Académique Documents
Professionnel Documents
Culture Documents
No. 13-4210
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District
Judge. (8:10-cr-00596-DKC-2)
Argued:
Decided:
and
one
participation
in
count
a
of
scheme
aggravated
to
defraud
identity
Bank
of
theft
for
America.
his
The
First, he contends
at
least
multiplicitous.
one
Finally,
substantive
he
argues
bank
that
fraud
the
count
district
as
court
We affirm the
I.
On appeal from a criminal conviction, we view the facts in
the light most favorable to the government.
Washington, 743 F.3d 938, 940 (4th Cir. 2014).
United States v.
A.
Starting in late 2007, Adeyale and several coconspirators
implemented a scheme to defraud Bank of America. 1
involved multiple steps.
This scheme
Second,
Third,
deposit
the
checks
into
the
compromised
accounts
and
to
withdraw the funds before the bank realized that the checks were
stolen.
The government indicted Adeyale for his role in the scheme
in September 2010.
one
count
of
aggravated
U.S.C. 1028A.
identity
theft,
in
violation
of
18
Relevant to this
as
multiplicitous
because
they
involved
withdrawals
or
government
acknowledged
that
Counts
Two
and
Three
were
The district
trial,
the
government
presented
testimony
from
other
Madonna
Campbell.
Their
testimony
related
to
both
the
recruited
him.
In
addition
to
acting
as
runner,
He testified that he
Smith.
information,
instructed
account.
ATM
Richardson
card,
Richardson
and
to
gave
PIN.
have
Adeyale
A
Smith
few
Smiths
days
withdraw
account
later,
funds
Adeyale
from
her
Smith withdrew
Instead,
she stated that she obtained a new, temporary ATM card once
inside the bank.
Like Richardson, Campbell testified that Adeyale recruited
her.
She explained that Adeyale gave her Smiths ATM card and
PIN and
instructed
Campbell
to
make
withdrawal.
Campbell
stated that the ATM card did not work; other evidence, however,
contradicted
withdrawal.
this
statement
and
connected
her
to
the
$600
card to Adeyale.
government
also
investigator,
documents
pertaining
presented
Dulcie
to
testimony
the
Martin,
who
fraudulent
from
Bank
discussed
of
various
transactions.
Most
Martin
photographs
also
to
connected
specific
Bank
of
America
transactions.
surveillance
Based
on
those
conducting
specific
transactions.
Multiple
witnesses
government
prepared
evidence.
One
of
transactions
involving
witness,
summary
the
Postal
charts
charts
Smiths
of
Inspector
the
summarized
bank
account.
Julie
governments
the
Over
fraudulent
Adeyales
provided
Campbell
more
detail
and
stated
withdrawal.
that
made
the
$600
government
subsequently
(conspiracy),
elected
instructed
Counts
to
dismiss
the
Five
Count
jury
to
through
Four.
consider
Seven
The
Count
(substantive
court
One
bank
II.
Adeyale raises several issues on appeal, arguing that the
district court erred by (1) denying his motion for judgment of
acquittal on the aggravated identity theft count; (2) admitting
certain summary testimony; (3) declining to dismiss Counts Five
and/or Six as multiplicitous, and (4) imposing a substantively
unreasonable sentence.
A.
We first consider Adeyales argument that he was entitled
to
judgment
of
acquittal
on
the
aggravated
identity
theft
of
Adeyales
motion
for
judgment
of
acquittal.
See
United States v. Royal, 731 F.3d 333, 337 (4th Cir. 2013), cert.
denied, 134 S. Ct. 1777 (2014).
found
the
essential
reasonable doubt.
elements
of
the
crime
beyond
Id.
two-year
sentence
on
anyone
who,
during
and
in
bank
fraud
knowingly
transfers,
and
conspiracy
possesses,
or
to
commit
uses,
bank
fraud],
without
lawful
18
U.S.C. 1028A.
government
show
must
that
the
defendant
knew
case
involving
the
same
8
scheme
the
means
of
Flores-Figueroa v.
