UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4544
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
VALENTINA ELEBESUNU,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. George J. Hazel, District Judge.
(8:13-cr-00008-GJH-2)
Submitted: November 21, 2016 Decided: February 7, 2017
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph Murtha, MURTHA PSORAS & LANASA LLC, Lutherville,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, Menaka Kalaskar, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a five-day jury trial, Valentina Elebesunu
(“Elebesunu”) was convicted of Hobbs Act robbery and conspiracy
to commit Hobbs Act robbery, both violations of 18 U.S.C.
§ 1951(a). On appeal she challenges the admission of a portion
of a co-conspirator’s testimony as improper character evidence
prohibited by Federal Rule of Evidence 404(b). As Elebesunu
failed to object to the challenged evidence, its admission is
reviewed only for plain error. We conclude the admission of the
testimony was not plain error and affirm Elebesunu’s conviction.
I.
A.
On November 21, 2012, three masked gunmen robbed an armored
truck outside a Bank of America branch in Bladensburg, Maryland
(the “bank”). All told, they took about $275,000. But the
gunmen did not act alone. As the authorities investigated the
robbery, a larger conspiracy became apparent, one that
eventually included two bank insiders.
The first insider was Damione Lewis (“Lewis”), a contract
security guard hired to protect the bank. Lewis was arrested on
December 6, 2012. After his arrest, Lewis confessed to
organizing the robbery and told investigators he had enlisted
several associates to carry out the crime.
2
Lewis also named a second insider, Elebesunu, who, at the
time, was a Bank of America assistant vice president. Lewis
described Elebesunu as a principal in planning and facilitating
the robbery. Later, Elebesunu was arrested and charged with
Hobbs Act robbery and conspiracy to commit that crime. She
pleaded not guilty and went to trial on both counts. 1
B.
Lewis testified against Elebesunu at trial as required by
his written plea agreement. According to Lewis, he and
Elebesunu were close outside work; she had been invited to his
wedding, and he had picked her children up from after school
activities on numerous occasions. One afternoon shortly before
the robbery the two began discussing their finances in the
bank’s break room. In particular, the two talked over some
significant upcoming expenses: Elebesunu was having trouble
paying her daughter’s private school tuition and Lewis had a
newborn on the way.
Their conversation took a turn into uncharted territory
when Elebesunu “said she knew a way that [they] could
get the money.” J.A. 92. At first Elebesunu proposed robbing
1
Elebesunu also was charged with using, carrying, and
brandishing a firearm in furtherance of a crime of violence, a
violation of 18 U.S.C. § 924(c). The Government dismissed that
charge before trial.
3
the bank. And although Lewis thought she was not serious, the
topic “kept coming up, and [Elebesunu was] trying to figure out
how we c[ould] do it[.]” J.A. 68. Eventually Lewis and
Elebesunu settled on a plan to rob an armored truck when it
arrived to pick up the bank’s excess funds. Because the amount
of money leaving the bank fluctuated every day, and Elebesunu
knew the amount ahead of time, she was to select a lucrative day
for the robbery and tell Lewis. Lewis, in turn, would alert
those who were to commit the robbery. After the robbery,
Elebesunu was to collect her share of the proceeds from Lewis.
C.
The testimony Elebesunu challenges on appeal concerns
another aspect of their break room conversation. In particular,
Lewis testified that when Elebesunu first discussed robbing the
bank she also told him that she had taken $50,000 in 2007 while
employed as a Bank of America teller:
[A.] And we just both started talking and just
one conversation led to another.
We talked about robbing [the bank]. She
said she had done it [in 2007] when she was
a teller, and it just went on from there.
We had numerous conversations. It went on
from there.
Q. You said there were conversations after
that?
A. Yes.
Q. And when you said the defendant said she had
done it before, did she ever give any more
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details about doing it before, how it was
done?
A. She said she slid it out through the drive-
thru window.
Q. And was there an amount that was discussed?
A. I believe it was 50.
Q. Fifty what?
. . .
[A.] $50,000.
J.A. 67-68. During this exchange, Elebesunu did not object to
Lewis’ testimony. Lewis continued on direct examination:
[A.] She didn’t want to tell me about it at
first. She mentioned something, but then
she said I don’t know if I can trust you,
and then she didn’t say anything else after
that for about five minutes. And then she
told me about the whole situation, about her
doing it before.
