United States v. Olufolajimi Abegunde ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0035n.06
No. 19-6229
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 14, 2021
UNITED STATES OF AMERICA, )
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
ON APPEAL FROM THE UNITED STATES
v. )
DISTRICT COURT FOR THE WESTERN
)
DISTRICT OF TENNESSEE
OLUFOLAJIMI ABEGUNDE, )
)
OPINION
Defendant-Appellant. )
BEFORE: WHITE, STRANCH, and MURPHY, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Olufolajimi Abegunde appeals his conviction and
sentence for witness tampering and for conspiracy to commit wire and bank fraud, money
laundering, and marriage fraud. In this direct appeal, Abegunde contends that: (1) the district court
erred in denying his motion to sever the conspiracy to commit marriage fraud count from the other
counts pursuant to Federal Rules of Criminal Procedure 8 and 14; (2) the evidence was insufficient
to support the jury’s verdict of guilty as to the convictions for conspiracy to commit wire fraud
and conspiracy to commit money laundering; (3) the venue was improper; (4) the district court
abused its discretion by not providing a jury instruction and demarcation between witnesses’ dual
roles as fact and expert witnesses; and (5) the district court erred in using a “loss chart” to
determine the economic loss for the proper sentencing range for Abegunde. For the reasons
discussed below, we AFFIRM the judgment of the district court.
No. 19-6229, United States v. Abegunde
I. BACKGROUND
A. Facts
This case grows out of business email compromise schemes (BEC). The schemes involved
hacking into a company’s email servers and creating fake emails directing the company’s
employees to wire funds into bank accounts controlled by the perpetrators. Typically, after a sum
is wired from a BEC, the money is transferred to multiple other bank accounts before reaching its
final destination. This “network” of bank accounts exchanges smaller portions of the initial
transfer amount in an attempt to clean the money and to avoid detection by banks and law
enforcement.1 Members of the network often do not know one another; they “simply fill a role for
some sort of payment along the way.” Banks will sometimes contact account owners that are
suspected participants in these networks to alert them to fraud on their account. If the account
owner lies about the source of the funds, law enforcement considers the statements as evidence
that the owner may be a knowing participant.
One of the businesses targeted in a BEC scheme in this case was Crye-Leike, a real estate
company in the Western District of Tennessee. A hacker directed a real estate agent to wire
$154,000 to a bank account controlled by the perpetrators. The FBI traced the fraudulent Crye-
Leike transfer to Javier Luis Ramos-Alonso, Abegunde’s co-defendant. Law enforcement then
subpoenaed additional bank records associated with Ramos-Alonso and found other suspicious
transactions, including suspected BECs involving other businesses. A scheme involving another
business, Whatcom, followed a similar pattern. Company emails were compromised, and a fake
email instructed an employee to wire funds to an account in the hackers’ control. Believing the
1
Transactions to the network bank accounts are smaller because banks are required by law to report transactions of
more than $10,000.
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email was authentic, a Whatcom employee wired more than $60,000 to an account controlled by
Ramos-Alonso.
Ramos-Alonso’s bank records also indicate that he attempted to divide the large amount of
money received from the BECs into smaller transfers into other accounts. Wells Fargo flagged
Ramos-Alonso’s bank account for suspicious activity and a bank investigator contacted him about
the large wires and repeated smaller transactions. The investigator also reviewed bank accounts
that received wires from Ramos-Alonso. Some of the money was wired to bank accounts with
Abegunde’s address, and one account also listed Abegunde’s phone number. When the
investigator called the phone number, Abegunde answered and stated that he had received the
money from a friend in Nigeria. Suspecting fraud, Wells Fargo recalled the funds from the
account.
Although Abegunde’s name was not on the bank accounts, at trial the Government offered
evidence that Abegunde was in control of the accounts because they were attached to his address
and phone number; Abegunde directed individuals to transfer money into the account; and the
individuals whose names were on the account were not in the United States when some of the
transactions were processed.
The Government sought to prove that Abegunde used these accounts, as well as nearly 40
other third-party accounts, because many of his personal accounts were closed. These accounts
were “used or given out by Mr. Abegunde for other people to put money into [and] were not his
own.” In Abegunde’s own words, he had to “beg, incentivize, [and] lobby people to give [him]
their account,” to continue his participation in the scheme. Most of this coordination occurred
over an encrypted messaging application, WhatsApp.
