Filed: Nov. 15, 1996
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 93-2486 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS MOYOSORE ISMOILA; SEGUN DEBOWALE; NURATU LAWANSON, Defendants-Appellants. * * * No. 95-20171 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS MOYOSORE ISMOILA, Defendant-Appellant. Appeals from the United States District Court for the Southern District of Texas November 13, 1996 Before DUHÉ and DENNIS, Circuit Judges, and DUVAL, District Judge.1 DUHÉ, Circuit Judge: Segun De
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 93-2486 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS MOYOSORE ISMOILA; SEGUN DEBOWALE; NURATU LAWANSON, Defendants-Appellants. * * * No. 95-20171 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS MOYOSORE ISMOILA, Defendant-Appellant. Appeals from the United States District Court for the Southern District of Texas November 13, 1996 Before DUHÉ and DENNIS, Circuit Judges, and DUVAL, District Judge.1 DUHÉ, Circuit Judge: Segun Deb..
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-2486
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MOYOSORE ISMOILA;
SEGUN DEBOWALE; NURATU LAWANSON,
Defendants-Appellants.
* * *
No. 95-20171
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MOYOSORE ISMOILA,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Texas
November 13, 1996
Before DUHÉ and DENNIS, Circuit Judges, and DUVAL, District Judge.1
DUHÉ, Circuit Judge:
Segun Debowale and Nuratu Lawanson were convicted by a jury of
conspiracy to commit wire fraud, money laundering, and use of
unauthorized access devices, in violation of 18 U.S.C. § 371 (count
1); aiding and abetting wire fraud, in violation of 18 U.S.C. § 2
and 18 U.S.C. § 1343 (counts 2-9); aiding and abetting money
laundering, in violation of 18 U.S.C. § 2 and § 1956(a)(1)(A)(i),
(a)(1)(B)(i) (counts 10-15); and aiding and abetting the use of
unauthorized access devices, in violation of 18 U.S.C. § 2 and 18
U.S.C. § 1029(a)(2) (count 16). Moyosore Ismoila was convicted by
a jury of conspiracy to commit wire fraud, money laundering, and
use of unauthorized access devices, in violation of 18 U.S.C. § 371
(count 1); aiding and abetting wire fraud, in violation of 18
U.S.C. § 2 and 18 U.S.C. § 1343 (counts 2-9); and aiding and
abetting the use of unauthorized access devices, in violation of 18
U.S.C. § 2 and 18 U.S.C. § 1029(a)(2) (count 16). Lawanson was
sentenced to a total of thirty-two months imprisonment followed by
three years of supervised release. Debowale was sentenced to a
total of eighty-seven months imprisonment followed by five years of
supervised release, and was ordered to pay $360,689 in restitution.
Ismoila was sentenced to a total of sixty months imprisonment
followed by three years of supervised release, and was ordered to
1
District Judge of the Eastern District of Louisiana, sitting
by designation.
2
pay $111,008 in restitution. On appeal, the Appellants raise
multiple points of error. We affirm the convictions and sentences
of Debowale and Ismoila. We reverse the conviction of Lawanson on
Count 11, affirm on all other counts, vacate her sentence on Count
11, affirm her sentence on all other counts and render.
BACKGROUND
The Appellants defrauded various banks and credit card
companies by processing hundreds of fraudulent charges on stolen
credit cards to obtain cash. They posed as legitimate business
owners, which allowed them to obtain the electronic machinery by
which they processed false charges to the stolen credit cards.
Before describing the details of the Appellants’ scheme, a
review of the mechanics of a typical credit card transaction is
helpful. The primary victims of the conspiracy are known as
issuing banks. Issuing banks are members of VISA and MasterCard,
not-for-profit associations of member banks that operate a
worldwide communication system for financial transfers using credit
cards. Issuing banks issue credit cards to consumers, enabling
those consumers to make credit-card purchases at participating
businesses. To accept credit cards, businesses must open an
account with a merchant bank. Merchant banks, like issuing banks,
are members of VISA and MasterCard, but merchant banks have
accounts with businesses, not consumers. Once a business is
electronically connected with a merchant bank, it can accept a
consumer’s credit card by processing the credit card through a
point-of-sale terminal provided to it by the merchant bank. If the
3
merchant bank approves the sale, it immediately credits the
business for the amount of the consumer’s purchase. The merchant
bank then transmits the information regarding the sale to VISA or
MasterCard, who in turn forward the information to the bank that
issued the card to the consumer who made the purchase. If the
issuing bank approves the sale, it notifies VISA or MasterCard and
then pays the merchant bank at the end of the business day. The
issuing bank carries the debt until the cardholder pays the bill.
The Appellants opened approximately ten sham businesses and
applied for merchant accounts for those businesses with Comdata
Corporation, Western Union, Discover Card, and First Interstate
Bank of South Dakota. The Appellants used these businesses to
defraud the banks and credit card companies in two different ways.
