Filed: Mar. 12, 2010
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4911 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PATRICIA OMONDI, a/k/a Patricia Sanfo, a/k/a Patricia O’Mundy, Defendant - Appellant. No. 08-4912 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BOUREIMA SANFO, a/k/a Abraham Sanfo, a/k/a Ibraham Sanfo, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (8:07-cr-00197
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4911 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PATRICIA OMONDI, a/k/a Patricia Sanfo, a/k/a Patricia O’Mundy, Defendant - Appellant. No. 08-4912 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BOUREIMA SANFO, a/k/a Abraham Sanfo, a/k/a Ibraham Sanfo, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (8:07-cr-00197-..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4911
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICIA OMONDI, a/k/a Patricia Sanfo, a/k/a Patricia
O’Mundy,
Defendant - Appellant.
No. 08-4912
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOUREIMA SANFO, a/k/a Abraham Sanfo, a/k/a Ibraham Sanfo,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:07-cr-00197-DKC-1; 8:07-cr-00197-DKC-2)
Submitted: February 11, 2010 Decided: March 12, 2010
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy J. Sullivan, William A. Mitchell, Jr., BRENNAN, SULLIVAN
& MCKENNA, LLP, Greenbelt, Maryland; Stephanie Gallagher, LEVIN
& GALLAGHER, LLC, Baltimore, Maryland, for Appellants. Rod J.
Rosenstein, United States Attorney, Mara B. Zusman, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Patricia Omondi and Boureima Sanfo (“Defendants”),
wife and husband, appeal their convictions for interstate
transportation of property obtained by fraud, money laundering,
and obstruction of justice, alleging violations of the Fifth and
Sixth Amendments of the United States Constitution arising out
of the pretrial seizure of funds, and also challenging the
sufficiency of the evidence to support their convictions for
obstruction of justice. For the reasons that follow, we affirm.
I.
Defendants operated a scheme to defraud victims out of
deposits for lot purchases and construction of homes.
Defendants held themselves out as executives of Construction
Consulting and Management, a purported residential home builder
that promised, in addition to constructing the homes, to secure
the relevant permits and financing. After their victims paid
deposits, Defendants pocketed the money without ever working on
the homes.
In July of 2006, almost two years prior to the trial
in this case, Special Agent Philip Soto of the Secret Service
swore an affidavit of probable cause supporting a seizure
warrant of up to $202,435. Based on this testimony, stop
payment orders were issued on three $95,000 cashier’s checks
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withdrawn by Omondi from her accounts at Branch Banking and
Trust Co. (“BB&T”). Additionally, a magistrate judge issued two
seizure warrants pursuant to 18 U.S.C.A. § 981 (West 2006 &
Supp. 2009) for all currency in Omondi’s BB&T accounts and
proceeds from the stop payment orders on the three $95,000
checks. The warrants did not limit Defendants’ forfeiture
liability to $202,435. However, upon execution of the warrants,
the Government seized only $10,078 from Defendants’ BB&T
accounts. The Government also failed to locate the three
cashier’s checks.
A few months later, Sanfo and Omondi deposited the
three $95,000 checks into a newly opened savings account at Burk
and Herbert Savings Bank. In compliance with the stop payment
orders, Burke and Herbert Savings Bank returned the checks to
BB&T, which deposited the checks into an official BB&T account.
On November 7, 2006, a magistrate judge issued another seizure
warrant for all proceeds of the three $95,000 checks up to
$202,435 at BB&T. The Government executed the third seizure
warrant, seizing $202,435, for an aggregate seizure of $212,513,
which exceeded the authorized amount by $10,078. On the
execution date, the Government served a copy to “Gigi Frio, BB&T
Corporate Security,” and claims to have sent a copy to
Defendants’ then-attorney. BB&T held Defendants’ unseized
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balance of $82,565 until prompted by defense counsel’s telephone
calls to release the funds to Defendants.
On April 25, 2007, a federal grand jury returned a
thirteen count indictment charging Defendants with nine counts
of interstate transportation of property obtained by fraud in
violation of 18 U.S.C. § 2314 (2006), three counts of money
laundering in violation of 18 U.S.C. § 1957 (2006), and one
count of obstruction of justice in violation of 18 U.S.C. § 1503
(2006). The indictment also contained a forfeiture allegation
for $202,435, representing the fruits of the crimes involved in
the criminal investigation.
On March 25, 2008 -- after the indictment, and before
the trial -- in an attempt to recover the $10,078 in excessively
seized funds, Omondi filed a pre-trial motion for return of
property pursuant to Fed. R. Crim. P. 41(g) on March 20, 2008.
