United States v. Abegunde

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OLUFOLAJIMI ABEGUNDE, Defendant-Appellant.

No. 19-6229

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

January 14, 2021

NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0035n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

OPINION

BEFORE: WHITE, STRANCH, and MURPHY, Circuit Judges.

JANE B. STRANCH, Circuit Judge. Olufolajimi Abegunde appeals his conviction and sentence for witness tampering and for conspiracy to commit wire and bank fraud, money laundering, and marriage fraud. In this direct appeal, Abegunde contends that: (1) the district court erred in denying his motion to sever the conspiracy to commit marriage fraud count from the other counts pursuant to Federal Rules of Criminal Procedure 8 and 14; (2) the evidence was insufficient to support the jury's verdict of guilty as to the convictions for conspiracy to commit wire fraud and conspiracy to commit money laundering; (3) the venue was improper; (4) the district court abused its discretion by not providing a jury instruction and demarcation between witnesses' dual roles as fact and expert witnesses; and (5) the district court erred in using a "loss chart" to determine the economic loss for the proper sentencing range for Abegunde. For the reasons discussed below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Facts

This case grows out of business email compromise schemes (BEC). The schemes involved hacking into a company's email servers and creating fake emails directing the company's employees to wire funds into bank accounts controlled by the perpetrators. Typically, after a sum is wired from a BEC, the money is transferred to multiple other bank accounts before reaching its final destination. This "network" of bank accounts exchanges smaller portions of the initial transfer amount in an attempt to clean the money and to avoid detection by banks and law enforcement.¹ Members of the network often do not know one another; they "simply fill a role for some sort of payment along the way." Banks will sometimes contact account owners that are suspected participants in these networks to alert them to fraud on their account. If the account owner lies about the source of the funds, law enforcement considers the statements as evidence that the owner may be a knowing participant.

One of the businesses targeted in a BEC scheme in this case was Crye-Leike, a real estate company in the Western District of Tennessee. A hacker directed a real estate agent to wire $154,000 to a bank account controlled by the perpetrators. The FBI traced the fraudulent Crye-Leike transfer to Javier Luis Ramos-Alonso, Abegunde's co-defendant. Law enforcement then subpoenaed additional bank records associated with Ramos-Alonso and found other suspicious transactions, including suspected BECs involving other businesses. A scheme involving another business, Whatcom, followed a similar pattern. Company emails were compromised, and a fake email instructed an employee to wire funds to an account in the hackers' control. Believing theemail was authentic, a Whatcom employee wired more than $60,000 to an account controlled by Ramos-Alonso.

Ramos-Alonso's bank records also indicate that he attempted to divide the large amount of money received from the BECs into smaller transfers into other accounts. Wells Fargo flagged Ramos-Alonso's bank account for suspicious activity and a bank investigator contacted him about the large wires and repeated smaller transactions. The investigator also reviewed bank accounts that received wires from Ramos-Alonso. Some of the money was wired to bank accounts with Abegunde's address, and one account also listed Abegunde's phone number. When the investigator called the phone number, Abegunde answered and stated that he had received the money from a friend in Nigeria. Suspecting fraud, Wells Fargo recalled the funds from the account.

Although Abegunde's name was not on the bank accounts, at trial the Government offered evidence that Abegunde was in control of the accounts because they were attached to his address and phone number; Abegunde directed individuals to transfer money into the account; and the individuals whose names were on the account were not in the United States when some of the transactions were processed.

The Government sought to prove that Abegunde used these accounts, as well as nearly 40 other third-party accounts, because many of his personal accounts were closed. These accounts were "used or given out by Mr. Abegunde for other people to put money into [and] were not his own." In Abegunde's own words, he had to "beg, incentivize, [and] lobby people to give [him] their account," to continue his participation in the scheme. Most of this coordination occurred over an encrypted messaging application, WhatsApp.

The Government also provided testimony that Abegunde coordinated currency exchanges, for people seeking exchanges from Nigerian naira to United States dollars, to clean money received from the BEC schemes. Ramos wired $9,000 tied to a BEC scheme to a bank account alleged to be under Abegunde's control. As to the Whatcom BEC, Abegunde provided the account information for one of the accounts he allegedly controlled when a conspirator requested a bank account "fast."

