United States v. Omondi

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4911

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PATRICIA OMONDI, a/k/a Patricia Sanfo, a/k/a Patricia
O’Mundy,

Defendant - Appellant.

No. 08-4912

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BOUREIMA SANFO, a/k/a Abraham Sanfo, a/k/a Ibraham Sanfo,

Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:07-cr-00197-DKC-1; 8:07-cr-00197-DKC-2)

Submitted: February 11, 2010 Decided: March 12, 2010

Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.

Timothy J. Sullivan, William A. Mitchell, Jr., BRENNAN, SULLIVAN
& MCKENNA, LLP, Greenbelt, Maryland; Stephanie Gallagher, LEVIN
& GALLAGHER, LLC, Baltimore, Maryland, for Appellants. Rod J.
Rosenstein, United States Attorney, Mara B. Zusman, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Patricia Omondi and Boureima Sanfo (“Defendants”),

wife and husband, appeal their convictions for interstate

transportation of property obtained by fraud, money laundering,

and obstruction of justice, alleging violations of the Fifth and

Sixth Amendments of the United States Constitution arising out

of the pretrial seizure of funds, and also challenging the

sufficiency of the evidence to support their convictions for

obstruction of justice. For the reasons that follow, we affirm.

I.

Defendants operated a scheme to defraud victims out of

deposits for lot purchases and construction of homes.

Defendants held themselves out as executives of Construction

Consulting and Management, a purported residential home builder

that promised, in addition to constructing the homes, to secure

the relevant permits and financing. After their victims paid

deposits, Defendants pocketed the money without ever working on

the homes.

In July of 2006, almost two years prior to the trial

in this case, Special Agent Philip Soto of the Secret Service

swore an affidavit of probable cause supporting a seizure

warrant of up to $202,435. Based on this testimony, stop

payment orders were issued on three $95,000 cashier’s checks

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withdrawn by Omondi from her accounts at Branch Banking and

Trust Co. (“BB&T”). Additionally, a magistrate judge issued two

seizure warrants pursuant to 18 U.S.C.A. § 981 (West 2006 &

Supp. 2009) for all currency in Omondi’s BB&T accounts and

proceeds from the stop payment orders on the three $95,000

checks. The warrants did not limit Defendants’ forfeiture

liability to $202,435. However, upon execution of the warrants,

the Government seized only $10,078 from Defendants’ BB&T

accounts. The Government also failed to locate the three

cashier’s checks.

A few months later, Sanfo and Omondi deposited the

three $95,000 checks into a newly opened savings account at Burk

and Herbert Savings Bank. In compliance with the stop payment

orders, Burke and Herbert Savings Bank returned the checks to

BB&T, which deposited the checks into an official BB&T account.

On November 7, 2006, a magistrate judge issued another seizure

warrant for all proceeds of the three $95,000 checks up to

$202,435 at BB&T. The Government executed the third seizure

warrant, seizing $202,435, for an aggregate seizure of $212,513,

which exceeded the authorized amount by $10,078. On the

execution date, the Government served a copy to “Gigi Frio, BB&T

Corporate Security,” and claims to have sent a copy to

Defendants’ then-attorney. BB&T held Defendants’ unseized

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balance of $82,565 until prompted by defense counsel’s telephone

calls to release the funds to Defendants.

On April 25, 2007, a federal grand jury returned a

thirteen count indictment charging Defendants with nine counts

of interstate transportation of property obtained by fraud in

violation of 18 U.S.C. § 2314 (2006), three counts of money

laundering in violation of 18 U.S.C. § 1957 (2006), and one

count of obstruction of justice in violation of 18 U.S.C. § 1503

(2006). The indictment also contained a forfeiture allegation

for $202,435, representing the fruits of the crimes involved in

the criminal investigation.

On March 25, 2008 -- after the indictment, and before

the trial -- in an attempt to recover the $10,078 in excessively

seized funds, Omondi filed a pre-trial motion for return of

property pursuant to Fed. R. Crim. P. 41(g) on March 20, 2008.

Conceding that it had seized $10,078 in error, the Government

agreed to return that sum to Defendants. Defendants also

requested that the court hold an evidentiary hearing to

determine what had happened to the remaining $82,565, which BB&T

had set aside while complying with the Government’s warrants,

but the Government had never seized. The district court

determined that this request went beyond the scope of a motion

to return property, and declined to hold an evidentiary hearing

because the funds were not in the Government’s possession.

