PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4096
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OKECHUKWO EBO OTUYA, a/k/a Oke, a/k/a Waffi,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:10-cr-00596-DKC-3)
Argued: May 16, 2013 Decided: June 19, 2013
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Agee and Senior Judge Hamilton joined.
ARGUED: Marta K. Kahn, Baltimore, Maryland, for Appellant.
Robert K. Hur, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland; Jonathan Lenzner,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
WILKINSON, Circuit Judge:
Okechukwo Ebo Otuya was convicted of one count of
conspiracy to commit bank fraud, two counts of substantive bank
fraud, and one count of aggravated identity theft for his role
in a scheme that defrauded Bank of America of hundreds of
thousands of dollars. He appeals his convictions and resulting
96-month prison sentence on a variety of grounds. Finding his
contentions to be without merit, we affirm.
I.
A.
In late 2007, Otuya and several coconspirators began
operating an elaborate scheme to defraud Bank of America through
the use of stolen checks. The scheme involved three basic
steps. First, Otuya and his confederates would drive around
affluent Maryland residential neighborhoods, stealing mail out
of roadside mailboxes and placing it in large trash bags. The
conspirators would then comb through the purloined mail in
search of credit card convenience checks, which are instruments
that are processed as charges to an account holder’s credit card
account (as opposed to a checking account).
The second part of the scheme involved paying local college
students in exchange for access to their bank account and ATM
cards, which the conspirators would then use to process the
2
stolen checks. For example, one college student named Brandon
Simmons sold his ATM card, PIN number, social security number,
and a signed check to the conspirators in early 2008 for $400.
Third, Otuya and his confederates would deposit the stolen
convenience checks into the purchased student accounts and
withdraw the corresponding funds before Bank of America could
determine that the checks were not authorized. Many of these
deposits and withdrawals were made by “runners,” or middle men
(usually other college students) whom the conspirators paid to
actually deposit and withdraw the checks at various Bank of
America branch locations, thereby lessening the conspirators’
own exposure. But on at least two occasions Otuya personally
deposited stolen checks into the student accounts. In
particular, Otuya used Simmons’s bank account information to
deposit two checks worth $9,400 and $6,200 in October 2008.
The government indicted Otuya and four co-defendants for
the foregoing activity in September 2010. Three of Otuya’s co-
defendants pleaded guilty and the fourth was convicted in a
separate jury trial. The indictment contained four counts with
respect to Otuya: one count of conspiracy to commit bank fraud,
in violation of 18 U.S.C. § 1349; two counts of bank fraud, in
violation of 18 U.S.C. § 1344; and one count of aggravated
identity theft, in violation of 18 U.S.C. § 1028A. The
conspiracy count was based on Otuya’s participation in the
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overarching scheme to steal and process unauthorized credit card
convenience checks in the student accounts. The substantive
bank fraud and aggravated identity theft counts were based on
Otuya’s individual conduct in depositing stolen checks into the
Bank of America account belonging to Simmons.
B.
At trial, the government began its case by presenting
testimony from three “runners” who deposited and withdrew stolen
checks for Otuya -- Rebecca Elias, Makeda Tefera, and Tezeta
Tesfaye. Elias explained, for example, how Otuya and other
conspirators would drop her off at different Bank of America
branch locations and pay her to either deposit a fraudulent
check into one of the student accounts or withdraw funds from
such an account. Elias testified further that Otuya personally
handed her fraudulent checks for deposit on several occasions
and that after making withdrawals, she would sometimes hand the
funds directly to Otuya upon returning to the car. The three
runners also visually identified Otuya in Bank of America video
footage introduced by the government as the person who deposited
a forged check into the account belonging to Brandon Simmons.
Testimony was also adduced regarding Otuya’s spending
habits. Elias explained, for instance, how Otuya would buy
bottles of liquor in the VIP areas of clubs. Tefera observed
that Otuya drove an Audi -- even though, as Elias pointed out,
4
Otuya was not known to have a full-time job. In addition, a
Maryland realtor testified that Otuya and his roommate paid
$14,000 up front to rent a house for six months.