Evidence regarding the bank accounts receiving fraudulent funds showed that some were attached to Abegunde's phone number and address. At least one such account bore the name of an alleged co-conspirator, Ayodeji Ojo. The FBI contacted Abegunde at his home to inquire about suspected fraud. When asked about an "illegal money transfer" on the account, Abegunde condemned people that committed fraud, but claimed that people using or transferring proceeds from a fraudulent scheme were not involved in criminal activity. Even after the officer warned Abegunde about potential liability for receiving and transferring fraudulent proceeds, Abegunde "emphatically disagreed." Abegunde also misrepresented his knowledge of Ojo's involvement in the scheme, but later messaged Ojo and laughed about this concealment. In one communication, Abegunde expressed his fear about allowing "money to be paid into an account that can be tracked" and asked about mitigating the risk of conspiracy to commit fraud. In another exchange, Abegunde said that he really does not know the others involvedor the source for the funds, but they "pay into accounts," and he admitted that his exchanges "clean the cash and eliminate the risk."

Regarding the marriage fraud count, the evidence showed that Abegunde married Edchae Caffey, a member of the United States Army, in 2016. Caffey testified that Abegunde paid her to enter into the marriage so that he could "get a green card." During trial the Government alsoprovided proof that Abegunde entered the marriage to receive Caffey's military benefits and that Abegunde opened joint accounts with Caffey to transfer fraudulent funds.

B. Procedural History

A grand jury charged Abegunde and several others in a multi-count indictment involving cybercrimes and fraud. Abegunde's case was ultimately severed from all other defendants, except Javier Luis Ramos-Alonso. The grand jury returned a superseding indictment charging Abegunde and Ramos-Alonso with wire fraud conspiracy, in violation of 18 U.S.C. § 1349, and conspiracy to launder money by conducting a financial transaction involving property that represented the proceeds of a specified unlawful activity, in violation of 18 U.S.C. § 1956(h). Ramos-Alonso was also charged with wire fraud, in violation of 18 U.S.C. § 1343. Abegunde was further charged with conspiracy to enter into a marriage for the purpose of evading immigration laws, in violation of 18 U.S.C. § 371, and witness tampering, in violation of 18 U.S.C. § 1512(b). The district court denied Abegunde's motion to sever the marriage-fraud conspiracy count.

The Government presented two law enforcement officers, Marcus Vance and David Palmer, who each testified twice at trial providing evidence as both expert and fact witnesses. Prior to sending the case to the jury, the district court gave the jury an instruction on how to consider the testimony of Agents Vance and Palmer.

After a seven day trial, a jury convicted Abegunde of wire-fraud conspiracy, in violation of 18 U.S.C. § 1349; money-laundering conspiracy, in violation of 18 U.S.C. § 1956(h); conspiracy to enter a marriage for the purpose of evading immigration laws, in violation of 18 U.S.C. § 371; and witness tampering, in violation of 18 U.S.C. § 1512(b). After a three-day sentencing hearing, the district court sentenced Abegunde to 78 months of imprisonment.

II. DISCUSSION

Abegunde challenges: (1) the district court's denial of his motion to sever the marriage fraud count from the other counts; (2) the sufficiency of the evidence for his wire fraud conspiracy and money laundering conspiracy convictions; (3) venue; (4) the district court's lack of demarcation between witnesses' dual roles as fact and expert witnesses; and (5) the district court's use of a "loss chart" during sentencing. We will address each separately.

A. Improper Joinder

Abegunde contends that the district court's failure to sever his marriage fraud count from the other counts resulted in prejudice that prevented the jury from making a reliable judgment about his guilt or innocence. "Misjoinder is a question of law that we review de novo." United States v. Deitz, 577 F.3d 672, 692 (6th Cir. 2009). Even where joinder is proper, a defendant may move to sever offenses on the basis that he will be prejudiced by a joinder of the offenses. United States v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006). We review denial of a severance motion based on a claim of prejudice for abuse of discretion. United States v. Jacobs, 244 F.3d 503, 506 (6th Cir. 2001).

Joint trials for defendants listed in the same indictment are preferred to "conserve . . . funds,...