United States v. Ojedokun

• Decision Date: 04 February 2021
• Docket Number: CRIMINAL NO. PWG-19-228
• Parties: UNITED STATES OF AMERICA v. SEUN BANJO OJEDOKUN, Defendant
• Court: U.S. District Court — District of Maryland

UNITED STATES OF AMERICA v. SEUN BANJO OJEDOKUN, Defendant

CRIMINAL NO. PWG-19-228

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

February 4, 2021

MEMORANDUM OPINION

Seun Banjo Ojedokun was convicted by a jury on September 15, 2020 of a single count of promotion and concealment money laundering conspiracy, in violation of 18 U.S.C. § 1956(h). The superseding indictment on which he was tried alleged that the "specified unlawful activity" of the money laundering conspiracy was wire fraud, in violation of 18 U.S.C. § 1343. ECF No. 79. The superseding indictment was returned by the grand jury on August 10, 2020. It superseded the original indictment, which was returned on May 6, 2018. ECF No. 6. The original indictment also charged a single count of promotion and concealment money laundering conspiracy, but the "specified unlawful activity" was identified as conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. In both the original and superseding indictments, the conduct involved in the conspiracy ended in March, 2015, more than five years before the return date of the superseding indictment.

After the Government filed the superseding indictment, Ojedokun's retained counsel filed a motion to dismiss it based on a variety of asserted deficiencies, one of which was that it was time barred by the statute of limitations. ECF No. 86; 18 U.S.C. § 3282. The issue was briefed (ECF Nos. 86, 94) and following a hearing, I denied the motion to dismiss, finding that the superseding indictment neither broadened nor substantially amended the original charge. ECF No. 96. Following his conviction, Ojedokun's retained counsel filed a "Motion for New Trial and/or Motion to Dismiss," which, inter alia, reprised the statute of limitations argument. ECF No. 128. I denied it, ECF No. 140, and shortly thereafter Ojedokun's retained counsel withdrew his appearance. ECF No. 141. A CJA panel attorney then was appointed to represent Ojedokun. Ojedokun's new counsel filed a motion for reconsideration of my earlier denial of his motion for a new trial. ECF No. 146. It cited new authority to support the statute of limitations argument, and, for the first time, argued that this Court lacked jurisdiction to try Ojedokun because his conduct during the money laundering conspiracy all took place when he lived in Nigeria, thereby precluding the extraterritorial application of the money laundering statute. ECF No. 146 at 7. See 18 U.S.C. § 1956(f)(1) ("There is extraterritorial jurisdiction over the conduct prohibited by this section if—(1) the conduct is by a United States citizen or, in the case of a non-United States citizen, the conduct occurs in part in the United States; and (2) the transaction or series of related transactions involves funds or monetary instruments of a value exceeding $10,000.").¹ The Government filed an opposition to the motion, ECF No. 151, Ojedokun filed a reply, ECF No. 152, and a hearing was set for January 25, 2021. Ojedokun's new counsel then filed a Second Reply to the Government's Response in Opposition, ECF No. 158, an Outline of Arguments for Oral Argument on the motion, ECF No. 159, and an email containing supplemental authorities,ECF No. 166, which I accepted (and have considered, this time), despite the fact that their filing was in violation of the local rules of this court.²

At the hearing on January 25, 2021, I heard argument from counsel, then denied the motion for reasons I stated on the record, ECF No. 163, but advised that I intended to supplement the oral ruling with a memorandum, because the motion raises some difficult issues, and, somewhat surprisingly, there is an absence of authority that gives clear guidance on what the outcome should be. I will begin with the statute of limitations issue raised by the filing of the superseding indictment.

