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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15840
________________________
D.C. Docket No. 3:10-cr-00298-HLA-TEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AKINTUNDE AKINLADE,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 22, 2013)
Before PRYOR and JORDAN, Circuit Judges, and PRO, * District Judge.
PER CURIAM:
Akintunde Akinlade appeals his convictions for conspiracy to commit
aggravated identity theft, in violation of 18 U.S.C. § 371; bank fraud, in violation
*
Honorable Philip M. Pro, United States District Judge for the District of Nevada, sitting by
designation.
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of 18 U.S.C. § 1344; mail fraud, in violation of 18 U.S.C. § 1341; access device
fraud, in violation of 18 U.S.C. §§ 1029(a)(5), 1029(c)(1); and aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1). Having reviewed the record, and
with the benefit of oral argument, we affirm.
I. BACKGROUND
In early 2010, United States Postal Inspector Adam Schaefer issued a BOLO
crime alert flyer for an unidentified male suspected of bank fraud. 1 The BOLO
contained surveillance photographs of the suspect; a description of the suspect
(including his approximate height, build, and age range); the crimes allegedly
committed; the vehicle the suspect was believed to be driving, including its license
plate number; and surveillance photographs of the vehicle. See Crime Alert Flyer
(Govt. Ex. 1 at Suppression Hearing). On March 12, 2010, Keenan Haines—the
manager at Flagstar Bank, in Duluth, Georgia—called Inspector Schaefer to report
that a person resembling the subject of the BOLO had been in his bank and
attempted to open both personal and business accounts under the name “John Paul
Mozingo.” Pursuant to Inspector Schaefer’s advice, bank employees contacted the
local police department.
Officer A.M. Kelley received a dispatch advising her that a male with active
warrants for identity fraud was believed to be at the bank. Upon her arrival, she
1
“BOLO” is an abbreviation for “be on the lookout for.” This BOLO had been disseminated to
law enforcement agencies and financial institutions in the southeastern United States.
2
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was shown the BOLO and some paperwork that “Mr. Mozingo” had completed to
open the bank accounts. She observed “Mr. Mozingo,” who was seated in Mr.
Haines’ office, and after comparing him to the photograph in the BOLO, she
concluded that he was “extremely similar” to the man in the photo. See Transcript
of Suppression Hearing at 10 [D.E. 55]. Officer Justin Von Behren also arrived at
the bank and after Officer Kelley showed him the BOLO, he too agreed that “Mr.
Mozingo” matched the description of the subject.
The two officers entered Mr. Haines’ office and asked “Mr. Mozingo” if he
would allow a pat down for officer safety, a request to which he agreed. Officer
Kelley noticed that he became “very fidgety” during the pat down and would not
stay still. “Mr. Mozingo” asked if he was under arrest and Officer Kelley
responded that he was not under arrest, but was being detained for further
investigation. When Officer Von Behren pulled out his handcuffs, “Mr. Mozingo”
stepped away and headed for the door. The officers tried to stop him but he
resisted and the three of them ended up fighting in the bank lobby. In an effort to
subdue him, Officer Kelley pulled out her Taser and deployed it. She fired once,
hitting “Mr. Mozingo.” Although “Mr. Mozingo” fell to the ground, he was not
completely subdued, and continued to crawl toward the exit, kicking Officer Von
Behren in the process. Officer Kelley fired her Taser again and tried to handcuff
“Mr. Mozingo,” who was still resisting and fighting his way outside the bank.
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The officers were eventually able to handcuff “Mr. Mozingo” with the aid of
additional officers, and placed him in Officer Kelley’s patrol vehicle. When
Officer Kelley asked “Mr. Mozingo” for his name, he said that it was “Peter
Akinlade.” Officer Kelley did not read him Miranda warnings, nor was she aware
that any other officer read him any such warnings. While in the backseat of her
patrol vehicle, he asked her how much trouble he was in. She told him that he was
being charged with two counts of obstruction of a police officer and that other
jurisdictions were looking for him and would possibly charge him with financial
identity fraud. In response, he said “I’m screwed.” After he requested that Officer
Kelley call his mom and refer to him as “Mike,” she said “you seem to have a lot
of names,” to which he responded, “Yeah, I’ve gone by several names.” “Mr.
Mozingo” was later identified as Akintunde Akinlade.
