USA. v. Akinkoye

• Decision Date: 29 January 1999
• Docket Number: No. 98-4133,CR-97-151-PJM,No. 98-4169,98-4133,98-4169
• Citation: 185 F.3d 192
• Parties: (4th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AKIN AKINKOYE, a/k/a A. Sam Akins, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NOUYIBATOU AFOLABI, Defendant-Appellant. () Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 192

185 F.3d 192 (4th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AKIN AKINKOYE, a/k/a A. Sam Akins, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NOUYIBATOU AFOLABI, Defendant-Appellant.

No. 98-4133 No. 98-4169 (CR-97-151-PJM)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: January 29, 1999

Decided: July 19, 1999

Appeals from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: Margaret Nottingham Nemetz, Bowie, Maryland, for Appellant Afolabi; Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, P.A., Baltimore, Maryland, for Appellant Akinkoye. Steven Michael Dettelbach, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney, Greenbelt, Maryland, for Appellee.

Before WIDENER, MURNAGHAN, and HAMILTON, Circuit Judges.

Affirmed by published opinion. Judge Murnaghan wrote the opinion, in which Judge Widener and Judge Hamilton joined.

OPINION

MURNAGHAN, Circuit Judge:

Before us is a criminal appeal from two defendants, Akin Akinkoye and Nouyibatou Afolabi, who were convicted of credit card fraud. They raise a number of challenges to the conviction, including claims that the district court erred in denying their motion to sever, failing to hold a Franks hearing to determine whether probable cause existed, failing to grant their motions for a judgment of acquittal, and in enhancing their sentences under the sentencing guidelines. Individually, defendant Afolabi also alleges that she did not meet the $1,000 threshold for one of the crimes charged, the district judge should have decreased her sentence because she only played a minimal role in the criminal endeavor and the entire loss was not reasonably foreseeable to her. Defendant Akinkoye claims that the enhancement for abuse of trust was not warranted because he was not in a position of trust, and that a two level increase for obstruction of justice was not warranted because the statements he made had no effect on the prosecution of his case. All in all, the district court's decisions are in order and we therefore affirm.

I.

Akinkoye was a real estate agent employed by Re/Max real estate agency and worked in its Burtonsville, Maryland office. Having determined that he needed money to invest in certain legitimate business opportunities, he planned an elaborate scheme to defraud clients of Re/Max and various financial institutions by using the clients' financial and credit information to obtain credit cards from the financial institutions ("credit card companies").

On or about May 12, 1995, Akinkoye put his plan into effect. He effected the scheme by reviewing the files of clients of Re/Max, submitting credit card applications to the credit card companies and obtaining from them genuine credit cards issued in the names of the clients. He used the addresses of the properties owned by the clients to receive the credit cards. To the extent that the clients' mail was delivered into secured places -such as inside the home or in a locked mailbox -Akinkoye would access the mail by using the keys to the home provided by the clients. Through that process, Akinkoye managed to obtain numerous credit cards over a nineteen-month span and incurred losses of more than $200,000.¹ None of the clients was aware that their names, information and property were being used fraudulently.

Akinkoye did not work alone. Because some of the clients were women, he enlisted Afolabi's assistance in carrying out the scheme. She admitted that she gave Akinkoye pictures of herself that were ultimately used to provide photo identification for the cards. In addition, she signed the back of some of the cards that were used to obtain goods and services. She also personally used at least one of the cards in Nordstrom's.

Postal Inspectors became suspicious in December 1996 when they were contacted by credit card companies whose investigators believed that fraud was afoot. Conversations with the companies led Postal Inspector Patrick Bernardo to contact victims of the scheme. After compiling handwriting samples and descriptions resembling Akinkoye, inspectors obtained a warrant and searched Akinkoye's home. Inspectors found numerous credit cards, credit card applications, pictures of Afolabi, and other inculpating evidence. The government charged Akinkoye and Afolabi with conspiracy to violate and violations of 18 U.S.C. § 1029(a)(2), which criminalizes the unauthorized use of access devices. Afolabi was also charged with aiding and abetting violations of that statute. Both defendants made statements to police regarding their respective roles in the offenses. The two defendants were tried by jury, convicted and sentenced. The instant appeal ensued.