In one method, the Appellants applied for merchant credit card
accounts for their sham businesses. At these businesses, the
Appellants processed stolen credit cards in sham transactions in
exchange for nonexistent merchandise. After these charges were
relayed to the merchant banks, those banks then deposited the
amount of each charge directly into the Appellants’ bank accounts,
and the Appellants withdrew the funds.2
The Appellants also set up sham check-cashing businesses for
2
The Appellants conducted most of their business through
First Interstate Bank of South Dakota, a merchant credit card
issuer. First Interstate employed a company named Cherry Payment
Systems that signed up merchants for them. Chidi Amaefule, non-
appealing co-defendant, was a salesman for Cherry Payments, and as
part of his job, he certified that Appellants owned legitimate
businesses, thus enabling them to get MasterCard and VISA merchant
accounts. The Appellants also defrauded Discover Card, a company
that is both a merchant and issuing bank.
4
which they obtained accounts with Comdata and Western Union. At
these businesses, the Appellants used the stolen credit cards to
purchase “Comcheks” issued by Comdata Corporation or “Flash Cash”
checks issued by Western Union. The Appellants then deposited the
Comcheks into their business bank accounts or had Western Union
deposit the amount of the Flash Cash checks into these accounts,
and later withdrew the funds.
The issuing companies became aware of the fraudulent
transactions when the holders of the stolen cards complained that
they had not made the charges listed on their respective bills.
The scheme involved approximately 270 cardholders and 44 different
issuing banks. Charges of $539,135 were made on these credit cards
at the Appellants’ businesses, all but $16,350 of which were
confirmed to be fraudulent.
The Government presented the testimony of five credit
cardholders, and representatives from Comdata, Western Union, First
Interstate, Discover, MasterCard, and four issuing banks. In
addition, the prosecution introduced records of 44 issuing banks
that reflected account information of 270 cardholders. There was
also testimony from the employees of the banks into which the
Appellants deposited the proceeds from their conspiracy and the
owners of property on which the fraudulent businesses were located.
In addition, Special Agent Judy Sly testified as to the details of
her investigation, and the Government introduced evidence seized
during the execution of a search warrant at one of the businesses.
Finally, the Government produced the testimony of Taiwo Oyewuwo,
5
a.k.a. Adetoye Falusi, a member of the conspiracy who pled guilty
and agreed to testify for the Government.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
Lawanson first asserts that the evidence was insufficient to
sustain her convictions. She was convicted on all counts
encompassing four different offenses: conspiracy (count 1); aiding
and abetting wire fraud (counts 2-9); aiding and abetting money
laundering (counts 10-15); and aiding and abetting the use of
unauthorized access devices (count 16). The Government concedes
that the evidence was insufficient to support Lawanson’s conviction
on count 11, and thus we reverse her conviction and vacate her
sentence on that count. On all other counts the evidence was
sufficient.
A. Standard of Review
We review the sufficiency of the evidence in “the light most
favorable to the verdict, accepting all credibility choices and
reasonable inferences made by the jury.” United States v. McCord,
33 F.3d 1434, 1439 (5th Cir. 1994) (internal quotations omitted),
cert. denied,
115 S. Ct. 2558 (1995). A conviction must therefore
be upheld if a rational jury could have found that the prosecution
proved the essential elements of the crime charged beyond a
reasonable doubt.
Id. It “‘is not necessary that the evidence
exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.’”
Id.
(quoting United States v. Bell,
678 F.2d 547, 549 (5th Cir. 1982),
6
aff’d, 462 U.S. 356 (1983)). This standard of review is the same
regardless whether the evidence is direct or circumstantial.
United States v. Cardenas,
9 F.3d 1139, 1156 (5th Cir. 1993), cert.
denied,
114 S. Ct. 2150 (1994).
B. Discussion
Lawanson concedes that there was sufficient evidence for a
reasonable jury to find a conspiracy and that wire fraud, money
laundering, and use of unauthorized access devices occurred. She
asserts, however, that the Government failed to prove that she
knowingly participated in the fraudulent scheme.
1. The Elements of Each Offense
To satisfy the intent requirement of conspiracy, the
Government must show that Lawanson knew of the conspiracy and
voluntarily joined it, United States v. Chaney, 964 F.2d 437, 449
(5th Cir. 1992), and that Lawanson had the requisite intent to
commit the underlying substantive offenses. United States v.
Buford,
889 F.2d 1406, 1409 n.5 (5th Cir 1989). Because the
Government proceeded under the theory that Lawanson aided and
abetted the substantive violations, it is not necessary to prove
that Lawanson herself completed each specific act charged in the
indictment. The Government must prove, however, that she
associated with the criminal venture such that she had the same
criminal intent as the principal. See United States v. Murray,
988
F.2d 518, 522 (5th Cir. 1993). “To aid and abet simply means to
assist the perpetrator of a crime while sharing the requisite
criminal intent.” United States v. Jaramillo,
42 F.3d 920, 923
7
(5th Cir.), cert. denied, 115 S. Ct. 2014 (1995).
