United States v. Adelekan

• Decision Date: 18 October 2021
• Docket Number: 19 Cr. 291 (LAP)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. OLUWASEUN ADELEKAN et al., Defendants.
• Court: U.S. District Court — Southern District of New York

UNITED STATES OF AMERICA, Plaintiff, v. OLUWASEUN ADELEKAN et al., Defendants.

No. 19 Cr. 291 (LAP)

United States District Court, S.D. New York

October 18, 2021

MEMORANDUM & ORDER

LORETTA A. PRESKA SENIOR UNITED STATES DISTRICT JUDGE

Defendants are charged in a six-count indictment in connection with their alleged participation in a scheme to defraud businesses and individuals using email scams designed to trick those victims into wiring money to bank accounts that the Defendants controlled. Before the Court are the Government's motions in limine seeking to admit or preclude various kinds of evidence.^[1] Defendants Oluwaseun Adelekan and Curlten Otidubor oppose certain of the Government's motions.^[2] Defendant Temitope Omotayo also moves in limine to preclude the Government from introducing evidence of Mr. Omotayo's sister's alleged involvement in the alleged conspiracy and other frauds.^[3] The Court's rulings on each motion are set forth below.

I. Background

Defendants Oluwaseun Adelekan, Olalekan Daramola, Solomon Aburekhanlen, Gbegna Oyeneyin, Abiola Olajumke, Temitope Omotayo, Bryan Eadie, Albert Lucas, Ademola Adebogun, Lucas Ologbenla, Adewole Taylor, and Curlten Otidubor (collectively, “Defendants”) are charged in a six-count indictment for allegedly using false and misleading representations and omissions, including via email and text message, to induce victims to wire a total of more than $3.5 million to Defendants and other members of the scheme. (See generally Fourth Superseding Indictment, [dkt. no. 296].)

Count one charges Defendants with conspiracy to commit wire fraud. (Id. ¶¶ 1-6.)

Count two charges Defendants with conspiracy to commit money laundering. (Id. ¶¶ 7-10.)

Counts three through six charge certain Defendants with aggravated identity theft:

• Count three charges defendants Adelekan and Eadie with aggravated identity theft for unlawfully using another person's social security number in attempting to obtain proceeds of a wire transfer. (Id. ¶ 11.)

• Count four charges defendants Olajumoke and Adebogun with aggravated identify theft for unlawfully using the name, place of business, and driver's license number of another person in attempting to obtain proceeds of a wire transfer. (Id. ¶ 12.)

• Count five charges defendants Omotayo and Eadie with aggravated identify theft for unlawfully using the name and employer of another person in attempting to obtain proceeds of a wire transfer. (Id. ¶ 13.)

• Count six charges defendant Oyeneyin with aggravated identify theft for unlawfully using a means of identification of another person in attempting to obtain proceeds of a wire transfer. (Id. ¶ 14.)

II. Legal Standard

“The purpose of a motion in limine is to allow a court to rule on the admissibility of potential evidence in advance of trial.” Laureano v. City of New York, No. 17 Civ. 181 (LAP), 2021 WL 3272002, at *1 (S.D.N.Y. July 30, 2021) (quoting Gucci Am., Inc. v. Guess?, Inc., 858 F.Supp.2d 250, 253 (S.D.N.Y. 2012)). A court should exclude evidence on a motion in limine only when it is “clearly inadmissible on all potential grounds.” United States v. Ozsusamlar, 428 F.Supp.2d 161, 164-65 (S.D.N.Y. 2006) (citation omitted). “Because a ruling on a motion in limine is ‘subject to change as the case unfolds,' [the] ruling constitutes a preliminary determination in preparation for trial.” United States v. Bowen, 511 F.Supp.3d 441, 446 (S.D.N.Y. 2021) (cleaned up).

III. Discussion

1. The Government's Motions [dkt. no. 304]

The Government moves in limine to: (i) admit statements made by co-conspirators in furtherance of the charged wire fraud and money laundering conspiracies, (ii) preclude any evidence and arguments concerning prior good acts of the Defendants, (iii) preclude any evidence and arguments that the victims of the wire fraud conspiracy are to blame for having acted negligently or gullibly, (iv) preclude the defendants from presenting a duress defense unless they proffer evidence to support that defense, and (v) preclude any evidence and arguments regarding the defendants' family backgrounds, immigration status, or any other personal factors unconnected to guilt. (Gov. Mot. at 5-18.)