Conceding that it had seized $10,078 in error, the Government
agreed to return that sum to Defendants. Defendants also
requested that the court hold an evidentiary hearing to
determine what had happened to the remaining $82,565, which BB&T
had set aside while complying with the Government’s warrants,
but the Government had never seized. The district court
determined that this request went beyond the scope of a motion
to return property, and declined to hold an evidentiary hearing
because the funds were not in the Government’s possession.
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However, the court admonished the Government to cooperate with
Defendants to secure the return of any additional funds held by
BB&T.
The matter proceeded to trial with Defendants being
represented by appointed counsel and the Assistant Federal
Public Defender without objection or request for substitution of
counsel. On April 25, 2008, a jury convicted Defendants on all
but one fraud count.
On April 28, Defendants filed a post-trial motion
challenging the sufficiency of the evidence supporting their
convictions and voicing an intention to file more detailed
motions later. On July 10, Defendants filed those motions,
arguing for the first time that the Government’s failure to
serve the November seizure warrant on Defendants left them with
the false impression that the Government had seized the entire
balance of their bank accounts. As a result, Defendants argued,
they had failed to realize that they had funds on hand to pay a
private attorney. Defendants thus claimed that the Government
denied their Sixth Amendment right to counsel of their choosing.
The district court held that because it had not authorized
Defendants to file a supplemental, tardy motion, the July 10
motion was untimely. In the alternative, the court rejected
Defendants’ Sixth Amendment claim on the merits. It found the
evidence otherwise sufficient to sustain the jury’s verdicts.
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The district court sentenced Omondi and Sanfo each to
concurrent terms of thirty-seven months’ imprisonment followed
by three years’ supervised release. Additionally, the district
court entered forfeiture orders, and imposed assessments of
$1200, fines of $10,000, and restitution of $185,135.
Defendants timely noted this appeal.
II.
Defendants argue first that the Government’s failure
to provide adequate notice of the seizures, the Government’s
seizure of $10,078 in excess funds, and the district court’s
denial of a Rule 41(g) hearing deprived them of a Fifth
Amendment right to due process and violated their Sixth
Amendment right to retain counsel of their choice.
Defendants clarify that they do not challenge the
district court’s order holding this claim time-barred; and we
therefore consider their claim as though raised for the first
time on appeal, and thus review under the exacting plain error
standard, which requires the appellant to show that: (1) there
was error; (2) the error was “plain”; and (3) the error affected
Defendants’ substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993); United States v. Lynn,
592 F.3d 572, 577
(4th Cir. 2010). Even if the appellant makes this showing, we
exercise our discretion to correct the error only if it
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“seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Lynn, 592 F.3d at 577 (internal
quotation marks omitted).
Defendants do not claim that they did not receive any
notice of the seizures, as they received the July seizure
warrants. Rather, they contend that the notice was inadequate
because it did not state the exact amount of the seizure, which
caused them to mistakenly believe that the Government had seized
all of their funds, leaving nothing that they could use to pay
their attorney. Defendants also argue that the Government’s
seizure warrants precipitated BB&T’s decision to hold $82,565 of
their money in an account over which they had no control, and
that the Government therefore deprived them of those funds.
Defendants’ argument fails because they cannot show
that any error affected their substantial rights. First,
Defendants had ample notice of the seizure of their funds,
including seizure warrants issued in July of 2006. The actual
seizure took place, and Defendants knew that it took place, in
late 2006. From that point, they had the ability to request a
hearing to show probable cause to seize the funds. The fact
that Defendants thought that the Government had seized all of
their money, as opposed to only $202,435, gave them more, and
not less, reason to inquire about the basis for the seizure.
The grand jury returned the indictment on April 25, 2007,
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putting Defendants on notice that they would need a criminal
defense attorney. Surely, Defendants had sufficient notice and
time to ascertain the whereabouts of their funds. Furthermore,
after Defendants filed their Rule 41(g) motion for return of
property in March of 2008, they received a pretrial hearing
regarding their motion, in which they recovered all of the
improperly seized funds, and became aware that BB&T was holding
more than $85,000 of their funds, further indicating that any
defect in Defendants’ notice had no effect on their substantial
rights. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 314-15 (1950) (notice must be reasonably calculated to
apprise interested parties of pendency of action and afford them
an opportunity to object).
We also find that the district court did not err in
declining to grant a Rule 41(g) hearing to allow Defendants the
opportunity to question the federal agent as to BB&T’s
disposition of funds the Government never seized or possessed.