The intent necessary for wire fraud is the specific intent to
defraud or deceive, although proof of such intent can arise “by
inference from all of the facts and circumstances surrounding the
transactions.” United States v. Keller, 14 F.3d 1051, 1056 (5th
Cir. 1994) (internal quotations omitted). To convict Lawanson of
money laundering, the Government must prove either that she
intended to promote the carrying on of an unlawful activity or knew
that the transaction was designed to conceal the proceeds of an
unlawful activity. United States v. Garza,
42 F.3d 251, 253 (5th
Cir. 1994), cert. denied,
115 S. Ct. 2263 (1995). Finally, to
convict for use of unauthorized access devices, the Government must
prove that Lawanson acted knowingly and with the intent to defraud,
although proof of such intent may be established with
circumstantial evidence. United States v. Goodchild,
25 F.3d 55,
59-60 (1st Cir. 1995).
2. The Evidence
Lawanson essentially makes two arguments. First, she contends
that, although her name and apparent signature appear on many of
the documents that the Government introduced into evidence, the
Government offered no proof that she had actually signed her name
on the documents. Second, Lawanson asserts that even if she did
participate in some of the transactions described in the indictment
as “overt acts,”3 the Government still failed to prove that this
3
Lawanson concedes that a reasonable jury could have found
that “some” of the signatures were genuine.
8
participation was sufficient to show that she had the requisite
knowledge and intent required for conviction.
Lawanson points out that the Government did not undertake a
handwriting analysis of any of the signatures; that the limited
fingerprint analysis did not inculpate her; that no witnesses saw
her sign any of the documents; and that there was testimony that
her husband, Segun Debowale, had used Lawanson’s name as part of
the illegal scheme. Lawanson contends that such evidence calls
into question whether she signed the documents on which her name
appears.
The evidence suggests otherwise. The Government introduced
two Texas driver’s licenses into evidence, one bearing the name
Nuratu Ronke Lawanson and the other bearing the name Abiodun K.
Lawanson. Each of these licenses contained a photograph and a
signature. A reasonable jury could conclude that both photos were
that of Lawanson4 and that the signatures were her’s as well. A
jury is entitled to draw its own conclusion as to the genuineness
of signatures by making a comparison with an authentic signature.
United States v. Jenkins, 785 F.2d 1387, 1395 (9th Cir.), cert.
denied,
479 U.S. 855,
479 U.S. 889 (1986); United States v. Cashio,
420 F.2d 1132, 1135 (5th Cir. 1969), cert. denied,
397 U.S. 1007
(1970); Fed. R. Evid. 901(b)(3). In this case, the signature on
the driver’s licenses bearing Lawanson’s picture served as an
authentic signature, and by comparison, a reasonable trier of fact
4
Agent Judy Sly testified that both pictures depicted
Lawanson.
9
could determine that Lawanson’s signature on the other documents
was genuine.
The determination that Lawanson signed the various financial
documents is crucial to the jury’s finding of guilt because it is
her signature on many of the business records that connects her to
the fraudulent scheme. First, she filed assumed name certificates
as the owner of Cheques Cashed, Designer’s Outlet, and ADE Postal
Services, three of the phony businesses used to further the scheme.
Second, Lawanson applied for merchant credit card accounts with
First Interstate Bank of South Dakota for the businesses called
Checks Cashed and Designer’s Outlet. Again, Checks Cashed and
Designer’s Outlet were fake businesses, and First Interstate is one
of the merchant credit card issuers whose wire transfers to the
fake businesses formed the basis of four counts of wire fraud.
Third, Lawanson opened bank accounts at First National Bank for ADE
Cheques Cashed and at Texas Capitol Bank for Designer’s Outlet, two
of the banks about which the money laundering counts revolved. An
employee of Texas Capital Bank met Lawanson the day after she
attempted to wire $7,000 to Nigeria and identified her in court as
the signatory on the Designer’s Outlet account. Lawanson’s
signature also appears as maker on many Designer’s Outlet checks
made payable to Segun Debowale, Nuratu Lawanson, and Chidi Amaefule
(all co-conspirators in this scheme). Further, Lawanson’s
signature appears on the back of some of these checks, indicating
that she tendered or cashed these checks. A reasonable jury could
find that these signatures on all of these documents match those on
10
the Texas driver’s licenses.
Lawanson questions the authenticity of the signatures because
a Western Union agent identified Segun Debowale as Lawanson.
Lawanson argues that this evidence suggests that Debowale signed
Lawanson’s name on Western Union’s agreement with ADE Cheques
Cashed (dba National Cash Express), and, by implication, on other
documents. But this evidence cuts both ways. The signature on the
two Western Union documents does not appear to match the signatures
on Lawanson’s driver’s licenses and the other documents discussed
above. A reasonable jury could therefore conclude, based upon the
eyewitness identification of Debowale as Lawanson, that these
signatures belonged to Debowale. The jurors could also infer that
while the signature on the two Western Union documents belonged to
Debowale, the other signatures belonged to Lawanson.5 Furthermore,
there were signatures on other Western Union/National Cash Express
documents that did not match Debowale’s signature but did match the
signatures from Lawanson’s driver’s licenses.6
The Government also introduced other evidence establishing
5
In addition, Lawanson’s signature on a Bank One/National Cash
Express document does not appear to match those on her driver’s
licenses. National Cash Express, however, is the business for
which Debowale was identified as signing Lawanson’s name, giving
rise to the inference that he signed these documents and that thus
Lawanson signed the others.