Officer Von Behren stayed at the scene and located a vehicle in the bank
parking lot which matched the description of the vehicle mentioned in the BOLO,
“a 2006 silver Nissan Maxima SL bearing Georgia tag #BKF8636,” with a given
VIN number, registered to Randy Glover, a name on “a fraudulently obtained
driver’s license.” Officer Von Behren compared the vehicle to the information in
the BOLO, and ran the license plate number through dispatch. When dispatch
indicated that the vehicle was registered to Randy Glover, Officer Von Behren
determined that this was indeed the vehicle mentioned in the BOLO. He decided
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to impound the vehicle; he completed the police department impound form and
inventoried the contents of the vehicle pursuant to standard procedure.
All this information was relayed to Inspector Schaefer, who prepared an
affidavit and application for a search warrant of the vehicle, which was granted by
a magistrate judge in the Northern District of Georgia. Pursuant to the search,
Inspector Schaefer found cellular phones, computer thumb drives, and a laptop
computer. Inspector Schaefer obtained an additional search warrant to search the
contents of the electronic devices, thereby uncovering more incriminating
evidence, including evidence of identity theft.
Mr. Akinlade was indicted by a federal grand jury in the Middle District of
Florida on one count of conspiracy to commit aggravated identity theft, four counts
of bank fraud, five counts of mail fraud, one count of access device fraud, and one
count of aggravated identity theft. Prior to trial, he filed a motion to suppress
statements he made and the evidence seized from the vehicle, arguing that they
were the fruits of an unlawful stop, arrest, and search. Following a suppression
hearing, the magistrate judge recommended that Mr. Akinlade’s motion be denied,
and the district court later adopted the report and recommendation.
At the end of the first day of trial, the district judge disclosed that two of the
victim-witnesses, Jack James and Viola Walker, owned property in his
neighborhood. The district judge explained that:
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Mr. James has been a resident in that neighborhood, or he has owned
a home in that neighborhood, for a very long time, but he hasn’t lived
there in probably 10, 15 years. I didn’t even think he still owned that
property. Miss Walker, I don’t know what her situation is, but she
lives up north, as well as in the neighborhood. So I thought I would
throw that out to you.
Trial Transcript at 63 [D.E. 121]. He also added that “Viola Walker and I served
on a homeowners board in that neighborhood.” Id. Mr. Akinlade filed a motion
for recusal pursuant to 28 U.S.C. § 455(a), asserting that the judge’s impartiality
might be in question because both witnesses were also victims in the case. See id.
at 7-9 [D.E. 122]; Motion for Recusal [D.E. 92]. The district judge clarified that
he had seen Ms. Walker two or three times, but never officially met her. He
further noted that Ms. Walker spent most of her time in some other city and that
since she was elected to serve on the board of property owners, he had seen her at
two or three board meetings. He added that they had never been to each other’s
homes, that “there [was] no relationship between [them] other than being board
members,” and denied the motion for recusal. See Trial Transcript at 10-12 [D.E.
122].
The jury found Mr. Akinlade guilty of all twelve counts. The district court
sentenced him to a term of 95 months’ imprisonment.
On appeal, Mr. Akinlade argues that (1) the district court erred in denying
the motion to suppress because the police officers lacked reasonable suspicion to
detain him and probable cause to arrest him; (2) he was entitled to but was not
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advised of his Miranda rights; (3) the search and seizure of the items found in his
vehicle violated Arizona v. Gant, 556 U.S. 332 (2009); and (4) the district judge
abused his discretion when he denied the motion for recusal.
II. STANDARDS OF REVIEW
We review the district court’s denial of a motion to suppress evidence under
a mixed standard of review. See United States v. Jiminez, 224 F.3d 1243, 1247
(11th Cir. 2000). “A district court’s denial of a motion to suppress evidence is
reviewed as a mixed question of law and fact, with the rulings of law reviewed de
novo and the findings of fact reviewed for clear error, in the light most favorable to
the prevailing party.” United States v. De La Cruz Suarez, 601 F.3d 1202, 1213
(11th Cir. 2010). We review a district court’s denial of a motion for recusal for
abuse of discretion. See United States v. Bailey, 175 F.3d 966, 968 (11th Cir.
1999).
III. DISCUSSION
A. The Stop and Arrest
The Fourth Amendment protects individuals from unreasonable government
search and seizure. U.S. CONST. amend. IV. An officer may briefly detain a
person if she has a reasonable and articulable suspicion based on objective facts
that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1, 30 (1968). See also
United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000) (“Under Terry, law
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enforcement officers may detain a person briefly for an investigatory stop if they
have a reasonable, articulable suspicion based on objective facts that the person has
engaged in, or is about to engage in, criminal activity.”). A determination of
reasonable suspicion is based on the totality of the circumstances and may be
formed even if the conduct is ambiguous or can be given an innocent explanation.
See Illinois v. Wardlow, 528 U.S. 119, 125 (2000); Powell, 222 F.3d at 917-18.
