IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 98-51124
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JACKSON AYOBAM OLANIYI-OKE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
December 30, 1999
Before HIGGINBOTHAM and SMITH, We address only the facts relevant to the
Circuit Judges, and DUPLANTIER, two money laundering counts as to which
District Judge.* Olaniyi-Oke asserts there was insufficient
evidence. One Richard Porter was issued a
JERRY E. SMITH, Circuit Judge: MasterCard by Maryland Bank of North
America (“MBNA”). Olaniyi-Oke
impersonated Porter in notifying MBNA that
Jackson Olaniyi-Oke was convicted of Porter’s address had changed to a mailbox
conspiracy, fraud in connection with access owned by Olaniyi-Oke. MBNA later mailed
devices, mail fraud, fraud involving fictitious three convenience checks to the new address,
name and address, bank fraud, money one of which later was found at Olaniyi-Oke's
laundering, and fraudulent use of a social residence.
security number. He contends that the
evidence is insufficient on two of the money One of the checks was used partially to pay
laundering counts and that, as to the other off the balance of another credit card owned
counts, the court erred in denying motions for by Porter, a NationsBank Visa card. The
continuance based on the inability to locate a address for the Visa had also been changed by
prospective witness and the desire to challenge Olaniyi-Oke, and a requested replacement card
the racial composition of the jury venire. We had been sent to that new address. After the
find no error in the the denial of continuance credit balance was partially paid by the MBNA
but reverse, for insufficient evidence, the check, the Visa was used to purchase one
convictions on the two subject money computer at each of two Houston businesses,
laundering counts. Computer City and Office Max. The
computers were found in Olaniyi-Oke’s
I. residence, and his calling card had been used
to make calls to the Computer City location.
*
District Judge of the Eastern District of Olaniyi-Oke argued that another man whom
Louisiana, sitting by designation. he had met at a nightclub committed the
crimes. According to Olaniyi-Oke, that man statute requires the government to prove that
had stayed at Olaniyi-Oke's home, leaving the defendant conducted or attempted to
evidence of the fraud scheme including the two conduct a financial transaction that he knew
computers. involved the proceeds of unlawful activity.
See United States v. Burns, 162 F.3d 840, 847
Olaniyi-Oke contends there is insufficient (5th Cir. 1998), cert. denied, 119 S. Ct. 1477
evidence on counts 14 and 15, which charge (1999).
money laundering for the purchase of the two
computers with Richard Porter's Visa. Olaniyi-Oke does not contend that the
Olaniyi-Oke argues that there is no evidence government failed to provide sufficient
that the purchases were made to promote evidence of these elements. The statute
further fraud, or to conceal the proceeds of further requires the government to prove
unlawful activity, and therefore that there is either (1) that the defendant so acted with the
insufficient evidence to support his conviction intent to promote or further specified unlawful
on those counts. He contends that the activity (the “promotion prong”) or (2) that he
purchases were merely acts of money knew the transaction was designed to conceal
spending, in which funds generated by fraud or disguise the nature, location, source,
were used to buy computers for personal use. ownership, or control of the proceeds of the
He also avers that the court erred in denying unlawful activity (the “concealment prong”).
his motions for continuance based on his See 18 U.S.C. §§ 1956(a)(1)(A)(i),
inability to locate a prospective defense 1956(a)(1)(B)(i); Brown, 186 F.3d at 667-68;
witness and to investigate an alleged Burns, 162 F.3d at 847. Olaniyi-Oke avers
underrepresentation of minorities on the jury that the evidence is insufficient to demonstrate
venire. either the promotion prong or the concealment
prong, and we agree.
II.
We first consider the claim of insufficient The government argues that the computer
evidence. “In evaluating a challenge to the purchases were intended to promote a
sufficiency of the evidence, we view the
evidence in the light most favorable to the
verdict and uphold the verdict if, but only if, a
rational juror could have found each element (...continued)
of the offense beyond a reasonable doubt.” activity, conducts or attempts to conduct
United States v. Brown, 186 F.3d 661, 664 such a financial transaction which in fact
(5th Cir. 1999). This review is de novo, and involves the proceeds of specified unlawful
activitySS
“[i]f the evidence viewed in the light most
favorable to the prosecution gives equal or (A)(i) with the intent to promote the
nearly equal circumstantial support to a theory carrying on of specified unlawful activity; or
of guilt and a theory of innocence, a defendant ...
is entitled to a judgment of acquittal.” Id.
(internal quotation marks omitted). (B) knowing that the transaction is designed
in whole or in partSS
Both counts charge money laundering in
violation of 18 U.S.C. § 1956(a)(1).2 The (i) to conceal or disguise the nature, the
location, the source, the ownership, or the
control of the proceeds of specified unlawful
activity; . . .
2
That section provides:
shall be sentenced to a fine . . . or
Whoever, knowing that the property imprisonment . . . or both.
involved in a financial transaction represents
the proceeds of some form of unlawful “Specified unlawful activity” is defined at
(continued...) § 1956(c)(7).
