United States v. Adetokunbo Adepoju

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5007
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADETOKUNBO OLUBUNMI ADEPOJU, a/k/a Olu,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:10-cr-00647-MJG-1)
Argued: March 19, 2014 Decided: June 23, 2014
Before GREGORY and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Gregory wrote the opinion, in which Judge Floyd
and Senior Judge Davis joined.
ARGUED: John O. Iweanoge, II, IWEANOGE LAW CENTER, Washington,
D.C., for Appellant. Judson T. Mihok, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF:
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
GREGORY, Circuit Judge:
After a jury convicted him of bank fraud and aggravated
identity theft, Adetokunbo Olubumi Adepoju received a seventy-
month sentence. He now challenges the sufficiency of the
evidence for his convictions and sentencing enhancement for
sophisticated means. Also, he asserts a due process violation.
We affirm the convictions and also find no due process
violation. However, because the facts do not affirmatively
demonstrate sophisticated means in his attempt to commit bank
fraud, we vacate and remand for resentencing.
I.
In June 2010, a confidential informant (“CI”) contacted law
enforcement to report a man named “Olu”—later identified as the
defendant—who claimed to be a real estate agent looking to sell
counterfeit identification documents for $7,500. Upon
instruction from Department of Homeland Security (“DHS”) Special
Agent (“SA”) Marc Dipaola, the CI informed Adepoju that the
potential customer for the documents balked at the high price.
The two ceased discussing this potential transaction. One month
later, Adepoju approached the CI with a plan to defraud a bank
and asked whether the CI knew someone who worked at a bank. The
CI led Adepoju to believe that he knew a woman in a vice
president-like position at a local Bank of America who had
2
previously assisted the CI with illegal transactions. Adepoju
instructed the CI to open two accounts, into which the CI would
deposit checks that Adepoju supplied. Once the checks cleared,
the CI could withdraw the funds, retain his portion, pay a
portion to the insider, and give Adepoju the remaining amount.
On August 31, 2010, Adepoju provided the CI with IRS
documentation to use for opening a personal account in the name
of “T.A.” and a business account in the name of “T.A. Trucking.” 1
Handwritten on the back of the documents were T.A.’s name, date
of birth, and social security number. The CI contacted SA
Dipaola and presented these documents to the agent. Upon SA
Dipaola’s instruction, the CI asked Adepoju whether T.A. was a
real person, and Adepoju responded affirmatively. When Adepoju
later questioned whether the accounts were open, the CI
presented fabricated checks, created by law enforcement,
connected to fictitious accounts to satisfy Adepoju’s inquiries. 2
The next month, the CI received two checks from Adepoju.
The first was a Wells Fargo Bank cashier’s check payable to T.A.
for $28,000. The second was payable to T.A. Trucking for
$70,500. The CI led Adepoju to believe he would deposit the
1
T.A.’s full name is redacted throughout this opinion.
2
Fabricated checks were necessary to accomplish this, as an
actual account could not be opened due to the fact that T.A. was
a real person.
3
checks, but he then gave them to law enforcement. After Adepoju
repeatedly asked the CI to withdraw funds from the accounts, SA
Dipaola secured search warrants for Adepoju’s home. The CI
called Adepoju and arranged a time to deliver the withdrawn
funds, yet Adepoju never met the CI or received the funds. On
the day of the planned exchange, Adepoju called the CI,
initially changing the meeting location before later aborting
the meeting altogether.
Law enforcement executed the search warrants and arrested
Adepoju at his home. Officers recovered five cellular phones, a
laptop computer, and a thumb drive. The number assigned to one
of the phones matched the number the CI used to call Adepoju.
The thumb drive contained images of blank social security cards
and a check issued by a Pennsylvania company. The images of the
check showed the account number but blocked out the name of the
payee. The officers also found multiple copies of a check
bearing the same number but made out to different payees, one of
whom was Adepoju’s wife, for different amounts. Fingerprint
analysis revealed the presence of Adepoju’s thumbprint on the
envelope used to deliver the $28,000 check to the CI.