6
The two signatures are quite distinctive. The signatures
that belong to Lawanson contain a curved “L” at the beginning of
the name Lawanson, while the signatures that belong to Debowale
contain a sharp “L” at the beginning of the name Lawanson.
Further, the “L” in Debowale’s signature of Lawanson’s name also
matches the “L” that is found in Debowale’s signature of his own
name.
11
Lawanson’s guilt. The fact that Lawanson had two Texas driver’s
licenses, bearing different names and containing different personal
information, and operated the phony businesses using different
names, is circumstantial evidence of her unlawful intent.
Furthermore, an agent who conducted a surveillance of one of the
fake businesses observed Lawanson there on three occasions. Each
of the businesses that Lawanson was directly tied to was involved
in processing the stolen credit cards.
Despite the foregoing evidence, Lawanson argues that the
Government failed to prove that she had the necessary intent to be
convicted of conspiracy and the other substantive charges. We
disagree. Lawanson asserts that her conspiracy conviction must be
reversed because the above evidence establishes that she was
“merely present” during the commission of the illegal scheme and
that the only evidence tying her to the conspiracy was based on her
marital relationship with Debowale. It is true that a showing of
mere presence and association with those participating in a
conspiracy is insufficient to prove knowledge of and participation
in criminal activity, United States v. Jackson, 700 F.2d 181, 185
(5th Cir.), cert. denied,
464 U.S. 842 (1983), and that a
conspiracy cannot be proven solely by a family relationship.
United States v. Williams-Hendricks,
805 F.2d 496, 503 (5th Cir.
1986). That evidence, however, establishes that Lawanson was more
than merely present during the conspiracy and that her role in the
illegal scheme was not limited to her marital relationship with
Debowale. “[W]hen inferences drawn from the existence of a family
12
relationship or ‘mere knowing presence’ are combined with other
circumstantial evidence, there may be sufficient evidence to
support a conspiracy conviction.” Williams-Hendricks, 805 F.2d at
503.
Lawanson’s assertion that the evidence was insufficient to
prove that she had the requisite intent to be convicted of the
substantive crimes also lacks merit. Regarding the wire fraud
counts, Lawanson herself applied for merchant accounts with First
Interstate for two of the fake businesses and she filed assumed
name certificates for three of the sham businesses. The Government
also introduced evidence of wire communications: stolen or
fraudulent credit cards were used to make purchases of nonexistent
merchandise, Comcheks, and Flash Cash checks at the businesses to
which Lawanson was connected. This evidence is sufficient to allow
a reasonable jury to conclude that Lawanson participated in a
scheme to defraud and that she used wire communication in
furtherance of this scheme. See United States v. Dula, 989 F.2d
772, 778 (5th Cir.), cert. denied,
114 S. Ct. 172 (1993). Further,
a reasonable trier of fact could find that Lawanson acted with the
specific intent to defraud because unlawful intent to defraud may
be proven by circumstantial evidence. See United States v.
Aggarwal,
17 F.3d 737, 740 (5th Cir. 1994). The paper trail
connecting Lawanson to the phony businesses is sufficient to prove
her membership in the scheme to defraud, and once membership is
established, a knowing participant is liable for any wire
communication that takes place in connection with the scheme.
13
Dula, 989 F.2d at 778.
The Government proved beyond a reasonable doubt that Lawanson
aided and abetted money laundering. Specifically, the Government
alleged that by depositing the illegally-obtained Comcheks into the
bank accounts of the fraudulent businesses and withdrawing funds
from these accounts, Lawanson intended to promote an illegal
activity and designed to conceal the nature of these proceeds. See
Garza, 42 F.3d at 253. The Government may show either that
Lawanson knowingly designed to conceal the proceeds of an illegal
activity or that she intended to promote the carrying on of
unlawful activity. Id.; 18 U.S.C. § 1956(a)(1)(A)(i),
(a)(1)(B)(i). To establish that Lawanson designed to conceal the
proceeds of an illegal activity, the Government must prove more
than just innocent money spending, although it is sufficient to
show that the transaction is part of a larger scheme designed to
conceal illegal proceeds. United States v. Willey,
57 F.3d 1374,
1385-86 (5th Cir.), cert. denied,
116 S. Ct. 675 (1995). Intent to
promote the illegal activity can be established by showing the
defendant used the illegal proceeds to promote the unlawful scheme
by presenting herself as a legitimate business owner. See United
States v. Alford,
999 F.2d 818, 824 (5th Cir. 1993). Lawanson
opened up two separate bank accounts for three of the phony
businesses; attempted to wire $7,000 to Nigeria; signed many checks
payable to herself and co-conspirators; and owned businesses into
whose bank accounts the Comcheks were deposited. This evidence is
sufficient to prove both that the bank transactions were part of a
14
larger scheme designed to conceal the illegal activity and that
Lawanson promoted the unlawful endeavor by presenting herself as a
legitimate business owner. The multiple transactions were part of
an overall scheme designed to conceal the illegal proceeds in that
the proceeds generated by one phony business run by one co-
conspirator were often deposited in the bank account of another
sham business owned by a different co-conspirator. In addition, by
depositing the Comcheks into the bank accounts, Lawanson gave the
appearance that she was operating a legitimate business by
accepting Comcheks in exchange for merchandise, when in reality
there was no purchase of goods and only a deposit of illegal funds.