Q. When you say the situation before, what do
you mean?
A. About the robbery she had done before, the
taking of the money at the bank when she was
a teller.
J.A. 93. Again, Elebesunu did not object. Instead, she took
the witness stand in her defense and denied proposing a robbery
to -- or discussing any such matters with -- Lewis.
While cross-examining Elebesunu, the Government tried to
elicit additional testimony about the 2007 robbery. Only then
did Elebesunu object, arguing that the Government’s question was
“a back-door way to try to get in some [improper] 404(b)”
5
character evidence. J.A. 333. The district court, however,
concluded Elebesunu had waived her Rule 404(b) objection and
that the question was otherwise proper: “So in . . . terms of
the 404(b) issue or the other bad acts issue, the testimony from
Mr. Lewis came in without objection. . . . It sounds like the[]
[Government] ha[s] a good-faith basis to ask” about the 2007
robbery. J.A. 334. 2 The district court continued: “I think it
probably would have been appropriate [under Rule] 404(b).
Nonetheless, again, my ruling is at this point the[]
[Government] ha[s] a good-faith basis to ask the question.”
J.A. 335.
The jury convicted Elebesunu on both counts, and she was
sentenced to 105 months’ imprisonment. Elebesunu timely
appealed her conviction, and we have jurisdiction under 28
U.S.C. § 1291.
2 Elebesunu disputes the characterization of the 2007 event
as a “robbery.” She contends instead that the 2007 event more
properly is characterized as a “larceny.” For consistency, and
because we do not believe the characterization of the event
affects the outcome of this appeal, we refer to the event as a
robbery throughout.
6
II.
A.
On appeal, Elebesunu contends Lewis’ testimony related to
the 2007 robbery was improper character evidence, which was
admitted in violation of Federal Rule of Evidence 404(b). We
usually would review the admission of Lewis’ testimony for abuse
of discretion. United States v. Perkins, 470 F.3d 150, 155 (4th
Cir. 2006). 3 But because Elebesunu failed to make a “specific
and timely objection at trial,” we review the admission of the
challenged evidence for plain error. United States v. Keita,
742 F.3d 184, 189 (4th Cir. 2014). To prevail under the plain
error standard of review, Elebesunu must show (1) that there was
an error; (2) that error was plain; and (3) the error affected
her substantial rights. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). Even then, the
Court will only recognize plain error that “seriously affects
the fairness, integrity or public reputation of [the]
proceedings.” Id. at 732.
A “plain” error is “clear” or “obvious” in the sense that
it runs contrary to “the settled law of the Supreme Court or
this circuit.” United States v. Carthorne, 726 F.3d 503, 516
3 We have omitted internal alterations, citations, and
quotations throughout this opinion.
7
(4th Cir. 2013). Put another way, if the district court’s
ruling is subject to debate, it is not plain error. See United
States v. Robinson, 627 F.3d 941, 957 n.4 (4th Cir. 2010).
B.
With the highly deferential plain-error standard in mind,
we turn to the substance of Elebesunu’s appeal. Rule 404(b)
prohibits admission of evidence of a past “crime, wrong, or
other act” when it is used “to prove [the defendant’s]
character” and to suggest that the defendant is guilty because
she must have acted consistent with that character. Fed. R.
Evid. 404(b)(1). The rule permits such evidence, however, if
the evidence is aimed at proving “another purpose, such
as . . . motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2).
We have distilled the test for admissibility under Rule
404(b) into four inquiries. See United States v. Queen, 132
F.3d 991, 997 (4th Cir. 1997). First, the evidence must be
relevant to some fact in issue other than the defendant’s
general character. Id. Second, evidence of the prior act must
be “necessary in the sense that it is probative of an essential
claim or an element of the offense.” Id. Third, the prior-act
evidence must be “reliable.” Id. Fourth, the evidence’s
probative value “must not be substantially outweighed by
8
confusion or unfair prejudice in the sense that it tends to
subordinate reason to emotion in the factfinding process.” Id.
1.
