United States v. Ojudun, 020819 FED2, 17-2348-cr

Docket Nº:17-2348-cr
Opinion Judge:Kearse, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. OLUWOLE OJUDUN, Defendant-Appellant. [*]
Attorney:GEOFFREY S. BERMAN, United States Attorney for the Southern District of New York, New York, New York (Daniel S. Noble, Anna M. Skotko, Assistant United States Attorneys, New York, New York, of counsel), for Appellee. BENNO & ASSOCIATES, New York, New York (Ameer Benno, New York, New York, of coun...
Judge Panel:Before: KATZMANN, Chief Judge, KEARSE, Circuit Judge, MEYER, District Judge
Case Date:February 08, 2019
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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UNITED STATES OF AMERICA, Appellee,

v.

OLUWOLE OJUDUN, Defendant-Appellant. [*]

No. 17-2348-cr

United States Court of Appeals, Second Circuit

February 8, 2019

Submitted: October 24, 2018

Appeal from a judgment of the United States District Court for the Southern District of New York, Katherine B. Forrest, then-Judge, revoking defendant Ojudun's supervised release--imposed following his prior federal conviction for conspiracy to commit bank fraud--on the grounds that while on such release he, inter alia, committed two financial crimes in violation of New Jersey law and associated with a known felon and thereby violated the conditions of release, and ordering him to serve 30 months' imprisonment, to be followed by two years of supervised release. On appeal, Ojudun contends principally that the court erred (1) in denying his motion to suppress, on Fourth Amendment grounds, evidence resulting from New Jersey police officers' stop of the vehicle in which he was a passenger, and (2) in admitting, over his hearsay objection, evidence of postarrest statements made by the vehicle's driver as statements against the interest of the driver. We find no merit in Ojudun's Fourth Amendment challenges to the stop and search of the vehicle. However, we conclude that evidence of statements by the driver that incriminated Ojudun without incriminating the driver did not fall within the hearsay exception provided by Rule 804(b)(3) of the Federal Rules of Evidence for statements against the interest of the declarant, and that the court did not perform the analyses required under Rule 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure, in order to determine the admissibility of the declarant's other statements. We thus vacate the judgment and remand for further proceedings.

Vacated and remanded.

GEOFFREY S. BERMAN, United States Attorney for the Southern District of New York, New York, New York (Daniel S. Noble, Anna M. Skotko, Assistant United States Attorneys, New York, New York, of counsel), for Appellee.

BENNO & ASSOCIATES, New York, New York (Ameer Benno, New York, New York, of counsel; Adam D. Perlmutter, Perlmutter & McGuinness, New York, New York, of counsel on the initial brief), for Defendant-Appellant.

Before: KATZMANN, Chief Judge, KEARSE, Circuit Judge, MEYER, District Judge [**].

Kearse, Circuit Judge.

Defendant Oluwole Ojudun appeals from a judgment of the United States District Court for the Southern District of New York, Katherine B. Forrest, then-Judge, revoking his supervised release--imposed following his prior conviction for conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349--on the grounds that Ojudun violated standard conditions of release by (1) committing forgery in violation of New Jersey law, (2) committing theft by deception in violation of New Jersey law, (3) leaving the judicial jurisdiction of his supervision without permission, and (4) associating with a known felon. The court ordered Ojudun to serve 30 months' imprisonment, followed by two years of supervised release, to be served consecutively to any state sentence that may be imposed. On appeal, Ojudun challenges his convictions on charges (1), (2), and (4), contending principally that the court erred (a) in denying his motion to suppress, on Fourth Amendment grounds, evidence resulting from the New Jersey police officers' stop of the vehicle in which he was a passenger, and (b) in admitting, over his motion to preclude as hearsay, evidence of postarrest statements made about Ojudun by the vehicle's driver. For the reasons that follow, we reject Ojudun's challenges to the officers' stop of the vehicle and the ensuing seizure of evidence. However, we conclude that statements of the driver that incriminated Ojudun without incriminating the driver were not properly, under Rule 804(b)(3) of the Federal Rules of Evidence, ruled statements against the interest of the driver, and that the district court did not perform the analyses required under Rule 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure, in order to determine the admissibility of the declarant's other statements. We thus vacate the judgment and remand for further proceedings.