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The Government also provided testimony that Abegunde coordinated currency exchanges,
for people seeking exchanges from Nigerian naira to United States dollars, to clean money received
from the BEC schemes. Ramos wired $9,000 tied to a BEC scheme to a bank account alleged to
be under Abegunde’s control. As to the Whatcom BEC, Abegunde provided the account
information for one of the accounts he allegedly controlled when a conspirator requested a bank
account “fast.”
Evidence regarding the bank accounts receiving fraudulent funds showed that some were
attached to Abegunde’s phone number and address. At least one such account bore the name of
an alleged co-conspirator, Ayodeji Ojo. The FBI contacted Abegunde at his home to inquire about
suspected fraud. When asked about an “illegal money transfer” on the account, Abegunde
condemned people that committed fraud, but claimed that people using or transferring proceeds
from a fraudulent scheme were not involved in criminal activity. Even after the officer warned
Abegunde about potential liability for receiving and transferring fraudulent proceeds, Abegunde
“emphatically disagreed.” Abegunde also misrepresented his knowledge of Ojo’s involvement in
the scheme, but later messaged Ojo and laughed about this concealment. In one communication,
Abegunde expressed his fear about allowing “money to be paid into an account that can be tracked”
and asked about mitigating the risk of conspiracy to commit fraud. In another exchange,
Abegunde said that he really does not know the others involvedor the source for the funds, but
they “pay into accounts,” and he admitted that his exchanges “clean the cash and eliminate the
risk.”
Regarding the marriage fraud count, the evidence showed that Abegunde married Edchae
Caffey, a member of the United States Army, in 2016. Caffey testified that Abegunde paid her to
enter into the marriage so that he could “get a green card.” During trial the Government also
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No. 19-6229, United States v. Abegunde
provided proof that Abegunde entered the marriage to receive Caffey’s military benefits and that
Abegunde opened joint accounts with Caffey to transfer fraudulent funds.
B. Procedural History
A grand jury charged Abegunde and several others in a multi-count indictment involving
cybercrimes and fraud. Abegunde’s case was ultimately severed from all other defendants, except
Javier Luis Ramos-Alonso. The grand jury returned a superseding indictment charging Abegunde
and Ramos-Alonso with wire fraud conspiracy, in violation of 18 U.S.C. § 1349, and conspiracy
to launder money by conducting a financial transaction involving property that represented the
proceeds of a specified unlawful activity, in violation of 18 U.S.C. § 1956(h). Ramos-Alonso was
also charged with wire fraud, in violation of 18 U.S.C. § 1343. Abegunde was further charged
with conspiracy to enter into a marriage for the purpose of evading immigration laws, in violation
of 18 U.S.C. § 371, and witness tampering, in violation of 18 U.S.C. § 1512(b). The district court
denied Abegunde’s motion to sever the marriage-fraud conspiracy count.
The Government presented two law enforcement officers, Marcus Vance and David
Palmer, who each testified twice at trial providing evidence as both expert and fact witnesses.
Prior to sending the case to the jury, the district court gave the jury an instruction on how to
consider the testimony of Agents Vance and Palmer.
After a seven day trial, a jury convicted Abegunde of wire-fraud conspiracy, in violation
of 18 U.S.C. § 1349; money-laundering conspiracy, in violation of 18 U.S.C. § 1956(h); conspiracy
to enter a marriage for the purpose of evading immigration laws, in violation of 18 U.S.C. § 371;
and witness tampering, in violation of 18 U.S.C. § 1512(b). After a three-day sentencing hearing,
the district court sentenced Abegunde to 78 months of imprisonment.
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II. DISCUSSION
Abegunde challenges: (1) the district court’s denial of his motion to sever the marriage
fraud count from the other counts; (2) the sufficiency of the evidence for his wire fraud conspiracy
and money laundering conspiracy convictions; (3) venue; (4) the district court’s lack of
demarcation between witnesses’ dual roles as fact and expert witnesses; and (5) the district court’s
use of a “loss chart” during sentencing. We will address each separately.
A. Improper Joinder
Abegunde contends that the district court’s failure to sever his marriage fraud count from
the other counts resulted in prejudice that prevented the jury from making a reliable judgment
about his guilt or innocence. “Misjoinder is a question of law that we review de novo.” United
States v. Deitz, 577 F.3d 672, 692 (6th Cir. 2009). Even where joinder is proper, a defendant may
move to sever offenses on the basis that he will be prejudiced by a joinder of the offenses. United
States v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006). We review denial of a severance
motion based on a claim of prejudice for abuse of discretion. United States v. Jacobs, 244 F.3d
503, 506 (6th Cir. 2001).
