United States v. Adetokunbo Adejumo

United States Court of Appeals
For the Eighth Circuit
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No. 15-3952
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Adetokunbo Olubunmi Adejumo
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: December 14, 2016
Filed: February 16, 2017
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Before LOKEN, MURPHY, and KELLY, Circuit Judges.
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MURPHY, Circuit Judge.
Defendant Adetokunbo Adejumo pled guilty to bank fraud and aggravated
identity theft. As part of his sentence he was ordered to pay restitution of almost
$500,000, and he appeals. We vacate the restitution order.
I.
Adejumo was indicted in 2011 on 15 counts charging a scheme to defraud
banks and bank customers by use of stolen identities, stolen and fraudulently created
bank accounts, counterfeit checks, and fraudulently obtained credit card accounts.
He pled guilty to one count of aiding and abetting bank fraud and one count of aiding
and abetting aggravated identity theft. His plea agreement required Adejumo to make
restitution payments to the victim of his crime, the amount to be determined by the
court at sentencing. At sentencing in August 2012, the court ordered Adejumo to pay
restitution but did not state the amount.
In August 2013 the government moved for restitution in the amount of $1.1
million. Its motion was granted without Adejumo having received notice of it. He
subsequently appealed the restitution award, and we reversed after concluding that
the procedure required by 18 U.S.C. § 3664 had not been followed and that the
government had not presented sufficient evidence to support the award. United States
v. Adejumo, 777 F.3d 1017 (8th Cir. 2015). We remanded to the district court for a
restitution hearing.
After an October 2015 hearing, the district court ordered Adejumo to pay
restitution to four banks in the total amount of $495,803.86. Adejumo appeals,
arguing that the court lacked jurisdiction to order restitution because the government
had submitted its restitution request a year after sentencing. He also challenges the
sufficiency of the evidence underlying the award. According to Adejumo, the
government should only have been allowed to seek restitution for the victim of the
particular acts on which he had been convicted, not for other victims of his fraudulent
scheme.
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II.
Adejumo first challenges the district court's jurisdiction to order restitution
under 18 U.S.C. § 3664. Section 3664(d)(5) provides that if a "victim's losses are not
ascertainable" ten days before sentencing, the government or probation officer "shall
so inform the court, and the court shall set a date for the final determination of the
victim's losses, not to exceed 90 days after sentencing." We review questions of
statutory interpretation de novo. United States v. Zaic, 744 F.3d 1040, 1042 (8th Cir.
2014). If the district court at least makes clear at sentencing that it plans to order
restitution, the fact that it "misses the statute's 90-day deadline, even through its own
fault or that of the Government, does not deprive the court of the power to order
restitution." Dolan v. United States, 560 U.S. 605, 611 (2010). Although the delay
here was six months longer than in Dolan, the district court retained its power to order
restitution.
Adejumo also challenges the sufficiency of the evidence supporting the
restitution award. We review the district court's loss calculation for clear error.
United States v. Adetiloye, 716 F.3d 1030, 1038 (8th Cir. 2013). A restitution award
is "limited to the victim's provable actual loss." United States v. Chalupnik, 514 F.3d
748, 754 (8th Cir. 2008). Restitution for funds not actually lost by a victim would be
an impermissible windfall. See United States v. Louper-Morris, 672 F.3d 539, 566
(8th Cir. 2012). A bank may therefore recover restitution only to the extent sufficient
evidence has proven its ultimate loss.
Although the government bears the burden of proving the restitution amount
by a preponderance of the evidence, Adetiloye, 716 F.3d at 1039, "a district court is
charged only with reasonably estimating the loss" when the amount lost through fraud
is difficult to estimate, United States v. Alexander, 679 F.3d 721, 729 (8th Cir. 2012)
(quoting United States v. McKanry, 628 F.3d 1010, 1019 (8th Cir. 2011)). While the
Federal Rules of Evidence do not apply at sentencing, "information considered by the
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sentencing court must have 'sufficient indicia of reliability to support [its] probable
accuracy.'" United States v. Fleck, 413 F.3d 883, 894 (8th Cir. 2005) (alteration in
original) (quoting United States v. Jones, 195 F.3d 379, 385 (8th Cir. 1999)). When
"the defendant has objected to the amount of loss attributable to him, the government
may meet its burden of proof by introducing testimony from the [investigating
officer] or a sworn statement from the victim outlining the losses sustained as a result
of the crime." Adetiloye, 716 F.3d at 1039 (citation omitted).
We conclude that the government failed to provide sufficient evidence of the
ultimate losses Adejumo caused the victim banks. The district court received bank
records and other documentary evidence showing the amounts of money Adejumo
initially obtained through his fraudulent scheme. Because of the long delay between
Adejumo's offenses and the restitution hearing, the documentary evidence showing
the initial losses does not sufficiently show how much each bank ultimately lost. At
the resentencing hearing, IRS special agent James Shoup testified that banks
sometimes recover funds which initially appeared lost by fraud. The government
introduced an unsigned report that listed Chase Debit's loss to have been $237,108.99
as of 2009. That loss does not of course prove its 2015 loss.
The only evidence of the ultimate losses to the banks was presented in Agent
Shoup's testimony. No bank officials testified or submitted sworn statements, but
Shoup testified that bank officials had estimated their ultimate losses in conversations
with him and in emails. Shoup could not remember the details of these
communications, however, and in some cases he could not even remember the name
of the bank official who had provided the information. He also testified that officials
sometimes overstate the losses the bank has suffered. Here, for example, Anchor
Bank retained $27,000 that it had initially reported to be a loss, and Guaranty Bank
recovered $972 that bank documents had initially shown as a loss. Shoup's own
testimony showed that loss statements by the bank officials were not all accurate.
The government also failed to show that the loss amount listed in the plea agreement
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was an ultimate loss to Chase. Based on the record here, we conclude that the
government's evidence was clearly insufficient to show the ultimate losses suffered
by the victims. The restitution order should therefore be vacated.1
While the purpose of restitution is to make victims whole, a remand is not in
order given this record. The government has sought restitution from time to time
during the long period since Adejumo's original sentencing proceeding. Despite its
awareness of Adejumo's objections to its evidence, the government has not introduced
additional evidence to prove the ultimate losses to the banks. Since more than four
years have passed after Adejumo was originally sentenced, and in the interest of
finality, we decline to remand for a third restitution proceeding. See United States
v. Bertucci, 794 F.3d 925, 932 (8th Cir. 2015); United States v. Dagostino, 520 F.
App'x 90, 92 (3d Cir. 2013).
For these reasons the restitution award is vacated.
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1
Because the restitution award is being vacated, we need not consider whether
the district court properly ordered restitution after sentencing when Adejumo had
claimed the amount was ascertainable more than 10 days prior to sentencing. See 18
U.S.C. § 3664(d)(5).
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