United States v. Adetokunbo Adepoju

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-5007

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ADETOKUNBO OLUBUNMI ADEPOJU, a/k/a Olu,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:10-cr-00647-MJG-1)

Argued: March 19, 2014 Decided: June 23, 2014

Before GREGORY and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed in part, vacated in part, and remanded by published
opinion. Judge Gregory wrote the opinion, in which Judge Floyd
and Senior Judge Davis joined.

ARGUED: John O. Iweanoge, II, IWEANOGE LAW CENTER, Washington,
D.C., for Appellant. Judson T. Mihok, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF:
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
GREGORY, Circuit Judge:

After a jury convicted him of bank fraud and aggravated

identity theft, Adetokunbo Olubumi Adepoju received a seventy-

month sentence. He now challenges the sufficiency of the

evidence for his convictions and sentencing enhancement for

sophisticated means. Also, he asserts a due process violation.

We affirm the convictions and also find no due process

violation. However, because the facts do not affirmatively

demonstrate sophisticated means in his attempt to commit bank

fraud, we vacate and remand for resentencing.

I.

In June 2010, a confidential informant (“CI”) contacted law

enforcement to report a man named “Olu”—later identified as the

defendant—who claimed to be a real estate agent looking to sell

counterfeit identification documents for $7,500. Upon

instruction from Department of Homeland Security (“DHS”) Special

Agent (“SA”) Marc Dipaola, the CI informed Adepoju that the

potential customer for the documents balked at the high price.

The two ceased discussing this potential transaction. One month

later, Adepoju approached the CI with a plan to defraud a bank

and asked whether the CI knew someone who worked at a bank. The

CI led Adepoju to believe that he knew a woman in a vice

president-like position at a local Bank of America who had

2
previously assisted the CI with illegal transactions. Adepoju

instructed the CI to open two accounts, into which the CI would

deposit checks that Adepoju supplied. Once the checks cleared,

the CI could withdraw the funds, retain his portion, pay a

portion to the insider, and give Adepoju the remaining amount.

On August 31, 2010, Adepoju provided the CI with IRS

documentation to use for opening a personal account in the name

of “T.A.” and a business account in the name of “T.A. Trucking.” 1

Handwritten on the back of the documents were T.A.’s name, date

of birth, and social security number. The CI contacted SA

Dipaola and presented these documents to the agent. Upon SA

Dipaola’s instruction, the CI asked Adepoju whether T.A. was a

real person, and Adepoju responded affirmatively. When Adepoju

later questioned whether the accounts were open, the CI

presented fabricated checks, created by law enforcement,

connected to fictitious accounts to satisfy Adepoju’s inquiries. 2

The next month, the CI received two checks from Adepoju.

The first was a Wells Fargo Bank cashier’s check payable to T.A.

for $28,000. The second was payable to T.A. Trucking for

$70,500. The CI led Adepoju to believe he would deposit the

1
T.A.’s full name is redacted throughout this opinion.
2
Fabricated checks were necessary to accomplish this, as an
actual account could not be opened due to the fact that T.A. was
a real person.

3
checks, but he then gave them to law enforcement. After Adepoju

repeatedly asked the CI to withdraw funds from the accounts, SA

Dipaola secured search warrants for Adepoju’s home. The CI

called Adepoju and arranged a time to deliver the withdrawn

funds, yet Adepoju never met the CI or received the funds. On

the day of the planned exchange, Adepoju called the CI,

initially changing the meeting location before later aborting

the meeting altogether.

Law enforcement executed the search warrants and arrested

Adepoju at his home. Officers recovered five cellular phones, a

laptop computer, and a thumb drive. The number assigned to one

of the phones matched the number the CI used to call Adepoju.

The thumb drive contained images of blank social security cards

and a check issued by a Pennsylvania company. The images of the

check showed the account number but blocked out the name of the

payee. The officers also found multiple copies of a check

bearing the same number but made out to different payees, one of

whom was Adepoju’s wife, for different amounts. Fingerprint

analysis revealed the presence of Adepoju’s thumbprint on the

envelope used to deliver the $28,000 check to the CI.

