United States v. Adepoju

• Decision Date: 23 June 2014
• Docket Number: No. 12–5007.,12–5007.
• Citation: 756 F.3d 250
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Adetokunbo Olubunmi ADEPOJU, a/k/a Olu, Defendant–Appellant.

756 F.3d 250

UNITED STATES of America, Plaintiff–Appellee,

v.Adetokunbo Olubunmi ADEPOJU, a/k/a Olu, Defendant–Appellant.

No. 12–5007.

United States Court of Appeals, Fourth Circuit.

Argued: March 19, 2014.

Decided: June 23, 2014.

ARGUED:John O. Iweanoge, II, Iweanoge Law Center, Washington, D.C., for Appellant. Judson T. Mihok, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:Rod J. Rosenstein, United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before GREGORY and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge FLOYD and Senior Judge DAVIS joined.

GREGORY, Circuit Judge:

After a jury convicted him of bank fraud and aggravated identity theft, Adetokunbo Olubumi Adepoju received a seventy-month sentence. He now challenges the sufficiency of the evidence for his convictions and sentencing enhancement for sophisticated means. Also, he asserts a due process violation. We affirm the convictions and also find no due process violation. However, because the facts do not affirmatively demonstrate sophisticated means in his attempt to commit bank fraud, we vacate and remand for resentencing.

I.

In June 2010, a confidential informant (“CI”) contacted law enforcement to report a man named “Olu”—later identified as the defendant—who claimed to be a real estate agent looking to sell counterfeit identification documents for $7,500. Upon instruction from Department of Homeland Security (“DHS”) Special Agent (“SA”) Marc Dipaola, the CI informed Adepoju that the potential customer for the documents balked at the high price. The two ceased discussing this potential transaction. One month later, Adepoju approached the CI with a plan to defraud a bank and asked whether the CI knew someone who worked at a bank. The CI led Adepoju to believe that he knew a woman in a vice president-like position at a local Bank of America who had previously assisted the CI with illegal transactions. Adepoju instructed the CI to open two accounts, into which the CI would deposit checks that Adepoju supplied. Once the checks cleared, the CI could withdraw the funds, retain his portion, pay a portion to the insider, and give Adepoju the remaining amount.

On August 31, 2010, Adepoju provided the CI with IRS documentation to use for opening a personal account in the name of “T.A.” and a business account in the name of “T.A. Trucking.” ¹ Handwritten on the back of the documents were T.A.'s name, date of birth, and social security number. The CI contacted SA Dipaola and presented these documents to the agent. Upon SA Dipaola's instruction, the CI asked Adepoju whether T.A. was a real person, and Adepoju responded affirmatively. When Adepoju later questioned whether the accounts were open, the CI presented fabricated checks, created by law enforcement, connected to fictitious accounts to satisfy Adepoju's inquiries. ²

The next month, the CI received two checks from Adepoju. The first was a Wells Fargo Bank cashier's check payable to T.A. for $28,000. The second was payable to T.A. Trucking for $70,500. The CI led Adepoju to believe he would deposit the checks, but he then gave them to law enforcement. After Adepoju repeatedly asked the CI to withdraw funds from the accounts, SA Dipaola secured search warrants for Adepoju's home. The CI called Adepoju and arranged a time to deliver the withdrawn funds, yet Adepoju never met the CI or received the funds. On the day of the planned exchange, Adepoju called the CI, initially changing the meeting location before later aborting the meeting altogether.

Law enforcement executed the search warrants and arrested Adepoju at his home. Officers recovered five cellular phones, a laptop computer, and a thumb drive. The number assigned to one of the phones matched the number the CI used to call Adepoju. The thumb drive contained images of blank social security cards and a check issued by a Pennsylvania company. The images of the check showed the account number but blocked out the name of the payee. The officers also found multiple copies of a check bearing the same number but made out to different payees, one of whom was Adepoju's wife, for different amounts. Fingerprint analysis revealed the presence of Adepoju's thumbprint on the envelope used to deliver the $28,000 check to the CI.

