United States v. MgBodile
| Docket Number | 21-14176 |
| Decision Date | 23 June 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NNAMDI MARCELLUS MGBODILE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:19-cr-00439-MLB-JKL-1 Before WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges.
Nnamdi Mgbodile appeals his convictions and total sentence of 156 months' imprisonment for bank fraud, money laundering and conspiracy to commit bank fraud. First, he argues that the district court erred by not providing an entrapment instruction to the jury as he raised more than a scintilla of evidence indicating that a government agent induced him to commit an offense. Next, he argues that the district court erred in holding him accountable for a total loss of over $6 million when the district court's loss calculation included intended losses and funds that were returned to victims. Next, he argues that the district court erred in imposing an enhancement for his role as an organizer or leader of the offense because he did not organize underlying fraudulent conduct. Finally, Mgbodile argues that his within-the-Guidelines sentence is procedurally and substantively unreasonable because the district court clearly erred in assessing his role in the offense, violated his Fifth Amendment right against self-incrimination, and abused its discretion in considering his personal history and characteristics. For the reasons explained below, we AFFIRM the district court.
We review de novo the district court's refusal to provide a defendant's requested entrapment jury instruction. United States v. Dixon, 901 F.3d 1322, 1346-47 (11th Cir. 2018). Whether an entrapment instruction is proper depends on whether "there is sufficient evidence from which a jury could find entrapment." Id. at 1347 (citation omitted). Failure to provide an instruction where the defendant has properly shown sufficient evidence of entrapment is reversible error. United States v. Mayweather, 991 F.3d 1163, 1176 (11th Cir. 2021) (quotation marks and citation omitted).
An entrapment defense "consists of two related elements government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct." Id. at 1176 (quotation marks omitted). The defendant has the "initial burden of producing sufficient evidence of government inducement." Id. "[T]o determine whether a defendant has produced enough evidence to merit an entrapment defense and a jury instruction, we look only at whether there was sufficient evidence produced to raise the issue of government inducement." Id.
To meet his initial burden of production, "the defendant must merely come forward with some evidence, more than a scintilla, that government agents induced him to commit the offense." Id. (quotation marks omitted). We accept the testimony most favorable to the defendant. Id. However, the defendant must show more than the government's presentation of an "attractive" opportunity to commit an offense. Id. at 1177. Rather, inducement "requires an element of persuasion or mild coercion," such as a showing "that the defendant had not favorably received the government plan, and the government had to push it on him, or that several attempts at setting up an illicit deal had failed and on at least one occasion he had directly refused to participate." Id. (quotation marks omitted). This test is considered "an opportunity plus some added government behavior that aims to pressure, manipulate, or coerce the defendant into criminal activity." Id. (emphasis in original).
Once the defendant meets his initial burden, the entrapment question becomes a factual issue for the jury to decide, and an instruction should be proffered. Id. at 1176. At that point, the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. Id.
Here, there was no indication that Mgbodile felt coerced to participate in the scheme. After the cooperating witness proposed the scheme, Mgbodile initiated contact with and instructed the cooperating witness in how to conduct the scheme. Given the lack of evidence that the cooperating witness made Mgbodile feel like he needed to be involved in the scheme, the district court did not err in determining that Mgbodile failed to show government inducement to engage in the scheme. Therefore, we affirm as to this issue.
We generally review a district court's application of the Guidelines de novo and its factual findings for clear error. United States v. Grant, 397 F.3d 1330, 1332 (11th Cir. 2005). We "may affirm on any ground supported by the record." United States v. Dudley, 5 F.4th 1249, 1256 (11th Cir. 2021) (quotation marks omitted).
For purposes of Guidelines enhancements, within a criminal conspiracy, the acts of one co-conspirator may be imputed to other co-conspirators if the acts were reasonably foreseeable and furthered the joint criminal activity even if the defendant did not personally take the action asserted in a certain Guidelines enhancement. United States v. Singh, 291 F.3d 756, 761-62 (11th Cir. 2002). "To determine whether a defendant is liable for the acts of co-con-spirators, the district court must first make individualized findings concerning the scope of criminal activity undertaken by the defendant," after which the district court may determine whether the co-conspirators' acts were reasonably foreseeable. United States v. Moran, 778 F.3d 942, 974 (11th Cir. 2015). The Guidelines provide that a defendant is responsible for relevant conduct in "jointly undertaken criminal activity," regardless of whether the defendant was charged as a co-conspirator, if others' actions (1) occurred "within the scope of the jointly undertaken criminal activity"; (2) occurred "in furtherance of that criminal activity"; and (3) were "reasonably foreseeable in connection with that criminal activity." U.S.S.G. § 1B1.3(a)(1)(B).
The 2018 Guidelines provide an 18-level offense level increase if the losses of an offense were more than $3,500,000 but less than $9,500,000. Id. § 2B1.1(b)(1)(J). The Guidelines' commentary specifies that, subject to some exclusions, "loss is the greater of actual loss or intended loss." Id. § 2B1.1, comment. (n.3(A)). The Guidelines define an "actual loss" as a "reasonably foreseeable pecuniary harm that resulted from the offense." Id. § 2B1.1, comment. (n.3(A)(i)). Intended losses, however, include "the pecuniary harm that the defendant purposely sought to inflict," including "intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation." Id. § 2B1.1, comment. (n.3(A)(ii)). The government must prove the loss amount by a preponderance of the evidence. United States v. Foley, 508 F.3d 627, 633 (11th Cir. 2007).
Here, because Mgbodile knowingly laundered hundreds of thousands of dollars through a variety of frauds, the district court did not err in finding that he knew of the general extent of the frauds being committed and holding him accountable as a co-con-spirator for more than $3.5 million in actual losses. The timing of the victim's payments in relation to payments made to international accounts and accounts under Mgbodile's control, and the division of payments to numerous different accounts, indicated that Mgbodile knew that he was involved in at least one extensive fraudulent scheme. Mgbodile does not deny that the victim's actual losses exceed the $3.5 million necessary to trigger the Guidelines' 18-level enhancement, so we need not address whether the district court erred in considering intended losses or returned funds. Therefore, we affirm as to this issue.
We review for clear error the imposition of an aggravating-role enhancement. United States v. Martinez, 584 F.3d 1022, 1025 (11th Cir. 2009). Under U.S.S.G. § 3B1.1, a defendant receives a four-level increase if he "was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." The defendant must have been the organizer or leader of one or more participants in the offense. Id. comment. (n.2). In determining whether a defendant was a leader or organizer, as opposed to a less culpable manager or supervisor, courts should consider the defendant's (1) exercise of decision making authority; (2) nature of participation in the offense; (3) recruitment of co-con-spirators; (4) claimed right to a larger share of the proceeds of the offense; (5) the degree of participation in planning or organizing the offense; (6) the nature and scope of the activity; and (7) the degree of control exercised over others. Id. comment. (n.4). The Guidelines provide that there may be more than one person who qualifies as a leader or organizer of a conspiracy. Id.
Here, the district court did not clearly err in increasing Mgbodile's offense level due to his role as an organizer or leader in extensive criminal activity. Mgbodile directed and paid others to open bank accounts, some of which were used to receive fraudulent funds; paid bank employees to facilitate fraud; orchestrated the operation of an account designed to receive fraudulent funds; and passed only a small percentage of his takings to the participants whom he recruited. Considering this evidence, the district court did not clearly err and it is immaterial that Mgbodile may not have personally conducted every part of the offense. We affirm as to this issue.
An appellate court normally reviews the reasonableness of a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 41 (2007).
However, we review for plain error procedural sentencing...
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