United States v. Agbi

84 F.4th 702

UNITED STATES of America, Plaintiff-Appellee, v. Edwin AGBI, also known as Kareem Sunday, Defendant-Appellant.

No. 22-2573

United States Court of Appeals, Seventh Circuit

Argued September 13, 2023

Decided October 18, 2023

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:19-cr-00280 — James R. Sweeney II, Judge.

Matthew Bryce Miller, Attorney, Office of the United States Attorney, Evansville, IN, MaryAnn Totino Mindrum, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Finis Tatum, IV, Attorney, Janet Lynn Thompson, Counsel, Hoover Hull Turner LLC, Indianapolis, IN, for Defendant-Appellant.

Before Flaum, Ripple, and Scudder, Circuit Judges.

Ripple, Circuit Judge.

A jury convicted Edwin Agbi of one count of mail fraud, in violation of 18 U.S.C. § 1341; one count of use of a fictitious name in furtherance of mail fraud, in violation of 18 U.S.C. § 1342; one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 1341 and 1349; and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1) and 1956(h). According to the Government's evidence, Mr. Agbi acted as a middleman in a scheme to use fake online dating accounts to solicit hundreds of thousands of dollars from unwitting elderly people. The district court sentenced him to 57 months' imprisonment. Mr. Agbi now submits that the evidence supporting each count in the indictment is legally insufficient to support a conviction. He further contends that the district court erred in employing the obstruction of justice enhancement to determine the appropriate guidelines sentencing range.

We now affirm the district court's judgment. Legally sufficient evidence supports each count of the indictment. The district court appropriately employed the obstruction of justice enhancement.

IBACKGROUND

A. Facts

Edwin Agbi, born and raised in Nigeria but a resident of the United States since 2016, became involved in a scheme with school friends in Nigeria. As part of the scheme, Mr. Agbi's friends created accounts on an online dating platform for people over the age of fifty, impersonated other individuals on that platform, and struck up online relationships with their selected victims. The friends then urged their victims to wire money and send cash, Bitcoin, and gift cards. Mr. Agbi's apartment in Indianapolis acted as a collection point for this revenue. He gave his confederates his address to use but, at least on some occasions, requested that the packages be addressed to pseudonyms such as "Kareem Sunday" or "Kareem Monday." On multiple occasions, the victims sent packages containing cash to Mr. Agbi at his apartment, addressing the packages to the fictitious names that Mr. Agbi had suggested. When he received a package, Mr. Agbi took a "cut" and then transferred the remainder into bank accounts in Nigeria.

The Government started to uncover this scheme when it received a report of suspicious activity tied to a bank account belonging to another participant in the scheme, Angeles Palacios. Palacios had been receiving large sums of money from various individuals, including E.M., a widower tricked into thinking he was in a relationship with a non-existent "Elizabeth Stevens." Secret Service agents contacted and interviewed E.M.; in the interview, E.M. explained that he was sending money to someone he believed to be "Elizabeth Stevens" but whom he had not yet met. E.M. further told the Secret Service that he had just prepared a package containing $20,000 in cash to send to "Kareem Sunday" in Indianapolis, whom he believed was a friend of "Stevens." E.M. mailed the package, and the Secret Service intercepted it, removed the cash, and conducted a controlled delivery of the package to Mr. Agbi's home. After Mr. Agbi picked up the package, Secret Service agents confronted him and interviewed him in his home.

In the interview, Mr. Agbi admitted that he was awaiting the delivery of E.M.'s package and that he expected it to contain $20,000. But Mr. Agbi did not admit his participation in the online dating scheme. Instead, he told the agents that his friends asked him to find cars in the United States that were available for purchase and shipment to Nigeria. His friends had their "clients" send cash to Mr. Agbi so that he could purchase the cars. Every time a package arrived, however, his friends and their "clients" changed their minds about purchasing a car and instead asked that the money be converted into Nigerian naira and deposited into Nigerian bank accounts. At the agents' request, Mr. Agbi gave them his phone.

B. Prior Proceedings

Mr. Agbi was arrested and later charged with mail fraud, use of a fictitious name in furtherance of mail fraud, conspiracy to commit mail fraud, and conspiracy to commit money laundering. More than two and a half years after he was arrested, and with his trial scheduled in just over one month, Mr. Agbi's counsel notified the Government that Mr. Agbi intended to pursue a duress defense at trial. Mr. Agbi's counsel stated that members of the conspiracy located in Nigeria had threatened Mr. Agbi's mother and sister and that Mr. Agbi only participated in the scheme to protect his family.