The government charged Adepoju with two counts of bank

fraud under 18 U.S.C. § 1344 and one count of aggravated

identity theft under 18 U.S.C. § 1028A. At trial, the CI

testified as to the aforementioned interactions with Adepoju.

4
SA Dipaola testified that accounts at four different banks were

opened in T.A’s name shortly before the CI received his

information from Adepoju, between July 28 and August 31, 2010.

These accounts all listed the same Temple Hills, Maryland

address that also appeared on the documents the CI received.

T.A., a Pennsylvania resident, identified his social security

number and birthdate on the forms Adepoju supplied to the CI.

T.A also stated that he had not authorized anyone to open

accounts on his behalf, never operated a trucking business, and

had never been to Temple Hills, Maryland. Testimony from Wells

Fargo Bank representatives established that the checks the CI

received were fraudulent and that the bank’s deposits were

federally insured. The representatives also explained that had

the forged cashier’s checks been deposited and funds been

successfully withdrawn as a result, the bank would have

experienced a loss.

After the jury convicted Adepoju on all counts, the

district court sentenced him to seventy months’ imprisonment.

For the bank fraud convictions, the district court imposed

forty-six month sentences, the high end of the Guidelines range.

Conviction on Count Three mandated a twenty-four-month sentence,

which the court imposed consecutively to the bank fraud

sentences. See 18 U.S.C. § 1028A(b)(2).

5
 Relevant to this appeal, the court applied to the bank

fraud sentences a two-level enhancement for using sophisticated

means under § 2B1.1(b)(10)(C) of the Sentencing Guidelines. At

sentencing, the district court opined that unsophisticated means

involves “something that an ordinary person, who wasn’t

specially trained in something, could get done.” J.A. 649. The

court then asked defense counsel how acquiring T.A.’s

information was not sophisticated, and defense counsel explained

that troves of personal information can be found via commonly-

used internet search engines and other tactics. Furthermore,

defense counsel noted, opening a bank account requires not

sophistication but merely the proper paperwork. The government

responded that no evidence supported Adepoju’s claims that he

used simple tactics to obtain T.A.’s information. Specifically,

the government argued that there was no evidence that he used a

simple internet search or other commonplace means to acquire

T.A.’s name, birthdate, and social security number.

After cautioning that it did not want to place the burden

on the defendant, the court noted the absence of evidence that

T.A.’s information could have been retrieved via internet

sources and that this absence “reinforces the view that

[Adepoju’s scheme] must have been sophisticated.” J.A. 654.

The district court then concluded that the enhancement was

appropriate based on the effort required to obtain T.A.’s

6
information, obtain the forged checks, and “do what would have

worked” had the CI actually opened the account and deposited the

checks. J.A. 657.

Adepoju timely appealed and now challenges the sufficiency

of the evidence, the sophisticated means enhancement, and the

mandatory sentence for aggravated identity theft. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Where a defendant challenges the sufficiency of the

evidence supporting a conviction, we view the evidence in the

light most favorable to the government and uphold the verdict if

substantial evidence supports it. United States v. Stockton,

349 F.3d 755, 760-61 (4th Cir. 2003). Substantial evidence is

that which, taking all inferences in the government’s favor,

could lead a rational jury to find the evidence sufficient for a

conviction. United States v. Burgos, 94 F.3d 849, 857 (4th Cir.

1996). A defendant challenging the sufficiency of evidence

“faces a heavy burden,” United States v. Young, 609 F.3d 348,

355 (4th Cir. 2010), and we reverse only where the prosecution’s

failure is clear. United States v. Moye, 454 F.3d 390, 394 (4th

Cir. 2006).

Challenging the bank fraud convictions, Adepoju cites an

absence of evidence that he opened an account at a federally

7
insured financial institution or presented the fraudulent checks

for payment. As to the identity theft conviction, he contends

that the evidence failed to demonstrate that he knew that T.A.

was a real person. We disagree with both contentions.

A.