Joint trials for defendants listed in the same indictment are preferred to “conserve . . . funds,
diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those
accused of crime to trial.” United States v. Lane, 474 U.S. 438, 449 (1986) (quoting Bruton v.
United States, 391 U.S. 123, 134 (1968)). Indeed, joinder ensures that an alleged criminal act need
only be proven once. United States v. Swift, 809 F.2d 320, 322 (6th Cir. 1987).
1. Joinder Under Rule 8(b)
Federal Rule of Criminal Procedure 8 governs the conditions under which multiple
offenses and defendants may be joined in a single indictment. Because this Rule is designed to
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No. 19-6229, United States v. Abegunde
promote judicial economy and avoid “multiplicity of trials” and the “scandal and inequity of
inconsistent verdicts,” Zafiro v. United States, 506 U.S. 534, 537, 540 (1993) (quoting Bruton, 391
U.S. at 131 n.6, and Richardson v. Marsh, 481 U.S. 200, 210 (1987)), a district court should
construe Rule 8 in favor of initial joinder, United States v. Moreno, 933 F.2d 362, 370 (6th Cir.
1991). Rule 8(a) governs the joinder of multiple offenses and Rule 8(b) governs the joinder of
multiple defendants. Although we have left the issue open, many courts have held that Rule 8(b)
(rather than Rule 8(a)) governs a defendant’s claim that multiple offenses were improperly joined
in a multi-defendant case. See United States v. Frost, 125 F.3d 346, 389 (6th Cir. 1997); United
States v. Johnson, 763 F.2d 773, 776 (6th Cir. 1985). As in Frost, we need not conclusively decide
the rule that applies in this setting because Abegunde’s claim fails even under Rule 8(b)’s stricter
joinder rules. Rule 8(b) provides:
The indictment or information may charge 2 or more defendants if they are alleged
to have participated in the same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses. The defendants may be charged
in one or more counts together or separately. All defendants need not be charged
in each count.
Under Rule 8(b), multiple defendants are properly joined only where each count arises out of the
“same act or transaction” or “same series of acts or transactions.” United States v. Hatcher, 680
F.2d 438, 441 (6th Cir. 1982). Acts or transactions constitute a series “if they are logically
interrelated” or “part of a common scheme or plan.” Johnson, 763 F.2d at 776. We have also
determined that joinder is proper where there is “overlapping proof.” Swift, 809 F.2d at 322.
Even if all counts have a common defendant, the indictment on its face must allege a
connection between a co-defendant and the additional count charged to the other defendant.
Hatcher, 680 F.2d at 441. However, not all defendants need to be charged with the same counts.
In Johnson, Johnson and four other co-defendants were charged in a conspiracy to produce
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No. 19-6229, United States v. Abegunde
fraudulent car titles and sell stolen vehicles. Johnson, 763 F.2d at 773–75. In addition to the
conspiracy related to the car titles, Johnson and her husband were also charged with mail fraud for
sending a false insurance claim based on a fraudulent title. Id. at 775. Even though the two other
co-defendants were not charged with mail fraud, we concluded that joinder was not improper under
Rule 8(b) because Johnson perpetrated the mail fraud through the overarching conspiracy. Id. at
776 (stating that “the mail fraud was logically interrelated with the other acts charged in the
indictment”).
The district court denied Abegunde’s motion to sever the marriage fraud count. In the
indictment, the Government made several allegations supporting the logical interrelatedness of the
conspiracy counts (to commit wire fraud, bank fraud, and money laundering) to the conspiracy to
commit marriage fraud. The indictment alleged that Abegunde would pay Caffey to marry him
and help him obtain immigration status, and “Abegunde would use the access provided by his
fraudulently obtained immigration status to open multiple financial accounts” used to facilitate the
conspiracy. Immediately after Abegunde and Caffey were married, they opened two joint Bank
of America accounts and Caffey added Abegunde as a co-signor to a USAA account. Days later,
there were a series of incoming and outgoing transfers in one Bank of America account in amounts
just under $10,000, the threshold for triggering reporting obligations under anti-money laundering
laws. Approximately two months after opening, the Bank of America accounts were closed by the
bank due to suspicion of fraudulent activity. Moreover, Caffey had expressed her discomfort with
being “linked to” those transfers.
