United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2005 Decided December 2, 2005
No. 04-3083
UNITED STATES OF AMERICA,
APPELLEE
v.
OBAFEMI ORENUGA,
APPELLANT
Consolidated with
04-3089
Appeals from the United States District Court
for the District of Columbia
(No. 03cr00464-01)
Edward C. Sussman, appointed by the court, argued the
cause and filed the brief for appellant.
Suzanne G. Curt, Assistant U.S. Attorney, argued the cause
for appellee. On the brief were Kenneth L. Wainstein, U.S.
Attorney, and John R. Fisher, Assistant U.S. Attorney at the
time the brief was filed, Julieanne Himelstein, Lisa O. Monaco,
and Mary B. McCord, Assistant U.S. Attorneys. Thomas J.
Tourish, Jr., Assistant U.S. Attorney, entered an appearance.
2
Before: GINSBURG, Chief Judge, TATEL, Circuit Judge, and
EDWARDS, Senior Circuit Judge.*
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Defendant-appellant
Obafemi Orenuga, a former tax auditor in the District of
Columbia Office of Tax and Revenue (“OTR”), was convicted
after a five-day jury trial on two counts of receipt of a bribe by
a public official in violation of 18 U.S.C. § 201(b)(2)(A) (2000).
On appeal, appellant seeks reversal and a remand for a new trial,
asserting that the District Court erred when it (1) denied him the
right to question prospective jurors on the entrapment defense in
violation of the Sixth Amendment, (2) admitted a prejudicial
portion of a videotape used as evidence by the Government, and
(3) found that conviction for bribery under 18 U.S.C. §
201(b)(2)(A) requires acceptance of the bribe, but not
performance of the illegal promise. We find no merit in
appellant’s claims. We therefore affirm the judgment of the
District Court.
I. BACKGROUND
Orenuga was employed as a tax auditor for OTR and its
predecessor, the Department of Finance and Revenue, from
1995 to 2003. He was principally responsible for auditing
businesses that were believed to have either failed to pay or
underpaid sales taxes owed to the District of Columbia. This
case arises out of Orenuga’s assignment to audit Bestway
Liquors (“Bestway”) in 2001. During this audit, Orenuga was
recorded by the Federal Bureau of Investigation (“FBI”) on
audio and video tapes accepting money as part of an agreement
to unlawfully reduce the tax liability of two local businesses.
*
Senior Circuit Judge Edwards was in regular active service
at the time of oral argument.
3
The parties’ accounts of the events leading to the unlawful
relationship differ, although not in ways that materially affect
our analysis. Broadly, Orenuga testified that after being
assigned the Bestway audit, he received only limited
cooperation from Bestway’s owner, Fikerte Yemane, and her
independent representatives, Mohammed Mobaidin and Connie
Meyers. According to Orenuga, compliance with his document
requests was not forthcoming until after he sent Yemane a
$70,000 “jeopardy assessment” – an assessment based on
incomplete information designed to get the auditee’s attention.
Following the jeopardy assessment, Mobaidin served as the
main contact for Bestway and submitted most of the requested
information. Orenuga claimed to be uncomfortable working
with Mobaidin, however, as Mobaidin allegedly hounded
Orenuga about his personal and family interests and repeatedly
chastised him for acting “like a cop.” Trial Transcript (“Tr.”) at
114-18 (4/7/04). Orenuga testified that Mobaidin eventually
offered him an illicit payment if he would lower Bestway’s tax
liability.
The Government’s case was presented largely through the
testimony of Mobaidin, who assisted the FBI with its
investigation. Mobaidin suggested that he and Meyers initially
shared the audit responsibilities and promptly responded to each
of Orenuga’s information requests. He also testified that, in his
first few meetings with Orenuga, he was surprised by how little
attention Orenuga gave to the information that was provided on
behalf of Bestway. In June 2002, after Meyers stopped working
on the Bestway account, Orenuga allegedly informed Mobaidin
that Bestway owed $70,000 in taxes, but remarked, “If you take
care of me, I take care of [Yemane].” Tr. at 70 (4/6/04).
According to Mobaidin, Orenuga then wrote down on a piece of
paper that he wanted $8,000 for himself and $12,000 for OTR
(the latter to avoid the appearance of impropriety). This offer is
allegedly what led Mobaidin to contact FBI Special Agent Mary
4
Jo Ervin, for whom Mobaidin had previously served as an
informant.
