United States v. Adelekan

UNITED STATES OF AMERICA, Plaintiff v. OLUWASEUN ADELEKAN et al., Defendants.

No. 19 Cr. 291 (LAP)

United States District Court, S.D. New York

October 15, 2021

ORDER

LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE

Defendants are charged in a six-count indictment in connection with their alleged participation in a scheme to defraud businesses and individuals using email scams designed to trick those victims into wiring money to bank accounts that the Defendants controlled. Defendant Oluwaseun Adelekan moves in limine to (1) sever his case from that of his co-defendants and to (2) stay his trial on the basis that the present jury panel selection procedures violate his Sixth Amendment rights and the Jury Selection and Service Act of 1968.^[1] Defendant Abiola Olajumoke moves in limine to preserve his objections to the introduction of certain evidence.^[2] Certain of their co-defendants join in each of these motions.^[3]

For the reasons that follow, Adelekan's motion is DENIED and Olajumoke's motion is DENIED.^[4]

I. Background

Defendants Oluwaseun Adelekan, Olalekan Daramola, Solomon Aburekhanlen, Gbegna Oyeneyin, Abiola Olajumke, Temitope Omotayo, Bryan Eadie, Albert Lucas, Ademola Adebogun, Lucas Ologbenla, Adewole Taylor, and Curlten Otidubor (collectively, "Defendants") are charged in a six-count indictment for allegedly using false and misleading representations and omissions, including via email and text message, to induce victims to wire a total of more than $3.5 million to Defendants and other members of the scheme. (See generally Fourth Superseding Indictment, [dkt. no. 296].)

Count one charges Defendants with conspiracy to commit wire fraud. (Id. ¶¶ 1-6.)

Count two charges Defendants with conspiracy to commit money laundering. (Id. ¶¶ 7-10.)

Counts three through six charge certain Defendants with aggravated identity theft:

• Count three charges defendants Adelekan and Eadie with aggravated identity theft for unlawfully using another person's social security number in attempting to obtain proceeds of a wire transfer. (Id. ¶ 11.)

• Count four charges defendants Olajumoke and Adebogun with aggravated identify theft for unlawfully using the name, place of business, and driver's license number of another person in attempting to obtain proceeds of a wire transfer. (Id. ¶ 12.)

• Count five charges defendants Omotayo and Eadie with aggravated identify theft for unlawfully using the name and employer of another person in attempting to obtain proceeds of a wire transfer. (Id. ¶ 13.)

• Count six charges defendant Oyeneyin with aggravated identify theft for unlawfully using a means of identification of another person in attempting to obtain proceeds of a wire transfer. (Id. ¶ 14.)

II. Legal Standard

"The purpose of a motion in limine is to allow a court to rule on the admissibility of potential evidence in advance of trial." Laureano v. City of New York, No. 17 Civ. 181 (LAP), 2021 WL 3272002, at *l (S.D.N.Y. July 30, 2021) (quoting Gucci Am., Inc. v. Guess?, Inc., 858 F.Supp.2d 250, 253 (S.D.N.Y. 2012)). A court should exclude evidence on a motion in limine only when it is "clearly inadmissible on all potential grounds." United States v. Ozsusamlar, 428 F.Supp.2d 161, 164-65 (S.D.N.Y. 2006) (citation omitted). "Because a ruling on a motion in limine is ` subject to change as the case unfolds,' [the] ruling constitutes a preliminary determination in preparation for trial." United States v. Bowen, 511 F.Supp.3d 441, 446 (S.D.N.Y. 2021) (cleaned up).

III. Discussion

Two Defendants, Adelekan and Olajumoke, have filed pretrial motions. Adelekan moves to (1) sever his case on the basis that he will be prejudiced if he is tried with his co-defendants and to (2) stay trial on the basis that this District's jury plan violates his Sixth Amendment Rights. Olajumoke moves in limine to preserve certain objections. The Court addresses the motions in turn.