As alleged in the indictment, it is reasonable to infer that Abegunde used his marriage to
Caffey to facilitate the transfer and receipt of funds obtained through the alleged conspiracies, in
which Ramos-Alonso was participant. The evidence of Abegunde’s transfers in his joint accounts
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No. 19-6229, United States v. Abegunde
with Caffey serve as “overlapping proof” of conspiracy to commit bank fraud and his conspiracy
to commit marriage fraud. Evidence that Abegunde used the joint bank accounts from the marriage
to transfer money obtained from the BEC schemes, moreover, was also proof of the fraud charges
because it demonstrated how Abegunde laundered the money at issue. The district court did not
err in denying the motion to sever under Rule 8.
2. Severance Under Rule 14
Abegunde also argues that even if joinder was proper under Rule 8, the court should have
granted severance under Rule 14. Where joinder is proper under Rule 8(b), under Rule 14(b), a
“strong showing of prejudice” may justify severance. United States v. Gallo, 763 F.2d 1504, 1525
(6th Cir. 1985). Severance is within the court’s discretion and is required “only if there is a serious
risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent
the jury from making a reliable judgment about guilt or innocence.” United States v. Ross,
703 F.3d 856, 884 (6th Cir. 2012) (quoting Zafiro, 506 U.S. at 539). To show the court abused its
discretion, Abegunde must demonstrate “compelling, specific, and actual prejudice.” Thomas v.
United States, 849 F.3d 669, 675 (6th Cir. 2017); see also United States v. Martinez, 432 F. App’x
526, 529 (6th Cir. 2011) (noting that a risk of “simple prejudice” is insufficient to warrant separate
trials of co-defendants).
Even if a defendant demonstrates prejudice, courts must balance that with “the interest of
the public in avoiding a multiplicity of litigation.” United States v. Saadey, 393 F.3d 669, 678 (6th
Cir. 2005) (quoting United States v. Wirsing, 719 F.2d 859, 864–65 (6th Cir. 1983)). Indeed, even
when risk of prejudice is high, it may be cured by “less drastic measures, such as limiting
instructions.” Ross, 703 F.3d at 884. “[I]f a jury can properly compartmentalize the evidence as
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it relates to the appropriate defendants,” a motion for severance should be denied. United States
v. Causey, 834 F.2d 1277, 1287 (6th Cir. 1987).
At trial, the Government presented evidence to demonstrate that Abegunde used his
allegedly fraudulent marriage with Caffey to open joint bank accounts and conduct transactions
related to the overarching conspiracies. Abegunde contends that the marriage fraud count should
have been severed because the “intricate nature of the offenses and the voluminous amounts of
evidence to be presented” may cause jury confusion. But the complexity of the evidence alone
does not guarantee severance; rather, Abegunde must explain how and why this evidence would
“mislead and confuse the jury in the absence of a separate trial.” United States v. Fields, 763 F.3d
443, 458 (6th Cir. 2014) (quoting United States v. Walls, 293 F.3d 959, 966 (6th Cir. 2002)). In
this case, the Government presented evidence that indicates a direct and overlapping connection
between the allegations of marriage fraud and the conspiracies to commit fraud and money
laundering. Government witnesses provided testimony that Abegunde relied on financial
resources obtained from the fraudulent marriage to further the wire fraud and money laundering
conspiracies. Moreover, the court instructed the jury to consider evidence on each count separately
and “decide whether the government has presented proof beyond a reasonable doubt that a
particular defendant is guilty of a particular charge.” See United States v. Cody, 498 F.3d 582, 588
(6th Cir. 2007) (recognizing that a limiting instruction can overcome the prejudicial effect of
improper joinder). Abegunde has not demonstrated compelling, specific, and actual prejudice.
Given Abegunde’s failure to offer compelling examples of how the Government’s evidence may
have misled the jury and the district court’s limiting instruction, the court did not abuse its
discretion in denying the motion for severance under Rule 14.