On May 16, 2011, the jury returned a verdict convicting
Otuya on all four counts. During sentencing, the district court
began its guidelines range calculation by noting that Otuya’s
base offense level was seven. It then considered three
enhancements relevant to this appeal. First, the court applied
a twelve-level enhancement under U.S.S.G. § 2B1.1(b)(1)(G)
because it found that the intended amount of loss from the fraud
scheme attributable to Otuya exceeded $200,000. Second, the
court applied a four-level enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(2)(B) because the offense involved fifty or more
victims. Finally, the court applied a three-level enhancement
under U.S.S.G. § 3B1.1(b) on the ground that Otuya was a manager
or supervisor in an offense involving five or more participants.
In view of these enhancements, the court calculated Otuya’s
total offense level as 26, which, when cross-referenced against
Otuya’s criminal history category, produced a guidelines range
of 63 to 78 months for the bank fraud conspiracy and substantive
bank fraud counts. After evaluating the 18 U.S.C. § 3553(a)
sentencing factors, the court selected a within-guidelines range
of 72 months for these counts, to run concurrently. The court
also imposed a consecutive sentence of 24 months for the
5
aggravated identity theft count, yielding a total sentence of
96-months.
This appeal ensued.
II.
A.
Prior to trial, the government moved to admit evidence that
was discovered in a search of a backpack belonging to Otuya upon
his arrest. The government filed its motion pursuant to Federal
Rule of Evidence 404(b)(2), which requires pretrial notice of a
prosecutor’s intent to introduce evidence of other bad acts.
Specifically, the government sought to introduce evidence
from the backpack that included: a printout of a Bank of America
account profile belonging to a man named Frank Hawkins; a debit
card and Tennessee identification card belonging to another Bank
of America customer; a laptop computer with images of checks and
credit reports belonging to other individuals; and four cell
phones that contained the names of coconspirators in their
contact lists and text messages with bank account information.
The government contended that although this evidence related to
a modified version of the fraud (which involved buying account
information from a Bank of America insider rather than using
stolen checks), the evidence was admissible because it was
intrinsic to the charged activity. In the alternative, the
6
government argued that the evidence was admissible to prove non-
character purposes such as modus operandi and knowledge.
Over Otuya’s opposition, the district court decided at a
pretrial hearing that it would admit the evidence. In doing so,
the court explained its initial view that the evidence arose out
of the “same series of transactions as the charged offenses” and
related to an ongoing conspiracy with the “same general core of
coconspirators,” such that it was intrinsic to the charged
crimes. The court left open the possibility of revisiting the
issue at trial, however, stating that “if at any time I conclude
I’m hearing things differently . . . I’ll let everyone know, and
we’ll have [further] discussion at that point.”
Later, when the government sought to introduce the evidence
at trial, Otuya renewed his objection. The court stood by its
earlier decision and admitted the evidence on the grounds that
it was intrinsic to the charged acts and, alternatively, that it
was permissible under Rule 404(b) because the evidence helped
establish a common scheme, absence of mistake, and Otuya’s
identity in the Bank of America video footage.
The government then offered witnesses to provide context
for the backpack evidence. Most notably, a former Bank of
America teller named Malia Forrester testified that she provided
customers’ account information to the conspirators in exchange
for payment in 2010. One of the account profiles that she sold
7
belonged to Frank Hawkins -- the same customer whose information
was found inside Otuya’s backpack. And Frank Hawkins’s son,
James Hawkins, testified that fraudulent checks were indeed
drawn on his father’s account in July 2010.
B.
Otuya argues at the outset that his conviction should be
reversed because the district court improperly admitted evidence
found in his backpack under Federal Rule of Evidence 404(b).