The government charged Adepoju with two counts of bank
fraud under 18 U.S.C. § 1344 and one count of aggravated
identity theft under 18 U.S.C. § 1028A. At trial, the CI
testified as to the aforementioned interactions with Adepoju.
4
SA Dipaola testified that accounts at four different banks were
opened in T.A’s name shortly before the CI received his
information from Adepoju, between July 28 and August 31, 2010.
These accounts all listed the same Temple Hills, Maryland
address that also appeared on the documents the CI received.
T.A., a Pennsylvania resident, identified his social security
number and birthdate on the forms Adepoju supplied to the CI.
T.A also stated that he had not authorized anyone to open
accounts on his behalf, never operated a trucking business, and
had never been to Temple Hills, Maryland. Testimony from Wells
Fargo Bank representatives established that the checks the CI
received were fraudulent and that the bank’s deposits were
federally insured. The representatives also explained that had
the forged cashier’s checks been deposited and funds been
successfully withdrawn as a result, the bank would have
experienced a loss.
After the jury convicted Adepoju on all counts, the
district court sentenced him to seventy months’ imprisonment.
For the bank fraud convictions, the district court imposed
forty-six month sentences, the high end of the Guidelines range.
Conviction on Count Three mandated a twenty-four-month sentence,
which the court imposed consecutively to the bank fraud
sentences. See 18 U.S.C. § 1028A(b)(2).
5
Relevant to this appeal, the court applied to the bank
fraud sentences a two-level enhancement for using sophisticated
means under § 2B1.1(b)(10)(C) of the Sentencing Guidelines. At
sentencing, the district court opined that unsophisticated means
involves “something that an ordinary person, who wasn’t
specially trained in something, could get done.” J.A. 649. The
court then asked defense counsel how acquiring T.A.’s
information was not sophisticated, and defense counsel explained
that troves of personal information can be found via commonly-
used internet search engines and other tactics. Furthermore,
defense counsel noted, opening a bank account requires not
sophistication but merely the proper paperwork. The government
responded that no evidence supported Adepoju’s claims that he
used simple tactics to obtain T.A.’s information. Specifically,
the government argued that there was no evidence that he used a
simple internet search or other commonplace means to acquire
T.A.’s name, birthdate, and social security number.
After cautioning that it did not want to place the burden
on the defendant, the court noted the absence of evidence that
T.A.’s information could have been retrieved via internet
sources and that this absence “reinforces the view that
[Adepoju’s scheme] must have been sophisticated.” J.A. 654.
The district court then concluded that the enhancement was
appropriate based on the effort required to obtain T.A.’s
6
information, obtain the forged checks, and “do what would have
worked” had the CI actually opened the account and deposited the
checks. J.A. 657.
Adepoju timely appealed and now challenges the sufficiency
of the evidence, the sophisticated means enhancement, and the
mandatory sentence for aggravated identity theft. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Where a defendant challenges the sufficiency of the
evidence supporting a conviction, we view the evidence in the
light most favorable to the government and uphold the verdict if
substantial evidence supports it. United States v. Stockton,
349 F.3d 755, 760-61 (4th Cir. 2003). Substantial evidence is
that which, taking all inferences in the government’s favor,
could lead a rational jury to find the evidence sufficient for a
conviction. United States v. Burgos, 94 F.3d 849, 857 (4th Cir.
1996). A defendant challenging the sufficiency of evidence
“faces a heavy burden,” United States v. Young, 609 F.3d 348,
355 (4th Cir. 2010), and we reverse only where the prosecution’s
failure is clear. United States v. Moye, 454 F.3d 390, 394 (4th
Cir. 2006).
Challenging the bank fraud convictions, Adepoju cites an
absence of evidence that he opened an account at a federally
7
insured financial institution or presented the fraudulent checks
for payment. As to the identity theft conviction, he contends
that the evidence failed to demonstrate that he knew that T.A.
was a real person. We disagree with both contentions.
A.