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B. Sufficiency of Evidence
Abegunde challenges the sufficiency of the evidence supporting his convictions of wire-
fraud conspiracy, in violation of 18 U.S.C. § 1349, and money laundering conspiracy, in violation
of 18 U.S.C. § 1956(h). We review a district court’s denial of a motion for judgment of acquittal
de novo. United States v. Ramirez, 635 F.3d 249, 255 (6th Cir. 2011). “When considering a
challenge to the sufficiency of the evidence, ‘the relevant question is whether, after viewing the
evidence 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.’” United States v. Osborne, 886
F.3d 604, 608 (6th Cir. 2018) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The Court
may not “weigh the evidence presented, consider the credibility of witnesses, or substitute [its]
judgment for that of the jury.” Id. (quoting United States v. Graham, 622 F.3d 445, 448 (6th Cir.
2010)).
Wire fraud requires proof of three elements. The Government must prove that the
defendant: (1) “devised or willfully participated in a scheme to defraud”; (2) “used or caused to
be used an interstate wire communication ‘in furtherance of the scheme’”; and (3) “intended ‘to
deprive a victim of money or property.’” United States v. Faulkenberry, 614 F.3d 573, 581 (6th
Cir. 2010) (quoting United States v. Prince, 214 F.3d 740, 748 (6th Cir.2000)). To support a
conspiracy to commit wire fraud, the evidence must show that “the defendant ‘knowingly and
willfully joined in an agreement with at least one other person to commit an act of [wire] fraud
and that there was at least one overt act in furtherance of the agreement.’” United States v.
Cunningham, 679 F.3d 355, 373 (6th Cir. 2012) (quoting United States v. Jamieson, 427 F.3d 394,
402 (6th Cir. 2005)).
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Similarly, for the money laundering conspiracy the Government had to prove that two or
more persons conspired or agreed to commit the crime of money laundering; and that the defendant
knowingly and voluntarily joined the conspiracy. See United States v. Hynes, 467 F.3d 951, 964
(6th Cir. 2006) (noting that the Government only had to prove that the defendant “agreed with
another person to violate the substantive provisions of the money-laundering statute during the
period alleged in the indictment”). A money laundering conspiracy does not require proof of an
overt act. Id.Here, the Government presented evidence that some of the proceeds from the overarching
fraudulent schemes were received by Abegunde. Agent Vance testified that in similar conspiracy
cases, it is typical for conspirators to “chop” large sums of money and distribute it through a chain
to conceal or disguise the nature, source, or control of the money. See United States v. Agundiz-
Montes, 679 F. App’x 380, 387 (6th Cir. 2017). A Wells Fargo financial crimes consultant, Brian
Ancona, testified that proceeds received from fraudulent schemes were sent to Ramos-Alonso,
Abegunde’s co-defendant, who then distributed the money into accounts opened by Abegunde or
under his control. The criminal agreement from these chain transfers of proceeds “can be inferred
from the interdependence of the enterprise.” See United States v. Warman, 578 F.3d 320, 333 (6th
Cir. 2009).
The Government also provided evidence that Abegunde had knowledge of and agreed to
participate in the conspiracy. On the date of one of the BECs, Abegunde directed an individual to
transfer money into an account linked to his phone number and address. In a conversation with a
colleague over WhatsApp, Abegunde admitted that he does not know the men coordinating the
scheme, but said that they put money into his accounts, and his exchanges “clean the cash and
eliminate the risk.” And when the FBI questioned him about his knowledge regarding fraud
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occurring on the account, Abegunde’s WhatsApp messages indicate that he lied about his
involvement and then contacted a co-conspirator to joke about his concealment.
This evidence also supports the money-laundering conspiracy. Abegunde coordinated
several transfers of fraudulent proceeds to accounts under his control or the control of his co-
conspirators indicating it would clean the money. Abegunde also lied to the FBI and later spoke
to his friend about taking advantage of an opportunity. A reasonable trier of fact could find that
Abegunde knowingly participated in the distribution cleaning of the proceeds to seek his own
financial benefit and that he lied to law enforcement and used a messaging application to conceal
his participation in the scheme.