That rule excludes “[e]vidence of a crime, wrong, or other act”
if it is offered to “prove a person’s character in order to show
that on a particular occasion the person acted in accordance
with the character.” However, evidence of another bad act may
be admissible in two situations relevant here. First, the
evidence may be introduced if it concerns acts “intrinsic to the
alleged crime” because evidence of such acts “do[es] not fall
under Rule 404(b)’s limitations” to begin with. United States
v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996). Second, even if the
evidence involves extrinsic acts, it may be admitted for a non-
character purpose such as to prove identity. See Fed. R. Evid.
404(b)(2). For the reasons below, we conclude that the district
court did not abuse its discretion in admitting the evidence
from Otuya’s backpack under both of these grounds. See United
States v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002) (reviewing
evidentiary rulings for abuse of discretion).
8
1.
First, the district court reasonably concluded that the
backpack evidence was intrinsic to the charged offenses. Our
cases have held that evidence of other bad acts is intrinsic if,
among other things, it involves the same “series of transactions
as the charged offense,” United States v. Kennedy, 32 F.3d 876,
885 (4th Cir. 1994), which is to say that “both acts are part of
a single criminal episode,” Chin, 83 F.3d at 88 (internal
quotation marks omitted).
Here, the trial court was confronted with abundant evidence
showing that the 2008-2009 and the 2010 fraudulent activity were
really components of the same ongoing criminal episode. Both
sets of acts involved the same victim (Bank of America),
defrauded under the same basic scheme (depositing unauthorized
checks into student checking accounts using the students’ ATM
cards), by the same conspirators. Indeed, one of the cell
phones found in Otuya’s backpack in 2010 contained 27 text
messages from an individual named “Tai,” who was implicated as a
runner in the 2009 activity. Several of these messages were
suggestive of the same ongoing fraud: one message contained a
bank account number, PIN, and social security number; two other
messages stated “Who has the plastic?” and “Collect the card
from him tonite.”
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In light of these facts, the court’s determination that the
evidence in Otuya’s backpack arose out of the same series of
transactions and involved the same criminal episode as the
charged fraud was hardly an abuse of discretion.
2.
Even if the backpack evidence was somehow found to concern
acts extrinsic to the charged crimes, the district court did not
err in admitting it under its alternative rationale: that the
evidence was permissible to prove a matter other than Otuya’s
character.
To begin with, the court did not abuse its discretion in
finding that the backpack evidence was relevant to issues other
than Otuya’s character. For example, in order to convict on the
bank fraud charges, the government had to prove that Otuya
knowingly executed a scheme to defraud Bank of America. See
United States v. Mancuso, 42 F.3d 836, 844 (4th Cir. 1994). The
fact that Otuya possessed Bank of America account information, a
debit card, and a Tennessee identification card all belonging to
individuals other than himself was thus relevant both to
demonstrate his knowing participation in the scheme and to
corroborate the eye-witness identifications of Elias and other
witnesses against Otuya.
The district court also acted within its discretion when it
found that the backpack evidence was relevant to establishing
10
Otuya’s common scheme or modus operandi of obtaining Bank of
America account information, paying college students for the use
of their debit cards and accounts, and having runners deposit
forged instruments into those accounts. See United States v.
Siegel, 536 F.3d 306, 318 (4th Cir. 2008) (other crime evidence
relevant for modus operandi where defendant’s “typical pattern
was to obtain the personal information of another person, use
that information to obtain credit in that person’s name, and
take whatever steps were necessary to prevent that person from
learning about the new accounts until it was too late”). We
therefore conclude that the district court did not err in
admitting the evidence. *
III.
Otuya next challenges his conviction for aggravated
identity theft. The statute imposes a mandatory consecutive two
year prison sentence against one who, “during and in relation to
any felony violation enumerated in subsection (c) [including
bank fraud], knowingly . . . uses, without lawful authority, a
means of identification of another person.” 18 U.S.C.
*
Because the other direct and circumstantial evidence of
Otuya’s guilt was so overwhelming, we also find that any error
in admitting the backpack evidence would have been harmless in
any event. See Fed. R. Crim. P. 52(a) (“Any error . . . that
does not affect substantial rights must be disregarded.”).
