Argued: December 13, 2018
Appeals from the United States District Court for the
District of Maryland, at Greenbelt. Paul W. Grimm, District
Judge. (8:15-cr-00277-PWG-3) (8:15-cr-00277-PWG-5)
Eisele, SEDDIQ LAW FIRM, Upper Marlboro, Maryland; John O.
Iweanoge, II, THE IWEANOGES' FIRM, PC, Washington, D.C.;
Richard Alan Seligman, LAW OFFICE OF RICHARD SELIGMAN,
Washington, D.C.; Gerald Ruter, LAW OFFICES OF GERALD C.
RUTER, P.C., Baltimore, Maryland, for Appellants.
Patrick Windom, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
K. Hur, United States Attorney, Baltimore, Maryland, Jennifer
R. Sykes, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
NIEMEYER, KING, and WYNN Circuit Judges.
NIEMEYER, Circuit Judge:
four defendants in these appeals, who were charged as
participants in a conspiracy that involved numerous others,
were tried together and convicted of conspiracy to commit
wire fraud and related offenses based on an extensive online
dating fraud scheme that induced elderly victims to transfer
money to the defendants' bank accounts based on postured
romantic relationships. The district court found that the
defendants obtained over $2 million in this manner and
sentenced the four defendants variously from 18 months'
to 234 months' imprisonment. From the judgments against
them, the defendants filed these appeals raising numerous
pretrial, trial, and sentencing issues - most significantly,
an issue relating to a pretrial motion to suppress and an
issue relating to the government's use at trial of charts
offered under Rule of Evidence 1006. After considering all of
the issues raised, we affirm.
May 2015, a grand jury indicted 10 individuals, including the
four defendants in these appeals - Gbenga Benson
Ogundele; his wife, Mojisola Tinuola
Popoola; her brother, Babatunde Emmanuel Popoola;
and Victor Oyewumi Oloyede - for their participation
in a widespread online dating fraud scheme that resulted in
numerous elderly victims suffering substantial financial
losses. According to the indictment, from 2011 through 2015,
coconspirators initiated sham romantic relationships with at
least 17 elderly victims throughout the country by searching
online dating websites and then used fraudulent
representations to convince the victims to transfer money to
bank accounts controlled by the defendants. The defendants
were charged with transferring this money through various
facilities to promote the conspiracy and to hide the nature
and source of the funds. Based on these allegations, the
indictment charged all defendants with conspiracy to commit
wire fraud, in violation of 18 U.S.C. § 1349, and
conspiracy to commit money laundering, in violation of 18
U.S.C. § 1956(h). In addition, it charged Ogundele,
Babatunde, and Oloyede with aggravated identify theft, in
violation of 18 U.S.C. § 1028A. The district court
scheduled two separate trials for the 10 indicted defendants,
and the government's case against Ogundele, Mojisola,
Babatunde, and Oloyede proceeded to trial first, beginning in
trial, the government's evidence included testimony from
11 victims of the fraud scheme, as well as a daughter of a
victim who had recently died. The victims testified as to how
they had formed what they thought were meaningful
long-distance relationships with a person they met online and
had eventually transferred significant sums of money for
various reasons as requested by the person, only to realize
later that they had been defrauded. These victims'
testimony showed that, between November 2012 and April 2014,
five of them sent a total of approximately $140, 000 to two
business bank accounts controlled by Ogundele; that, during a
six-month period in 2012, five of them sent a total of $138,
000 to two bank accounts controlled by Oloyede, with all but
$3, 000 of that going to a single business account; and that,
in July 2014, one victim deposited $5, 000 in cash into an
account in the name of Mojisola, who then promptly wrote a
check for the same amount to a company controlled by her
husband, Ogundele. In addition, the government's evidence
showed that some of this and other money was transferred to
accounts controlled by Babatunde. For instance, on the same
day in October 2012 that one victim deposited $20, 000 into
Oloyede's business account, $10, 000 was transferred from
that account to an account that Babatunde controlled but was
in the name of one of his sisters.
government also presented testimony from employees of Bank of
America, Capital One, and Wells Fargo regarding activity in
approximately a dozen of the defendants' bank accounts,
almost all of which had been closed by the banks during the
course of the conspiracy. Bank records not only showed
numerous wire transfers and cash deposits from the victims
who testified but also showed other suspicious large cash
deposits made from States throughout the country. For
example, bank records from Mojisola's Bank of America
account, which had been closed in August 2014, showed that it
had received significant cash deposits or teller transfers
from persons in Florida, North Carolina, Georgia, Michigan,
and Tennessee and that the funds were then quickly withdrawn
or transferred. The records also showed that Mojisola's
account received several large wire transfers in 2011 from
her half-brother, Mukhtar Haruna - a Nigerian national and
resident who was indicted with the others but never
arraigned. These funds were then transferred into an account
controlled by Mojisola's husband, Ogundele.
