254 F.3d 204 (D.C. Cir. 2001), 00-3025, United States v. Kayode

Docket Nº:00-3025
Citation:254 F.3d 204
Party Name:United States of America, Appellee v. Olanike Kayode, a/k/a Laura Black, a/k/a Nikkie Kayode, a/k/a Kayode Olanike, a/k/a Sandra Foster, Appellant
Case Date:June 29, 2001
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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254 F.3d 204 (D.C. Cir. 2001)

United States of America, Appellee

v.

Olanike Kayode, a/k/a Laura Black, a/k/a Nikkie Kayode, a/k/a Kayode Olanike, a/k/a Sandra Foster, Appellant

No. 00-3025

United States Court of Appeals, District of Columbia Circuit

June 29, 2001

Argued April 10, 2001

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Appeal from the United States District Court for the District of Columbia (No. 98cr00395-02)

Lexi Negin-Christ, appointed by the court, argued the cause for the appellant.

Mary B. McCord, Assistant United States Attorney, argued the cause for the appellee. Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on brief for the appellee.

Before: Ginsburg and Henderson, Circuit Judges, and Silberman, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge:

A jury convicted Olanike O. Kayode of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h), money structuring in violation of 31 U.S.C. § 5324(a)(3), access device fraud in violation of 18 U.S.C. § 1029(a)(2) and possession of false identification in violation of 18 U.S.C. § 1028(a)(3). On appeal she challenges certain evidentiary rulings of the district court, asserts the evidence was insufficient to support two counts of her conviction and argues her sentence was erroneously imposed. For the reasons set forth below, we affirm.

I.

In October 1998 Christopher Miller, posing as an individual named Peter Taschner, applied for a $10,000 unsecured loan with a Nationsbank branch office located in Washington, D.C. Because of mistakes in the application, the loan officer became suspicious and contacted the real Peter Taschner. Upon learning the real Taschner had not applied for a loan, the bank informed the Metropolitan Area Fraud Task Force (Task Force)1 which arranged to be on the premises on the date the loan check was scheduled to be picked up.

On October 13, 1998 Miller, together with Jonathan Adeosun and Ayodele Hambolu, arrived at the bank in a black Toyota Camry. After the vehicle was parked briefly in an illegal space and circled the block once, Miller got out, entered the bank and met with the loan officer. A few minutes later, Adeosun also entered the bank and waited in line for a teller to make a deposit and get some change. While in the bank, Adeosun looked around continuously

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but did not have any contact with Miller. After Miller completed his transaction, Task Force members placed both him and Adeosun under arrest.

In the meantime, outside the bank, other Task Force members learned of the arrests. Approaching the Camry where Hambolu was waiting, one of the Task Force members saw two "victim profiles"2 (including one for Peter Taschner) on the center console. They then arrested Hambolu and searched the vehicle. In the glove compartment, Task Force members found a car rental agreement that listed Kayode as the lessee, provided her home address and named Adeosun, her husband, as an authorized driver. In the trunk they found a briefcase containing documents with names and biographical information about various people.

After the arrests, Miller admitted he was involved in bank fraud3 and, pursuant to information obtained from him, Task Force members were able to recover other evidence located at a room in a Days Inn motel in the District. They also learned Adeosun's real identity (he had given them a false name when arrested) and reviewed information about Adeosun's activities provided by two confidential informants. Based on this information as well as the evidence seized from the Camry, the Task Force sought a warrant to search Adeosun's apartment, a storage unit next to his apartment and Kayode's car. Upon obtaining a signed warrant later that day, they began their search.

From the apartment and the storage unit the Task Force recovered hundreds of items, including a notebook containing approximately 500 individuals' personal profiles. Also recovered were Massachusetts and California driver's licenses in the name "Laura Black" and bearing Kayode's photograph; a New Jersey driver's license in the name "Sandra Foster" and bearing Kayode's photograph; as well as Neiman Marcus, Saks Fifth Avenue, World Perks and Macy's credit cards in the name "Sandra Foster." The Task Force also seized a Mercedes-Benz and a Toyota Camry both registered in Kayode's name.