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§ 1028A(a)(1). Otuya asserts that § 1028A’s use of the phrase
“without lawful authority” means that in order to violate the
statute, a defendant must use another individual’s
identification for a particular purpose without the individual’s
consent. And because Otuya had such consent here -- that is,
because his coconspirator, Brandon Simmons, agreed to Otuya’s
nefarious use of his identification -- Otuya contends that his
aggravated identity theft conviction must be reversed.
We reject this argument for a straightforward reason: no
amount of consent from a coconspirator can constitute “lawful
authority” to engage in the kind of deplorable conduct that
Otuya engaged in here. Simply put, one does not have “lawful
authority” to consent to the commission of an unlawful act. Nor
does a “means of identification” have to be illicitly procured
for it to be used “without lawful authority.” To excuse Otuya’s
act of using another person’s identification to defraud Bank of
America of thousands of dollars simply because a coconspirator
agreed to let him do so would produce an untenable construction
of the statute and an unacceptable result.
Moreover, as we explained in United States v. Abdelshafi,
the phrase “without lawful authority” means that § 1028A
prohibits the use of another person’s identifying information
“without a form of authorization recognized by law.” 592 F.3d
602, 609 (4th Cir. 2010). Although Abdelshafi involved a
12
situation where the defendant used the identifying information
of others for an illegal purpose without obtaining their
permission to do so, that distinction makes no difference. For
it is obvious that, with or without permission from its rightful
owner, a defendant who uses the means of identification of
another “during and in relation to any felony violation
enumerated” in the statute necessarily lacks a form of
authorization recognized by law. Our holding as much places us
in accord with every circuit to have addressed the question.
See United States v. Lumbard, 706 F.3d 716, 722-25 (6th Cir.
2013); United States v. Ozuna-Cabrera, 663 F.3d 496, 499 (1st
Cir. 2011); United States v. Hines, 472 F.3d 1038, 1040 (8th
Cir. 2007).
Otuya raises several arguments in response, but none are
persuasive. He first argues that our decision in United States
v. Woods, 710 F.3d 195 (4th Cir. 2013), commands a different
result. In Woods, we upheld a jury instruction that defined the
phrase “act without lawful authority” to mean the use of a
“means of identification of another person without the person’s
consent or knowledge.” Id. at 208. While that definition is
consistent with the one that Otuya presses in this appeal, it
does not foreclose the interpretation that we adopt here. That
is to say, a defendant acts without lawful authority not only
when he uses a means of identification without the consent or
13
knowledge of its owner (as in Woods) but also when he uses the
identification in order to commit a crime even with consent (as
is true here). In other words, the jury instruction rightly
upheld in Woods was not incorrect; it was just under-inclusive.
This makes sense in light of the facts in Woods, where the
defendant apparently did not argue that he had actual consent to
use the means of identification at issue. The defendant in that
case instead pressed an argument regarding his mens rea,
claiming that “he did not know that he was acting without lawful
authority.” Id. (emphasis added). Otuya, by contrast, does not
raise any contentions about his mental state in this appeal.
Otuya next makes a number of arguments concerning statutory
purpose, legislative history, and the provision’s title. With
respect to purpose, Otuya contends that the aggravated identity
theft statute is designed to protect victims from the
consequences of having their identifications misappropriated.
He relies in particular on a statement in Flores-Figueroa v.
United States, where the Supreme Court accepted the government’s
description of § 1028A’s purpose as “provid[ing] enhanced
protection for individuals whose identifying information is used
to facilitate . . . crimes.” 556 U.S. 646, 654 (2009). Otuya
suggests that in light of this purpose, he falls outside of the
statute’s reach insofar as there was no identity theft victim in
need of protection in his case. Otuya also points to stray
14
remarks in the legislative history where individual lawmakers
discussed the victim-protection aim of the law. And he relies
lastly on the statute’s title –- “aggravated identity theft” --
as an indication that the law was designed to protect against
the actual theft of an identity, which did not occur here.