The federal bank fraud statute imposes criminal liability
in two circumstances. The first is an attempted or completed
scheme to defraud a financial institution. 18 U.S.C. § 1344(1).
The second is a knowingly attempted or completed scheme to
obtain funds by false pretenses or representation. 18 U.S.C.
§ 1344(2). The major difference between the subsections is that
§ 1344(1) focuses on how the defendant’s conduct affects a bank,
while § 1344(2) focuses solely on the conduct. United States v.
Loughrin, 710 F.3d 1111, 1116 (10th Cir. 2013). The elements of
a § 1344(1) violation are (1) the defendant knowingly executed
or attempted a scheme or artifice to defraud a financial
institution, (2) he did so with intent to defraud, and (3) the
institution was a federally insured or chartered bank. United
States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002); see also
United States v. Flanders, 491 F.3d 1197 (10th Cir. 2007). The
requirements for a § 1344(2) conviction differ only as to the
first element, which is that the defendant knowingly execute a
scheme to obtain property held by a financial institution
through false or fraudulent pretenses. Loughrin, 710 F.3d at
8
1115. Thus, § 1344(1) does not require fraudulent promises,
United States v. Celesia, 945 F.2d 756, 758 (4th Cir. 1991), or
that the bank suffer any loss, Loughrin, 710 F.3d at 1116. A
§ 1344(2) conviction does not demand that the bank be the
intended victim of the fraud; a person can violate the statute
by obtaining funds from a bank while intending to defraud
another person or entity. Loughrin, 710 F.3d at 1116.
As an initial matter, we address Adepoju’s argument that
only § 1344(1) applies here because the indictment failed to
allege an affirmative misrepresentation with respect to the
forged checks, a requirement for § 1344(2). We disagree with
this position because the indictment cites § 1344 and references
language from both subsections, thereby providing notice of
intent to pursue conviction under either one. See United States
v. Fontana, 348 F.2d 796, 801 (1st Cir. 1991). Notwithstanding
this point, his argument does not bear on our disposition
because we find the evidence sufficient under § 1344(1). See
Brandon, 298 F.3d at 314 (finding unnecessary an analysis of
sufficiency under § 1344(2) where evidence supported conviction
under § 1344(1)); see also United States v. Wilkinson, 137 F.3d
214, 232 (4th Cir. 1998).
Taken in the light most favorable to the government, the
evidence in this case supports the jury’s conclusion that
Adepoju is guilty of committing bank fraud as defined by
9
§ 1344(1). On the first element, the evidence demonstrated an
attempt to execute a scheme to defraud a financial institution.
Adepoju concedes that the evidence shows this incomplete
attempt. As to the second element, Adepoju’s intent is
demonstrated by his statements, as conveyed by the CI, regarding
the plan to open bank accounts under another’s name, deposit
checks into those accounts, and later withdraw the deposited
funds. The third element, that the bank was federally insured
or chartered, is satisfied by the trial testimony of Wells Fargo
representatives.
Adepoju’s arguments to the contrary are unpersuasive.
First, he contends that the evidence failed to demonstrate a
risk of loss or that he devised the scheme. Risk of loss to the
bank is unnecessary for a § 1344(1) conviction, although it
tends to prove the requisite intent under that subsection.
United States v. Swanson, 360 F.3d 1155 (10th Cir. 2004) (risk
of loss is subsumed under § 1344(1)’s “defraud a financial
institution” language); United States v. Hoglund, 178 F.3d 410,
413 (6th Cir. 1999) (risk of loss “is merely one way of
establishing intent to defraud” under § 1344(1)). 3 Furthermore,
the jury heard that Adepoju—not the CI—devised the plan to
defraud the bank. Second, having conceded that there was an
3
Risk of loss is also unnecessary under § 1344(2).
Loughrin, 710 F.3d at 1115-16; McNeil, 320 F.3d at 1038.
10
incomplete attempt to execute a scheme involving fraudulent
checks, Adepoju argues that he did not take any steps
constituting criminal activity. However, the evidence quells
the notion that this conviction implicates mere thoughtcrime.