With regard to the first inquiry under Queen, “[e]vidence
is relevant if it has any tendency to make the existence of any
determinative fact more probable than it would be absent the
evidence.” United States v. Van Metre, 150 F.3d 339, 349 (4th
Cir. 1998). In addition, “[t]o be relevant under Rule
404(b) . . . the evidence must [also] be sufficiently related to
the charged offense,” id., “in terms of physical similarity or
mental state,” Queen, 132 F.3d at 997. Elebesunu contends that
evidence of the 2007 robbery was not “sufficiently related” to
the charged offense both temporally and factually. We disagree.
Our cases reflect a degree of flexibility when evaluating
whether a prior bad act was “sufficiently related” to the
charged offense in a temporal sense. For example, in Queen we
affirmed the district court’s decision to allow evidence of a
prior bad act that was nearly ten years old under Rule 404(b).
See Queen, 132 F.3d at 997-98; see also United States v. McLean,
581 F. App’x 228, 234-35 (4th Cir. 2014) (per curiam) (affirming
the district court’s decision to admit evidence of a prior
conviction that was nearly six years old). The evidence at
issue here was five-and-one-half years old, more recent than the
evidence at issue in either Queen or McLean. And although the
9
Queen court mentioned that “the defendant ha[d] spent many of
th[e] intervening . . . years in prison,” 132 F.3d at 998,
Elebesunu does not direct us to any case that suggests the Queen
defendant’s prison term was dispositive of the temporal
analysis. We thus reject Elebesunu’s attempt to undermine the
challenged evidence based only on the passage of time.
In evaluating factual similarity, our test does not demand
that the prior bad act be “identical” to the conduct charged,
but only requires that it be “similar enough.” Van Metre, 150
F.3d at 350. An apt example is United States v. Bailey, 990
F.2d 119 (4th Cir. 1993), where we held that the Government
could use evidence that the defendant, a state legislator, had
accepted illegal campaign contributions in the past to prove he
intended to accept illegal campaign contributions in connection
with the charged offense. See id. at 123-25. Although the
defendant took illegal contributions for different purposes, we
connected the two events by reasoning that the evidence
“involved the acceptance of money for the use of his political
office.” Id. at 124.
Both the 2007 robbery and the charged robbery are factually
similar as they illustrate Elebesunu’s willingness to leverage
her position as a bank insider for personal gain. The two
events show much more than the moral flexibility of a recidivist
criminal, as Elebesunu argues. In both cases, she used a
10
position of trust, held within the same company, for her own
financial gain. We therefore reject Elebesunu’s factual-
similarity argument, and with it her attempt to characterize the
Government’s evidence of the 2007 robbery as irrelevant.
2.
We next assess whether the evidence at issue was probative
of an element of the crime -- that is, whether it was
“necessary” when “considered in the light of other evidence
available to the [G]overnment, it is an essential part of the
crimes on trial, or where it furnishes part of the context of
the crime.” Queen, 132 F.3d at 998. The Government here
submits that it used the evidence to prove an essential part of
the crime on trial: Elebesunu’s knowledge of and intent to enter
into the conspiracy. Elebesunu contends that it was not
necessary for the Government to prove either knowledge or intent
because she never argued she mistakenly entered into a
conspiracy with Lewis, but categorically denied that she and
Lewis ever discussed robbing anything. Elebesunu’s argument
fails.
She pleaded not guilty to both the Hobbs Act robbery and
conspiracy charges. By doing so, Elebesunu placed her intent,
an element of the conspiracy charge, squarely at issue. See
Queen, 132 F.3d at 997. See generally United States v. Clark,
928 F.2d 639, 641-42 (4th Cir. 1991) (listing the elements of a
11
conspiracy charge). The Government had to prove Elebesunu
intended to enter into the conspiracy. And it used the 2007
robbery to do so because her choice to volunteer that
information demonstrates the seriousness of her discussions with
Lewis -- that their break room conversations were more than an
idle fantasy. It is of no moment that the evidence was not
strictly necessary to the Government’s case, “as Queen’s second
prong focuses on whether the evidence is necessary in the sense
that it is probative of an essential claim or an element of the
offense.” United States v. Rooks, 596 F.3d 204, 211-12 (4th
Cir. 2010). Thus, we cannot say it was plain error for the
district court to conclude that the Government’s evidence of the
2007 robbery was necessary to the Government’s case.
3.