I. BACKGROUND

The present proceeding against Ojudun alleging his violations of supervised release ("VOSR") arises from the January 12, 2017 stop by local police officers in Summit, New Jersey, of a car (the "Car") driven by Anthony Gray, in which Ojudun was a passenger. Ojudun moved to suppress any evidence resulting from the stop, contending that the stop, the ensuing search of the Car, and his arrest, violated the Fourth Amendment. As part of Ojudun's VOSR hearing, which was held in April and June 2017, the stop and its aftermath were described principally in a suppression hearing at which the only witness was Detective Christopher Medina of the Summit Police Department ("SPD"), who had participated in the stop, the search, and the subsequent arrests of Ojudun, Gray, and Jerry Cesaro, the Car's other passenger (see Part I.B. below). Medina also described his postarrest interview of Gray. That testimony and a videotape of the interview were introduced over Ojudun's hearsay objection (see Part I.C. below).

Following the hearing, the district court, inter alia, found the testimony of Medina to be credible and found that his observations of the Car and Cesaro provided reasonable suspicion sufficient to justify the stop of the Car. Ojudun has not argued that any of the court's factual findings in this regard are clearly erroneous; rather, he challenges its conclusions of law as to the constitutionality of the stop of the Car and the ensuing search and seizures. He also challenges the court's ruling that Gray's hearsay statements were admissible under Fed.R.Evid. Rule 804(b)(3), the exception for statements that are contrary to the declarant's punitive interest.

A. Ojudun's Prior Conviction

Relevant events leading to Ojudun's prior conviction are not disputed and/or are matters of record. In 2011, the United States Postal Inspection Service began investigating a bank fraud scheme that involved deposits of counterfeit checks at banks located in New York, New Jersey, and Connecticut. Some scheme participants would open bank accounts using their own identities and would provide their account information and personal identification numbers to other participants, who would then deposit counterfeit checks into the accounts. Thereafter, participants would obtain money from the accounts by withdrawing cash at Automated Teller Machines ("ATMs"), or using debit cards at retail locations, or purchasing money orders at United States Post Offices.

Ojudun and Gray were among the participants in the scheme. Ojudun deposited counterfeit checks and withdrew cash from ATMs and local bank branches, and he recruited others to do so. Gray supplied scheme participants with counterfeit checks and drove them to various banks in order to cash them.

In 2012, Gray, following his plea of guilty, was convicted of bank fraud. He was sentenced principally to time served, plus three years of supervised release. In 2014, Ojudun was convicted, following his plea of guilty, of conspiracy to commit bank fraud. He was sentenced to 40 months' imprisonment, to be followed by three years of supervised release. Ojudun's three-year supervised-release term began upon his release from prison in May 2016.

B. SPD's January 2017 Stop of the Car and Arrest of Ojudun

Medina's testimony at the suppression hearing included the following.

1. The Stop

Around noon on January 12, 2017, Medina and SPD Detective Sergeant Mike Treiber (the "Officers") were driving in the center of Summit, a town in which the vast majority of the cars were registered in New Jersey, when they noticed the Car, a black BMW with New York license plates, drive about 100 feet past a Chase Bank branch and double park. (See Hearing Transcript, April 19, 2017 ("April Tr."), at 20-24.) A "disheveled looking" white male--later identified as Cesaro--whose gaunt face, dirty clothing, and general appearance were, in Medina's experience, "consistent with somebody who uses drugs" (id. at 24), exited the Car, "meander[ed]" toward the bank, walking diagonally in the street rather than crossing and using the sidewalk (Hearing Transcript, June 16, 2017 ("June Tr."), at 44; see id. at 50-51), and entered the rear door to the bank (see April Tr. 29). The Car drove off; the Officers, whose suspicions were aroused as to the possibility of bank fraud or narcotics trafficking, promptly parked in the first parking spot in the bank's parking lot--one of several available spaces--and watched the bank's rear entrance. They saw Cesaro exit the bank, and at about the same time saw...

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