II.

The defendants first argue that the district court erred in denying their motion for severance. They argue that because each defendant's confession implicated the other, their trials should have been held separately. The failure to do so, they argue, was highly prejudicial. We review decisions to deny motions to sever for abuse of discretion. See United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir.), cert. denied, 505 U.S. 1228 (1992).

Generally, we adhere to the rule that defendants charged with participation in the same conspiracy are to be tried jointly. See United States v. Roberts, 881 F.2d 95, 102 (4th Cir. 1989). A defendant is not entitled to severance merely because separate trials would more likely result in acquittal, see Brooks, 957 F.2d at 1145, or because the evidence against one defendant is not as strong as that against the other. 2645 30 4 See id. Rather, the defendant must show prejudice . See FED. R. CRIM. P. 14.

In the instant case, the defendants base their assignment of error on the admission of their respective redacted confessions, which they argue implicate the other party. Where the un-redacted out-of-court confession of a non-testifying codefendant clearly implicates a defendant, severance is required to preserve that defendant's Sixth Amendment right to confront his accusers. See Bruton v. United States, 391 U.S. 123, 135-36 (1968). Moreover, if a redacted confession of a non-testifying codefendant given to the jury (by testimony or in writing) shows signs of alteration such that it is clear that a particular defendant is implicated, the Sixth Amendment has been violated. See Gray v. Maryland, 118 S. Ct. 1151, 1157 (1998).

In Gray, the non-testifying codefendant's statement was redacted by the government and read into evidence. See id. at 1153. The statement was redacted by simply replacing the defendant's name with blank spaces or the word "deleted." Id. The officer who read the statement into evidence indicated where the blanks and deletions were in the statement. For example, one exchange proceeded as follows:

Q: Who was in the group that beat [the victim]?

A: Me, [an empty space was left here],[another empty space] and a few other guys.

Id. at 1158.

When that passage was read to the jury, the officer reading it said "deleted" where the blank spaces appeared. See id. at 1153. The Supreme Court concluded that the statements obviously referred to the existence of the defendant and implicated him, in light of the follow-up questions asked by the prosecutor. Id. at 1157.

By contrast, statements that, when redacted, do not even refer to the existence of the defendant are admissible and do not require severance. See Richardson v. Marsh, 481 U.S. 200, 211 (1987). But, Richardson expressly left open the question before us here -namely, whether redacted statements that refer to the existence of another party who may be the defendant through symbols or neutral pronouns are admissible. See id. at n.5.

The Supreme Court has strongly implied that such statements do not offend the Sixth Amendment. In Gray, the court used as an example the exchange quoted above and expressly wondered"[w]hy could the witness not, instead, have said: `Question: Who was in the group that beat [the victim]? Answer: Me and a few other guys.'" Id. at 1157.

It is that type of neutral phrase that the prosecutor used in the instant case. The prosecutor had the confessions retyped, and replaced the defendants' respective names with the phrase"another person" or "another individual." Because the retyped versions of the confessions were read to the jury, the jury neither saw nor heard anything in the confessions that directly pointed to the other defendant.

Given the neutral phrases used in the statements the defendants were not prejudiced in any way. For example, Akinkoye's statement at one point refers to "a guy in New York." Since that reference could not possibly refer to Afolabi (who is a woman) the one gender neutral reference to "another person" appearing in Akinkoye's confession does not facially implicate her. Likewise, in an argument below, Akinkoye himself argued that Afolabi's confession did not implicate him because she lived with a number of males and she could have been referring to one of them. Using his own logic then, a reference to "another person" in Afolabi's confession does not facially implicate him.

Furthermore, as discussed below, there was sufficient evidence to convict both defendants without the confessions, particularly Akinkoye. Therefore, the motion to sever was properly denied.

III.

Akinkoye next argues that the district court erred in failing to hold a Franks hearing to determine whether errors in the warrant were made intentionally to mislead the magistrate into concluding that probable cause existed to search Akinkoye's home. Under the rule the Supreme Court enunciated in Franks v. Delaware , 438 U.S. 154, 15556 (1978), where a defendant can show that the officers made misstatements of fact upon which the magistrate relied in issuing a...