But, as we held in
at
issue
here,
the
government
possessed,
is
not
required
transferred,
to
or
prove
used
that
the
the
defendant
other
persons
v. Otuya, 720 F.3d 183, 189 (4th Cir. 2013), cert. denied, 134
S. Ct. 1279 (2014).
In
rejecting
explained:
To
identification
Otuyas
excuse
to
argument
Otuyas
defraud
act
Bank
of
to
of
the
using
America
contrary,
another
of
we
persons
thousands
of
See id.
But see
United States v. Spears, 729 F.3d 753, 758 (7th Cir. 2013) (en
banc) (Section 1028A, we hold, uses another person to refer
to a person who did not consent to the use of the means of
identification.).
Adeyale asserts that Otuya does not control here because
the government charged him with aggravated identity theft in a
unique way. 3
In Adeyales view,
the
government
was
explicit
that
the
predicate
felonies
aggravated
theft
conviction.
Count
Five
fails to do so, he asserts, because Smith used her own, new ATM
card and PIN to make the $5,000 withdrawal.
contends
that
he
did
not
possess,
Therefore, Adeyale
transfer,
or
use
Smiths
With
respect to Count Six, Adeyale argues that the government did not
present sufficient evidence that Campbell used Smiths means of
identification to withdraw the $600.
Adeyale
suggests
sufficient
connect
him
to
that
the
there
was
possession,
not
transfer,
or
use
evidence
of
to
another
record
belies
Adeyales
conspiracy
count
as
suggestion
that
To begin with,
the
government
offense
supporting
the
10
One
amply
theft conviction.
from
multiple
supports
Adeyales
aggravated
identity
sources
that
Adeyale
possessed
and
transferred
the same scheme, the fact that Smith consented to the nefarious
use of her personal information is of no import.
F.3d at 189.
Nor do Adeyales arguments about Counts Five and Six give
us pause.
evidence indicates that Smith used her own ATM card to withdraw
the $5,000.
But
11
evidence
at
trial,
that
Adeyale
possessed
Smiths
means
of
The
See United
States v. Mobley, 618 F.3d 539, 549 (6th Cir. 2010) (explaining
that the in relation to element [of 18 U.S.C. 1028A] is met
if
the
identity
theft
facilitates
or
has
the
potential
of
to
fashion);
cf.
in
different
Smith
v.
statute
United
States,
in
508
an
equally
U.S.
broad
223,
237-38
We
testified
that
the
ATM
card
did
not
work,
thereby
suggesting that she did not make the withdrawal using Smiths
means of identification.
evidence
that
Campbell
made
the
withdrawal
using
12
identification
of
Campbell
as
the
person
depicted
in
Crim.
P.
52(a)
(Any
error
. . .
that
does
See Fed.
not
affect
that
the
district
court
did
Accordingly, we
not
err
in
denying
also
argues
that
the
district
court
erred
in
of
discretion
that
631
is
F.3d
and
will
arbitrary
and
146,
(4th
153
only
overturn
irrational.
Cir.
2011)
an
evidentiary
United
(internal
States
v.
quotation
marks omitted).
13
into
account.
and
withdrawals
from
Smiths
Bank
of
America
there was a $600 withdrawal using Smiths ATM card and PIN on
October 29, 2008.
this
on
portion
testimony.
of
the
chart
Campbells
and
Richardsons
asserts
on
appeal
that
there
was
insufficient
conclude
that
the
district
court
did
not
abuse
its
Contrary to Adeyales
assertion,
and
when
aggravated
identity
as
explained
theft
earlier
issue,
other
discussing
evidence
the
adequately
14
establish
that
the
district
courts
evidentiary
ruling
was
Counts
multiplicitous. 6
Five
and/or
We
review
Six
the
because
those
district
counts
courts
are
legal
847
omitted).
n.11
(4th
Cir.