The government charged Adepoju with two counts of bank fraud under 18 U.S.C. § 1344 and one count of aggravated identity theft under 18 U.S.C. § 1028A. At trial, the CI testified as to the aforementioned interactions with Adepoju. SA Dipaola testified that accounts at four different banks were opened in T.A.'s name shortly before the CI received his information from Adepoju, between July 28 and August 31, 2010. These accounts all listed the same Temple Hills, Maryland address that also appeared on the documents the CI received. T.A., a Pennsylvania resident, identified his social security number and birthdate on the forms Adepoju supplied to the CI. T.A. also stated that he had not authorized anyone to open accounts on his behalf, never operated a trucking business, and had never been to Temple Hills, Maryland. Testimony from Wells Fargo Bank representatives established that the checks the CI received were fraudulent and that the bank's deposits were federally insured. The representatives also explained that had the forged cashier's checks been deposited and funds been successfully withdrawn as a result, the bank would have experienced a loss.

After the jury convicted Adepoju on all counts, the district court sentenced him to seventy months' imprisonment. For the bank fraud convictions, the district court imposed forty-six month sentences, the high end of the Guidelines range. Conviction on Count Three mandated a twenty-four-month sentence, which the court imposed consecutively to the bank fraud sentences. See18 U.S.C. § 1028A(b)(2).

Relevant to this appeal, the court applied to the bank fraud sentences a two-level enhancement for using sophisticated means under § 2B1.1(b)(10)(C) of the Sentencing Guidelines. At sentencing, the district court opined that unsophisticated means involves “something that an ordinary person, who wasn't specially trained in something, could get done.” J.A. 649. The court then asked defense counsel how acquiring T.A.'s information was not sophisticated, and defense counsel explained that troves of personal information can be found via commonly-used internet search engines and other tactics. Furthermore, defense counsel noted, opening a bank account requires not sophistication but merely the proper paperwork. The government responded that no evidence supported Adepoju's claims that he used simple tactics to obtain T.A.'s information. Specifically, the government argued that there was no evidence that he used a simple internet search or other commonplace means to acquire T.A.'s name, birthdate, and social security number.

After cautioning that it did not want to place the burden on the defendant, the court noted the absence of evidence that T.A.'s information could have been retrieved via internet sources and that this absence “reinforces the view that [Adepoju's scheme] must have been sophisticated.” J.A. 654. The district court then concluded that the enhancement was appropriate based on the effort required to obtain T.A.'s information, obtain the forged checks, and “do what would have worked” had the CI actually opened the account and deposited the checks. J.A. 657.

Adepoju timely appealed and now challenges the sufficiency of the evidence, the sophisticated means enhancement, and the mandatory sentence for aggravated identity theft. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Where a defendant challenges the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the government and uphold the verdict if substantial evidence supports it. United States v. Stockton, 349 F.3d 755, 760–61 (4th Cir.2003). Substantial evidence is that which, taking all inferences in the government's favor, could lead a rational jury to find the evidence sufficient for a conviction. United States v. Burgos, 94 F.3d 849, 857 (4th Cir.1996). A defendant challenging the sufficiency of evidence “faces a heavy burden,” United States v. Young, 609 F.3d 348, 355 (4th Cir.2010), and we reverse only where the prosecution's failure is clear. United States v. Moye, 454 F.3d 390, 394 (4th Cir.2006).

Challenging the bank fraud convictions, Adepoju cites an absence of evidence that he opened an account at a federally insured financial institution or presented the fraudulent checks for payment. As to the identity theft conviction, he contends that the evidence failed to demonstrate that he knew that T.A. was a real person. We disagree with both contentions.

A.

The federal bank fraud statute imposes criminal liability in two circumstances. The first is an attempted or completed scheme to defraud a financial institution. 18 U.S.C. § 1344(1). The second is a knowingly attempted or completed scheme to obtain funds by false pretenses or representation. 18 U.S.C. § 1344(2). The major difference between the subsections is that § 1344(1) focuses on how the defendant's conduct affects a bank, while § 1344(2) focuses solely on the conduct. United States v. Loughrin, 710 F.3d 1111, 1116 (10th Cir.2013). The elements of a § 1344(1) violation are (1) the defendant knowingly executed or attempted a scheme or artifice to defraud a financial institution, (2) he did so with intent to defraud, and (3) the institution was a federally insured or chartered bank. United States v. Brandon, 298 F.3d 307, 311 (4th Cir.2002); see also United States v. Flanders, 491 F.3d 1197 (10th Cir.2007). The requirements for a § 1344(2) conviction differ only as to the first element, which is that the defendant...