In fact, the entire scheme was premised on the fraud that Lawanson
and her co-conspirators were operating legitimate businesses,
because this influenced the banks and merchant credit card
companies to do business with the conspirators.
Finally, the evidence is sufficient to convict Lawanson of
aiding and abetting the use of unauthorized access devices. Stolen
credit cards are one type of unauthorized access device, 18 U.S.C.
§ 1029(e)(1), (e)(3); United States v. Jacobowitz, 877 F.2d 162,
165 (2d Cir.), cert. denied,
493 U.S. 866 (1989), and the
Government produced ample evidence that stolen credit cards were
used at the sham businesses. Proof that Lawanson herself used the
specific credit cards described in the indictment is not necessary
because the Government proceeded under the theory that Lawanson
aided and abetted in the use of stolen credit cards. The
Government was simply required to prove that Lawanson became
15
associated with, participated in, and in some way acted to further
the use of the stolen credit cards. See United States v. Chavez,
947 F.2d 742, 746 (5th Cir. 1991). Although the Government must
prove that Lawanson acted with the intent to defraud, such intent
may be proven by circumstantial evidence.
Goodchild, 25 F.3d at
60. The extensive paper trail tying Lawanson to the phony
businesses satisfies all of the necessary elements. See
Chavez,
947 F.2d at 746 (noting that the same evidence will typically
support both a conspiracy and an aiding and abetting conviction).
II. ADMISSION OF BANK RECORDS
The Government offered and the court admitted records from 44
banks regarding 270 credit card customers containing, among other
things, customers’ statements that their credit cards were stolen.
The records were introduced through fraud investigators from Chase
Manhattan Bank, Discover, AT&T Universal, Citibank, and MBNA
American National Association (five of the issuing banks).
All three Appellants argue that the district court erred by
admitting these documents, because they contained hearsay, and in
some instances, double hearsay, and therefore violated their Sixth
Amendment right to confront witnesses. We review a district
court’s evidentiary rulings for abuse of discretion. United States
v. Moody, 903 F.2d 321, 326 (5th Cir. 1990). Confrontation Clause
errors are subject to harmless-error analysis. Delaware v. Van
Arsdall,
475 U.S. 673, 680-82 (1986); United States v. Stewart,
93
F.3d 189, 194 (5th Cir. 1996). We see no abuse of discretion.
There were essentially two types of records in which the
16
hearsay statements appeared.7 First, the Government introduced
letters and affidavits from the cardholders stating that their
cards had been lost, stolen, or not received, and that their
account bills contained unauthorized charges. Typically, these
affidavits were standard forms sent by the credit card issuers to
the cardholders, who in turn filled out the affidavits and returned
them to the issuing banks. In some cases, the cardholders
themselves wrote letters to the issuing banks stating that their
bills contained unauthorized charges. Along with the affidavit or
letter, some cardholders also returned a copy of their bill on
which they marked the fraudulent charges.
Second, the Government introduced computerized printouts
generated by the issuing banks. These printouts were essentially
reports of phone calls made by cardholders to bank personnel in
which the cardholders informed the bank that their credit cards
were lost, stolen, or had never been received. The cardholders
relayed this information orally to the bank personnel, who in turn
entered the statements directly into the bank’s computer.
The Appellants objected to the admissibility of these records
as hearsay. The cardholders’ affidavits and letters are hearsay
because they contain the out-of-court statements of the credit
cardholders. The computer records containing the oral statements
are double hearsay. The first level of hearsay is the oral
statements made by the cardholders to the bank personnel. The
7
The parties agree that the statements at issue are hearsay;
they disagree as to whether they are admissible under exceptions to
the hearsay rule.
17
second level of hearsay consists of the bank records themselves
that were created when the bank employees recorded the oral
statements of the cardholders. The district court admitted the
records under the business records exception, Fed. R. Evid. 803(6),
and, to the extent that such records contained double hearsay, the
“catch-all” or “residual” exceptions, Fed. R. Evid. 803(24) and
Fed. R. Evid. 804(b)(5). The district court admitted the documents
only after hearing testimony concerning them from five cardholders
and five bank custodians.
Read literally, the Confrontation Clause could bar the use of
all out-of-court statements in a criminal case when the declarant
is unavailable, but the Supreme Court has rejected such an extreme
interpretation of the Clause. Idaho v. Wright, 497 U.S. 805, 814
(1990); Sherman v. Scott,
62 F.3d 136, 140 (5th Cir. 1995), cert.
denied,
116 S. Ct. 816,
116 S. Ct. 1279 (1996). In Ohio v.
Roberts, the Court noted that “when a hearsay declarant is not
present for cross-examination at trial, the Confrontation Clause
normally requires a showing that he is unavailable. Even then, his
statement is admissible only if it bears adequate ‘indicia of
reliability.’” Ohio v. Roberts,
448 U.S. 56, 66 (1980). The Court
later “clarified the scope of Roberts,” noting that the case
“stands for the proposition that unavailability analysis is a
necessary part of the Confrontation Clause inquiry only when the
challenged out-of-court statements were made in the course of a
judicial proceeding.” White v. Illinois,
502 U.S. 346, 354 (1992);
accord
Sherman, 62 F.3d at 140.
