United States v. Steven Sodipo

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5250
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN ABIODUN SODIPO,
Defendant - Appellant.
No. 08-5256
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CALLIXTUS ONIGBO NWAEHIRI,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:06-cr-00444-BEL-1; 1:06-cr-00444-BEL-2)
Submitted: February 9, 2012 Decided: February 23, 2012
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth W. Ravenell, Milin Chun, MURPHY & FALCON, PA, Baltimore,
Maryland; Gerald C. Ruter, LAW OFFICES OF GERALD C. RUTER, P.C.,
Towson, Maryland, for Appellants. Rod J. Rosenstein, United
States Attorney, Andrea L. Smith, Paul E. Budlow, Assistant
United States Attorneys, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
A federal jury convicted Steven Abiodun Sodipo and
Callixtus Onigbo Nwaehiri for conspiracy to possess with intent
to distribute and distribute hydrocodone, in violation of 21
U.S.C. § 846 (2006); six counts of distribution of hydrocodone
and aiding and abetting, in violation of 18 U.S.C. § 2 (2006),
21 U.S.C. § 841(a) (2006); conspiracy to launder money, in
violation of 18 U.S.C.A. § 1956(h) (West 2006 & Supp. 2011);
three counts of money laundering involving more than $10,000, in
violation of 18 U.S.C. § 1957(a) (2006); conspiracy to defraud
the United States, in violation of 18 U.S.C. § 371 (2006); and
filing false tax returns, in violation of 26 U.S.C. § 7206(1)
(2006). 1 The district court sentenced each Appellant to a total
of sixty months of imprisonment, and they now appeal. For the
reasons that follow, we affirm.
The Appellants first argue that the district court
erred in denying their motion for a mistrial based on a
Government witness’ testimony regarding evidence that the
district court had ruled inadmissible under Fed. R. Evid. 403.
We review a district court’s denial of a motion for a mistrial
for abuse of discretion. United States v. Johnson, 587 F.3d
1The court granted the Appellants’ motion for judgment of
acquittal on a charge of engaging in a continuing criminal
enterprise, 21 U.S.C. § 848(a), (c) (2006).
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625, 631 (4th Cir. 2009). “An abuse of discretion exists if the
defendant can show prejudice.” United States v. Wallace, 515
F.3d 327, 330 (4th Cir. 2008) (internal quotation marks,
alterations, and citation omitted). We have thoroughly reviewed
the record and conclude that the district court did not abuse
its discretion in denying the Appellants’ motion for a mistrial.
The Appellants next argue that the district court
erred in denying their motion for a mistrial based on the
prosecutor’s statements during closing arguments. “Whether
improper argument by the government has prejudiced the trial
process to such a degree as to require reversal depends on the
facts of each trial.” United States v. Harris, 498 F.3d 278,
293 (4th Cir. 2007), abrogated on other grounds by Fowler v.
United States, 131 S. Ct. 2045 (2011). In making this
determination, we consider
(1) the degree to which the prosecutor’s
remarks have a tendency to mislead the jury
and to prejudice the accused; (2) whether
the remarks were isolated or extensive; (3)
absent the remarks, the strength of the
competent proof introduced to establish the
guilt of the accused; and (4) whether the
comments were deliberately placed before the
jury to divert attention to extraneous
matters.
Id. (citation omitted). Based on these factors, we conclude
that the district court did not commit reversible error in
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denying the Appellants’ motion for a mistrial based on the
prosecutor’s statements.
Finally, the Appellants argue that the district court
erred in denying their motion for a new trial because the court
failed to ensure that the jury began deliberations anew when the
court replaced a juror with an alternate after deliberations
were in progress. We review a district court’s denial of a
motion for a new trial for abuse of discretion. See United
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). Under Fed.
R. Crim. P. 24(c)(3), a district court “may retain alternate
jurors after the jury retires to deliberate. The court must
ensure that a retained alternate does not discuss the case with
anyone until that alternate replaces a juror or is discharged.”
Moreover, the rule explicitly provides that “[i]f an alternate
replaces a juror after deliberations have begun, the court must
instruct the jury to begin deliberations anew.” Fed. R. Crim.
P. 24(c)(3).
Here, when the court excused a juror after
deliberations had begun, the court ensured that the alternate
had not discussed the case with anyone and instructed the jury
that it was required to begin deliberations anew. Therefore,
the court complied with the requirements of Rule 24(c)(3). We
conclude that the district court did not abuse its discretion in
denying the Appellants’ motion for a new trial.
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Accordingly, we affirm the judgment of the district
court. As Nwaehiri is represented by counsel, we also deny his
motion to file a pro se supplemental brief. 2 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 in the decisional process.
AFFIRMED
2
Even were we to grant the motion to file a pro se
supplemental brief, our review of the proposed brief persuades
us that Nwaehiri fails to articulate claims that would warrant
relief.
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