United States v. Okulaja

• Decision Date: 27 December 2021
• Docket Number: No. 20-20101,20-20101
• Citation: 21 F.4th 338
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Ademola Babatunde OKULAJA, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

21 F.4th 338

UNITED STATES of America, Plaintiff—Appellee,

v.Ademola Babatunde OKULAJA, Defendant—Appellant.

No. 20-20101

United States Court of Appeals, Fifth Circuit.

FILED December 27, 2021

Catherine Pick, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Scott Andrew Martin, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before Wiener, Graves, and Ho, Circuit Judges.

Wiener, Circuit Judge:

A jury found Defendant-Appellant Ademola Babatunde Okulaja guilty of using two counterfeit passports to open bank accounts, in violation of 18 U.S.C. § 1543. Okulaja appeals his conviction on both counts, as well as his sentence. We affirm Okulaja's conviction, but we vacate his sentence and remand for resentencing.

I. Background

In May 2016, Okulaja applied for a nonimmigrant visa to enter the United States. The next month, he opened a bank account at the Alief branch of the International Bank of Commerce ("IBC") in Houston, Texas, in the name of Michael C. Millet. In doing so, he used a counterfeit passport in the name of Michael Charles Millet (the "Millet Passport"), purportedly issued by the United Kingdom of Great Britain and Northern Ireland, number 020338506. The photograph on the Millet Passport was the same as the one used on Okulaja's visa application. The email address that Okulaja provided in opening this bank account (the "Millet IBC account") was the same as the one he used for his visa application and his Texas driver's license application. The IBC representative took a photo of Okulaja for the bank's records when he opened the Millet IBC account, as is IBC's practice if the equipment required to do so is functioning at the time.

In November 2016, Okulaja opened a bank account at the Galleria IBC branch in Houston, Texas, in the name of David S. Allen. In doing so, he used a counterfeit passport in the name of David Samuel Allen (the "Allen Passport"), purportedly issued by the United Kingdom of Great Britain and Northern Ireland, number 794614923. The photograph on the Allen Passport was the same as that used on the Millet Passport and Okulaja's visa application. The IBC representative did not take a picture of Okulaja when he opened this account (the "Allen IBC account"), likely because the required equipment was not working. The Texas address that Okulaja provided when opening the Allen IBC account was that of an unoccupied house on his own street.

In March 2017, Okulaja opened a bank account at the Cesar Chavez IBC branch in Austin, Texas, in the name of Ronald D. Schnur, using a counterfeit passport in the name of Ronald Dean Schnur (the "Schnur Passport"), purportedly issued by the United Kingdom of Great Britain and Northern Ireland, number 020338506. The photograph on the Schnur Passport was the same as that used on the Millet Passport, the Allen Passport, and Okulaja's visa application. The number on the Schnur Passport was the same as the number on the Millet Passport. The IBC representative took a photo of Okulaja when he opened this account (the "Schnur IBC account").

II. Charges

In June 2018, Okulaja was charged in a two-count indictment. Count 1 alleged that, on or about June 6, 2016, Okulaja used the Millet Passport to open the Millet IBC account, in violation of 18 U.S.C. § 1543 (False Use of a Passport). Count 2 alleged that, on or about November 21, 2016, Okulaja used the Allen Passport to open the Allen IBC account in violation of 18 U.S.C. § 1543 (False Use of a Passport). The indictment did not charge Okulaja with bank fraud or any other crimes relating to various deposits he allegedly made as part of a larger scheme. Neither did it charge Okulaja with any crime relating to the Schnur IBC account.

III. Trial

At trial, the district court admitted two webcam photos over Okulaja's objection that they were not sufficiently authenticated. The photos were offered to demonstrate the identity of the individual who opened the Millet IBC account and the Schnur IBC account. The government introduced the photos through the testimony of Shamsali Momin ("Ms. Momin"), an IBC officer with 14 years of experience at the bank, including as a branch manager. She testified that her experience included opening numerous customer accounts like the ones at issue here, as well as managing employees who open accounts. She had not been present when the accounts were opened, but she had reviewed IBC's records related to those accounts, where she located the photos.

