United States v. Omotayo

1

UNITED STATES OF AMERICA, Plaintiff, v. [5] TEMITOPE OMOTAYO, Defendant.

CRIMINAL No. 21-395-5 (RAM)

United States District Court, D. Puerto Rico

September 23, 2024

OPINION AND ORDER

RAUL M. ARIAS-MARXUACH, UNITED STATES DISTRICT JUDGE

Pending before the Court is the Defendant Temitope Omotayo's (“Defendant” or “Mr. Omotayo”) Motion to Dismiss the Indictment (“Motion”) and the United States of America's (the “Government”) Response in Opposition. (Docket Nos. 295 and 314, respectively). For the following reasons, the Motion is DENIED.

I. BACKGROUND

A. Criminal Case 19-cr-291 (LAP) (S.D.N.Y.)^[1]

On April 23, 2019, Mr. Omotayo was indicted in a multi defendant wire fraud and money laundering case in the Southern District of New York (“SDNY Case”). (Docket No. 2). One of his codefendants in the instant case, Oluwaseun Adelekan (“Adelekan”), was also charged in the SDNY Case, and both Mr. Omotayo and Mr. Adelekan were arrested on April 25, 2019 and released on bond.

(Docket Nos. 31 and 48). Superseding indictments were returned against these defendants and their co-defendants on July 30, 2019, and, as relevant here, September 9, 2021 (the “SDNY Indictment”). (Docket Nos. 106 and 296). The SDNY Indictment charged Mr. Omotayo, Mr. Adelekan, and their SDNY Case co-defendants with offenses beginning in approximately July 2016 through April 2019.

A little over a month after the SDNY Indictment was returned, trial began. (Docket No. 387). On October 26, 2021, Mr. Omotayo was convicted of all counts he was charged with-that is, Counts One, Two, and Five of the Fourth Superseding Indictment. (Docket Nos. 296, 397 at 153-56, and 485).

B. Additional Investigations

The Government alleges that the United States Postal Inspection Service (“USPIS”) and the Department of Justice's Consumer Protection Branch (“CPB”) continued to investigate Messrs. Omotayo and Adelekan. Ultimately, the USPIS and the CPB discovered alleged criminal activity that, for the most part, began in 2020 and after the operative term of the SDNY Indictment. See (Docket No. 314 at 3-4). In 2021, the Federal Bureau of Investigation (“FBI”) began investigating Oluwasegun Baiyewu (“Baiyewu”), another co-defendant in the instant case.

Per the Government's Response in Opposition, federal investigators ultimately discovered that Messrs. Omotayo, Adelekan, and Baiyewu, along with their co-defendants in the case at bar, “worked together from spring 2020 through fall 2021.” Id. at 4.

C. Criminal Case 21-cr-395 (RAM) (D.P.R.)

On May 31, 2023, a grand jury in the District of Puerto Rico returned a single-count Superseding Indictment charging Mr. Omotayo and four co-defendants with conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(h) and 3147. (Docket No. 86). The operative period of the Superseding Indictment is from on or about May 2020 through on or about October 2021. Id. ¶ 19. Among other allegations, the Superseding Indictment claims that:

On or about April 23, 2019, OLUWASEUN ADELEKAN and TEMITOPE OMOTAYO were charged by indictment in the United States District Court for the Southern District of New York, Criminal Case No. 19-00291. By orders dated April 25, 2019, the District Court in the Southern District of New York permitted ADELEKAN and OMOTAYO to remain on release status, that is, out of prison, while they awaited trial. Those orders notified ADELEKAN and OMOTAYO, respectively, of the potential effect of committing an offense while on pretrial release.

Id. ¶ 17. The Superseding Indictment also notes that Mr. Omotayo and Mr. Adelekan lived at the same residence in approximately September 2018 and June through July 2020, and that Mr. Omotayo was on pretrial release in August 2020. Id. ¶¶ 31, 34, 63.

Defendant filed the pending Motion on June 12, 2024. (Docket No. 295). In it, he claims that the Superseding Indictment should be dismissed because the grand jury was prejudiced by the allegations about Mr. Omotayo's pretrial release status. Id. at 12. Specifically, he argues that due process was violated because the grand jury was biased against him. Id. at 2. He also requests disclosure of grand jury transcripts for an in-camera review. Id. at 9.