How the Mercedes-Benz came to be registered in Kayode's name merits some discussion. According to the government, around September 18, 1998 Adeosun and Hambolu attempted without success to purchase a Mercedes-Benz at American Service Center in Virginia. On September 24, however, Adeosun--identifying himself as Joseph Cole--successfully negotiated the purchase of a 1999 Mercedes-Benz at Euro Motorcars in Bethesda, Maryland. He executed the purchase order in Kayode's name and gave the salesperson a $1000 cash deposit. The following day, after receiving credit for a trade-in vehicle, Adeosun and Kayode gave the dealership a $44,300 cashier's check drawn on Kayode's Citibank account and obtained possession of the vehicle.4

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II.

On February 19, 1999 a federal grand jury returned an eight-count superseding indictment against Kayode, Adeosun, Hambolu and Miller. All of the defendants were charged with four counts of bank fraud and aiding and abetting as part of a scheme to defraud financial institutions in violation of 18 U.S.C. §§ 2, 1344 (counts one through four). Kayode, Adeosun and Hambolu were charged with one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) (count five). Kayode and Adeosun were charged with one count of possession of false documents with intent to use unlawfully in violation of 18 U.S.C. § 1028(a)(3) (count seven). Finally, Kayode was charged with one count of structuring transactions to evade reporting requirements in violation of 31 U.S.C. § 5324(a)(3) (count six) and one count of access device fraud in violation of 18 U.S.C. § 1029(a)(2) (count eight).

Kayode moved to suppress the evidence seized at her apartment and storage unit and to sever her trial from the other defendants and to sever some of the counts against her from others. Both motions were denied. See United States v. Adeosun, 49 F.Supp.2d 7 (D.C.C. 1999), aff'd, 2000 WL 1838220 (D.C. Cir. Nov 13, 2000) (No. 99-3136). Kayode renewed her motion for severance on the day of the trial. It was denied once again.

A jury trial began on July 12, 1999. Kayode pleaded not guilty to all charges. She testified that she rarely used the storage unit, that all the boxes had been placed there by Adeosun and that Miller also had a key to the unit and used it from time to time.

With regard to the false identification documents charge, she admitted that the California driver's license in the name of "Laura Black" was hers but denied having ever seen the Massachusetts driver's license in that name. Moreover, she claimed she had not seen the other identification documents and the credit cards in the name of "Sandra Foster" until the search of the apartment and the storage unit. Finally, she denied using any of the credit cards mentioned above or having posed for the "Sandra Foster" New Jersey driver's licence.

Testifying about the ownership of the Mercedes-Benz, Kayode maintained that the car was purchased for one of her husband's cousins, a certain Adelani. As a Nigerian businessman who was only visiting the United States, Adelani could not register the car in his own name and for that reason Adeosun asked Kayode to be the nominal owner for about one year, until the vehicle could be shipped to Nigeria. But, as far as Kayode knew, the money deposited in her account came from traveler's checks Adelani had cashed.

As already noted, Kayode was convicted on counts five through eight and acquitted on counts one through four.5 On March 3, 2000 she was sentenced to thirty months' imprisonment followed by three years of supervised release. This appeal followed.

III.

On appeal, Kayode raises six arguments: (1) she challenges the district court's denial of her motion to suppress the evidence uncovered from the search of the rental car; (2) she argues the district court erred in denying her misjoinder and severance motion; (3) she contends the district court erred in permitting a government "summary

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witness" to characterize the evidence and to testify about evidence without first-hand knowledge or a proper foundation; (4) she asserts the district court erred when it denied her motion for judgment of acquittal on counts seven (false identification documents) and eight (access device); (5) she finds fault with the district court's refusal to give the jury a unanimity instruction on count seven (false identification documents); and (6) she challenges the district court's sentencing conclusion that her case fell within the "heartland" of money laundering cases. We address each argument in turn.

A. Suppression Motion

Before trial, Kayode moved to suppress the evidence found in the black Toyota after Hambolu's arrest. Because no probable cause existed to arrest Hambolu, she maintained, his arrest was unlawful; any evidence recovered from the Camry after the arrest was unlawfully obtained and should be excluded. The district court denied the motion concluding that there was probable cause for Hambolu's arrest and that the search of the passenger compartment of the vehicle was lawful as a search incident to arrest.6 See Adeosun, 49 F.Supp.2d at 11. Kayode contends this was error. Moreover, she argues that...

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