United States v. Osuagwu, 18-11108

• Decision Date: 27 August 2021
• Docket Number: 18-11108
• Parties: United States of America, Plaintiff-Appellee, v. Chukwuma Jonas Osuagwu, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

United States of America, Plaintiff-Appellee, v. Chukwuma Jonas Osuagwu, Defendant-Appellant.

No. 18-11108

United States Court of Appeals, Fifth Circuit

August 27, 2021

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:16-CR-343-1

Before KING, HIGGINSON, and WILSON, Circuit Judges.

PER CURIAM. ^[*]

Following a jury trial, Chukwuma Jonas Osuagwu was convicted of five counts of bank fraud in violation of 18 U.S.C. § 1344 and one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349. For the reasons that follow, we AFFIRM.

I.

This criminal appeal challenges the district court's evidentiary rulings and the sufficiency of the evidence focusing predominately on whether the government proved beyond a reasonable doubt that the victim banks-Bank of America, J.P. Morgan Chase, and Wells Fargo-were insured by the Federal Deposit Insurance Corporation ("FDIC") at the time of the alleged fraud.

Following a seven-day jury trial, during which he represented himself Chukwuma Jonas Osuagwu was convicted of five counts of bank fraud and one count of conspiracy to commit bank fraud.^[1]

At trial, the government adduced evidence of a scheme in which Osuagwu fraudulently obtained mortgage loans for residential condominium units in Dallas, Texas, and assisted others in doing the same. This scheme resulted in a total loss of over $1.5 million to the victim banks, including Bank of America J.P. Morgan Chase, and Wells Fargo.

In proving its case, the government submitted affidavits from counsel for FDIC regarding the banks' FDIC-insured status.^[2] Osuagwu did not object to the affidavits' admission at trial, though he now contends that their admission violated the Sixth Amendment's Confrontation Clause. Additionally, the government submitted bank and mortgage loan records, the authenticity or foundation of which Osuagwu did not challenge at trial. Osuagwu did, however, move for judgment of acquittal, which the district court denied. Osuagwu timely appeals.

II.

Osuagwu challenges the government's proof of the FDIC-insured status of the victim banks in two ways: (1) the admission of the affidavits from FDIC's counsel violated the Confrontation Clause, and (2) there was insufficient evidence from which a jury could reasonably conclude that the victim banks were insured by FDIC at the time of the alleged fraud. Neither challenge is successful.

1. Osuagwu's Confrontation Clause challenge fails plain-error review.

Osuagwu argues for the first time on appeal that admission of affidavits from FDIC's counsel regarding the victim banks' FDIC-insured status violated the Sixth Amendment's Confrontation Clause.

Although "[w]e usually review an alleged Confrontation Clause violation de novo, subject to harmless-error analysis," where a defendant does "not make a timely and specific Confrontation Clause objection to the introduction of . . . [certain] evidence," we review that challenge for plain error only.^[3] United States v. Martinez-Rios, 595 F.3d 581, 584 (5th Cir. 2010) (citation omitted).

Under plain-error review, Osuagwu must show that (1) the district court erred; (2) the error was clear or obvious; (3) the error affected his substantial rights; and, (4) we should exercise our discretion to correct the error because "the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).

The Sixth Amendment guarantees a criminal defendant the right "to be confronted with the witnesses against him." U.S. CONST. amend. VI. And "that right is violated where the prosecution introduces 'testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for crossexamination.'" Martinez-Rios, 595 F.3d at 585 (quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004)); see also United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007).

Testimonial statements include those statements that "would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]" Crawford, 541 U.S. at 51-52. In other words, "a statement is testimonial if its 'primary purpose' is to 'establish or prove past events potentially relevant to later criminal prosecution.'" United States v. London, 746 Fed.Appx. 317, 321 (5th Cir. 2018) (quoting United States v. Duron-Caldera, 737 F.3d 988, 992-93 (5th Cir. 2013)). We have held that "[r]ecords 'specifically produced for use at trial,' as opposed to those kept in the ordinary course of government business, 'are testimonial and are at the heart of statements triggering the Confrontation Clause.'" Id. (quoting Martinez-Rios, 595 F.3d at 586).