“[I]f a flyer or bulletin has been issued on the basis of articulable facts supporting a
reasonable suspicion that the wanted person has committed an offense, then
reliance on that flyer or bulletin justifies a stop to check identification, to pose
questions to the person, or to detain the person briefly while attempting to obtain
further information.” United States v. Hensley, 469 U.S. 221, 232 (1985) (internal
citations omitted).
Here, the officers were permitted to question and briefly detain Mr. Akinlade
to obtain additional information because he matched the description of the suspect
in the BOLO. See id. The officers arrived in response to a dispatch call
announcing that a male with active warrants for identity fraud was believed to be at
the bank. Both officers testified that, after comparing the photograph in the BOLO
to Mr. Akinlade, they believed him to be the suspect in the BOLO. Moreover, Mr.
Akinlade was “fidgety” during the pat down, providing a reasonable belief that he
might flee because he may have been engaged in criminal activity. See Wardlow,
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528 U.S. at 124 (“Our cases have also recognized that nervous, evasive behavior is
a pertinent factor in determining reasonable suspicion.”); Transcript of Suppression
Hearing at 74 (Officer Von Behren testified that Mr. Akinlade acted “fidgety”
almost “from the time we came in, he became nervous and increased in
nervousness as our contact continued, culminating with his attempted escape”).
Under the totality of these circumstances, the officers had reasonable suspicion that
Mr. Akinlade had engaged in the fraudulent identity theft scheme described in the
BOLO and had the right to momentarily detain him so they could complete their
investigation. See Hensley, 469 U.S. at 232. See also Transcript of Suppression
Hearing at 76 (Officer Von Behren testified that the decision to detain Mr.
Akinlade was based “on a number of factors,” including the “information we had
received at dispatch, the bolo we scanned, the pictures and then what he stated his
purpose being there was,” which he and Officer Kelley “believed . . . warranted
further investigation”).
When Mr. Akinlade attempted to leave the bank and resisted, the officers
had additional reason to believe he was the suspect referenced in the BOLO. And
when Mr. Akinlade actively struggled with the officers, kicking and crawling in an
attempt to flee, the officers acquired probable cause to arrest him for obstruction.
See GA. CODE ANN. § 16-10-24 (“Obstruction of Officers”); Spence v. State, 672
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S.E. 2d 538, 540 (Ga. Ct. App. 2009) (holding that officer had probable cause to
arrest defendant for obstruction once he fled from sergeant).
B. The Statements
Mr. Akinlade asserts that his post-arrest statements to Officer Kelley were
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). That contention
is moot, however, because the government did not offer those statements into
evidence at trial. See United States v. Diecidue, 603 F.2d 535, 561 (5th Cir. 1979)
(“[The Defendant] also contends that the fruits of this entire search should be
suppressed because some of the items were improperly seized . . . . Since the
Government did not introduce these items into evidence, the issue is moot.”).2
C. The Impoundment and Search of the Vehicle
Mr. Akinlade argues that the search of, and seizure of items from, his
vehicle were unconstitutional. As Mr. Akinlade sees it, he did not have access to
his vehicle, as he was already arrested, and the officers did not have information
that there would be evidence relating to his obstruction offense in the vehicle. See
Arizona v. Gant, 556 U.S. 332, 344 (2009) (“Because police could not reasonably
have believed either that Gant could have accessed his car at the time of the search
or that evidence of the offense for which he was arrested might have been found
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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therein, the search in this case was unreasonable.”). Mr. Akinlade also argues that
the search was illegal because his vehicle was impounded in violation of the rules
of the Gwinnett County Police Department. We need not address Mr. Akinlade’s
Gant argument because the impoundment and inventory of the vehicle were
permissible on other grounds.
A police officer may impound and inventory a vehicle when he has acted
pursuant to standard criteria or police procedures. See Colorado v. Bertine, 479
U.S. 367, 375-76 (1987) (holding that officer’s inventory of impounded van was
permissible under the Fourth Amendment because it was done according to
standard criteria and on the basis of something other than suspicion of evidence of
criminal activity); South Dakota v. Opperman, 428 U.S. 364, 376 (1976) (holding
that routine inventory search—pursuant to standard police procedures—of an
automobile lawfully impounded by police for violations of municipal parking
ordinances did not violate the Fourth Amendment); United States v. Roberson, 897
F.2d 1092, 1096-97 (11th Cir. 1990) (police officer’s impoundment and inventory
of car in accordance with standard police procedures was not unreasonable under
the Fourth Amendment). See also Sammons v. Taylor, 967 F.2d 1533, 1543 (11th
Cir. 1992) (qualified immunity case: “Even if an arrestee’s vehicle is not impeding
traffic or otherwise presenting a hazard, a law enforcement officer may impound
the vehicle, so long as the decision to impound is made on the basis of standard
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criteria and on the basis of ‘something other than suspicion of evidence of criminal
activity.’”). Mr. Akinlade asserts that, according to the Gwinnett County Police
Department Directives Manual, if the operator of a vehicle is arrested, the officer’s
decision to impound the vehicle must be reasonable under the circumstances. Mr.