Abegunde does not challenge the existence of the overarching fraudulent schemes,
claiming only that “the government failed to present direct evidence of an agreement or consent
on the part of Mr. Abegunde to commit the crime of wire fraud or money laundering.” Abegunde
argues that he did not know every member of the conspiracy, nor did he undertake all of the
conspiracy’s activities. In discussing the knowledge requirement in a drug conspiracy, however,
we have determined that “it is not necessary to show that a defendant knew every member of the
conspiracy or knew the full extent of the enterprise.” United States v. Maliszewski, 161 F.3d 992,
1006 (6th Cir. 1998) (quoting United States v. Lloyd, 10 F.3d 1197, 1210 (6th Cir.1993)); see also
Warman, 578 F.3d at 332 (“[P]roof of a formal agreement is not necessary; ‘a tacit or material
understanding among the parties’ will suffice.” (quoting United States v. Martinez, 430 F.3d 317,
330-31 (6th Cir. 2005))); Martinez, 430 F.3d at 333 (noting that a defendant need not “be an active
participant in every phase of the conspiracy, so long as he is a party to the general conspiratorial
agreement” (quoting United States v. Hodges, 935 F.2d 766, 773 (6th Cir. 1991))). Given
Abegunde’s conduct in directing fraudulent proceeds, communications indicating he was aware
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that the proceeds might not be legitimate, and his attempts to conceal the nature of his relationship
with Ojo, a reasonable factfinder could find Abegunde guilty of wire fraud conspiracy and money
laundering conspiracy. The district court did not err in denying the motion for judgment of
acquittal.
C. Venue
Abegunde argues that his prosecution for wire fraud in the Western District of Tennessee
was improper because there was not a direct link to the jurisdiction. Because Abegunde did not
raise this venue objection in the district court, we review his objection to venue for plain error.
United States v. Parlier, 570 F. App’x 509, 512 (6th Cir. 2014). To prevail under plain error,
Abegunde must show “an error that is clear or obvious, affecting [his] substantial rights, and
seriously affecting the fairness, integrity or public reputation of judicial proceedings.” United
States v. Lopez-Medina, 461 F.3d 724, 746 (6th Cir. 2006).
The Constitution and the Federal Rules of Criminal Procedure require that a crime be
prosecuted and tried in the district where the crime was committed. See U.S. Const. art. III § 2;
U.S. Const. amend. VI; Fed. R. Crim. P. 18. As a continuing offense, wire fraud is subject to the
provisions of 18 U.S.C. § 3237 and thus can be “prosecuted in any district in which such offense
was begun, continued, or completed.” 18 U.S.C. § 3237(a); see United States v. Grenoble,
413 F.3d 569, 573 (6th Cir. 2005) (stating that under 18 U.S.C. § 3237, wire fraud is a continuing
offense). Conspiracy to commit wire fraud is also a continuing offense and may be prosecuted “in
any district where the conspiracy was formed or in any district where an overt act in furtherance
of the conspiracy was performed.” United States v. Scaife, 749 F.2d 338, 346 (6th Cir. 1984).
“A conspiracy defendant need not have entered the district so long as this standard is met.” Id.14
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Abegunde does not dispute that the Government’s evidence linked him to an account that
received $9,000 of $154,000 in fraudulent funds from a company in the Western District of
Tennessee. Abegunde’s counsel acknowledged that those proceeds related to the Western District
of Tennessee. The trial record shows that overt acts committed in furtherance of the conspiracy
were performed in this district. Venue was proper.
D. Jury Instructions
Abegunde contends that the district court abused its discretion by failing to provide a
cautionary jury instruction regarding the dual witness roles of Agents Vance and Palmer.
“Evidentiary determinations, including whether a district court failed to differentiate between a
witness’s fact and expert testimony, are reviewed for an abuse of discretion.” United States v.
Barron, 940 F.3d 903, 920 (6th Cir. 2019). Even when a court abuses its discretion, however,
evidentiary errors are subject to harmless error review. United States v. Kilpatrick, 798 F.3d 365,
378 (6th Cir. 2015). An error is not to be deemed harmless if it affects substantial rights or affects
the outcome of the court’s proceedings. United States v. Inman, 666 F.3d 1001, 1006 (6th Cir.
2012) (per curiam).
When a law enforcement officer testifies as both a lay witness and an expert witness, there
is risk that: (1) the expert will later “receive[] ‘unmerited credibility’ for lay testimony,” (2) the
“witness’s dual role . . . confuse[s] the jury,” and (3) “the jury may unduly credit the opinion
testimony of an investigating officer based on a perception that the expert was privy to facts about
the defendant not presented at trial.” United States v. Rios, 830 F.3d 403, 414 (6th Cir. 2016)
(quoting United States v. Freeman, 498 F.3d 893, 903 (9th Cir. 2007) and United States v. York,
572 F.3d 415, 425 (7th Cir. 2009)). “[T]he district court and the prosecutor should take care to
assure that the jury is informed of the dual roles of a law enforcement officer as a fact witness and
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an expert witness, so that the jury can give proper weight to each type of testimony.” Lopez-
Medina, 461 F.3d at 743 (quoting United States v. Thomas, 74 F.3d 676, 683 (6th Cir. 1996)).