The Government timely responded on June 27, 2024. (Docket No. 314). It claims that there was no prosecutorial misconduct because section 3147 imposes a sentencing enhancement that could potentially increase Mr. Omotayo's applicable sentence and, therefore, it must be alleged in the Superseding Indictment. Id. at 8-9. Moreover, the Government argues that Defendant cannot show that he was prejudiced. Id. at 9-11.

II. DISCUSSION

The grand jury is an essentially independent institution that operates under judicial supervision; thus, “courts afford grand jury proceedings a presumption of regularity.” United States v. Flemmi, 245 F.3d 24, 28 (1st Cir. 2001) (citing United States v. Johnson, 319 U.S. 503, 513 (1943)). The presumption attaches to superseding indictments as well. See Flemmi, 245 F.3d at 28. In general, therefore, an “indictment returned by a legally constituted and unbiased grand jury . . . if valid on its face, is enough to call for trial of the charge on the merits.” Costello v. United States, 350 U.S. 359, 363 (1956). Although “prosecutors do not have carte blanche in grand jury matters,” the party challenging the presumption of regularity “must shoulder a heavy burden.” Flemmi, 2475 F.3d at 28 (citations omitted). A defect requiring dismissal of the indictment must be “so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 802 (1989).

Where, as here, a defendant alleges that prosecutorial misconduct has affected the grand jury, there are two types of error. Constitutional error occurs when the “structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice.” Bank of Nova Scotia v. United States, 487 U.S. 250, 257 (1988) (referring to cases involving race- or sex-based discrimination in the selection of grand jurors as examples of errors of constitutional magnitude). Nonconstitutional error is adjudged under the harmless error standard laid out in Bank of Nova Scotia, where the Supreme Court held that a district court has:

no authority to dismiss the indictment on the basis of prosecutorial misconduct absent a finding that [the defendant was] prejudiced by such misconduct. The prejudicial inquiry must focus on whether any violations had an effect on the grand jury's decision to indict. If violations did substantially influence this decision, or if there is grave doubt that the decision to indict was free from such substantial influence, the violations cannot be deemed harmless.

Id., 487 U.S. at 263. The defendant bears the burden of showing that he was prejudiced. United States v. Jackson, 58 F.4th 541 at 554 (1st Cir. 2023).

A. There has been no constitutional violation of the presumption of innocence

Here, Defendant claims that constitutional error was committed by the Government when it violated his presumption of innocence and prejudiced the grand jury by referencing to pretrial release in paragraphs 17 and 63 of the Superseding Indictment. (Docket No. 295 at 1-2). However, Mr. Omotayo conflates the purpose and duties of the grand and petit juries. The grand jury's “singular role” is to “find[] the probable cause necessary to initiate a prosecution for a serious crime.” Kaley v. United States, 571 U.S. 320, 328 (2014). The grand jury does not adjudge guilt, as Mr. Omotayo claims-it only considers whether probable cause exists such that a true bill can be returned. By contrast, the petit jury must be instructed on the presumption of innocence, referring primarily to a defendant's right to be judged only on evidence presented at trial, and not, for example, based on the charges in the indictment. See Taylor v. Kentucky, 436 U.S. 478, 485-86 (1978).

Grand juries also serve an investigative function. Importantly, “neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries may act.” Costello, 350 U.S. at 362. To the extent that the grand jury heard evidence about Mr. Omotayo's SDNY Indictment and his actions on pretrial release, that evidence is permissible. Defendant alleges no violation that rises to the level of constitutional harm.^[2]

B. Inclusion of allegations related to section 3147 is proper

Defendant also claims that the Government's reference to section 3147 was unduly prejudicial because there was no need for the statute or facts supporting it to be alleged in the Superseding Indictment. (Docket No. 295 at 4-5). An indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). It should also include the “official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.” Id. Specifically, the indictment must set out the crime and each of its elements. See United States v. Miller, 471 U.S. 130, 136 (1985); Almendarez- Torres v. United States, 523 U.S. 224, 228 (1998). Crucially, “an indictment must do more than simply repeat the language of the criminal statute.” Russell v. United States, 369 U.S. 749, 764 (1962). That being said, “the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime.” Id. The remedy for surplusage is to strike such language from the indictment, rather than dismissal of the indictment. See Fed. R. Crim. P....