantial favorable evidence; (3) that the witness will be available and willing to testify; and (4) that denial of the continuance would materially prejudice the movant. See id. The required prejudice has also been termed “severe” prejudice and “serious” prejudice. See id.; United States v. Dupre, 117 F.3d 810, 823 (5th Cir. 1997). Olaniyi-Oke argues that Adebayo would corroborate his defense, namely that a man staying with Olaniyi-Oke committed the crimes. Before indicting Olaniyi-Oke, the government obtained a sworn statement in which Adebayo stated that he had never met or heard of the man whom Olaniyi-Oke claims was responsible for the crimes. While in a later interview Adebayo did “recall” that someone had st ayed at Olaniyi-Oke's residence, this recollection directly contradicts portions of his previous sworn statement. In light of these statements, Olaniyi-Oke’s mere assertion that Adebayo would provide favorable testimony does not establish that Adebayo would tender substantially favorable testimony. 4 Olaniyi-Oke also failed to establish that objectivity of the selection process. See Adebayo would be available and willing to Hemmingson, 157 F.3d at 358; 28 U.S.C. § testify, because Adebayo had failed to appear 1867(a). at trial despite a subpoena. The government and Olaniyi-Oke had attempted to locate Olaniyi-Oke has no evidence with which to Adebayo without success. The court did not challenge the selection process, which is what abuse its discretion in denying a continuance. § 1867 is designed for, but instead wants to investigate solely because his venire had “too IV. few” minorities.6 First, Olaniyi-Oke fails to Just before voir dire began, Olaniyi-Oke understand the nature of statistics. If it were sought a continuance to investigate whether required that every venire match the the composition of the jury venire was a result proportions of minorities in the community, of a violation of the Jury Selection and Service that would be the antithesis of randomness, Act of 1968 (“Jury Act”), 28 U.S.C. §§ 1861- given the size of the sample. See United 1878, and/or of the Sixth Amendment. States v. McKinney, 53 F.3d 664, 671 (5th Cir. Olaniyi-Oke believed that the venire 1995) (noting that in a truly random system, underrepresented minorities in consisting of minorities will be over-represented in some only one black and four Hispanics. To the panels and under-represented in others). extent that a district court’s decision rests on Second, his claim is not cognizable under the its interpretation of the statutory language, the Jury Act: “The happenstance of a standard of review is de novo. See United disproportionately white jury is simply not States v. Hemmingson, 157 F.3d 347, 358 (5th enough to prevail under the Act.” Cir. 1998). We review denial of a continuance Hemmingson, 157 F.3d at 359. Olaniyi-Oke for abuse of discretion.5 See Shaw, 920 F.2d made no showing of any failure to comply with at 1230. the Jury Act, and therefore the court did not abuse its discretion in denying his motion for The Jury Act provides that “all litigants in continuance on this ground. Federal courts entitled to trial by jury shall have the right to . . . petit juries selected at “The Sixth Amendment guarantees a random from a fair cross section of the criminal defendant the right to a trial by a jury community in the district or division where the selected from a fair cross-section of the court convenes.” 28 U.S.C. § 1861. To community.” United States v. Alix, 86 F.3d obtain relief under the Jury Act, a defendant 429, 434 (5th Cir. 1996). must prove a “substantial failure” to comply with the Act’s provisions, a substantial failure A defendant establishes a prima facie being one that destroys the random nature or violation of the fair-cross-section requirement by showing the following: The defendant must show (1) that the 5 Olaniyi-Oke refers to his motion as a motion group alleged to be excluded is a for continuance, but it was termed a “motion to “distinctive” group in the community; stay.” The discrepancy occurs because Olaniyi- (2) that the representation of this group Oke was not claiming to have sufficient evidence to in venires from which juries are selected demonstrate a violation, as required under either is not fair and reasonable in relation to the Jury Act or the Sixth Amendment, but rather the number of such persons in the was requesting a continuance of at least 30 days to investigate. Therefore, both parties agree that, whatever the motion should be termed, the 6 appropriate standard of review is abuse of Olaniyi-Oke’s motion did contain a discretion, which, apart from any district court comparison of 1990 census figures with the jury interpretations of law, is correct. See Murphy v. pool for November 1993. Given that trial took Uncle Ben's, Inc., 168 F.3d 734, 737 (5th Cir. place in 1998, however, this information is 1999) (stating the general standard for motions to irrelevant, and thus Olaniyi-Oke does not even cite stay). this “evidence” on appeal. 5 community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury- selection process. Id. A defendant cannot establish a prima facie violation by relying solely on the composition of the jury at his own trial. See id. at n.3. Olaniyi-Oke presented no evidence of element (3), and therefore he failed to establish a prima facie violation. The court did not abuse its discretion in denying a continuance. The judgments of conviction on counts 14 and 15 are REVERSED and REMANDED for entry of judgments of acquittal, and the judgments of conviction on all other counts are AFFIRMED. The judgment of sentence is VACATED and REMANDED for resentencing.7 7 The prison sentence and supervised release imposed for counts 14 and 15 run concurrently with the sentence on the remaining counts, and therefore reversing the two counts does not reduce Olaniyi-Oke's prison term or period of supervised release. The court imposed a $100 special assessment on all counts, however, and therefore Olaniyi-Oke must be resentenced to eliminate that assessment as to counts 14 and 15. 6