UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4954
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OLUSOLA IDOWU,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:09-cr-00298-MJG-1)
Submitted: August 4, 2011 Decided: August 24, 2011
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Susan A. Hensler, Staff
Attorney, Baltimore, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, Peter M. Nothstein, Bonnie S. Greenberg,
Assistant United States Attorneys, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Olusola Idowu appeals from her wire fraud convictions,
asserting that the district court improperly instructed the jury
on the materiality of the false statements transmitted by wire.
The charged wire fraud concerned loan applications transmitted
in 2004 and 2005 and containing false information regarding
income and assets. Idowu’s defense at trial was that the false
statements at issue were not material because, in 2004 and 2005,
mortgage funders did not rely on these statements as lenders
were just hoping to make a quick profit and sell the mortgages.
Finding the jury instructions were proper, we affirm.
Idowu claims the district court erred by not using the
materiality instruction she provided to the court, which
specified that the false statements must have been material to a
reasonable person approving mortgage loans in 2004 and 2005.
Idowu asserts that the failure to give this instruction impaired
her ability to mount an effective defense because the jury was
not directed to consider the relevant time frame. Idowu
contends that her defense rested on the drastic difference in
underwriting standards during the relevant time period, when
compared to today, and that the court’s instruction was not
specific enough to alert the jury to the issue.
The Government notes that Iduwo did not object to the
district court’s jury instructions when given the opportunity
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and thus review is for plain error. Iduwo claims that her
request for a different instruction was sufficient to preserve
her objection. Iduwo is incorrect.
In United States v. Nicolaou, 180 F.3d 565, 569 (4th
Cir. 1999), we reviewed for plain error the Appellant’s claim
that the jury instruction was improper. Like in this case, the
Appellant submitted a proposed instruction but did not object
when the court gave different instructions to the jury. Under
Rule 30 of the Federal Rules of Criminal Procedure, objections
to the jury instructions or to the failure to give a requested
instruction must be specific and the court must be informed of
the grounds for objection before the jury retires to deliberate.
Under Rule 30, “[f]ailure to object in accordance with this rule
precludes appellate review” except for plain error.
By virtue of not objecting to the district court’s
materiality instruction, Idowu failed to preserve her claim.
Thus, our review is for plain error. See also United States v.
Arthurs, 73 F.3d 444, 447-48 (1st Cir. 1996) (requiring strict
compliance with Rule 30 and holding that pre-charge colloquy or
written objections will not suffice; an objection is required
after the jury is charged and before the jury retires). Under
the plain error standard, Idowu must show: (1) there was error;
(2) the error was plain; and (3) the error affected her
substantial rights. United States v. Olano, 507 U.S. 725,
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732-34 (1993). When these conditions are satisfied, we may
exercise our discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. at 736 (internal
quotation marks omitted). The burden of showing plain error is
on the defendant. United States v. Strickland, 245 F.3d 368,
379-80 (4th Cir. 2001).
Initially, we note that Idowu does not address the
plain error review standard in her brief and thus fails to
support her burden of establishing plain error. In fact, in her
reply brief, Idowu does not dispute that she cannot show plain
error. She rests solely on her contention that plain error
review does not apply.
In any event, Idowu has failed to show any error, much
less plain error. The district court gave a legally correct
instruction on materiality which was the functional equivalent
of Idowu’s requested instruction. Idowu’s assertion of error
rests on her conclusion that the jury was not properly
instructed that materiality should be viewed in light of what a
reasonable and prudent lender would have relied upon in 2004 and
2005. However, the instruction given informed the jurors that
they were to consider a reasonable and prudent lender in the
circumstances of those who decided whether to make the loans at
issue. As the loans at issue were made in 2004 and 2005, the
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jury was instructed, albeit in different words, as Idowu
requested. See United States v. Lighty, 616 F.3d 321, 366 (4th
Cir. 2010) (holding that this court will reverse for failure to
give requested instruction only if requested instruction was not
substantially covered by the court’s charge).
Moreover, even had the instruction been improper,
Idowu has failed to make any showing as to the remaining prongs
of the plain error test. Accordingly, we affirm Idowu’s wire
fraud convictions. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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