What transpired from this point forward is largely
undisputed. Upon learning from Mobaidin about Orenuga’s
alleged proposal, Special Agent Ervin sought Mobaidin’s
continued cooperation. Mobaidin was provided with equipment
to record his future meetings and phone calls with Orenuga. In
exchange for Mobaidin’s assistance, Special Agent Ervin aided
him in his pending Immigration and Naturalization Service
deportation proceedings.
Over the course of the first two audio recorded meetings on
June 13 and 17, 2002, Orenuga and Mobaidin settled on a
“reduced” $12,000 tax assessment for Bestway in exchange for
an illicit payment of $8,000 to Orenuga. During a videotaped
meeting in his office on June 20, 2002, Mobaidin made an initial
payment of $3,000. At Special Agent Ervin’s suggestion,
Mobaidin requested, and Orenuga agreed to give him, $2,000 of
the $8,000 for his role in the deception. This move was
designed to show that the $8,000 was, in fact, for Orenuga, and
not OTR.
A week later, on June 27, the FBI videotaped another
meeting at Mobaidin’s office where Orenuga received the
remaining $3,000. During this meeting, the two men weighed
the possibility of a similar deal with one of Mobaidin’s other
clients. Orenuga proposed that he could conduct fictitious
audits, and then Mobaidin would tell his clients that they could
reduce their tax liability through a clandestine payment to
Orenuga. At one point, when strategizing about the identity of
their next target, Orenuga instructed Mobaidin to steer clear of
“Jew[s],” “black American[s],” or “white m[e]n,” ostensibly to
focus on people more susceptible to coercion. See Tr. of
Recorded Conversation Between Obafemi Orenuga and FBI
Cooperating Witness at 6-7 (June 27, 2002) (“June 27
5
Transcript”), reprinted in Record Material for Appellee
(“R.M.”) tab 5.
The FBI subsequently arranged for a local restauranteur to
assist in the investigation by posing as one of Mobaidin’s
clients. Through a series of recorded conversations, Orenuga
planned to fabricate a $40,000 to $50,000 tax deficiency for the
restaurant and then “agree” to reduce it to zero for a $20,000
payment ($8,000 of which he would keep for himself). On
March 6, 2003, Orenuga was videotaped accepting $13,000 from
Mobaidin in exchange for the “clean” audit. Orenuga was then
arrested on August 25, 2003.
At trial, faced with the irrefutable audio and video
recordings of his illicit dealings with Mobaidin, Orenuga relied
on a defense of entrapment. He asserted that Mobaidin
relentlessly badgered him to look the other way on the Bestway
audit, and eventually the “pressure was so much” that he
capitulated. See Tr. at 114-23 (4/7/04). Given the centrality of
the entrapment defense to Orenuga’s case, he requested that the
District Court question the venire about their “knowledge and
attitude towards” its application. The trial court denied
Orenuga’s request on the grounds that it would inject
“complications” into the voir dire and was “not necessary in
order to get a fair and impartial jury.” Tr. at 3 (4/5/04). In
response to Orenuga’s suggestion that entrapment was a “novel”
defense that might be unfamiliar to many jurors, the District
Court judge replied that, while entrapment may not be as
familiar as the defenses of self-defense or insanity, the court was
not persuaded that it would “be an issue.” Id. at 4.
Orenuga also objected to the admission of a portion of the
videotape evidence. He asserted that his comments regarding
Jews, black Americans, and white men during the June 27, 2002
meeting were “inflammatory” and added “little, if anything, to
the Government’s case.” See Tr. at 3 (4/6/04). After weighing
the issue, the District Court permitted the Government to play
6
the tape in its entirety, ruling that the contested segment
provided “context that is relevant, and not only to the
Government’s burden in proving its case but also with respect
to the defense of entrapment.” Id. at 88.
Finally, before the jury was given its instructions, Orenuga
objected to the District Court’s proposed description of the
elements required to prove that a public official has committed
bribery under 18 U.S.C. § 201(b)(2)(A). Orenuga asserted that
an indispensable component of bribery is that the public official
must perform a quid pro quo, which would require proof that
Orenuga actually altered the audit figures from what they
otherwise would have been. Because the Government allegedly
failed to show any adjustment of the tax liability figures,
Orenuga argued that the Government’s case did not support a
finding that he violated the statute. The District Court rejected
this reading of the statute, and Orenuga was found guilty on both
counts of bribery.
On July 1, 2004, the trial judge sentenced Orenuga to 24
months in federal prison on each count, to be served
concurrently, followed by three years’ supervised release. See
Amended Judgment, United States v. Orenuga, Crim. No.