The federal bank fraud statute imposes criminal liability

in two circumstances. The first is an attempted or completed

scheme to defraud a financial institution. 18 U.S.C. § 1344(1).

The second is a knowingly attempted or completed scheme to

obtain funds by false pretenses or representation. 18 U.S.C.

§ 1344(2). The major difference between the subsections is that

§ 1344(1) focuses on how the defendant’s conduct affects a bank,

while § 1344(2) focuses solely on the conduct. United States v.

Loughrin, 710 F.3d 1111, 1116 (10th Cir. 2013). The elements of

a § 1344(1) violation are (1) the defendant knowingly executed

or attempted a scheme or artifice to defraud a financial

institution, (2) he did so with intent to defraud, and (3) the

institution was a federally insured or chartered bank. United

States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002); see also

United States v. Flanders, 491 F.3d 1197 (10th Cir. 2007). The

requirements for a § 1344(2) conviction differ only as to the

first element, which is that the defendant knowingly execute a

scheme to obtain property held by a financial institution

through false or fraudulent pretenses. Loughrin, 710 F.3d at

8
1115. Thus, § 1344(1) does not require fraudulent promises,

United States v. Celesia, 945 F.2d 756, 758 (4th Cir. 1991), or

that the bank suffer any loss, Loughrin, 710 F.3d at 1116. A

§ 1344(2) conviction does not demand that the bank be the

intended victim of the fraud; a person can violate the statute

by obtaining funds from a bank while intending to defraud

another person or entity. Loughrin, 710 F.3d at 1116.

As an initial matter, we address Adepoju’s argument that

only § 1344(1) applies here because the indictment failed to

allege an affirmative misrepresentation with respect to the

forged checks, a requirement for § 1344(2). We disagree with

this position because the indictment cites § 1344 and references

language from both subsections, thereby providing notice of

intent to pursue conviction under either one. See United States

v. Fontana, 348 F.2d 796, 801 (1st Cir. 1991). Notwithstanding

this point, his argument does not bear on our disposition

because we find the evidence sufficient under § 1344(1). See

Brandon, 298 F.3d at 314 (finding unnecessary an analysis of

sufficiency under § 1344(2) where evidence supported conviction

under § 1344(1)); see also United States v. Wilkinson, 137 F.3d

214, 232 (4th Cir. 1998).

Taken in the light most favorable to the government, the

evidence in this case supports the jury’s conclusion that

Adepoju is guilty of committing bank fraud as defined by

9
§ 1344(1). On the first element, the evidence demonstrated an

attempt to execute a scheme to defraud a financial institution.

Adepoju concedes that the evidence shows this incomplete

attempt. As to the second element, Adepoju’s intent is

demonstrated by his statements, as conveyed by the CI, regarding

the plan to open bank accounts under another’s name, deposit

checks into those accounts, and later withdraw the deposited

funds. The third element, that the bank was federally insured

or chartered, is satisfied by the trial testimony of Wells Fargo

representatives.

Adepoju’s arguments to the contrary are unpersuasive.

First, he contends that the evidence failed to demonstrate a

risk of loss or that he devised the scheme. Risk of loss to the

bank is unnecessary for a § 1344(1) conviction, although it

tends to prove the requisite intent under that subsection.

United States v. Swanson, 360 F.3d 1155 (10th Cir. 2004) (risk

of loss is subsumed under § 1344(1)’s “defraud a financial

institution” language); United States v. Hoglund, 178 F.3d 410,

413 (6th Cir. 1999) (risk of loss “is merely one way of

establishing intent to defraud” under § 1344(1)). 3 Furthermore,

the jury heard that Adepoju—not the CI—devised the plan to

defraud the bank. Second, having conceded that there was an

3
Risk of loss is also unnecessary under § 1344(2).
Loughrin, 710 F.3d at 1115-16; McNeil, 320 F.3d at 1038.

10
incomplete attempt to execute a scheme involving fraudulent

checks, Adepoju argues that he did not take any steps

constituting criminal activity. However, the evidence quells

the notion that this conviction implicates mere thoughtcrime.