18
Hence the relevant inquiry in this case is whether the
evidence bears adequate indicia of reliability. Evidence is
considered reliable if it falls within a firmly rooted hearsay
exception or is otherwise supported by a showing of particularized
guarantees of trustworthiness. Roberts, 448 U.S. at 66; United
States v. Flores,
985 F.2d 770, 775 (5th Cir. 1993). The business
records exception is a firmly rooted hearsay exception. United
States v. Norton,
867 F.2d 1354, 1363 (11th Cir.), cert. denied,
491 U.S. 907,
493 U.S. 871 (1989). Residual or catch-all
exceptions generally are not.
Wright, 497 U.S. at 817. Therefore,
if the records are admissible under the business records exception,
no violation of the Confrontation Clause occurred. If, however,
the records are admissible under the residual exceptions, they must
be supported by particularized guarantees of trustworthiness to
avoid offending the Confrontation Clause.
A. The Business Record Exception
The Appellants challenge the admissibility of the records
under the business records exception on the ground that the
cardholders were not acting in the regular course of business when
they made the oral statements to the bank employees and supplied
the affidavits or letters to the issuing banks. We agree with the
Appellants that neither the cardholders’ oral statements nor their
written affidavits and letters fall within the business records
exception, Fed. R. Evid. 803(6). The business records exception
does, however, encompass one level of hearsay: the bank records
themselves and the computer recordation by bank personnel of the
19
oral statements of the cardholders.
The cardholders statements do not qualify as business records
of the cardholders because the business records exception “applies
only if the person who makes the statement ‘is himself acting in
the regular course of business.’” Rock v. Huffco Gas & Oil Co.,
Inc., 922 F.2d 272, 279 (5th Cir. 1991) (quoting Florida Canal
Industries, Inc. v. Rambo,
537 F.2d 200, 202 (5th Cir. 1976)). As
the Appellants correctly point out, it is not the regular course of
business for credit cardholders to fill out affidavits or otherwise
give information to their banks regarding stolen credit cards. See
United States v. Davis,
571 F.2d 1354, 1359 (5th Cir. 1978).
Second, the statements are not admissible as business records
of the issuing banks because of the double hearsay involved.
Double hearsay exists when a business record is prepared by
one employee from information supplied by another employee.
If both the source and the recorder of the information, as
well as every other participant in the chain producing the
record, are acting in the regular course of business, the
multiple hearsay is excused by Rule 803(6). However, if the
source of the information is an outsider, Rule 803(6) does
not, by itself, permit the admission of the business record.
The outsider’s statement must fall within another hearsay
exception to be admissible because it does not have the
presumption of accuracy that statements made during the
regular course of business have.
United States v. Baker, 693 F.2d 183, 188 (D.C. Cir. 1982) (citing
United States v. Davis,
571 F.2d 1354 (5th Cir. 1978)). In the
present case, the cardholders--outsiders to the companies that
generated the documents--were the sources of the information
contained in the records. So although Fed. R. Evid. 803(6)
provides an exception for one level of hearsay--that of the
documents themselves created by the employee who recorded the
20
cardholder statements--the sources of the information contained in
the records were the cardholders, and their statements must fall
within another hearsay exception to be admissible.8 See Baker, 693
F.2d at 188.
The Government cites many cases that affirm the admission,
under the business records exception, of a company’s business
records containing statements provided by outsiders. These cases,
however, all involve situations in which the double hearsay problem
was satisfied either by the use of multiple hearsay exceptions or
because the outsider who provided the statements was also acting in
the regular course of business. See, e.g., United States v.
Goodchild, 25 F.3d 55, 60 (1st Cir. 1994).
B. The Residual Exceptions
Although the statements of the cardholders do not qualify as
business records, both the written affidavits and the oral
statements made to the bank personnel are admissible under the
residual exceptions to the hearsay rule, Fed. R. Evid. 803(24) and
803(b)(5). The residual exceptions authorize the admission of
hearsay statements having “circumstantial guarantees of
trustworthiness” equivalent to those of the other enumerated
8
The record shows that the documents themselves satisfy the
requirements of Fed. R. Evid. 803(6). For example, Maureen Lentz,
a fraud investigator with AT&T Universal Card, testified that an
AT&T employee would take a report over the telephone from a
cardholder and enter that information into the computer, that the
computer records are records that “AT&T Universal would keep in the
normal course of business,” that they are “records that AT&T
Universal would rely on in the regular course of business,” and
that the “records contain information that were made at or near the
time of the events depicted therein by a person with knowledge.”