See United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007);
United States v. Solis,
108 F.3d 722, 722 (7th Cir. 1997)
(denying Rule 41(g) motion when Government never had possession
of property). The Government offered to assist Defendants in
securing the prompt return of these funds from BB&T, and the
Constitution certainly requires no more than that.
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Defendants’ Sixth Amendment argument fares no better.
Defendants failed to produce sufficient factual support for
their claim that private counsel would have represented them had
they had earlier access to the $10,078 overage wrongfully seized
by the Government, the $82,565 from the bank, or the aggregate
of the two. Furthermore, Defendants failed to produce credible
evidence that the Government was responsible for Defendants’
delay in accessing the $82,565 non-seized balance from BB&T.
Consequently, we find no plain error affecting Defendants’
substantial rights.
III.
Defendants also challenge the sufficiency of the
evidence supporting their convictions for obstruction of
justice. A defendant challenging the sufficiency of the
evidence bears a heavy burden. We must sustain a jury verdict
“if there is substantial evidence, taking the view most
favorable to the Government, to support it. See Glasser v.
United States, 315 U.S. 60, 80 (1942); United States v. Burgos,
94 F.3d 849, 862 (4th Cir. 1996) (en banc).
To support a conviction for obstruction of justice,
the Government must prove: (1) a pending judicial proceeding;
(2) of which Defendants had knowledge or notice; and (3) that
Defendants “acted corruptly, that is with the intent to
10
influence, obstruct, or impede that proceeding in its due
administration of justice.” United States v. Grubb, 11 F.3d
426, 437 (4th Cir. 1993) (footnote omitted). Additionally, a
nexus must exist with the judicial or grand jury proceedings.
See United States v. Aguilar,
515 U.S. 593, 599 (1995)
(requiring “a relationship in time, causation, or logic with the
judicial proceedings”). Intent to influence an ancillary
proceeding independent of the court’s or grand jury’s authority
is insufficient to establish the requisite nexus.
Id.
The Government charged that Defendants had requested
Mohamad Al-Shalabi, a civil engineer, to backdate feasibility
studies relating to the construction of the homes. Al-Shalabi
had actually completed the studies in September 2006, but
Defendants requested that he backdate them to the summer of 2005
in order to create the appearance that they were, in fact,
working on the studied properties at that time.
On appeal, Defendants argue that they did not act
corruptly because Al-Shalabi actually had started work on the
feasibility studies in 2005, and therefore the backdating was
designed to more accurately portray reality. Defendants point
to testimony from Al-Shalabi stating that he did nothing wrong
or unprofessional by backdating the studies to 2005.
We find the testimony of Secret Service Agent Philip
Soto and of Al-Shalabi provided sufficient evidence for a jury
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to find beyond a reasonable doubt that Defendants’ knowledge of
the ongoing grand jury investigation prompted them to act
corruptly. In 2006, when faced with an ongoing grand jury
investigation, Defendants requested Al-Shalabi to backdate
invoices and feasibility reports to indicate that feasibility
studies were performed approximately one year earlier. The
evidence at trial showed that in 2005 Al-Shalabi had merely
performed a cursory evaluation of two properties listed in the
indictment and had not opened a file, created a report,
generated a bill, or communicated with Defendants again until
approximately one year later when they requested the backdated
documents for presentation in the grand jury investigation. Al-
Shalabi’s perception that he did nothing wrong or unprofessional
by backdating the documents is of no consequence. See United
States v. Erickson, 561 F.3d 1150, 1160 (10th Cir. 2009)
(finding obstruction of justice conviction supported by
presentation of manufactured evidence (backdated documents) even
if the manufacturer thought the evidence supported reality).
Furthermore, we find the nexus requirement of Aguilar
satisfied. The record contains sufficient evidence that
Defendants should have reasonably foreseen obstruction of
justice as a natural and probable consequence of presenting
backdated documents to the case agent involved with the grand
jury investigation. See United States v. Neiswender, 590 F.2d
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1269, 1273 (4th Cir. 1979); see also United States v. Furkin,
119 F.3d 1276, 1283 (7th Cir. 1997) (finding evidence sufficient
to support guilty verdict for obstruction of justice for
requesting backdated leases which had the “natural and probable
effect” of interfering with the grand jury investigation). We
conclude that a reasonable trier of fact, viewing the evidence
in the light most favorable to the Government, could have found
sufficient evidence to support Defendants’ guilty verdicts for
obstruction of justice beyond a reasonable doubt.
IV.
Finding no plain error affecting Defendants’
substantial rights regarding their alleged violations of their
rights to due process and counsel of their choice, and finding
sufficient evidence to support the jury’s verdicts of
obstruction of justice, we affirm Omondi’s and Sanfo’s
convictions and sentences. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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