Ms. Momin testified extensively regarding IBC's normal business procedures for opening new accounts, explaining that a person must be physically present to open a new account. Ms. Momin stated that the IBC employee then takes that person's photo with a webcam, scans his or her identification, and visually compares such person and the identification. Ms. Momin further testified that it is IBC's general practice to take a photo of the person who opens a new account and explained that a photo is always taken if the equipment is working. She opined that, based on her knowledge of IBC's practices, and because she located the relevant photos in the files for the Millet IBC and Schnur IBC accounts, the relevant photos were taken when the accounts were opened. For the photo taken when the Millet IBC account was opened, Ms. Momin identified the Alief IBC branch by the background in the photo since she is familiar with that branch.

Also at trial, defense counsel attempted to admit Defendant's Exhibit 2c, a photo of a fake driver's license, found on Prince Ogunjimi's phone, depicting a third party. The PSR explains that Ogunjimi was a friend of Okulaja and was involved in similar but unrelated incidents of fraud. The government objected to the relevance of Exhibit 2c because the fake ID depicted a man who was not Okulaja and featured a name unrelated to Okulaja or his offenses. Defense counsel suggested that the person in the photo in the fake ID looked "a lot" like Okulaja and "could pass for him" during a brief encounter. The district court sustained the government's objection, apparently after determining that (1) defense counsel had not shown the relevance of Exhibit 2c and (2) the exhibit would significantly distract the jury. The jury convicted Okulaja on both counts.

IV. Sentencing

The presentence report (PSR) listed as relevant conduct eleven other bank accounts, including the Schnur IBC account, that Okulaja opened with false passports. The indictment did not charge Okulaja with any crimes relating to these accounts. Also listed as relevant conduct was the intended loss attributed to Okulaja based on altered and counterfeit checks deposited into (1) those eleven bank accounts and (2) the two IBC accounts associated with the offenses of conviction. The intended loss described in the PSR totals $407,810.56. That number includes a $263,975 check deposited into the Schnur IBC account (the "Schnur Check").

The PSR determined Okulaja's base offense level through a series of cross-references. It explains that:

1. The Sentencing Guideline for false use of a passport—a violation of 18 U.S.C. § 1543 —is U.S.S.G. § 2L2.2.

2. Per § 2L2.2(c)(1)(A), U.S.S.G. § 2X1.1 applies because Okulaja used a passport in the commission of felony bank fraud and the resulting offense level was greater than it would be if it were determined under § 2L2.2.¹

3. Section 2B1.1 was applied per § 2X1.1 because it is the guideline for the underlying offense of fraud.²

4. The base offense level for § 2B1.1 is six.³

5. A 12-level increase was applied per § 2B1.1(b)(1)(G) because the intended loss attributed to Okulaja exceeded $250,000 but was not more than $550,000.

Okulaja's total offense level of 20 also included a two-level enhancement for obstruction of justice which was applied in a second addendum to the PSR. That offense level, combined with a criminal history category of I, produced an advisory guidelines range of 33 to 41 months of imprisonment.

Among other things, Okulaja objected to the inclusion of the eleven uncharged bank accounts and the intended-loss amount associated with those accounts as relevant conduct. The government disagreed, as did the probation officer who maintained that the uncharged bank accounts were properly considered relevant conduct.

Okulaja renewed this objection at sentencing. The district court determined that, although uncharged, Okulaja's opening of the Schnur IBC account, and the subsequent deposit of funds into it, was relevant conduct, apparently because it was part of the same scheme as his opening of the Millet IBC and Allen IBC accounts. The district court found a total intended loss of $341,463, which supported the 12-level increase in offense level. That number included the Schnur Check. Absent the Schnur Check, the intended-loss amount would have supported only a six-level increase.

The district court sustained counsel for Okulaja's objection to the obstruction of justice enhancement and determined a total offense level of 18. That, combined with a criminal history category of I, resulted in a revised advisory guidelines range of 27 to 33 months imprisonment.

The district court sentenced Okulaja within that guidelines range to 33 months imprisonment and three years supervised release on each count, to run concurrently. Okulaja timely appealed.⁴

V. Standard of Review

A "district court's interpretation or application of the Sentencing Guidelines is reviewed de novo. "⁵ A " ‘district court's determination of what constitutes relevant conduct for purposes of sentencing’ is a factual finding that ‘is reviewed for clear error.’ "⁶ "A factual finding is not clearly erroneous if it is plausible in light of the record as a whole."⁷ "The Court will find clear error ‘only if a review of all the evidence leaves us with the definite and firm conviction...