21
hearsay exceptions, as long as the trial court determines that the
statements are sufficiently material, probative, and in the
interests of justice. Fed. R. Evid. 803(24), 804(b)(5).
To satisfy the dictates of the Confrontation Clause, the
evidence must be sufficiently reliable, that is, it must be
supported by a showing of particularized guarantees of
trustworthiness. Roberts, 448 U.S. at 66. These particularized
guarantees of trustworthiness must be drawn from the totality of
the circumstances surrounding the making of the statement, but they
cannot stem from other corroborating evidence.
Wright, 497 U.S. at
820-22;
Scott, 62 F.3d at 140 & n.2. Although the Supreme Court’s
language in its decisions interpreting the Confrontation Clause
regarding trustworthiness and reliability appears similar to the
requirements set forth in the residual hearsay exceptions, we note
that the two inquiries are not identical and that evidence
admissible under the residual exceptions may still violate the
Confrontation Clause.
Wright, 497 U.S. at 814; United States v.
Shaw,
69 F.3d 1249, 1253 (4th Cir. 1995).
The written affidavits of the cardholders and the oral
statements made by the cardholders to the banks exhibit a high
degree of reliability such that admission does not offend the
Confrontation Clause. The Appellants impugn the reliability of the
cardholders’ statements on the grounds that the statements are
self-serving because the cardholders, by informing the banks that
they had not made specific charges, were able to avoid paying for
those charges. The record, however, suggests otherwise. A fraud
22
investigator at Citibank with 22 years of experience testified that
he had participated in over 1000 fraud investigations and that he
could remember only three or four instances in which the cardholder
was lying about not making the charges. In addition, the record
shows that issuing banks have an incentive to ensure the veracity
of the cardholders’ claims of fraud because loss due to fraud is
borne by the issuing banks. We thus believe that the affidavits of
the cardholders and the oral statements made to the bank personnel
exhibit a degree of reliability similar to that of the statements
judged admissible in United States v. Simmons, 773 F.2d 1455, 1460
(4th Cir. 1985) (holding that the admission, under Rule 803(24), of
an ATF gun certification form that had been filled out and signed
by a weapon manufacturer did not violate the Confrontation Clause
because the form was highly reliable).
In addition, the trustworthiness of the statements at issue is
so clear from the surrounding circumstances that cross-examination
of the 265 non-testifying cardholders would be of marginal utility.
See Wright, 497 U.S. at 820,
Shaw, 69 F.3d at 1253. In this case,
the trial court delayed ruling on the admissibility of the hearsay
statements until after the Government had presented the testimony
of five of the cardholders whose statements are at issue. The
Appellants’ cross-examination of these witnesses was minimal, and
they did not make an issue of whether these witnesses were being
untruthful. Finally, none of the Defendants in closing argument
attacked the credibility of the cardholders; the crux of the
defense was not whether the cards had been stolen. We thus
23
conclude that there was sufficient indicia of reliability
supporting the out-of-court statements by the credit cardholders
such that admission of these statements under the residual
exceptions to the hearsay rule does not violate the Appellants’
Sixth Amendment right to confront witnesses.
III. CONDITION OF SUPERVISED RELEASE
Debowale asserts that his Fourth and Fifth Amendment rights
were violated by a condition of his supervised release that
requires him “to provide the probation officer access to any
requested financial information.” We disagree.
Title 18 U.S.C. § 3583(d) allows the district court to order
any condition of supervised release that “it considers to be
appropriate,” so long as that condition:
(1) is reasonably related to the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is
reasonably necessary for the purposes set forth in section
3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued
by the Sentencing Commission pursuant to 28 U.S.C. 994(a).
18 U.S.C. § 3583(d).
The Sentencing Commission policy statements specifically
contemplate a condition of supervised release such as the one
imposed in this case. Section 5B1.4(b)(18) provides:
If the court imposes an order of restitution, forfeiture, or
notice to victims, or orders the defendant to pay a fine, it
is recommended that the court impose a condition requiring the
defendant to provide the probation officer access to any
requested financial information.
U.S.S.G. § 5B1.4(b)(18) (emphasis added). The district court
ordered Debowale to pay restitution of $380,689.23. The court’s
24
requirement that he provide access to any requested financial
information is thus not only “consistent with,” but is identical
to, the policy statement promulgated by the Sentencing Commission.
IV. THE SENTENCING CHALLENGES
We review the district court’s application and legal
interpretation of the sentencing guidelines de novo, United States
v. Domino, 62 F.3d 716, 719 (5th Cir. 1995), and its findings of
fact for clear error. United States v. Hooker,
997 F.2d 67, 75
(5th Cir. 1993).
A. Leadership Role
Debowale and Ismoila contend that the district court erred by
increasing their base offense levels by four levels for being
leaders or organizers pursuant to U.S.S.G. § 3B1.1(a). Debowale
maintains that the evidence is insufficient to show that he was a
leader or organizer, and Ismoila asserts that the evidence does not
show that the scheme involved five or more participants. We review
for clear error. United States v. Gonzalez, 76 F.3d 1339, 1345
(5th Cir. 1996); United States v. Valencia,
44 F.3d 269, 272 (5th
Cir. 1995). A finding is not clearly erroneous if it is plausible
in light of the entire record.