03-464 (D.D.C. July 1, 2004), reprinted in R.M. tab 8. Orenuga
now appeals, and seeks reversal of the District Court’s judgment
and remand for a new trial.
II. ANALYSIS
A. Jury Instructions and the Entrapment Defense
Orenuga claims that the District Court violated his Sixth
Amendment right to trial by an impartial jury in rejecting his
proposed voir dire question on the entrapment defense.
According to Orenuga, the court was required to submit his
proposed query to the venire, because its subject was “central to
the case.” Br. of Appellant at 16. Orenuga’s concern is that
some prospective jurors might subscribe to the view that a
7
defense of entrapment never should be allowed to negate
criminal responsibility.
“The Sixth Amendment right to jury trial ‘guarantees to the
criminally accused a fair trial by a panel of impartial,
“indifferent” jurors’ . . . .” United States v. Edmond, 52 F.3d
1080, 1094 (D.C. Cir. 1995) (per curiam) (quoting Irvin v.
Dowd, 366 U.S. 717, 722 (1961)). This guarantee includes the
right to be tried by jurors who are capable of putting aside their
personal impressions and opinions and rendering a verdict based
solely on the evidence presented in court. See id. Voir dire is
a vehicle for ensuring this right, see Rosales-Lopez v. United
States, 451 U.S. 182, 188 (1981), as it serves to screen out jurors
whose personal views make them incapable of performing this
function. See Edmond, 52 F.3d at 1094.
In conducting voir dire under Federal Rule of Criminal
Procedure 24(a), the trial judge “‘is accorded broad discretion to
mold the manner and mode of [the] examination,’” and there is
“‘no basis for reversal unless he abuses his discretion, and there
is substantial prejudice to the accused.’” Id. at 1095 (quoting
United States v. Liddy, 509 F.2d 428, 435 (D.C. Cir. 1974)).
Specific subjects for voir dire questioning are “constitutionally
compelled” when “the trial court’s failure to ask [a] question[]
. . . render[s] the defendant’s trial fundamentally unfair,” but not
where the subjects proposed for questioning may be merely
“helpful.” Mu’Min v. Virginia, 500 U.S. 415, 425-26 (1991).
The defense always “must be given a full and fair opportunity to
expose bias or prejudice on the part of the veniremen,” United
States v. Robinson, 475 F.2d 376, 380-81 (D.C. Cir. 1973), and
“‘the restriction upon inquiries at the request of counsel, [is]
subject to the essential demands of fairness,’” Morgan v.
Illinois, 504 U.S. 719, 730 (1992) (quoting Aldridge v. United
States, 283 U.S. 308, 310 (1931)).
Orenuga submits that substantial unfairness occurs when a
trial judge declines to present a party’s question during voir dire
8
that touches on a matter “clearly central” to the case. See
Recording of Oral Argument at 10:10. This argument
overreaches and finds no concrete basis in the law. In United
States v. Robinson, the court established that “[t]he possibility
of prejudice is real, and there is consequent need for a searching
voir dire examination, in situations where, for example, the case
carries racial overtones, or involves other matters concerning
which either the local community or the population at large is
commonly known to harbor strong feelings that may stop short
of presumptive bias in law yet significantly skew deliberations
in fact.” 475 F.2d at 381 (footnotes omitted). The court also
noted that voir dire must be allowed on subjects with respect to
which “bias and distorting influence have become evident,
through experience with juries, and have come to be recognized
as a proper subject for the voir dire.” Id. The potential for
jurors to attach undue weight to the testimony of law
enforcement officials during trial is one such example. See id.
(citing Brown v. United States, 338 F.2d 543 (D.C. Cir. 1964)).
We have found no case, and the defense cites to none, in
which this circuit or any other circuit has recognized a
“commonly known” bias against the entrapment defense, which
leaves us with no indication that it is within the “recognized
classes” of inflammatory topics that would meet the Robinson
test. Indeed, the only two circuits to confront this question
directly, the Eighth and Tenth Circuits, have both held that it is
not an abuse of discretion for a trial court to reject a question
regarding prospective jurors’ attitudes toward the defense of
entrapment. See United States v. Dion, 762 F.2d 674, 694 (8th
Cir. 1985), rev’d on other grounds, 476 U.S. 734 (1986); United
States v. Crawford, 444 F.2d 1404, 1405 (10th Cir. 1971) (per
curiam).