In United States v. Barron, a criminal defendant challenged the dual role of testimony
provided by a law enforcement officer. 940 F.3d at 920. Prior to submitting the case to the jury,
the court gave an instruction distinguishing the dual roles of the law enforcement officer’s
testimony and the proper weight to give to each testimony. Id. at 920–21. The instructions
mirrored the Sixth Circuit’s pattern jury instruction on dual witnesses. See Sixth Circuit Pattern
Jury Instruction 7.03A. On facts substantially similar to this case, we found the jury instructions
were adequate and that the district court did not abuse its discretion or plainly err in giving the
pattern instruction. Id. at 921.
During trial, the Government presented FBI Agents Marcus Vance and David Palmer as
both expert and lay fact witnesses. Vance’s testimony as an expert began on the second day of
trial, and two days later, he testified as a fact witness. Similarly, Palmer testified as an expert on
the third day of trial, and testified as a fact witness two days later. At the close of Vance’s expert
testimony, the Government asked the district court to explain the change in the nature of his
testimony before he returned as a fact witness. The court declined to communicate a specific
demarcation, stating that an instruction during trial would not “mean[] that much to the jury” and
that “it is hard to draw the line.” At the close of evidence, however, the court explained that Agents
Vance and Palmer testified as both expert and fact witnesses and instructed the jury on the proper
weight to give to each form of testimony:
As to the testimony on facts, consider the factors discussed earlier in these
instructions for weighing the credibility of witnesses. As to the testimony on
opinions, you do not have to accept Special Agents Vance and Palmer’s opinions.
In deciding how much weight to give it, you should consider the witnesses’
qualifications and how they reached their conclusions, along with the other factors
discussed in these instructions for weighing the credibility of witnesses.
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No. 19-6229, United States v. Abegunde
(R.252, Jury Instructions, Page ID 996) This instruction is consistent with the Sixth Circuit Pattern
Jury Instruction 7.03A. The court further reminded the jury that they “alone decide how much of
a witness’s testimony to believe, and how much weight it deserves.” Moreover, the opinion and
fact testimonies were provided on different days. See United States v. Tocco, 200 F.3d 401, 419
(6th Cir. 2000) (noting that dual roles of a witness can be properly demarcated when testimony
occurs at different times during trial in conjunction with limiting instructions).
Abegunde points to United States v. Lopez-Medina to contend that since there was not a
clear demarcation during the testimony, he is entitled to relief. Though a district court can cure
potential challenges to jury confusion by providing a “clear demarcation between expert and fact
witness roles,” Lopez-Medina, 461 F.3d at 744, this harm may also be cured by providing “an
adequate cautionary jury instruction,” United States v. Young, 847 F.3d 328, 357 (6th Cir. 2017).
That is what happened here. There was no abuse of discretion here because the court temporally
separated opinion and fact testimony and provided a clear instruction before jury deliberations
explaining the roles of each dual witness and the proper weight to assign to each.
E. Loss Chart
Finally, Abegunde argues that the district court erred in using the loss chart to determine
his sentencing range because there were no allegations made that established that the transactions
were in any way illegal. We review whether actions or events are “relevant conduct” under §
1B1.3(a)(1)(A) de novo; factual findings underlying the district court’s determination that conduct
is “within the scope” of, “in furtherance” of, and “reasonably foreseeable” in connection with
jointly undertaken criminal activity are reviewed for clear error. United States v. Tocco, 306 F.3d
279, 284 (6th Cir. 2002). At sentencing, the district court may consider any relevant evidence as
long as it is supported by sufficient indicia of reliability. USSG § 6A1.3(a).
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No. 19-6229, United States v. Abegunde
Sentencing Guideline § 2B1.1(b)(1), the loss provision, directs a court to increase an
offense level based on the amount of economic “loss” that resulted from the defendant’s conduct.