1. Statute of Limitations Issue.

Ojedokun agrees that if the original indictment (identifying conspiracy to commit wire fraud as the "specified unlawful activity" that the money laundering conspiracy related to) was a legally viable indictment, then the superseding indictment "related back" to the filing of the original indictment, and there is no statute of limitations issue, so long as the superseding indictment did not "broaden or substantially amend" the original charge. United States v. Snowden, 770 F.2d 393, 398 (4th Cir. 1985) ("Trivial or innocuous" changes will not bar a superseding indictment from relating back to the date of the original indictment.); see also Handy v. United States, No. AW-09-2011, 2010 WL 3086350, at *2 (D. Md. Aug. 6, 2010) ("It is well-established that 'a valid indictment tolls the statute of limitations and that return of a superseding indictment prior to the dismissal of the original indictment does not violate the statute of limitations if the superseding indictment does not substantially alter the charge.'") (citationsomitted); United States v. Brown, 580 F. Supp. 2d 518, 520 (W.D. Va. 2008) ("As long as a superseding indictment does not broaden or substantially amend the original indictment, the superseding indictment relates back to the filing of the original indictment, even if the superseding indictment is filed outside of the statute of limitations period. . . . In determining whether a superseding indictment broadens the charges in the original indictment, the touchstone is whether the original indictment provided notice of the charges such that the defendant can adequately prepare his or her defense.") (citations omitted), aff'd on other grounds, 438 F. App'x 203 (4th Cir. 2011); United States v. Crysopt Corp., 781 F. Supp. 375, 377 (D. Md. 1991) ("[A] superseding indictment brought after the statute of limitations has expired is valid so long as the original indictment is still pending and was timely and the superseding indictment does not broaden or substantially amend the original charges." (citation omitted)). And, Ojedokun and the Government agree that, but for the statute of limitations issue, the superseding indictment on which Ojedokun was tried and convicted was a legally viable indictment alleging a money laundering conspiracy. This is because wire fraud, 18 U.S.C. § 1343, meets the definition of a "specified unlawful activity" found in 18 U.S.C. § 1956(c)(7)(A), § 1957(f)(3), and § 1961(1) that will support a charge of money laundering or money laundering conspiracy. Finally, the Government concedes that the offense of conspiracy to commit wire fraud, 18 U.S.C. § 1349, does not meet the statutory definition of "specified unlawful activity." But, Ojedokun and the Government disagree about whether the "specified unlawful activity" referenced in the money laundering statute constitutes an essential element of a money laundering conspiracy or money laundering charge, such that it must be pleaded in an indictment charging either offense in order for the indictment to be legally viable.

The foundation of Ojedokun's argument lies in United States v. Smith, 44 F.3d 1259 (4th Cir. 1995). At the outset, it is important to acknowledge what the issues in Smith did not involve, as much or more so than as what it did involve. It did not involve a statute of limitations issue, neither did it involve the filing of a superseding indictment to replace an allegedly deficient original indictment. And, it did not involve the issue of whether conspiracy to commit wire fraud would qualify as "specified unlawful activity" under the money laundering statute. Rather, it involved an appeal of a money laundering conviction, in which the defendant argued that the money laundering charges in the original indictment were legally deficient because they alleged that the laundered funds "'were the proceeds of a wire fraud, in violation of 18 U.S.C. § 1343,' without giving the details of the wire fraud," thereby failing to "allege a necessary element of the offense of money laundering—that the property be '"derived from specified unlawful activity.'" Smith, 44 F.3d 1259 at 1263 (citing 18 U.S.C. § 1957(a)). Thus, the Smith case addressed whether the indictment, which alleged an underlying offense (wire fraud) that clearly is within the definition of "specified unlawful activity" in the money laundering statute, adequately put the defendant on notice of the charges he was required to defend against.

The Smith court began with a tutorial about the basic principles governing what must be contained in a legally sufficient indictment. It said:

When considering whether an indictment properly charges an offense, we are guided by basic principles that (1) the indictment must contain a statement of "the essential facts constituting the offense charged," (2) it must contain allegations of each element of the offense charged, so that the defendant is given fair notice of the charge that he must defend, and (3) its allegations must be sufficiently distinctive so that an acquittal or conviction on such charges can be pleaded to bar a second prosecution for the same offense.

Id. (citations omitted). It added "[t]he allegations of an offense are generally sufficient if stated in the words of the statute itself." Id. at 1264.

Although the indictment accurately cited the wire fraud statute and its elements, and despite the fact that it was not disputed that wire fraud is among the long list of offenses included within the statutory definition of "specified unlawful activity" in the money laundering statute, the defendant in Smith argued that the factual details alleged in the indictment referenced several classes of victims and multiple theories of guilt, confusing him as to what he had to defend against. Id. The focus of his argument was that, the correct statutory reference to "specified unlawful activity" notwithstanding, the factual allegations of the indictment failed to provide him with the required notice of the charges against him. But the Fourth Circuit was having none of this, stating: "Smith's contention, w...