Where, as here, the proposed question does not concern a
subject well known to inflame the passions of the community,
the party seeking the inquiry bears the burden of showing that
9
the question “is reasonably calculated to discover an actual and
likely source of prejudice, rather than pursue a speculative will-
o-the-wisp.” Robinson, 475 F.2d at 381; see United States v.
Payne, 944 F.2d 1458, 1474 (9th Cir. 1991). Orenuga failed to
establish the requisite foundation to support his novel claim that
potential jurors might possess strong feelings about the
entrapment defense that would bias their decisions, nor did he
demonstrate how his question was designed to uncover any such
bias. Indeed, Orenuga concedes that entrapment has a “low[]
public profile,” Br. of Appellant at 15, and asserts that there is
merely a “sense” in the community at large “that people not
inclined to do wrong, don’t do wrong even . . . under influence,”
Recording of Oral Argument at 6:05 -:15. These statements
alone are not sufficient in this circuit to find that a question is
constitutionally compelled. See United States v. Cockerham,
476 F.2d 542, 544 n.2 (D.C. Cir. 1973) (per curiam) (noting that
when general bias is evident from case law and academic
literature, and “the examination of jurors is otherwise brief and
limited in scope, or elicits an indication of possible bias against
the defense,” a voir dire question on the subject is appropriate).
Therefore, in the absence of evidence that prejudice against
the entrapment defense was likely to be encountered in the
community from which the jurors were selected, the District
Court did not abuse its discretion in refusing to ask specific
questions on this subject. We have no occasion to decide
whether it would have been an abuse of discretion for the
District Court to permit a question on entrapment.
B. Admissibility of Videotape Evidence
Orenuga argues that the District Court’s admission of a
portion of the June 27, 2002 videotape of his meeting with
Mobaidin was improper, because it was unfairly prejudicial.
Reprinted below is the transcript of the disputed segment, which
picks up as Orenuga assesses the types of people that he and
Mobaidin should focus on in any future illicit transactions:
10
Orenuga: [T]his one was too shrewd, I don’t like it. It’s
like, eh, . . .
Mobaidin: Well, I never met you before, so it’s the first
time, you know. But, uh, I wish I met you
before. I would be settled [as an] accountant
instead of going [in]to car deal[ing] and real
estate and all of that junk, you know, but.
Orenuga: You have to be able to tell the guy this is it, if
you go [to] this guy. . . . If you don’t know
them, don’t do any of this.
Mobaidin: No, no. I know them for ten years, I’ve been
working with the guy.
Orenuga: If it’s a Jew, I don’t want to deal with him. If
it’s a black American, I don’t want to do that.
Mobaidin: OK. So what do you want to deal with?
Foreigners.
Orenuga: Yeah.
Mobaidin: Yeah, he’s a foreigner.
Orenuga: It’s, eh, it’s too dangerous. Like I said.
White man, I can’t deal with. I just want you
to know that.
Mobaidin: White man, you don’t want?
Orenuga: White man, he will need to agree with you.
All of, most of them will agree and come
back and . . . .
June 27 Transcript at 6-7, supra, reprinted in R.M. tab 5.
Our analysis of whether the trial court should have excluded
this evidence is governed by Federal Rule of Evidence 403,
which states:
11
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of . . . needless presentation
of cumulative evidence.
As applied to this case, the Rule consists of two major
components. First, the relevant evidence must be excluded if the
prejudice is “unfair.” The Supreme Court has described “unfair”
prejudice as “speak[ing] to the capacity of some concededly
relevant evidence to lure the factfinder into declaring guilt on a
ground different from proof specific to the offense charged.”
Old Chief v. United States, 519 U.S. 172, 180 (1997). Second,
any danger of unfair prejudice must substantially outweigh the
probative value of the evidence. Since Orenuga properly
preserved his objection at trial, we review the District Court's
admission of the videotape evidence for abuse of discretion. See
United States v. Ramsey, 165 F.3d 980, 983 n.3 (D.C. Cir.
1999).
The Government contends that the contested evidence has
significant probative value, because Orenuga’s volition is a
crucial element in both proving the bribery charges and
rebutting his entrapment defense. To establish a violation of 18
U.S.C. § 201(b)(2)(A), the Government must show that Orenuga
acted “corruptly,” which the District Court defined as
“performed voluntarily and deliberately and performed with a
purpose of either accomplishing an unlawful end or unlawful
result.” Tr. at 15 (4/8/04). A successful entrapment defense
requires evidence that (1) the crime was induced by the
Government, and (2) appellant lacked a “predisposition . . . to
engage in the criminal conduct.” See Mathews v. United States,
485 U.S. 58, 63 (1988). The latter inquiry “focuses upon
whether the defendant was an ‘unwary innocent’ or, instead, an
‘unwary criminal’ who readily availed himself of the
opportunity to perpetrate the crime.” Id. (quoting Sherman v.