the government presented testimony from numerous FBI agents
about evidence recovered from search warrants of the
defendants' homes, phones, and email accounts. FBI agents
also testified to post-arrest statements made by Ogundele,
Oloyede, and Babatunde. And an FBI forensic accountant
created charts detailing certain activity in the
defendants' bank accounts from 2011 through 2014 and
presented those charts to the jury at trial.
the government rested and the district court denied the
defendants' motions for judgment of acquittal, the
defendants called a number of witnesses, and Oloyede and
Babatunde both testified in their own defense. Generally,
their theory of the case was that Haruna had made them
believe that the money coming into their bank accounts was to
purchase cars for export to Nigeria, thus blaming Haruna for
the entire scheme. They also placed blame on Ogundele.
jury convicted all four defendants on all counts, and the
district court thereafter sentenced Ogundele and Oloyede each
to 234 months' imprisonment, Babatunde to 144 months'
imprisonment, and Mojisola to 18 months' imprisonment.
the judgments entered against them, the defendants filed
these appeals, which we then consolidated.
execution of a search warrant and an arrest warrant at
Mojisola's house, FBI Special Agent Monique Winkis handed
Mojisola a locked cell phone that had been found in her
bedroom and asked her, "Could you please unlock your
iPhone?" Mojisola took the phone, entered her passcode,
and handed the phone back to Agent Winkis, who then gave the
unlocked phone to a forensic examiner for it to be searched.
Agent Winkis did not ask for the passcode; Mojisola did not
reveal the passcode to Agent Winkis; and Agent Winkis did not
see Mojisola enter her passcode.
filed a motion to suppress the contents of her cell phone in
the district court, contending that Agent Winkis's
request to open her phone and her compliance with that
request without having been given Miranda warnings
violated her Fifth Amendment right against
self-incrimination. The district court denied the motion on
the ground that Mojisola's entry of a passcode to unlock
her phone was not a "communicative response" by her
and therefore was not a testimonial statement subject to
Miranda. It also found that Agent Winkis's
request was not "coercive or threatening" and that
Mojisola's compliance was "voluntary."
now contends on appeal that, because she was in custody and
not informed of her Miranda rights, she "could
not knowingly and voluntarily [have] waive[d] her rights
against self-incrimination." Moreover, she argues that
entering her passcode was a communicative act that amounted
government contends that Mojisola's physical action of
typing her passcode into a phone was not a testimonial
statement that was subject to Miranda and that, in
any event, the evidence obtained from her cell phone was
nonetheless admissible under United States v.
Patane, 542 U.S. 630 (2004) (plurality opinion), because
her action was voluntary.
are presented with the question of whether a person in
custody, who has not been given Miranda warnings,
was compelled to incriminate herself in violation of the
Fifth Amendment when she voluntarily, pursuant to an
officer's request, used her passcode to open her cell
phone but did not disclose the passcode.
Fifth Amendment provides that no person "shall be
compelled in any criminal case to be a witness against
himself." U.S. Const. amend. V. Therefore, a violation
occurs when "the accused is  compelled  to make a
testimonial communication  that is incriminating."
United States v. Sweets, 526 F.3d 122, 127 (4th Cir.
2007) (quoting Fisher v. United States, 425 U.S.
391, 408 (1976)). While a testimonial communication is most
often in verbal or written form, it may also be made by an
act. Id. But to be a testimonial communication, the
act must "relate a factual assertion or disclose
information," Doe v. United States, 487 U.S.
201, 210 (1988); it must "express the contents of [the
person's] mind," id. at 210 n.9.
case, Mojisola is faced with the task of demonstrating that
her simple act of typing in the passcode out of the FBI's
agent's view was a testimonial communication to the
agent. Certainly, Mojisola has not shown that her act
communicated her cell phone's unique passcode. Unlike a
circumstance, for example, in which she gave the passcode to
the agent for the agent to enter, here she simply used the
unexpressed contents of her mind to type in the passcode
herself. See United States v. Hubbell, 530 U.S. 27,
43 (2000) (distinguishing "surrender[ing] the key to a
strongbox," which is not communicative, from
"telling an inquisitor the combination to a wall
safe," which is communicative).
argues nonetheless that "[o]nly through her
communicative conduct of unlocking the iPhone was the
government able to ascertain that it belonged to her"
and that her act was therefore a testimonial communication.
Yet, the ownership of the phone was neither an issue before