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However, the court admonished the Government to cooperate with

Defendants to secure the return of any additional funds held by

BB&T.

The matter proceeded to trial with Defendants being

represented by appointed counsel and the Assistant Federal

Public Defender without objection or request for substitution of

counsel. On April 25, 2008, a jury convicted Defendants on all

but one fraud count.

On April 28, Defendants filed a post-trial motion

challenging the sufficiency of the evidence supporting their

convictions and voicing an intention to file more detailed

motions later. On July 10, Defendants filed those motions,

arguing for the first time that the Government’s failure to

serve the November seizure warrant on Defendants left them with

the false impression that the Government had seized the entire

balance of their bank accounts. As a result, Defendants argued,

they had failed to realize that they had funds on hand to pay a

private attorney. Defendants thus claimed that the Government

denied their Sixth Amendment right to counsel of their choosing.

The district court held that because it had not authorized

Defendants to file a supplemental, tardy motion, the July 10

motion was untimely. In the alternative, the court rejected

Defendants’ Sixth Amendment claim on the merits. It found the

evidence otherwise sufficient to sustain the jury’s verdicts.

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 The district court sentenced Omondi and Sanfo each to

concurrent terms of thirty-seven months’ imprisonment followed

by three years’ supervised release. Additionally, the district

court entered forfeiture orders, and imposed assessments of

$1200, fines of $10,000, and restitution of $185,135.

Defendants timely noted this appeal.

II.

Defendants argue first that the Government’s failure

to provide adequate notice of the seizures, the Government’s

seizure of $10,078 in excess funds, and the district court’s

denial of a Rule 41(g) hearing deprived them of a Fifth

Amendment right to due process and violated their Sixth

Amendment right to retain counsel of their choice.

Defendants clarify that they do not challenge the

district court’s order holding this claim time-barred; and we

therefore consider their claim as though raised for the first

time on appeal, and thus review under the exacting plain error

standard, which requires the appellant to show that: (1) there

was error; (2) the error was “plain”; and (3) the error affected

Defendants’ substantial rights. United States v. Olano, 507

U.S. 725, 732 (1993); United States v. Lynn, 592 F.3d 572, 577

(4th Cir. 2010). Even if the appellant makes this showing, we

exercise our discretion to correct the error only if it

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“seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Lynn, 592 F.3d at 577 (internal

quotation marks omitted).

Defendants do not claim that they did not receive any

notice of the seizures, as they received the July seizure

warrants. Rather, they contend that the notice was inadequate

because it did not state the exact amount of the seizure, which

caused them to mistakenly believe that the Government had seized

all of their funds, leaving nothing that they could use to pay

their attorney. Defendants also argue that the Government’s

seizure warrants precipitated BB&T’s decision to hold $82,565 of

their money in an account over which they had no control, and

that the Government therefore deprived them of those funds.

Defendants’ argument fails because they cannot show

that any error affected their substantial rights. First,

Defendants had ample notice of the seizure of their funds,

including seizure warrants issued in July of 2006. The actual

seizure took place, and Defendants knew that it took place, in

late 2006. From that point, they had the ability to request a

hearing to show probable cause to seize the funds. The fact

that Defendants thought that the Government had seized all of

their money, as opposed to only $202,435, gave them more, and

not less, reason to inquire about the basis for the seizure.

The grand jury returned the indictment on April 25, 2007,

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putting Defendants on notice that they would need a criminal

defense attorney. Surely, Defendants had sufficient notice and

time to ascertain the whereabouts of their funds. Furthermore,

after Defendants filed their Rule 41(g) motion for return of

property in March of 2008, they received a pretrial hearing

regarding their motion, in which they recovered all of the

improperly seized funds, and became aware that BB&T was holding

more than $85,000 of their funds, further indicating that any

defect in Defendants’ notice had no effect on their substantial

rights. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.

306, 314-15 (1950) (notice must be reasonably calculated to

apprise interested parties of pendency of action and afford them

an opportunity to object).

We also find that the district court did not err in

declining to grant a Rule 41(g) hearing to allow Defendants the

opportunity to question the federal agent as to BB&T’s

disposition of funds the Government never seized or possessed.

See United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007);

United States v. Solis, 108 F.3d 722, 722 (7th Cir. 1997)

(denying Rule 41(g) motion when Government never had possession

of property). The Government offered to assist Defendants in

securing the prompt return of these funds from BB&T, and the

Constitution certainly requires no more than that.