The Government filed a motion in limine to preclude Mr. Agbi from pursuing the duress defense. In that motion, the Government relied on Mr. Agbi's previous failure to mention any threats (which Mr. Agbi later disputed), the absence of any references to threats in Mr. Agbi's phone, and Mr. Agbi's practice of keeping a portion of the proceeds from the deliveries (suggesting that he was a "willing participant").¹ In his response brief, Mr. Agbi described the threats and stated that his mother had filed a police report concerning the threats with the Lagos Police Department.² Mr. Agbi attached the supposed police report to his brief. Reasoning that Mr. Agbi had not explained why he "lacked a reasonable opportunity to refuse to commit the offense and avoid the threatened harm," the district court granted the Government's motion.³

Mr. Agbi's case proceeded to a jury trial, which began on February 28, 2022, and lasted three days. At trial, two of the scheme's victims, E.M. and J.G., testified that they were deceived into believing that they were in relationships with "Elizabeth Stevens" and "Tom Champanier," respectively. E.M. sent "Stevens" "hundreds of thousands of dollars,"⁴ and J.G. sent "Champanier" "around $100,000."⁵ The woman whose pictures were used for "Elizabeth Stevens" testified, explaining that the pictures were posted publicly on social media but that she did not know that they were being used in that way. Michael Moore and Raina Nehring, both U.S. Secret Service agents, described the details of the controlled delivery and the subsequent interview. Agent Nehring, an expert on Nigerian fraud schemes, testified that Nigerian fraudsters often refer to their victims as "clients." Mr. Agbi's alleged co-conspirators did not testify, and Mr. Agbi did not present any evidence.

The Government also played excerpts of the interview of Mr. Agbi and showed the jury WhatsApp messages from Mr. Agbi's phone. In one exchange on WhatsApp, a contact saved as "Matthew Hood" told Mr. Agbi that his client was going to block him and "get another wife."⁶ Mr. Agbi responded with laughing emojis. In another exchange, a contact saved in Mr. Agbi's phone as "Germo" stated, "The client don dey my hand seens."⁷ Agent Nehring testified that, in that message, "Germo is telling Agbi that the client has seen his hand, so he - - he knows that he is lying to him."⁸

On the second day of trial, the Government notified the court that its "law enforcement partners in South Africa" had contacted law enforcement authorities in Nigeria, who had said that the report was fake.⁹ An email reflecting this correspondence, the Government stated, would undermine Mr. Agbi's credibility if Mr. Agbi were to testify. Ultimately, Mr. Agbi did not testify, the Government did not show the email to the court, and the court did not rule on whether the Government could rely on the email for impeachment purposes.

On the third day of trial, the jury found Mr. Agbi guilty on all four counts. Mr. Agbi then filed a motion for judgment of acquittal or, in the alternative, for a new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure. He argued that the evidence was insufficient on all four of the counts, that the trial was infected with anti-Nigerian nationality bias, and that the court improperly allowed inflammatory evidence. The district court denied the motion.

The district court sentenced Mr. Agbi on August 25, 2022. The court applied a 10-level enhancement for causing a loss of between $150,000 and $200,000, see U.S.S.G. § 2B1.1(b)(1)(F), and a 2-level enhancement for obstruction of justice, see U.S.S.G. § 3C1.1. It declined to apply a "minor role" or "minimal role" reduction under U.S.S.G. § 3B1.2(b).

In support of the obstruction enhancement, the Government relied primarily on the email it had referenced at trial. In that email, dated March 1, 2022, Benjamin Chervenak, a United States Secret Service agent located in South Africa, wrote to Agent Moore: "Sorry it took so long, but Nigeria has confirmed that the documents you sent us were confirmed as fake."¹⁰ According to Agent Moore's testimony at sentencing, Agent Chervenak "has a working relationship with the Nigerian officials."¹¹ The Government also relied on the "suspicious" timing of the report's disclosure. It submitted that, if the threats were real and the report was authentic, Mr. Agbi would not have waited until the month before trial to bring them up. Agent Moore specifically testified that Mr. Agbi did not mention the threats in his proffer, where it would have been to his advantage to tell the Government about them.

Mr. Agbi, for his part, emphasized that the Government had not introduced...