The testimony demonstrated that he provided the CI with T.A.’s
information and two forged checks for deposit. His actions,
which “set[] in motion the eventual presentation of the forged
instruments” to a bank, demonstrated Adepoju’s intent to
defraud, even though he did not personally present the checks to
the bank. Brandon, 298 F.3d at 312-13. For these reasons, we
affirm the bank fraud convictions in Counts One and Two.
B.
A conviction for aggravated identity theft under 18 U.S.C.
§ 1028A(a)(1) requires proof that the defendant “(1) knowingly
transferred, possessed, or used, (2) without lawful authority,
(3) a means of identification of another person, (4) during and
in relation to a predicate felony offense.” United States v.
Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010). A means of
identification is a “name or number that may be used, alone or
in conjunction with any other information, to identify a
specific individual, including any name, social security number,
date of birth, . . . employer or taxpayer identification
number.” 18 U.S.C. § 1028(d)(7); see United States v. Mitchell,
518 F.3d 230, 234 (4th Cir. 2008) (explaining that the
11
definition in § 1028(d)(7) applies to § 1028 and § 1028A).
Relevant to the first element, the government must prove that
the accused knew that the “means of identification” belonged to
another person; an accused unaware that the means of
identification refers to a real person cannot be guilty.
Flores-Figueroa v. United States, 556 U.S. 646, 647, 654-55
(2009). Knowledge of existence is enough; the accused need not
know the individual personally. United States v. Foster, 740
F.3d 1202, 1207 (8th Cir. 2014). Adepoju only challenges
whether the evidence demonstrated he knew T.A. was a real
person. We find this requirement satisfied. On no less than
three occasions, the CI testified at trial that Adepoju admitted
that T.A. was a real person—twice during direct examination
before reiterating this point on cross-examination. This
testimony provided sufficient evidence, taken in the light most
favorable to the government, demonstrating Adepoju’s knowledge
that T.A. was a real person. Therefore, we affirm the
conviction for aggravated identity theft under Count Three.
III.
Adepoju argues that the district court erred in applying a
sentencing enhancement for using sophisticated means in a bank
fraud scheme. In reviewing a Sentencing Guidelines application,
we review factual findings for clear error and legal conclusions
12
de novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir.
2006). Where a Guidelines application involves a mixed question
of law and fact, the applicable standard turns on the nature of
the circumstances at issue. If the application is “essentially
factual,” we apply the clearly erroneous standard. United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989) (citation
omitted). Whether a defendant’s conduct involved sophisticated
means is an essentially factual inquiry, thus we review for
clear error. Cf. United States v. Hughes, 401 F.3d 540, 557
(4th Cir. 2005) (applying the clear error standard to determine
whether conduct constituted more than minimal planning);
Daughtrey, 874 F.2d at 218 (finding that whether the defendant
was a minimal or minor participant in a crime to be an
“essentially factual” inquiry); accord United States v. Anobah,
734 F.3d 733, 739 (7th Cir. 2013); United States v. Calhoun, 721
F.3d 596, 605 (8th Cir. 2013); United States v. Kennedy, 714
F.3d 951, 961 (6th Cir. 2013); United States v. Bane, 720 F.3d
818, 826 (11th Cir. 2013).
The Sentencing Guidelines require a two-level enhancement
where a defendant uses sophisticated means in committing acts of
fraud or other offenses involving theft or counterfeiting.
U.S.S.G. § 2B1.1(b)(10)(C). “‘Sophisticated means’ means
especially complex or especially intricate offense conduct,
pertaining to the execution or concealment of an offense. . . .