A. Adelekan's Motions in Limine [dkt. no. 303]

a. Motion to Sever

i. Applicable Law

Pursuant to Fed. R. Crim. P. 8(b), two or more defendants may be charged in the same indictment or information ``if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Fed. R. Crim. P. 8(b). In analyzing joinder under Rule 8(b), courts must "apply a commonsense rule to decide whether, in light of the factual overlap among charges, joint proceedings would produce sufficient efficiencies such that joinder is proper notwithstanding the possibility of prejudice." United States v. Rittweger, 524 F.3d 171, 177 (2d Cir. 2008) (internal quotation marks and citation omitted}. With conspiracy charges, ``[t]he established rule is that a non-frivolous conspiracy charge is sufficient to support joinder." United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir. 1988). "Where a defendant is a member of a conspiracy, all the evidence admitted to prove that conspiracy, even evidence relating to acts committed by Co-defendants, is admissible against the defendant." United States v. Salameh, 152 F.3d 88, 111 (2d Cir. 1998) . These rules reflect ``a preference in the federal system for joint trials of defendants who are indicted together. Joint trials play a vital role in the criminal justice system, as they promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." United States v. O'Connor, 650 F.3d 839, 858 (2d Cir. 2011) (internal quotation marks and citations omitted).

Federal Rule of Criminal Procedure 14 (a) states that ``[i]f the joinder of offenses or defendants in an indictment, information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed. R. Crim. P. 14(a). ``Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Zafiro v. United States, 506 U.S. 534, 538-39 (citing United States v. Lane, 474 U.S. 438, 449, n. 12 (1986); Opper v. United States, 348 U.S. 84, 95 (1954)). Severance should be granted "under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id. at 539; see also United States v. Cacace, 796 F.3d 176, 192 (2d Cir. 2015). "Circumstances that may warrant severance include allowing the jury to consider evidence that otherwise would not be admissible if the defendant were tried alone, or conversely, barring essential exculpatory evidence that would be admitted if the defendant were tried alone." United States v. Sezanayev, No. 17 Cr. 262, 2018 WL 2324077, at *2 (S.D.N.Y. May 22, 2018) (citing Zafiro, 506 U.S. at 539).

"Differing levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials. Even joint trials involving defendants who are only marginally involved alongside those heavily involved are constitutionally permissible." United States v. Spinelli, 352 F.3d 48, 55 (2d Cir. 2003) (internal quotation marks and citations omitted). ``[T]he principles that guide the district court's consideration of a motion for severance usually counsel denial." United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993); see also United States v. Tuzman, 301 F.Supp.3d 430, 440 (S.D.N.Y. 2017). ```[L]ess drastic measures [than severance], such as limiting instructions, often will suffice' to cure any risk of prejudice and permit joinder." United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011) (quoting Zafiro, 506 U.S. at 539).

“In deciding a motion for severance, a court must consider, among other factors: (1) possible conflicts between defense theories, (2) the possibility that the moving defendant will be prejudiced by a joint trial, and (3) the complexity of a joint trial, including the number of defendants, the estimated trial length, disparities in proof offered against the various defendants, and the defendants* differing roles in the alleged criminal schemes. United States v. Hameedi, No. 17 Cr. 137 (JGK), 2017 WL 5152991, at *3 (S.D.N.Y. Nov. 3, 2017) (citing United States v. Guillen-Rivas, 950 F.Supp.2d 446, 457 (E.D.N.Y. 2013)).

ii. Application

Severance of Mr. Adelekan's trial pursuant to Federal Rule of Criminal Procedure 14(a) is not warranted.

Adelekan argues that the Court should sever his trial because he anticipates that he and his co-defendants will put on conflicting trial defenses. Mr. Adelekan says that he expects at least one of his co-defendants will claim that he was just following Mr. Adelekan's orders without knowing that he was participating in illegal activity. (Adelekan Mot. at 3-4.) Mr. Adelekan contends that such a defense would antagonistic to his own defense that the funds deposited into his business account were transferred to him by individuals, including some co-defendants, and that he did not have reason to be suspicious of the transferors' motives. (Id.)

As an initial matter, these defenses are not mutually exclusive. Although severance may be warranted where defendants in a joint trial assert mutually antagonistic defenses, see United States v. Yousef, 327 F.3d 56, 151 (2d Cir. 2003), for severance to be warranted on this basis ``[t]he jury, in order to believe the core of testimony offered on behalf of one defendant, must necessarily disbelieve the testimony offered on behalf of his codefendant." United States v. Potamitis, 739 F.2d 784, 790 (2d Cir. 1984)(internal quotation marks and...