United States v. Ogunyileka ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4243
WALE OGUNYILEKA, a/k/a Tony,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-97-420-AW)
Submitted: October 27, 1998
Decided: November 23, 1998
Before WIDENER, ERVIN, and HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
James Wyda, Acting Federal Public Defender, Denise C. Barrett,
Assistant Federal Public Defender, Baltimore, Maryland, for Appel-
lant. Lynne A. Battaglia, United States Attorney, Maury S. Epner,
Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Wale Ogunyileka appeals his jury convictions and twenty-seven-
month sentence for ten counts of bank fraud, in violation of 18 U.S.C.
§ 1344 (1994). We affirm.
Between June and September 1997, Ogunyileka received bank
account signature card forms and other account information from
Anna Wieczorek, an employee of Chevy Chase Bank of Maryland.
Ogunyileka paid Wieczorek $2000 for the information. Wieczorek
testified at trial that Ogunyileka told her that the information obtained
from the signature cards would be used to make counterfeit alien reg-
istration cards ("green cards"). The fake green cards would be made
out in the name of the account holder, but would bear the photograph
of an associate of Ogunyileka who would make the withdrawals.
Ogunyileka's associate would then learn how to sign the signature of
the account holder and make withdrawals at several different
branches of the Chevy Chase bank. Wieczorek would then check the
account to determine the date and amount of the withdrawal so that
Ogunyileka could determine if his associate was giving him the cor-
rect amount of money.
Bank officials discovered the fraud and, after an internal investiga-
tion, Wieczorek confessed in September 1997 and agreed to cooperate
in the prosecution of Ogunyileka. Wieczorek tape recorded a tele-
phone conversation with Ogunyileka in which they agreed to meet so
that Wieczorek could give him two signature cards. At the meeting,
Wieczorek gave Ogunyileka two mock signature cards and tape
recorded her conversation with Ogunyileka, who stated how easy it
would be to forge one of the signatures on the cards and that his asso-
ciate had had some trouble recently using the counterfeit green cards.
Following the conversation, Ogunyileka was arrested by the United
States Secret Service, and the signature cards Ogunyileka received
from Wieczorek were found under the driver's seat of his vehicle.
During questioning by law enforcement, Ogunyileka admitted that he
obtained the signature cards from Wieczorek to withdraw funds from
the related accounts. Ogunyileka also admitted that he compromised
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three accounts based on information provided by Wieczorek and that
he had "done more" with a different Chevy Chase bank employee.
On appeal, Ogunyileka first asserts that the district court improp-
erly instructed the jury in that it did not require the jury to find all of
the essential elements of aiding and abetting in determining guilt.
"We review an entire [jury] charge to determine whether the court
adequately instructed the jury on the elements of the offense and the
accused's defenses." United States v. Fowler , 932 F.2d 306, 317 (4th
Cir. 1991) (citing United States v. Park, 421 U.S. 658, 674-75
(1975)). The content of an instruction is reviewed for abuse of discre-
tion. See United States v. Russell, 971 F.2d 1098, 1107 (4th Cir.
1992).
"To prove the crime of aiding and abetting, the government must
show that the defendant knowingly associated himself with and par-
ticipated in the criminal venture." United States v. Winstead, 708 F.2d
925, 927 (4th Cir. 1983). We find that the district court did not abuse
its discretion in giving its instructions on aiding and abetting. The
court gave the jury comprehensive instructions concerning aiding and
abetting, which included the essential elements of the crime and the
necessity of finding all of them to convict Ogunyileka. The court
stated that the jury must find beyond a reasonable doubt that the Gov-
ernment proved another person committed the offense with which the
defendant was charged, that the defendant willfully and knowingly
associated himself with the crime, and that the defendant willfully
sought to make the crime succeed. The court went on to explain that
participation in the crime required more than mere presence and
posed rhetorical questions to the jury to illustrate the crime of aiding
and abetting. Each question involved finding that the defendant acted
with intent. Thus, we find no abuse of discretion in the court's jury
instruction.
Ogunyileka next asserts that the court erred in determining his rele-
vant conduct under U.S. Sentencing Guidelines Manual
§ 1B1.3(a)(1)(A) (1997) ("USSG"). At sentencing, Ogunyileka was
held responsible for $91,000 fraud loss--$46,800 of which was
directly traceable to accounts compromised by Wieczorek. Ogun-
yileka asserted, however, that he should only be held responsible for
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the $46,800 directly traceable to Wieczorek and that any additional
amount of loss could not be connected to his actions.
District courts may take "relevant conduct" into account in deter-
mining a defendant's sentence whether or not the defendant has been
convicted of the charges constituting the relevant conduct. See USSG
§ 1B1.3; United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994).
Section 1B1.3(a)(1)(A) provides that relevant conduct includes all
acts of the defendant, acts aided and abetted by him, and acts for
which he is otherwise accountable which were "in furtherance of" the
offense of conviction. The government must establish the existence of
these other incidents by a preponderance of the evidence. See Jones,
31 F.3d at 1316 (citing United States v. Uwaeme , 975 F.2d 1016,
1018 (4th Cir. 1992)). Whether the government has successfully
shouldered its burden of proof is a question of fact reviewed for clear
error. See Jones, 31 F.3d at 1316.
At the sentencing hearing, the Government established that the
additional compromised accounts that were not traceable to Wiec-
zorek were accessed by the same individual used by Ogunyileka to
obtain funds from the accounts provided by Wieczorek. This individ-
ual appeared on bank surveillance photographs conducting transac-
tions on all of the compromised accounts and employing the same
modus operandi. Also, Wieczorek testified that Ogunyileka asked her
to query the bank's computers about accounts other than those for
which she actually provided signature cards. Wieczorek further testi-
fied that Ogunyileka was involved with another individual at the bank
besides herself. The bank investigator's fraud loss report, introduced
at trial, also established that the fraud loss occurred during the period
of time in which Ogunyileka was in contact with Wieczorek. Thus,
we find that the district court's factual findings and determination of
relevant conduct were not clearly erroneous.
Accordingly, we affirm Ogunyileka's convictions and sentence.
We deny Ogunyileka's motion to expedite our consideration of his
appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
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