13
Conduct such as hiding assets or transactions, or both, through
the use of fictitious entities, corporate shells, or offshore
financial accounts also ordinarily indicates sophisticated
means.” U.S.S.G. § 2B1.1 cmt. n. 9(B); see Stinson v. United
States, 508 U.S. 36, 38 (1993) (holding that Guidelines
commentary explaining or interpreting a rule “is authoritative
unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline”). The enhancement applies where the entirety of a
scheme constitutes sophisticated means, even if every individual
action is not sophisticated. See United States v. Jinwright,
683 F.3d 471, 486 (4th Cir. 2012) (applying sophisticated means
enhancement under U.S.S.G. § 2T1.1(b)(2) to tax fraud). Even
so, sophistication requires more than the concealment or
complexities inherent in fraud. Id. Thus, fraud per se is
inadequate for demonstrating the complexity required for
enhancement under U.S.S.G. § 2B1.1(b)(10)(C).
It is axiomatic that the government must prove by a
preponderance of evidence the applicability of a sentencing
enhancement. See, e.g., United States v. Steffen, 741 F.3d 411,
413 (4th Cir. 2013). In this case, the government failed to
carry that burden. Adepoju’s use of forged checks and a stolen
identity to attempt bank fraud is beyond dispute. Indeed,
virtually all bank fraud will involve misrepresentation, which
14
includes unauthorized acquisition and use of another’s
information. See United States v. Archuleta, 231 F.3d 682, 685-
86 (10th Cir. 2000) (holding that the defendant’s use of a false
name and checks to obtain funds from a credit union constituted
“evidence of nothing more than the minimum conduct required to
establish a violation of [18 U.S.C.] § 1344 in its simplest
form”). Therefore, the realm of especial complexities and
intricacies involves more than the forgeries, misrepresentation,
and concealment inherent in bank fraud. See United States v.
Montano, 250 F.3d 709, 715 (9th Cir. 2001) (finding that because
smuggling necessarily involves concealment, sophisticated means
requires more than what is necessary to commit the crime).
The district court clearly erred by essentially shifting
the burden to Adepoju to disprove sophistication. See United
States v. Guzman, 318 F.3d 1191, 1198 (10th Cir. 2003) (vacating
a sentencing enhancement where the district court applied the
enhancement after finding a lack of evidence supporting the
defendant’s position). While the district court expressed an
understanding that it would be improper to place a burden on the
defendant, that is exactly what it did. It began by presuming
that acquiring T.A.’s information was accomplished by
sophisticated methods, without any evidence as to how Adepoju
acquired this information. The court then asked Adepoju for
evidence that he acquired the information in a non-sophisticated
15
manner. Then, finding Adepoju’s argument against sophistication
unpersuasive, it applied the enhancement based on the stolen
information and plan to commit fraud. While demonstrating that
Adepoju did enough to violate § 1344 “in its simplest form,” see
Archuleta, 231 F.3d at 685-86, the facts concerning the crime of
conviction do not affirmatively indicate that he did anything
especially intricate or complex to obtain T.A.’s information or
attempt to defraud a bank, see Jinwright, 683 F.3d at 486 (“The
[sophisticated means] enhancement requires some means of
execution that separates the offense before us from the ordinary
or generic.”).
A clear error occurs where we are left with a firm and
definite conviction that a mistake has been committed. United
States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). Here, the
lack of evidence or explanation of sophistication is clear. See
United States v. Llamas, 599 F.3d 381, 389 (4th Cir. 2010)
(vacating enhancement application where sentencing court “failed
to provide a sufficient explanation of its finding” supporting
enhancement). The reasoning for the enhancement here
essentially amounts to a tautology, where the district court
used the presence of the tools to commit fraud and the plan to
use those tools, combined with a lack of explanation of non-
sophistication, as proof of sophistication. However, neither
the record nor common sense suggest that names, birthdates, and
16
social security numbers can be obtained only by sophisticated
means. There is no evidence of how Adepoju obtained that
information. Additionally, the government conceded that
obtaining an EIN, even for a falsified company, “is something
that’s not too difficult to do.” J.A. 655. Thus, the mere
possession of such information cannot, on its own, demonstrate
sophistication. Nor was there any explanation by the court as
to how the planned conduct was especially complex or intricate
above and beyond typical § 1344 violations. Cf. Llamas, 599
F.3d at 388-89. The government’s burden demands more than the
mere presence of the tools of fraud and the attempt to use the
same. If Adepoju’s current offenses did in fact employ
sophisticated means, the government’s evidence and the court’s
conclusory finding did not demonstrate this. 4
4
The government presents two additional arguments, neither
of which is persuasive. The first relies upon an unpublished
decision of this Court finding that the submission of falsified
loan documentation constituted sophisticated means. United
States v. Okolo, No. 03-4402, 82 F. App’x 834, 836-37 (4th Cir.