2
fraudulent scheme, but it presented no the illegal use of a credit card does not equate
evidence that the computers were intended for to money laundering.
use in any scheme. There is no evidence that
the computers were intended for anything Olaniyi-Oke could not have purchased the
other than fully legal personal use; the computers using his own name and Porter's
government’s suggestion that the computers credit card. Without evidence to the contrary,
were intended for sale is not substantiated by the intent of such a fraudulent purchase is
any evidence.3 Absent a showing of specific merely to obtain goods using funds rightfully
intent, the promotion prong is not satisfied belonging to another, not to conceal the
even by a showing that the financial nature, location, source, ownership, or control
transaction did promote the carrying on of of those funds: “If transactions are engaged in
unlawful activity. See Brown, 186 F.3d at for present personal benefit, and not to create
670. the appearance of legitimate wealth, they do
not violate the [concealment prong of the]
The government also argues that the money laundering statute.” United States v.
purchases were designed to conceal according Garcia-Emanuel, 14 F.3d 1469 (10th Cir.
to the concealment prong. The argument is 1994) (quoted in United States v. Willey,
that Olaniyi-Oke used Porter's name and credit 57 F.3d 1374, 1384 (5th Cir. 1995)).
card to purchase the computers, making
“obvious” his intent to conceal. Contrary to In one sense, the acquisition of any asset
the government's contention, the only thing with the proceeds of illegal activity
obvious about such a transaction is that conceals those proceeds by converting
Olaniyi-Oke was fraudulently using another them into a different and more
perso n’s credit card, for which he was legitimate-appearing form. But the
convicted on other counts. requirement that the transaction be
designed to conceal implies that more
The government argues that an intent to than this trivial motivation to conceal
conceal can be inferred from the fact that must be proved.
Olaniyi-Oke traveled to Houston to make the
purchases rather than making them in his home Willey, 57 F.3d at 1384 (internal citation
city of Austin. If one desires fraudulently to omitted) (citing Garcia-Emanuel, 14 F.3d
use another's credit card to make purchases, it at 1474).
is merely logical to travel out of town to do so
to lessen the risk of discovery for illegal use of The government’s argument would convert
the credit card, but such logic does not convert every purchase of goods with illegally obtained
the act into money laundering. Likewise, credit into money laundering, which we have
making two separate purchases instead of one rejected: Money spending is not criminal
is logical to reduce the likelihood that any under § 1956(a)(1). See Brown, 186 F.3d
store personnel would recall details of the at 670-71. The statute is intended to punish
purchase.4 Not wanting to be prosecuted for “conduct that is really distinct from the
underlying specified unlawful activity[,] . . .
[not to] provide overzealous prosecutors with
3 a means of imposing additional criminal
At least one of the computers was partially
assembled for use.
4
It is logical to think that more individuals (...continued)
purchase only one computer than purchase two. the stockpiling of numerous computers might lead
The government therefore argues that the purchase to such an inference, it is not even unknown for one
of two computers creates an inference beyond a individual to purchase two computers for his own
reasonable doubt that the computers were not for personal use, let alone to purchase one or both of
personal use. This argument is not credible. While them as gifts, for use in a business, or for a myriad
(continued...) of other purposes.
3
liability any time a defendant makes benign
expenditures with funds derived from unlawful
acts.” Brown, 186 F.3d at 670. As with a
drug dealer who purchases cellular phones for
unrelated personal use, a mail/bank-fraud
operator who purchases two computers for
unrelated personal use does not thereby
commit money laundering. See Brown, 186
F.3d at 669 (discussing United States v.
Jackson, 935 F.2d 832 (7th Cir. 1991));
United States v. Cavalier, 17 F.3d 90, 93 (5th
Cir. 1994) (same).
III.
Olaniyi-Oke contends that the court erred
in denying his motion for continuance to
secure the presence of a prospective defense
witness, his nephew Stephen Adebayo. We
review the denial of a continuance for abuse of
discretion. See United States v. Shaw,
920 F.2d 1225, 1230 (5th Cir. 1991). When a
continuance is requested based on the
unavailability of a witness, the party seeking a
continuance must demonstrate (1) that due
diligence was exercised to obtain the
attendance of the witness; (2) that the witness
would tender substantial favorable evidence;
(3) that the witness will be available and
willing to testify; and (4) that denial of the
continuance would materially prejudice the
movant. See id. The required prejudice has
also been termed “severe” prejudice and
“serious” prejudice. See id.; United States v.
Dupre, 117 F.3d 810, 823 (5th Cir. 1997).
Olaniyi-Oke argues that Adebayo would
corroborate his defense, namely that a man
staying with Olaniyi-Oke committed the
crimes. Before indicting Olaniyi-Oke, the
government obtained a sworn statement in
which Adebayo stated that he had never met
or heard of the man whom Olaniyi-Oke claims
was responsible for the crimes. While in a
later interview Adebayo did “recall” that
someone had st ayed at Olaniyi-Oke's
residence, this recollection directly contradicts
portions of his previous sworn statement. In
light of these statements, Olaniyi-Oke’s mere
assertion that Adebayo would provide
favorable testimony does not establish that
Adebayo would tender substantially favorable
testimony.
