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United States v. Oloyede

United States Court of Appeals, Fourth Circuit

July 31, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
VICTOR OYEWUMI OLOYEDE, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
BABATUNDE EMMANUEL POPOOLA, a/k/a Emmanuel Popoola, a/k/a Tunde Popoola, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MOJISOLA TINUOLA POPOOLA, a/k/a Mojisola Oluwakemi Tin Popoola, a/k/a Moji T. Popoola, Defendant-Appellant .UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
GBENGA BENSON OGUNDELE, a/k/a Benson Ogundele, Defendant-Appellant.

          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) (8:15-cr-00277-PWG-7) (8:15-cr-00277-PWG-1)

         ARGUED:

          Justin 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.

          Thomas Patrick Windom, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

         ON BRIEF:

          Robert K. Hur, United States Attorney, Baltimore, Maryland, Jennifer R. Sykes, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

          Before NIEMEYER, KING, and WYNN Circuit Judges.

          NIEMEYER, Circuit Judge:

         The 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.

         I In 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 October 2016.

         At 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.

         The 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.

         Finally, 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.

         After 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.

         The 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.

         From the judgments entered against them, the defendants filed these appeals, which we then consolidated.

         II

         During 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.

         Mojisola 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."

         Mojisola 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 to self-incrimination.

         The 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.

         We thus 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.

         The 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 [1] compelled [2] to make a testimonial communication [3] 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.

         In this 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).

         Mojisola 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 ...


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