“In calculating the Guidelines loss under U.S.S.G. § 2B1.1(b)(1), district courts include losses
sustained from relevant conduct under U.S.S.G. § 1B1.3.” United States v. Catchings, 708 F.3d
710, 720 (6th Cir. 2013). This “relevant conduct” may be considered if it is “part of the same
course of conduct or common scheme or plan as the offense of conviction.” United States v. Hill,
79 F.3d 1477, 1481 (6th Cir.1996) (quoting USSG § 1B1.3(a)(2)). “To qualify as part of a
‘common scheme or plan’ under the ‘relevant conduct’ guideline, the offenses ‘must be
substantially connected to each other by at least one common factor, such as common victims,
common accomplices, common purpose, or similar modus operandi.’” Id. (quoting USSG
§ 1B1.3, cmt. n.9(A) (1995)). The district court “need only make a reasonable estimate of the loss
. . . based on available information,” and its “loss determination is entitled to appropriate
deference.” USSG § 2B1.1 cmt. n.3(C).
Relevant conduct includes all criminal conduct committed, aided, abetted, counselled,
commanded, induced, procured or willfully caused by Abegunde. USSG § 1B1.3(a)(1)(A).
Conduct of others is only relevant when it is “within the scope” of, “in furtherance” of, and
“reasonably foreseeable” in connection with jointly undertaken criminal activity. USSG § 1B1.3
cmt. n.3(A). District courts must make “particularized findings with respect to both the scope of
the defendant’s agreement and the foreseeability of his co-conspirators’ conduct before holding
the defendant accountable for the scope of the entire conspiracy.” United States v. Campbell, 279
F.3d 392, 400 (6th Cir. 2002) (emphases omitted).
Abegunde’s initial Presentence Report determined that the loss caused was $793,447.69.
The calculation was based, in part, on a loss chart that included 81 transactions involving
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No. 19-6229, United States v. Abegunde
Abegunde and his alleged co-conspirators. The chart included the date of the transaction, the bank
and account information of the transaction, the third-party name on the account, and the amount
that was transferred. Most of the transactions were under $10,000. On the second day of the
sentencing hearing, the district court allowed both parties to present their arguments concerning
the loss chart. Based on the evidence demonstrating the same modus operandi, the district court
concluded that Abegunde was a “downstream middleman money launderer” where his role was to
help “clean the funds” obtained by the overarching BECs. The court calculated the loss amount
associated with Abegunde’s offense conduct at $596,926.11 and ultimately determined that the
loss chart could be used to determine economic loss and the appropriate sentencing range for
Abegunde.
On appeal, Abegunde argues that the Government failed to provide evidence that the
transactions were illegal or that he knew or should have known that the transactions were from
funds illegally obtained. The Government’s witness admittedly could not pinpoint the original
source of the funds, other than one $9,000 transfer that occurred in October 2016. The Government
argues that Abegunde conducted currency exchanges with a fee to third-parties to clean the money
received through the illegal conspiracy. It notes that the record contains evidence that each
transaction was directly linked to a communication in Abegunde’s phone where he solicited a third
party to use their account to transfer funds. Each transaction had a similar pattern: someone would
approach Abegunde saying he had a certain amount of money and wanted to do a deal, the two
would work out an exchange rate, and Abegunde would provide a third-party account to conduct
the transaction. Of the 81 transactions, there were 10-12 “repeat customers.” Abegunde’s written
communications expressed frustration with his personal accounts being closed and his interest in
conducting transactions that could not be tracked.
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No. 19-6229, United States v. Abegunde
The district court did not err in determining that Abegunde’s conduct was “within the
scope” of, “in furtherance” of, and “reasonably foreseeable” in connection with jointly undertaken
criminal activity. Abegunde’s participation in the conspiracy, even if limited, was a necessary
component for cleaning money obtained fraudulently and a part of a chain commonly seen in fraud
and money laundering schemes. Given the repeated nature and pattern of the transactions, the
known relations of some of the parties in the transactions, and the communications tying Abegunde
directly to each transaction, the district court appropriately found by a preponderance of the
evidence that the third-party transactions were commanded by Abegunde and were “relevant
conduct” for the purposes of sentencing. United States v. Donadeo, 910 F.3d 886, 901 (6th Cir.
2018) (“the government must prove the amount of loss attributable to a defendant . . . by a
preponderance of the evidence”).
III. CONCLUSION
For the reasons explained above, we AFFIRM Abegunde’s convictions and sentence.
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