Akinlade argues that because the vehicle was parked in the bank parking lot and
there were no safety concerns with leaving the vehicle there, the decision to
impound was improper. See Directives Manual § 427.03 (Supp. Ex. to the
Suppression Hearing) [D.E. 54-1 at 1-2].
The Manual, however, also permits an officer to impound and “hold” a
vehicle if “there is a question as to who the lawful owner of the vehicle is.” See
Directives Manual § 427.05. See also United States v. Shareef, 100 F.3d 1491,
1508 (10th Cir. 1996) (car can be impounded until ownership is determined).
Here, the BOLO stated that the vehicle was registered under a fraudulently
obtained driver’s license and that it was unknown who the true owner might be. In
addition, Mr. Akinlade had used three different names (Mr. Mozingo, Peter
Akinlade, and Mike), creating more questions about the vehicle’s ownership and
Mr. Akinlade’s relationship to the vehicle. Officer Von Behren’s impoundment
and inventory thus adhered to the requirement that they be conducted according to
standardized criteria. See Bertine, 479 U.S. at 375; Directives Manual § 427.06
(“Before impound . . . [the] vehicle will be inventoried”); Transcript of
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Suppression Hearing at 53 (Officer Von Behren testified that inventory of the
contents of the vehicle was “standard procedure for any impounded vehicle”); id.
at 67 (“Department policy requires me to inventory the contents of the vehicle to
identify any items of value”).
Inspector Schaefer’s searches after the inventory were lawful because they
were conducted pursuant to valid search warrants. We therefore reject Mr.
Akinlade’s Fourth Amendment arguments.
D. Recusal
A judge shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned. See 28 U.S.C. § 455(a). The standard for recusal
is whether an objective, disinterested lay observer fully informed of the facts
would entertain a significant doubt about the judge’s impartiality. See United
States v. Kelly, 888 F.2d 732, 744-45 (11th Cir. 1989) (holding that district judge
abused his discretion in failing to recuse himself from criminal bench trial in which
a defense witness’ wife was a close personal friend of his spouse and judge had
spoken to witness’ wife in chambers prior to testimony). “The very purpose of §
455(a) is to promote confidence in the judiciary by avoiding even the appearance
of impropriety whenever possible.” Id. at 744. “[C]onsidering that the standard of
review is abuse of discretion, we will affirm a district judge’s refusal to recuse
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himself unless we conclude that the impropriety is clear and one which would be
recognized by all objective, reasonable persons.” Bailey, 175 F.3d at 968.
Relying on Kelly, Mr. Akinlade asserts that a lay observer might reasonably
question the judge’s impartiality because the judge recognized the two victim-
witnesses as neighbors, served on a homeowners association board with one of
them, and his neighborhood was allegedly a target for the fraud scheme. Unlike
the situation in Kelly, however, the district judge here did not have a close
friendship with any of the witnesses, did not express any doubt about the propriety
of presiding over this case, and did not react with a personal dilemma that
culminated in making comments specifically blaming the defendant for not raising
recusal earlier. Notably, the judge in Kelly concluded that he should recuse
himself but because he was concerned about double jeopardy, he gave the parties
the option to seek a mistrial or proceed with a bench trial. See Kelly, 888 F.2d at
738-39.
Here, the district judge did not perceive grounds for recusal and simply
disclosed that Mr. James and Ms. Walker owned property in his neighborhood and
although he had never officially met Ms. Walker, he had seen her at two or three
board meetings. On this record, Mr. Akinlade has not shown that the judge’s
previous contact with Mr. James and Ms. Walker objectively placed his
impartiality in question. See, e.g., United States v. Young, 39 F.3d 1561, 1570
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(11th Cir. 1994) (“The former business dealings between Judge Butler and a
potential defense witness in this case simply do not rise to the level of manifest
conflict of interest”). Given our review, we cannot say that the district judge
abused his discretion by failing to recuse himself in this case.
IV. CONCLUSION
We affirm the district court’s denial of Mr. Akinlade’s motion to suppress
and motion for recusal.
AFFIRMED.
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