The testimony demonstrated that he provided the CI with T.A.’s

information and two forged checks for deposit. His actions,

which “set[] in motion the eventual presentation of the forged

instruments” to a bank, demonstrated Adepoju’s intent to

defraud, even though he did not personally present the checks to

the bank. Brandon, 298 F.3d at 312-13. For these reasons, we

affirm the bank fraud convictions in Counts One and Two.

B.

A conviction for aggravated identity theft under 18 U.S.C.

§ 1028A(a)(1) requires proof that the defendant “(1) knowingly

transferred, possessed, or used, (2) without lawful authority,

(3) a means of identification of another person, (4) during and

in relation to a predicate felony offense.” United States v.

Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010). A means of

identification is a “name or number that may be used, alone or

in conjunction with any other information, to identify a

specific individual, including any name, social security number,

date of birth, . . . employer or taxpayer identification

number.” 18 U.S.C. § 1028(d)(7); see United States v. Mitchell,

518 F.3d 230, 234 (4th Cir. 2008) (explaining that the

11
definition in § 1028(d)(7) applies to § 1028 and § 1028A).

Relevant to the first element, the government must prove that

the accused knew that the “means of identification” belonged to

another person; an accused unaware that the means of

identification refers to a real person cannot be guilty.

Flores-Figueroa v. United States, 556 U.S. 646, 647, 654-55

(2009). Knowledge of existence is enough; the accused need not

know the individual personally. United States v. Foster, 740

F.3d 1202, 1207 (8th Cir. 2014). Adepoju only challenges

whether the evidence demonstrated he knew T.A. was a real

person. We find this requirement satisfied. On no less than

three occasions, the CI testified at trial that Adepoju admitted

that T.A. was a real person—twice during direct examination

before reiterating this point on cross-examination. This

testimony provided sufficient evidence, taken in the light most

favorable to the government, demonstrating Adepoju’s knowledge

that T.A. was a real person. Therefore, we affirm the

conviction for aggravated identity theft under Count Three.

III.

Adepoju argues that the district court erred in applying a

sentencing enhancement for using sophisticated means in a bank

fraud scheme. In reviewing a Sentencing Guidelines application,

we review factual findings for clear error and legal conclusions

12
de novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir.

2006). Where a Guidelines application involves a mixed question

of law and fact, the applicable standard turns on the nature of

the circumstances at issue. If the application is “essentially

factual,” we apply the clearly erroneous standard. United

States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989) (citation

omitted). Whether a defendant’s conduct involved sophisticated

means is an essentially factual inquiry, thus we review for

clear error. Cf. United States v. Hughes, 401 F.3d 540, 557

(4th Cir. 2005) (applying the clear error standard to determine

whether conduct constituted more than minimal planning);

Daughtrey, 874 F.2d at 218 (finding that whether the defendant

was a minimal or minor participant in a crime to be an

“essentially factual” inquiry); accord United States v. Anobah,

734 F.3d 733, 739 (7th Cir. 2013); United States v. Calhoun, 721

F.3d 596, 605 (8th Cir. 2013); United States v. Kennedy, 714

F.3d 951, 961 (6th Cir. 2013); United States v. Bane, 720 F.3d

818, 826 (11th Cir. 2013).

The Sentencing Guidelines require a two-level enhancement

where a defendant uses sophisticated means in committing acts of

fraud or other offenses involving theft or counterfeiting.

U.S.S.G. § 2B1.1(b)(10)(C). “‘Sophisticated means’ means

especially complex or especially intricate offense conduct,

pertaining to the execution or concealment of an offense. . . .