12
United States, 356 U.S. 369, 372 (1958)). The Government
asserts that the contested comments are integral to its case,
because Orenuga’s statements about future deals, and the types
of people with whom he preferred to deal, help establish that he
was a willful participant in the charged criminal activity.
Orenuga does not meaningfully rebut the Government’s
claims. Orenuga’s videotaped statements obviously are
prejudicial, but this alone does not make the evidence “unfairly”
prejudicial. The gravamen of unfair prejudice is “‘an undue
tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.’” Old Chief, 519 U.S.
at 180 (quoting FED. R. EVID. 403 advisory committee’s notes).
Given the relevance of Orenuga’s comments to his participation
in the crime – he was discussing the people who would make the
best targets for his bribery scheme – any prejudice to which he
was subjected was related in no small measure to his culpability.
Orenuga’s videotaped statements were also germane to his
entrapment defense. It is reasonable to believe that a jury would
find Orenuga’s comments on the types of people with whom he
preferred to deal in illicit arrangements highly probative in
assessing whether he acted voluntarily and deliberately and
whether he “was disposed to commit the criminal act prior to
first being approached by Government agents,” Jacobson v.
United States, 503 U.S. 540, 549 (1992). The District Court
thus did not abuse its discretion by permitting the entire
videotape to be played at trial.
C. The Bribery Charge
At the conclusion of the trial, the District Court judge
instructed the jury that “[i]t is not a defense to the crime of
bribery that had there been no bribe, the public official might
have lawfully and properly performed the same act.” Tr. at 16
(4/8/04). Orenuga argues that this is an erroneous construction
of 18 U.S.C. § 201(b)(2)(A), for, in his view, the public official
13
must perform a quid pro quo in order to fall within the ambit of
the statute. In the absence of evidence suggesting that he
ultimately altered the businesses’ liability, Orenuga contends
that his crimes were not bribery, but more precisely
“defraud[ing] the two businesses by falsely convincing them that
they were receiving some concession for their money.” Br. of
Appellant at 19.
Whether the District Court properly instructed the jury on
the standard for bribery presents a question of law that we
review de novo. See United States v. DeFries, 129 F.3d 1293,
1303 (D.C. Cir. 1997) (per curiam). Our job is to “‘determine
whether, taken as a whole, [the instructions] accurately state the
governing law.’” Id. at 1304 (quoting United States v.
Washington, 106 F.3d 983, 1002 (D.C. Cir. 1997) (per curiam))
(alteration in DeFries). We find here that they do.
Under 18 U.S.C. § 201(b)(2)(A), a “public official”
commits bribery if he or she “directly or indirectly, corruptly
demands, seeks, receives, accepts, or agrees to receive or accept
anything of value personally or for any other person or entity, in
return for . . . being influenced in the performance of any official
act.” The Supreme Court has made it clear that the “acceptance
of the bribe is the violation of the statute, not performance of the
illegal promise.” United States v. Brewster, 408 U.S. 501, 526
(1972). In other words, “[t]he illegal conduct is taking or
agreeing to take money for a promise to act in a certain way.”
Id.
Orenuga attempts to avoid Brewster by pointing to United
States v. Gatling, 96 F.3d 1511 (D.C. Cir. 1996), where this
court stated that an essential feature of bribery is that it “implies
a quid pro quo.” Id. at 1522. Contrary to Orenuga’s suggestion,
however, Gatling did not hold that the quid pro quo must be
fully executed for the act to be considered a bribe. Rather, in
distinguishing between a “bribe” and an “illegal gratuity,” the
court noted merely that a bribe is consummated when “the
14
defendant accepts money with the specific intent of performing
an official act in return.” Id. (emphasis added). Gatling is
consistent with Brewster, as is the court’s earlier decision in
United States v. White, 887 F.2d 267, 272 (D.C. Cir. 1989).
In sum, we find no support whatsoever for Orenuga’s
reading of the statute. The law unequivocally supports the
District Court’s instruction to the jury, which was therefore not
erroneous.
III. CONCLUSION
For the foregoing reasons, the judgment of the District
Court is affirmed.