And indeed, in this case, it is undisputed that certain statements in the affidavits were likely testimonial-i.e., the statements of FDIC's counsel in the affidavit that "after diligent search, no record or entry in the official records of the FDIC has been found to exist which terminated the status" of the banks as insured by the FDIC and that the banks retained their insured statuses through the relevant dates. See id. at 321-22. But, on plain-error review, even if admission of the affidavits without presenting FDIC's counsel as a witness for cross-examination was an error, Osuagwu must show, inter alia, that the error affected his substantial rights. See Martinez-Rios, 595 F.3d at 587.

Specifically, Osuagwu must show "a reasonable probability that, but for [the Confrontation Clause violation], the result of the proceeding would have been different." Martinez-Rios, 595 F.3d at 587 (alterations in original) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)). Osuagwu has failed to show as much.

As we discuss below, the government introduced ample evidence, other than the affidavits from FDIC's counsel, to establish that the victim banks were insured by FDIC. Namely, the government proffered bank employee testimony regarding each bank's FDIC-insured status and the FDIC insurance certificates. And this type of unchallenged bank employee testimony, together with FDIC insurance certificates for each bank, establishes each victim bank's FDIC-insured status. See United States v. Slovacek, 867 F.2d 842, 845-47 (5th Cir. 1989); United States v. Maner, 611 F.2d 107, 108-12 (5th Cir. 1980); cf. United States v. Schultz, 17 F.3d 723, 727 (5th Cir. 1994) (explaining that if bank officials with personal knowledge of the bank's insurance status had testified, then that testimony, if unchallenged, would have been sufficient). In light of this ample evidence of the victim banks' FDIC-insured status, detailed more fully below, Osuagwu cannot show a reasonable probability that, but for the Confrontation Clause violation, the outcome of the proceeding would have been different. Therefore, there was no plain error in the admission of the affidavits.

2. There was sufficient evidence from which a jury could reasonably conclude that the victim banks were insured by FDIC at the time of the alleged fraud.

Osuagwu also challenges the sufficiency of the evidence as to the FDIC-insured status of the victim banks.

We review the sufficiency of the evidence supporting a conviction de novo, but the review is "nevertheless highly deferential to the verdict." United States v. De Nieto, 922 F.3d 669, 677 (5th Cir. 2019) (quoting United States v. Chapman, 851 F.3d 363, 376 (5th Cir. 2017)). Indeed, we "must affirm a conviction if, after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc)). Plainly put, "a defendant seeking reversal on the basis of insufficient evidence swims upstream." United States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997).

To establish federal jurisdiction and prove a violation of 18 U.S.C. § 1344, the government must prove beyond a reasonable doubt that the victim banks were "financial institutions" within the meaning of the statute. See 18 U.S.C. § 1344; Davis, 735 F.3d at 198-99. Put differently, the government must prove that the victim banks were insured by FDIC at the time of the alleged fraud. See 18 U.S.C. § 1344; Davis, 735 F.3d at 198-99; see also 18 U.S.C. § 20 (defining "financial institution"). To be sure, even if the government presents sparse proof of such insurance, "[s]parse evidence . . . can be enough." United States v. Brown, 616 F.2d 844, 848 (5th Cir. 1980). Consequently, "[u]ncontradicted testimony [that] the deposits were federally insured is sufficient." United States v. Baldwin, 644 F.2d 381, 385 (5th Cir. 1981).

In this case, based on the unchallenged testimony of bank employees alongside the FDIC insurance certificates, ^[4] a rational jury could reasonably conclude that the victim banks were insured by FDIC at the time of the alleged fraud.^[5] See Slovacek, 867 F.2d at 845-46; Maner, 611 F.2d at 108-12. For these reasons, Osuagwu's sufficiency of the evidence argument fails.

III.

On appeal, Osuagwu also argues for the first time that the government failed to lay a proper foundation for the admission into evidence of Bank of America and J.P. Morgan Chase Bank mortgage loan and account records. Because Osuagwu did not raise this challenge below, we review for plain error.^[6] United States v. Lewis, 796 F.3d 543, 545 (5th Cir. 2015).

Below we first discuss Osuagwu's challenges to the Bank of America records before turning to his challenges...