13
Conduct such as hiding assets or transactions, or both, through

the use of fictitious entities, corporate shells, or offshore

financial accounts also ordinarily indicates sophisticated

means.” U.S.S.G. § 2B1.1 cmt. n. 9(B); see Stinson v. United

States, 508 U.S. 36, 38 (1993) (holding that Guidelines

commentary explaining or interpreting a rule “is authoritative

unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that

guideline”). The enhancement applies where the entirety of a

scheme constitutes sophisticated means, even if every individual

action is not sophisticated. See United States v. Jinwright,

683 F.3d 471, 486 (4th Cir. 2012) (applying sophisticated means

enhancement under U.S.S.G. § 2T1.1(b)(2) to tax fraud). Even

so, sophistication requires more than the concealment or

complexities inherent in fraud. Id. Thus, fraud per se is

inadequate for demonstrating the complexity required for

enhancement under U.S.S.G. § 2B1.1(b)(10)(C).

It is axiomatic that the government must prove by a

preponderance of evidence the applicability of a sentencing

enhancement. See, e.g., United States v. Steffen, 741 F.3d 411,

413 (4th Cir. 2013). In this case, the government failed to

carry that burden. Adepoju’s use of forged checks and a stolen

identity to attempt bank fraud is beyond dispute. Indeed,

virtually all bank fraud will involve misrepresentation, which

14
includes unauthorized acquisition and use of another’s

information. See United States v. Archuleta, 231 F.3d 682, 685-

86 (10th Cir. 2000) (holding that the defendant’s use of a false

name and checks to obtain funds from a credit union constituted

“evidence of nothing more than the minimum conduct required to

establish a violation of [18 U.S.C.] § 1344 in its simplest

form”). Therefore, the realm of especial complexities and

intricacies involves more than the forgeries, misrepresentation,

and concealment inherent in bank fraud. See United States v.

Montano, 250 F.3d 709, 715 (9th Cir. 2001) (finding that because

smuggling necessarily involves concealment, sophisticated means

requires more than what is necessary to commit the crime).

The district court clearly erred by essentially shifting

the burden to Adepoju to disprove sophistication. See United

States v. Guzman, 318 F.3d 1191, 1198 (10th Cir. 2003) (vacating

a sentencing enhancement where the district court applied the

enhancement after finding a lack of evidence supporting the

defendant’s position). While the district court expressed an

understanding that it would be improper to place a burden on the

defendant, that is exactly what it did. It began by presuming

that acquiring T.A.’s information was accomplished by

sophisticated methods, without any evidence as to how Adepoju

acquired this information. The court then asked Adepoju for

evidence that he acquired the information in a non-sophisticated

15
manner. Then, finding Adepoju’s argument against sophistication

unpersuasive, it applied the enhancement based on the stolen

information and plan to commit fraud. While demonstrating that

Adepoju did enough to violate § 1344 “in its simplest form,” see

Archuleta, 231 F.3d at 685-86, the facts concerning the crime of

conviction do not affirmatively indicate that he did anything

especially intricate or complex to obtain T.A.’s information or

attempt to defraud a bank, see Jinwright, 683 F.3d at 486 (“The

[sophisticated means] enhancement requires some means of

execution that separates the offense before us from the ordinary

or generic.”).

A clear error occurs where we are left with a firm and

definite conviction that a mistake has been committed. United

States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). Here, the

lack of evidence or explanation of sophistication is clear. See

United States v. Llamas, 599 F.3d 381, 389 (4th Cir. 2010)