Despite Otuya’s pleas, all of these arguments must be
rejected under an elementary rationale: arguments about purpose,
history, and statutory titles cannot contradict a law’s plain
text. See Bd. of Governors of Fed. Reserve Sys. v. Dimension
Fin. Corp., 474 U.S. 361, 374 (1986) (rejecting the “invocation
of the ‘plain purpose’ of legislation at the expense of the
terms of the statute itself”); W. Va. Univ. Hosps., Inc. v.
Casey, 499 U.S. 83, 98-99 (1991) (“Where [a statute] contains a
phrase that is unambiguous . . . we do not permit it to be
expanded or contracted” based on legislative history); Pa. Dep’t
of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (“The title of a
statute cannot limit the plain meaning of the text.” (internal
quotation marks and alterations omitted)). As we have
explained, the plain meaning of § 1028A(a)(1) is unambiguous:
one who uses a means of identification to commit an enumerated
felony does not act with “lawful authority.” We thus affirm
Otuya’s conviction for aggravated identity theft.
15
IV.
With his challenges to his convictions unavailing, Otuya
attempts next to contest the district court’s application of the
sentencing guidelines. Otuya claims that the district court
erred in three respects, but his arguments are unpersuasive.
A.
Otuya’s first claim is that the trial court erroneously
imposed a twelve-level enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(1)(G) on the ground that Otuya’s offense involved an
intended loss amount in excess of $200,000. We review the
court’s calculation of loss amount for clear error. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
In calculating the amount of loss for the purpose of the
§ 2B1.1(b)(1) enhancement, a district court may consider the
“greater of actual loss or intended loss” and must only make a
“reasonable estimate” of that amount based on available
information. U.S.S.G. § 2B1.1 cmt. n.3(A), (C). In a case like
this one involving jointly undertaken criminal activity, a
particular loss may be attributed to a defendant if it results
from the conduct of others so long as the conduct was “in
furtherance of, and reasonably foreseeable in connection with”
the criminal activity. U.S.S.G. § 1B1.3(a)(1)(B) & cmt. n.2.
In this case, the district court made a reasonable estimate
that the intended loss reasonably foreseeable to Otuya was in
16
excess of $200,000. In reaching that determination, the court
referenced a detailed spreadsheet that the government
constructed describing 78 specific losses that were intended in
the course of the fraud scheme. The court then selected the 33
particular losses that it found to be in furtherance of the
conspiracy and reasonably foreseeable to Otuya, either because
he personally perpetrated the underlying fraudulent transactions
or because he had a close working connection with the
conspirators who did. There is no dispute that the total of the
intended losses from those transactions exceeded $200,000, and
in fact approached $400,000. In view of this strong evidence,
the court did not clearly err in its loss calculation or the
resulting imposition of a twelve-level enhancement.
B.
Otuya’s second challenge to his sentence concerns the
court’s application of a four-level enhancement for a crime
having fifty or more victims under U.S.S.G. § 2B1.1(b)(2)(B).
That guideline provision defines the term “victim” to include,
inter alia, “any person who sustained any part of the actual
loss.” U.S.S.G. § 2B1.1 cmt. n.1. “Actual loss” is defined to
mean “pecuniary harm,” which in turn encompasses “harm that is
monetary or that otherwise is readily measurable in money” and
does not include “non-economic harm.” U.S.S.G. § 2B1.1 cmt.
n.3(A)(i), (iii). We review the court’s ruling on this
17
enhancement for clear error with respect to factual findings and
de novo as to legal conclusions. See United States v. Blake, 81
F.3d 498, 503 (4th Cir. 1996).
The thrust of Otuya’s argument is that the district court
took an erroneous view of this enhancement when it counted as
victims a number of individual account holders whose losses were
reimbursed by Bank of America. In Otuya’s view, because such
reimbursed persons did not suffer any monetary or pecuniary
harm, they did not “sustain[] any part of the actual loss” as
would be required to meet the definition of a “victim.”
U.S.S.G. § 2B1.1 cmt. n.1.