In examining the third Queen factor, we ask whether the
evidence was clearly unreliable. Evidence is reliable “unless
it is so preposterous that it could not be believed by a
rational and properly instructed juror.” United States v.
Siegel, 536 F.3d 306, 319 (4th Cir. 2008). Elebesunu attacks
Lewis’ testimony about the 2007 robbery as unreliable on two
grounds. First, she argues that his testimony was so vague that
the jury could not have believed him. Second, she argues that
Lewis’ testimony was unreliable because he was testifying under
12
a plea agreement and stood to benefit if she were convicted.
Again, we disagree.
Elebesunu offers no convincing reason why Lewis’ testimony
was so vague that it was plainly unreliable. In effect,
Elebesunu asks us to make a credibility determination and, thus,
discount Lewis’ testimony. But “[r]eliability is not synonymous
with credibility when dealing with 404(b) evidence.” Bailey,
990 F.2d at 123. And credibility issues are properly reserved
for the jury. United States v. Wilson, 118 F.3d 228, 234 (4th
Cir. 1997). Elebesunu offered testimony to contradict Lewis’ in
all material respects, and the jury found Lewis to be more
credible. We cannot substitute the jury’s judgment with our
own.
Elebesunu’s attempt to conflate reliability with bias, by
arguing Lewis stood to benefit from her conviction under the
terms of his plea agreement, fares no better. We have
previously rejected a defendant’s attempt to use the fact a
witness was testifying under a written plea agreement to show
that witness’ unreliability. See United States v. Hadaway, 681
F.2d 214, 218 (4th Cir. 1982). In Hadaway we reasoned that
“[t]he plea bargainer’s position frequently makes him extremely
reluctant to commit another crime or crimes and thus lay himself
open to greater punishment.” Id. The same logic applies here
to defeat Elebesunu’s contention. Thus, it was not plain error
13
for the district court to conclude that Lewis’ testimony was
reliable.
4.
Finally, we ask whether the evidence was so harmful, in
proportion to its probative value, that it should have been
excluded. See Queen, 132 F.3d at 997. Evidence is unfairly
prejudicial if it harms the defendant’s case “for reasons other
than its probative value[.]” United States v. Mohr, 318 F.3d
613, 620 (4th Cir. 2003). And even then, evidence should be
excluded only if its prejudicial effect “substantially outweighs
[its] probative value.” Id. Elebesunu contends that evidence
of the 2007 robbery was unfairly prejudicial because, in the
absence of Lewis’ testimony, she likely would not have been
convicted.
Although Lewis’ testimony formed part of the Government’s
case, it is not clear that evidence’s prejudicial effect
substantially outweighed its probative value. But even if the
evidence at issue was unfairly prejudicial, that prejudice was
cured by the district court’s thorough limiting instruction.
“[C]autionary or limiting instructions generally obviate
any . . . prejudice, particularly if the danger of prejudice is
slight in view of the overwhelming evidence of guilt.” United
States v. Powers, 59 F.3d 1460, 1468 (4th Cir. 1995). Here, the
district court gave a limiting instruction, telling the jury
14
that Lewis’ testimony about the 2007 robbery was not evidence of
Elebesunu’s guilt:
The Government has offered evidence tending to
show that on a different occasion, the defendant
engaged in conduct similar to the charges in the
indictment. In that connection, let me remind you
that the defendant is not on trial for committing this
act not alleged in the indictment. Accordingly, you
may not consider this evidence of the similar act as a
substitute for proof that the defendant committed the
crime charged, nor may you consider this evidence as
proof that the defendant has a criminal personality or
bad character. The evidence of the other similar act
was admitted for a much more limited purpose, and you
may consider it only for that limited purpose.
J.A. 404. And any prejudice caused by the challenged evidence
was slight. Even without any evidence of the 2007 robbery,
Lewis offered compelling evidence of Elebesunu’s guilt. Thus,
because of the limiting instruction and substantial other
evidence of Elebesunu’s guilt, we cannot say that the probative
value of the evidence at issue was clearly and substantially
outweighed by its prejudicial effect.
****
In sum, Elebesunu has not carried her burden under the
plain error standard of review. She has not demonstrated that
the district court made any obviously incorrect ruling on any
element of the Queen test.
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III.
For that reason, the district court’s judgment is
AFFIRMED.
16