(vacating enhancement application where sentencing court “failed

to provide a sufficient explanation of its finding” supporting

enhancement). The reasoning for the enhancement here

essentially amounts to a tautology, where the district court

used the presence of the tools to commit fraud and the plan to

use those tools, combined with a lack of explanation of non-

sophistication, as proof of sophistication. However, neither

the record nor common sense suggest that names, birthdates, and

16
social security numbers can be obtained only by sophisticated

means. There is no evidence of how Adepoju obtained that

information. Additionally, the government conceded that

obtaining an EIN, even for a falsified company, “is something

that’s not too difficult to do.” J.A. 655. Thus, the mere

possession of such information cannot, on its own, demonstrate

sophistication. Nor was there any explanation by the court as

to how the planned conduct was especially complex or intricate

above and beyond typical § 1344 violations. Cf. Llamas, 599

F.3d at 388-89. The government’s burden demands more than the

mere presence of the tools of fraud and the attempt to use the

same. If Adepoju’s current offenses did in fact employ

sophisticated means, the government’s evidence and the court’s

conclusory finding did not demonstrate this. 4

4
The government presents two additional arguments, neither
of which is persuasive. The first relies upon an unpublished
decision of this Court finding that the submission of falsified
loan documentation constituted sophisticated means. United
States v. Okolo, No. 03-4402, 82 F. App’x 834, 836-37 (4th Cir.
Dec. 16, 2003). That case involved a “painstaking attempt” to
create documents that would survive scrutiny of a bank issuing
more than $600,000 in loans for luxury cars, including time-
consuming efforts of calculating income tax deductions for the
falsified pay stub, vision and dental insurance payments, and
year-to-date tax withholding amounts. Id. at 835-36. In
contrast, the documents and forgeries now before us did not
require such meticulous fabrications. Second, the government
contends that Adepoju used sophisticated means to create an
access device as defined by 18 U.S.C. § 1029(e)(1). We reject
this argument because paper checks are not “access devices” as
defined by that statute. See United States v. Tatum, 518 F.3d
(Continued)
17
 We conclude that the district court clearly erred in

imposing the sophisticated means enhancement of

§ 2B1.1(b)(10)(C). This result stems not from weighing the

evidence but from the absence of factual findings where the

district court gives little, if any, to consider. See Llamas,

599 F.3d at 389. Our conclusion by no means requires that the

court find the existence of “highly complex schemes” or

“exceptional brilliance to justify a sophisticated means

enhancement.” United States v. Jennings, 711 F.3d 1144, 1145

(9th Cir. 2013). The enhancement for sophisticated means does

require more than just thoughtful or potentially successful

planning. Bank fraud requires plans to wrongfully acquire funds

and, where § 1344(1) is at issue, misrepresentation. The

presence of forgeries or stolen identification, and a plan to

use such material to wrongfully acquire moneys, does not

necessarily amount to sophistication. If Adepoju’s efforts

involved something especially more intricate and complex than

what is required to violate the bank fraud statute in its

simplest form, the court failed to identify those aspects. To

affirm in the absence of such proof would permit enhancement

where the mere presence of and plan to use fraudulent materials

769, 772-73 (10th Cir. 2008); United States v. Hughey, 147 F.3d
423, 434 (5th Cir. 1998).

18
is combined with a defendant’s inability to prove a lack of

sophistication. We refuse to endorse such an approach.

IV.

Adepoju argues that his right to due process was violated

because the facts supporting the two-year minimum for aggravated

identity theft were not properly presented to the jury. Cf.

Alleyne v. United States, 133 S. Ct. 2151 (2013). We apply

plain error review to an objection based upon a new rule of law

not in effect at the time of the contested proceeding.

Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013); see

United States v. Olano, 507 U.S. 725, 732 (1993) (explaining

plain error standard). In Alleyne, the defendant was charged

under a statute that imposed varying mandatory minimums based on

different factual scenarios, and the Supreme Court held that a

jury must make special findings as to any facts increasing

mandatory minimums. 133 S. Ct. at 2155-56, 2158, 2160. The

aggravated identity theft statute now at issue does not involve

varying mandatory minimums. A finding that Adepoju knowingly

transferred, possessed, or used another’s means of

identification could only result in a consecutive two-year

sentence. See 18 U.S.C. §§ 1028A(a)(1), (b)(2). The jury’s

verdict thus supports the two-year sentence for this charge. No

error, plain or otherwise, occurred.

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 V.

For the foregoing reasons, we affirm Adepoju’s bank fraud

and aggravated identity theft convictions. We also affirm the

consecutive two-year minimum sentence for aggravated identity

theft. Because the evidence failed to demonstrate that Adepoju

engaged in especially complex or intricate behavior above and

beyond that inherent in fraud, we vacate his sentence and remand

for resentencing without the enhancement and consistent with

this opinion.

AFFIRMED IN PART,
VACATED IN PART, AND REMANDED

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