(internal
quotation
marks
by
imposing
multiple
punishments
for
the
same
Relying on this
15
1344
each
institution.
Although
of
Title
execution
18
of
authorizes
scheme
to
the
government
defraud
to
financial
the
government
may
not
prosecute
every
act
that
single
scheme.
Colton,
231
F.3d
at
908-09.
What
848.
Established
whether
acts
scheme,
we
integrally
principles
constitute
consider
related
marks
execution
when
guide
separate
whether
so
the
that
analysis.
executions
acts
one
are
could
of
In
a
deciding
bank
independent
not
have
fraud
or
are
succeeded
omitted).
it
our
is
An
act
constitutes
chronologically
and
separate
substantively
Id. at
Conversely, evidence
indicate
interdependent
that
acts
the
may
acts
not
be
are
interdependent,
charged
separately.
and
Id.
Our
analysis
government
in
charged
substantive
bank
Mancuso
the
fraud
is
illustrative.
defendants
based
on
with
a
There,
multiple
scheme
to
counts
divert
the
of
checks
See id.
government should have only charged one count of bank fraud for
each contract--not one count for each check.
Id.
We rejected
be
properly
viewed
as
separate
execution
of
the
Id. at 848.
district
court
held
that
Counts
Five
and
Six
that the scheme was to deposit stolen checks and withdraw the
accompanying
sums
in
variety
of
ways.
Accordingly,
the
pertaining
scheme.
to
that
deposit
constituted
an
execution
of
the
here
maintains
was
to
that
obtain
the
execution
access
to
of
another
the
scheme
persons
to
bank
We disagree.
separate
loans
from
the
same
financial
institution
Id. at 1402.
Based on
the underlying facts, the court determined that the two loans
were
integrally
related
and
one
could
not
have
succeeded
without the other, as both loans were made for the purpose of
facilitating the sale of a tract of land in Florida.
See id.
18
bank
fraud
scheme
depends
on
the
facts
at
issue.
deposit/withdrawal
substantively
independent
pairing
from
the
quotation
marks
was
chronologically
other
and
[deposit/withdrawal
omitted).
Put
another
way,
the
We thus
overarching
scheme.
It
is
true
that
Adeyale
and
his
If
certain
account
was
unavailable,
the
sum,
we
discern
determination
that,
deposit
its
and
based
no
on
error
in
the
facts
corresponding
19
the
of
withdrawals
district
this
courts
case,
constituted
each
an
We
United States
within
or
below
presumptively reasonable.
the
applicable
Guidelines
range
A
is
sentence
Specifically,
he
sufficiently
for
is
contends
the
substantively
that
need
to
the
court
avoid
unreasonable.
failed
unwarranted
to
account
sentencing
of
arguments.
recidivism.
The
record
does
not
support
these
20
unwarranted
sentencing
disparity
between
him
and
his
Adeyales
argument,
the
district
court
first
not initiate the scheme but explained that he was soon able to
run the scheme for his own benefit.
court imposed a sentence that was twelve months shorter than the
sentence Otuya received.
Second,
court
contrary
sufficiently
characteristics.
conviction
belated
factors.
Adeyales
considered
The
acceptance
acceptance
to
of
court
of
his
allegation,
personal
acknowledged
responsibility,
responsibility
but
against
the
district
history
Adeyales
it
and
post-
weighed
other
his
sentencing
his young age, however, against his serious role in the scheme,
21
the
fact
that
he
ran
other
fraud
schemes,
and
the
negative
court
found
that
Adeyales
belated
In addition,
acceptance
of
sentence
and
hoped
that
the
sentence
would
prevent
at
bottom,
asks
us
to
court
and
can
reverse
reweigh
the
3553(a)
sentence
only
if
it
is
unreasonable.
Cir.
Accordingly,
2008).
we
affirm
the
district
courts
sentence.
III.
For the foregoing reasons, we affirm the district courts
judgment.
AFFIRMED
22