Dec. 16, 2003). That case involved a “painstaking attempt” to
create documents that would survive scrutiny of a bank issuing
more than $600,000 in loans for luxury cars, including time-
consuming efforts of calculating income tax deductions for the
falsified pay stub, vision and dental insurance payments, and
year-to-date tax withholding amounts. Id. at 835-36. In
contrast, the documents and forgeries now before us did not
require such meticulous fabrications. Second, the government
contends that Adepoju used sophisticated means to create an
access device as defined by 18 U.S.C. § 1029(e)(1). We reject
this argument because paper checks are not “access devices” as
defined by that statute. See United States v. Tatum, 518 F.3d
(Continued)
17
We conclude that the district court clearly erred in
imposing the sophisticated means enhancement of
§ 2B1.1(b)(10)(C). This result stems not from weighing the
evidence but from the absence of factual findings where the
district court gives little, if any, to consider. See Llamas,
599 F.3d at 389. Our conclusion by no means requires that the
court find the existence of “highly complex schemes” or
“exceptional brilliance to justify a sophisticated means
enhancement.” United States v. Jennings, 711 F.3d 1144, 1145
(9th Cir. 2013). The enhancement for sophisticated means does
require more than just thoughtful or potentially successful
planning. Bank fraud requires plans to wrongfully acquire funds
and, where § 1344(1) is at issue, misrepresentation. The
presence of forgeries or stolen identification, and a plan to
use such material to wrongfully acquire moneys, does not
necessarily amount to sophistication. If Adepoju’s efforts
involved something especially more intricate and complex than
what is required to violate the bank fraud statute in its
simplest form, the court failed to identify those aspects. To
affirm in the absence of such proof would permit enhancement
where the mere presence of and plan to use fraudulent materials
769, 772-73 (10th Cir. 2008); United States v. Hughey, 147 F.3d
423, 434 (5th Cir. 1998).
18
is combined with a defendant’s inability to prove a lack of
sophistication. We refuse to endorse such an approach.
IV.
Adepoju argues that his right to due process was violated
because the facts supporting the two-year minimum for aggravated
identity theft were not properly presented to the jury. Cf.
Alleyne v. United States, 133 S. Ct. 2151 (2013). We apply
plain error review to an objection based upon a new rule of law
not in effect at the time of the contested proceeding.
Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013); see
United States v. Olano, 507 U.S. 725, 732 (1993) (explaining
plain error standard). In Alleyne, the defendant was charged
under a statute that imposed varying mandatory minimums based on
different factual scenarios, and the Supreme Court held that a
jury must make special findings as to any facts increasing
mandatory minimums. 133 S. Ct. at 2155-56, 2158, 2160. The
aggravated identity theft statute now at issue does not involve
varying mandatory minimums. A finding that Adepoju knowingly
transferred, possessed, or used another’s means of
identification could only result in a consecutive two-year
sentence. See 18 U.S.C. §§ 1028A(a)(1), (b)(2). The jury’s
verdict thus supports the two-year sentence for this charge. No
error, plain or otherwise, occurred.
19
V.
For the foregoing reasons, we affirm Adepoju’s bank fraud
and aggravated identity theft convictions. We also affirm the
consecutive two-year minimum sentence for aggravated identity
theft. Because the evidence failed to demonstrate that Adepoju
engaged in especially complex or intricate behavior above and
beyond that inherent in fraud, we vacate his sentence and remand
for resentencing without the enhancement and consistent with
this opinion.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
20