a. Co-Conspirator Statements

The Government moves in limine to admit statements made by certain purported co-conspirators. (Gov. Mot. at 5-12.) Specifically, the Government intends to introduce text message communications between uncharged co-conspirators and the Defendants themselves and with third-party bank employees or victims on the basis that they are admissible as statements made by co-conspirators in furtherance of the charged wire fraud and money laundering conspiracies. (Id. at 5-6.) i. Applicable Law

1. Co-Conspirator Statements

Under Fed.R.Evid. 801(d)(2)(E), “[a] statement is not hearsay if . . . the statement is offered against an opposing party and was made by the party's coconspirator during and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). The Court must find the following by a preponderance of the evidence to admit a statement under Fed.R.Evid. 801(d)(2)(E): “(1) that there was a conspiracy, (2) that its members included the declarant and the party against whom the statement is offered, and (3) that the statement was made both (a) during the course of and (b) in furtherance of the conspiracy.” United States v. Tracy, 12 F.3d 1186, 1196 (2d Cir. 1993) (citations omitted); see also Bourjaily v. United States, 483 U.S. 171, 176 (1987) (holding that a “preponderance of the evidence” standard applies).

“In determining the existence and membership of the alleged conspiracy, the court must consider the circumstances surrounding the statement, as well as the contents of the alleged coconspirator's statement itself.” United States v. Gupta, 747 F.3d 111, 123 (2d Cir. 2014). “Although Rule 801(d)(2)(E) requires that both the declarant and the party against whom the statement is offered be members of the conspiracy, there is no requirement that the person to whom the statement is made also be a member.” United States v. James, 712 F.3d 79, 106 (2d Cir. 2013). “Where statements are made in the course of an existing conspiracy in which the defendant later joins, those statements may be admitted against him, even though he was not a member of the conspiracy at the time the statements were made, on the theory that he assumes the risk for what has already happened in the scheme.” United States v. Farhane, 634 F.3d 127, 161 n.35 (2d Cir. 2011) (citations and quotation marks omitted). “While the district court may consider the hearsay statement itself to determine the existence of a conspiracy . . . ‘there must be some independent corroborating evidence of the defendant's participation in the conspiracy.'” United States v. Padilla, 203 F.3d 156, 161 (2d Cir. 2000) (quoting United States v. Tellier, 83 F.3d 578, 580 (2d Cir. 1996).

As to the “in furtherance” requirement, “[t]he touchstone . . . is that the statement be designed to promote the accomplishment of the conspiracy's goals.” United States v. Johnson, 469 F.Supp.3d 193, 212 (S.D.N.Y. 2019) (quoting United States v. Saneaux, 365 F.Supp.2d 493, 500 (S.D.N.Y. 2005).

2. Relevance and Unfair Prejudice

Evidence must be relevant to be admissible. See Fed.R.Evid. 402. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. That hurdle is a “very low” one. United States v. White, 692 F.3d 235, 246 (2d Cir. 2012). Indeed, “[e]vidence need not be conclusive in order to be relevant;” “[a]n incremental effect is sufficient.” United States v. Certified Env't Servs., Inc., 753 F.3d 72, 90 (2d Cir. 2014) (ellipsis omitted). However, relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. “[T]he Court has ‘broad discretion to balance probative value against possible prejudice' under Rule 403.” United States v. Elmowsky, 501 F.Supp.3d 236, 239 (S.D.N.Y. 2020) (quoting United States v. Bermudez, 529 F.3d 158, 161 (2d Cir. 2008)).

ii. Application

As to Fed.R.Evid. 801(d)(2)(E)'s first requirement that there be a conspiracy, the Government attests that the trial evidence will show that, between in or about July 2016 and April 2019, the Defendants and others conspired to defraud victims into wiring money, and that the money wired by victims often was sent to bank accounts opened and maintained by the Defendants themselves or by uncharged co-conspirators. (Gov. Mot. at 8-9.)

Adelekan argues that the Government actually discusses three separate conspiracies: (1) a business email compromise conspiracy; (2) a romance conspiracy; and (3) a Russian oil conspiracy. (Adelekan Opp. at 3-4.) He asserts that the Government has only described Adelekan's involvement in the business email conspiracy and thus the Government must proffer evidence showing existence of the business email conspiracy and that the testifying co-conspirator was specifically part of that scheme. Similarly, Otidubor argues that the alleged schemes were not a single conspiracy but featured different people, at different times, utilizing different methods. (Otidubor Opp. at 3-4.)

The Government sufficiently has shown at this stage the existence of single conspiracy. Additionally, the fact that there was some variation of the nuts and a bolts of the fraud at the heart of the conspiracy does not make each style of fraud an independent conspiracy. Although “[a] single scheme to defraud may involve a...