In rejecting this contention, the district court noted a
divide in authority among our sister circuits. For example, in
United States v. Yagar, the Sixth Circuit held that bank account
holders do not count as “‘victims’ under the Guidelines [where]
they [a]re fully reimbursed for their temporary financial
losses.” 404 F.3d 967, 971 (6th Cir. 2005); see also, e.g.,
United States v. Kennedy, 554 F.3d 415, 419 (3d. Cir. 2009). By
contrast, the First Circuit has “reject[ed]” the position taken
in Yagar and in other circuits, that “account holders d[o] not
suffer actual pecuniary harm, ‘readily measurable in money,’
[if] their losses were reimbursed.” United States v. Stepanian,
570 F.3d 51, 56 (1st Cir. 2009). The First Circuit instead
takes the view that the definition of “victim” in U.S.S.G.
18
§ 2B1.1 cmt. n.1 “does not have a temporal limit or otherwise
indicate that losses must be permanent.” Id. at 55.
While our circuit has yet to squarely address this issue,
we need not do so here because there is an alternative basis in
the record that indisputably warrants the application of the
number-of-victims enhancement. See United States v. Jinwright,
683 F.3d 471, 488 (4th Cir. 2012) (“We may affirm the district
court on the basis of any conduct in the record that
independently and properly should result in an increase in the
offense level by virtue of the enhancement.” (internal quotation
marks and alterations omitted)). Specifically, U.S.S.G. § 2B1.1
cmt. n.4(C) provides an additional definition of “victim” that
is obviously pertinent based on Otuya’s conduct: “in a case in
which undelivered United States mail was taken . . . ‘victim’
means . . . any person who was the intended recipient, or
addressee, of the undelivered United States mail.”
The government presented ample evidence at trial that at
least fifty persons had their mail taken by Otuya and his
confederates. Rebecca Elias and Makeda Tefera testified that
they went on multiple trips -- referred to by the conspirators
as “missions” -- during which Otuya and others would drive
through residential neighborhoods and steal mail out of
mailboxes. Elias explained that she personally went on two or
three missions with members of the conspiracy, and that on one
19
of these missions she witnessed Otuya take mail out of a number
of roadside boxes and stuff it inside a “large trash bag in the
passenger side seat,” to the point where the bag was “pretty
full.” Tefera testified that she, too, saw Otuya fill up a
plastic bag with stolen mail, so much so that it was
“overflowing.” Thus, although neither witness offered a precise
number for how many persons had their mail stolen on any given
mission, or how many missions the conspirators took in total,
the testimony was surely sufficient to support a finding of at
least fifty victims. On that basis, we affirm the district
court’s application of the number-of-victims enhancement.
C.
Finally, Otuya challenges the trial court’s imposition of a
three-level enhancement for his aggravated role as a manager or
supervisor in the offense under U.S.S.G. § 3B1.1(b). The
guidelines list the following factors as among those relevant to
a determination of aggravated role: “the exercise of decision
making authority . . . the recruitment of accomplices . . .
[and] the degree of participation in planning or organizing the
offense.” U.S.S.G. § 3B1.1 cmt. n.4. Given the facts adduced
at trial, the court did not err in concluding in light of these
factors that Otuya was a manager or supervisor in the scheme.
For starters, the trial court correctly observed that Otuya
was intimately involved in planning and organizing the offense
20
and making key decisions. Otuya frequently obtained convenience
checks and supplied both the checks and student account
information to runners, instructing them on what to do upon
entering a bank. To that end, Elias, Tesfaye, and Tefera each
testified that the defendant supervised their actions on
multiple occasions. Moreover, Otuya also regularly decided
where, when, and in what amounts the various transactions would
be performed. And as a government inspector testified during
Otuya’s sentencing hearing, Otuya recruited others to join in
the scheme and taught them the basics of how it operated. We
therefore affirm the application of the three-level aggravated
role enhancement to Otuya.
V.
For the reasons given, the judgment of the district court
is hereby affirmed.
AFFIRMED
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