4
Olaniyi-Oke also failed to establish that objectivity of the selection process. See
Adebayo would be available and willing to Hemmingson, 157 F.3d at 358; 28 U.S.C. §
testify, because Adebayo had failed to appear 1867(a).
at trial despite a subpoena. The government
and Olaniyi-Oke had attempted to locate Olaniyi-Oke has no evidence with which to
Adebayo without success. The court did not challenge the selection process, which is what
abuse its discretion in denying a continuance. § 1867 is designed for, but instead wants to
investigate solely because his venire had “too
IV. few” minorities.6 First, Olaniyi-Oke fails to
Just before voir dire began, Olaniyi-Oke understand the nature of statistics. If it were
sought a continuance to investigate whether required that every venire match the
the composition of the jury venire was a result proportions of minorities in the community,
of a violation of the Jury Selection and Service that would be the antithesis of randomness,
Act of 1968 (“Jury Act”), 28 U.S.C. §§ 1861- given the size of the sample. See United
1878, and/or of the Sixth Amendment. States v. McKinney, 53 F.3d 664, 671 (5th Cir.
Olaniyi-Oke believed that the venire 1995) (noting that in a truly random system,
underrepresented minorities in consisting of minorities will be over-represented in some
only one black and four Hispanics. To the panels and under-represented in others).
extent that a district court’s decision rests on Second, his claim is not cognizable under the
its interpretation of the statutory language, the Jury Act: “The happenstance of a
standard of review is de novo. See United disproportionately white jury is simply not
States v. Hemmingson, 157 F.3d 347, 358 (5th enough to prevail under the Act.”
Cir. 1998). We review denial of a continuance Hemmingson, 157 F.3d at 359. Olaniyi-Oke
for abuse of discretion.5 See Shaw, 920 F.2d made no showing of any failure to comply with
at 1230. the Jury Act, and therefore the court did not
abuse its discretion in denying his motion for
The Jury Act provides that “all litigants in continuance on this ground.
Federal courts entitled to trial by jury shall
have the right to . . . petit juries selected at “The Sixth Amendment guarantees a
random from a fair cross section of the criminal defendant the right to a trial by a jury
community in the district or division where the selected from a fair cross-section of the
court convenes.” 28 U.S.C. § 1861. To community.” United States v. Alix, 86 F.3d
obtain relief under the Jury Act, a defendant 429, 434 (5th Cir. 1996).
must prove a “substantial failure” to comply
with the Act’s provisions, a substantial failure A defendant establishes a prima facie
being one that destroys the random nature or violation of the fair-cross-section
requirement by showing the following:
The defendant must show (1) that the
5
Olaniyi-Oke refers to his motion as a motion group alleged to be excluded is a
for continuance, but it was termed a “motion to “distinctive” group in the community;
stay.” The discrepancy occurs because Olaniyi- (2) that the representation of this group
Oke was not claiming to have sufficient evidence to in venires from which juries are selected
demonstrate a violation, as required under either is not fair and reasonable in relation to
the Jury Act or the Sixth Amendment, but rather the number of such persons in the
was requesting a continuance of at least 30 days to
investigate. Therefore, both parties agree that,
whatever the motion should be termed, the
6
appropriate standard of review is abuse of Olaniyi-Oke’s motion did contain a
discretion, which, apart from any district court comparison of 1990 census figures with the jury
interpretations of law, is correct. See Murphy v. pool for November 1993. Given that trial took
Uncle Ben's, Inc., 168 F.3d 734, 737 (5th Cir. place in 1998, however, this information is
1999) (stating the general standard for motions to irrelevant, and thus Olaniyi-Oke does not even cite
stay). this “evidence” on appeal.
5
community; and (3) that this
underrepresentation is due to systematic
exclusion of the group in the jury-
selection process.
Id. A defendant cannot establish a prima facie
violation by relying solely on the composition
of the jury at his own trial. See id. at n.3.
Olaniyi-Oke presented no evidence of
element (3), and therefore he failed to establish
a prima facie violation. The court did not
abuse its discretion in denying a continuance.
The judgments of conviction on counts
14 and 15 are REVERSED and REMANDED
for entry of judgments of acquittal, and the
judgments of conviction on all other counts are
AFFIRMED. The judgment of sentence is
VACATED and REMANDED for
resentencing.7
7
The prison sentence and supervised release
imposed for counts 14 and 15 run concurrently
with the sentence on the remaining counts, and
therefore reversing the two counts does not reduce
Olaniyi-Oke's prison term or period of supervised
release. The court imposed a $100 special
assessment on all counts, however, and therefore
Olaniyi-Oke must be resentenced to eliminate that
assessment as to counts 14 and 15.
6