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 Defendants’ Sixth Amendment argument fares no better.

Defendants failed to produce sufficient factual support for

their claim that private counsel would have represented them had

they had earlier access to the $10,078 overage wrongfully seized

by the Government, the $82,565 from the bank, or the aggregate

of the two. Furthermore, Defendants failed to produce credible

evidence that the Government was responsible for Defendants’

delay in accessing the $82,565 non-seized balance from BB&T.

Consequently, we find no plain error affecting Defendants’

substantial rights.

III.

Defendants also challenge the sufficiency of the

evidence supporting their convictions for obstruction of

justice. A defendant challenging the sufficiency of the

evidence bears a heavy burden. We must sustain a jury verdict

“if there is substantial evidence, taking the view most

favorable to the Government, to support it. See Glasser v.

United States, 315 U.S. 60, 80 (1942); United States v. Burgos,

94 F.3d 849, 862 (4th Cir. 1996) (en banc).

To support a conviction for obstruction of justice,

the Government must prove: (1) a pending judicial proceeding;

(2) of which Defendants had knowledge or notice; and (3) that

Defendants “acted corruptly, that is with the intent to

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influence, obstruct, or impede that proceeding in its due

administration of justice.” United States v. Grubb, 11 F.3d

426, 437 (4th Cir. 1993) (footnote omitted). Additionally, a

nexus must exist with the judicial or grand jury proceedings.

See United States v. Aguilar, 515 U.S. 593, 599 (1995)

(requiring “a relationship in time, causation, or logic with the

judicial proceedings”). Intent to influence an ancillary

proceeding independent of the court’s or grand jury’s authority

is insufficient to establish the requisite nexus. Id.

The Government charged that Defendants had requested

Mohamad Al-Shalabi, a civil engineer, to backdate feasibility

studies relating to the construction of the homes. Al-Shalabi

had actually completed the studies in September 2006, but

Defendants requested that he backdate them to the summer of 2005

in order to create the appearance that they were, in fact,

working on the studied properties at that time.

On appeal, Defendants argue that they did not act

corruptly because Al-Shalabi actually had started work on the

feasibility studies in 2005, and therefore the backdating was

designed to more accurately portray reality. Defendants point

to testimony from Al-Shalabi stating that he did nothing wrong

or unprofessional by backdating the studies to 2005.

We find the testimony of Secret Service Agent Philip

Soto and of Al-Shalabi provided sufficient evidence for a jury

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to find beyond a reasonable doubt that Defendants’ knowledge of

the ongoing grand jury investigation prompted them to act

corruptly. In 2006, when faced with an ongoing grand jury

investigation, Defendants requested Al-Shalabi to backdate

invoices and feasibility reports to indicate that feasibility

studies were performed approximately one year earlier. The

evidence at trial showed that in 2005 Al-Shalabi had merely

performed a cursory evaluation of two properties listed in the

indictment and had not opened a file, created a report,

generated a bill, or communicated with Defendants again until

approximately one year later when they requested the backdated

documents for presentation in the grand jury investigation. Al-

Shalabi’s perception that he did nothing wrong or unprofessional

by backdating the documents is of no consequence. See United

States v. Erickson, 561 F.3d 1150, 1160 (10th Cir. 2009)

(finding obstruction of justice conviction supported by

presentation of manufactured evidence (backdated documents) even

if the manufacturer thought the evidence supported reality).

Furthermore, we find the nexus requirement of Aguilar

satisfied. The record contains sufficient evidence that

Defendants should have reasonably foreseen obstruction of

justice as a natural and probable consequence of presenting

backdated documents to the case agent involved with the grand

jury investigation. See United States v. Neiswender, 590 F.2d

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1269, 1273 (4th Cir. 1979); see also United States v. Furkin,

119 F.3d 1276, 1283 (7th Cir. 1997) (finding evidence sufficient

to support guilty verdict for obstruction of justice for

requesting backdated leases which had the “natural and probable

effect” of interfering with the grand jury investigation). We

conclude that a reasonable trier of fact, viewing the evidence

in the light most favorable to the Government, could have found

sufficient evidence to support Defendants’ guilty verdicts for

obstruction of justice beyond a reasonable doubt.

IV.

Finding no plain error affecting Defendants’

substantial rights regarding their alleged violations of their

rights to due process and counsel of their choice, and finding

sufficient evidence to support the jury’s verdicts of

obstruction of justice, we affirm Omondi’s and Sanfo’s

convictions and sentences. 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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