U.S. v. Adediran, 93-3821

• Decision Date: 08 June 1994
• Docket Number: No. 93-3821,93-3821
• Citation: 26 F.3d 61
• Parties: 40 Fed. R. Evid. Serv. 1269 UNITED STATES of America, Appellee, v. Abdul-Rahma ADEDIRAN, also known as Adediran Babatumte, also known as Francis Machante, also known as David K. Bolade, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 61

26 F.3d 61

40 Fed. R. Evid. Serv. 1269

UNITED STATES of America, Appellee, v. Abdul-Rahma ADEDIRAN, also known as Adediran Babatumte, also known as Francis Machante, also known as David K Bolade, Appellant.

No. 93-3821.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1994.

Decided June 8, 1994.

Allen I. Harris, St. Louis, MO, argued, for appellant.

Jonathan I. Goldstein, St. Louis, MO, argued (Edward L. Dowd, Jr. and Jonathan I. Goldstein), on the brief for appellee.

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

HENLEY, Senior Circuit Judge.

Abdul-Rahma Adediran appeals his conviction and sentence for falsely misrepresenting his Social Security Account Number (SSAN), with the intent to deceive and for the purpose of obtaining something of value, in violation of 42 U.S.C. Sec. 408(a)(7)(B) (1991). We affirm.

I.

In late October 1991, Adediran, posing as Francis Machante and using false SSANs, opened accounts with Mail Boxes, Etc. and Answer St. Louis, a telephone answering service. In December 1991, Adediran opened checking accounts at five banks in the St. Louis area. At each bank he posed as Francis Machante, providing a false Wisconsin identification in that name. His initial deposits ranged from $100.00 to $130.00, and he used different SSANs, all of which were false, at each bank.

One of the account representatives who dealt with Adediran became suspicious when she recognized the address he gave as belonging to Mail Boxes, Etc. She alerted the local police, who, after further investigation, apprehended Adediran. Adediran was held for several days until he posted bond. He was then released with instructions to appear for arraignment on January 15, 1992. On that date, Adediran failed to appear as ordered.

On December 23, 1991, a person using the name David Bolade opened three accounts at banks in Rockford, Illinois. All of the accounts were opened with $100.00 deposits and with different SSANs, all of which were false. A fictitious Wisconsin identification was provided to each institution. In January 1992, the Rockford banks began receiving deposits for the Bolade accounts. Included in these deposits were several checks originally issued to Adediran by one of the St Louis banks. These checks were never paid, but while the balances on the Bolade accounts remained inflated, over $10,000.00 was withdrawn from the Rockford banks. Adediran was eventually arrested in Chicago, Illinois, in April 1993.

In a seven-count indictment Adediran was charged with violating 42 U.S.C. Sec. 408(a)(7)(B). Each count related to one of the St. Louis institutions at which he had presented a false SSAN. At trial the government presented evidence concerning events in both St. Louis and Rockford. Adediran objected to admission of the Rockford evidence, claiming the government had failed to establish that he was the person responsible for those incidents. The district court ¹ overruled the objection and admitted the evidence under Rule 404(b) of the Federal Rules of Evidence.

The jury eventually found Adediran guilty on all seven counts. The district court then imposed sentence based in part on the financial losses suffered by the Rockford institutions. In addition, the court increased Adediran's base offense level for obstruction of justice.

II.

On appeal, Adediran claims the district court abused its discretion in admitting the Rockford evidence pursuant to Rule 404(b). The government argues in response that the evidence was not subject to Rule 404(b)'s requirements because it was proof of the crime charged. Alternatively, the government contends the evidence was properly admitted under that rule. Though this may well be a case where the other crime is so "inextricably intertwined" with the charged crime that Rule 404(b) is not implicated, United States v. DeLuna, 763 F.2d 897 (8th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985), we will apply that rule's more rigorous requirements. This decision does not affect our ultimate conclusion.

Rule 404(b) prohibits admission of evidence of other crimes for the purpose of proving action in conformity therewith but allows admission for other purposes, such as proof of intent. This court has held that other crimes are admissible if (1) relevant to a material issue, (2) established by a preponderance of the evidence, ² (3) more probative than prejudicial, and (4) similar in kind and close in time to the events at issue. King v. Ahrens, 16 F.3d 265, 268 (8th Cir.1994); United States v. Aranda, 963 F.2d 211, 215 (8th Cir.1992).

Adediran does not contest either that the Rockford evidence was relevant to intent or that it was similar in kind and close in time to the acts for which he was prosecuted. Instead, he asserts that there was insufficient proof of his involvement in Rockford and that the evidence was more prejudicial than probative. We reject both contentions. First, we believe a preponderance of the evidence linked Adediran to Rockford. Most important in this regard was the deposit in Rockford of the very checks issued to Adediran by a St. Louis bank. Moreover, the schemes in St. Louis and Rockford were similar in several respects. In both cities, the person opening checking accounts did so with minimal cash amounts and a fictitious Wisconsin identification. False SSANs were used at different banks, but at all banks the numbers began with the same five digits. Though Adediran relies primarily on the fact that no Rockford witness could identify him at his trial, which took place some eighteen months after the Bolade accounts were opened, both testimony and photographs indicated that the person posing as David Bolade was a tall, thin, African-American male. Adediran fits this description. Finally, handwriting samples of both Francis Machante and David Bolade were submitted for the jury to compare. Similarities between the two signatures are evident.

As to Adediran's argument that the unfair prejudice resulting from the Rockford evidence outweighed its probative value, we note that the district court made an explicit finding to the contrary. Such balancing is peculiarly within the discretion of the district court and should not be disturbed absent a clear showing of abuse. United States v. Brown, 956 F.2d 782, 786 (8th Cir.1992). Considering the substantial probative value of the Rockford evidence, we can find no clear abuse in this case.

Adediran also contends he received insufficient notice of the government's intent to introduce "other crimes" evidence. In particular, he notes that before trial he filed a motion requesting information regarding prior bad acts. The government's response failed to indicate any intention to introduce the Rockford incidents.

Rule 404(b) provides that "upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." Though the government failed to indicate its intention to introduce the Rockford events in its direct response to Adediran's motion, defense counsel admitted before trial that the Rockford evidence had been fully disclosed and that he was aware of the government's intention to present it. In light of these admissions, the failure to respond directly to Adediran's motion was not fatal.

III.

Adediran contests the sufficiency of the evidence, but his argument is conditioned on a ruling that the Rockford evidence is inadmissible. Because we have ruled adversely to Adediran on the evidentiary issue, we need not reach the sufficiency claim. Nevertheless, after careful review, we hold that, with or without the Rockford evidence, the record sufficiently supports the jury's verdict.

IV.

Adediran challenges two aspects of his sentence. First, he argues that the district court erred in considering in its calculations the losses suffered by the Rockford banks. This argument is without merit, for it is based solely on the already rejected contention that there was insufficient evidence linking Adediran to Rockford. Because we have held that a preponderance of the evidence supports a conclusion that Adediran opened the Bolade accounts, the district court did not clearly...