Valencia, 44 F.3d at 272. The
district court’s finding that Debowale and Ismoila were leaders or
organizers under § 3B1.1 was not clearly erroneous, and thus we
affirm.
To apply § 3B1.1(a), a court must find that the defendant was
the leader or organizer of a criminal activity, and that the
criminal activity involved five or more participants. A
25
defendant’s role in a criminal activity for the purposes of § 3B1.1
can be deduced inferentially from the available facts. Gonzalez,
76 F.3d at 1345.
The Presentence Investigation Report (“PSR”) establishes that
Debowale was a leader or organizer of the criminal activity. See
Gonzalez, 76 F.3d at 1346 (“Because the PSR has sufficient indicia
of reliability to support its probable accuracy, it may be
considered as evidence by the trial court at sentencing.”). The
PSR indicated that Debowale was the leader and organizer of over
five individuals who used the phony businesses to process false
charges to stolen credit cards. The evidence showed that Debowale
leased the premises located at 9914 South Gessner and 5905 South
Gessner in Houston, the places of business of seven of the
fraudulent businesses. Debowale himself owned many of the
businesses, and split the proceeds received from the stolen cards
on a 50/50 basis with the possessor of the stolen cards. The PSR
also indicates that Debowale had Nuratu Lawanson and Evelyn Olubiyi
working directly under him, as he instructed them to deposit money
into different bank accounts to conceal the scheme. Further,
evidence showed that Debowale often used Lawanson’s name when
dealing with a company that he defrauded. As part of the criminal
activity, Debowale also worked with Emmanuel Obajuluwa, a co-
possessor of Nationwide Check Cashing, and Busari Danian, who
operated Vantage Computers, two of the front businesses involved in
the conspiracy. Debowale used the services of Chidi Amaefule, who,
as an employee of Cherry Payment Systems, represented to First
26
Interstate Bank that Debowale’s fraudulent businesses were
legitimate.
Ismoila’s claim that the scheme did not involve at least five
individuals is similarly without merit. He relies on United States
v. Barbontin, which held that a minimum of five participants must
be involved in the precise transaction underlying the conviction.
907 F.2d 1494, 1497-98 (5th Cir. 1990) (referring to such
individuals as “transactional participants”). Specifically,
Ismoila contends that individuals identified by Taiwo Oyewuwo, a
co-conspirator who testified for the Government, did not rise to
the level of transactional participants. Oyewuwo testified that he
observed three Nigerians known only as “Charlie,” “Wale,” and
“Stone,” present fraudulent credit cards to Ismoila. Ismoila
contends that because these three people were not linked to any
precise credit card transaction, they are not transactional
participants under Barbontin.
Since Barbontin, however, decisions by this Court based upon
revisions to the Sentencing Guidelines have more broadly defined
what constitutes a transaction. The introductory commentary to
Chapter Three, Part B of the Sentencing Guidelines, effective
November 1, 1990, provides:
The determination of a defendant’s role in the offense is to
be made on the basis of all conduct within the scope of §
1B1.3 (Relevant Conduct), i.e., all conduct included under §
1B1.3(a)(1)-(4), and not solely on the basis of elements and
acts cited in the count of conviction.
U.S.S.G. § 3B1.1 introductory comment (emphasis added). This Court
has held that a transaction is thus defined not by the contours of
27
the offense charged, but by the parameters of the underlying scheme
itself. United States v. Mir, 919 F.2d 940, 945 (5th Cir. 1990).
Based on this definition of transaction, “Charlie,” “Wale,”
and “Stone” qualify as transactional participants under § 3B1.1.
While the three individuals may not have been tied to any of the
counts on which Ismoila was convicted, they were participants in
the underlying scheme itself. See Mir, 919 F.2d at 945. And
although there is no direct evidence that “Charlie,” “Wale,” and
“Stone” took orders from Ismoila, this can be inferred from the
available evidence. See
Gonzalez, 76 F.3d at 1345.
Oyewuwo also identified other individuals who participated in
the conspiracy under Ismoila’s leadership. Oyewuwo testified that
Ismoila instructed him to set up a business known as Atom Auto &
Repair, for the purpose of accepting fraudulent credit cards. He
also stated that Ismoila arranged for Grace Eyikogbe, a fugitive at
time of trial, to open bank accounts for Main Check Cashing, one of
the businesses that processed fraudulent credit cards. Such
testimony establishes that Ismoila was in fact a leader or
organizer of a criminal activity that involved five or more
participants.9
B. Intended Loss Versus Actual Loss
Ismoila argues that in assessing his offense level under
9
Ismoila also claims that reliance on Oyewuwo’s testimony is
an abuse of discretion because such testimony is false,
uncorroborated, and unreliable for the purposes of § 3B1.1. This
assertion is without basis in fact and it was not clear error for
the district judge to rely on Oyewuwo’s testimony. See Gonzalez,
76 F.3d at 1345.
28
U.S.S.G. § 2F1.1, the district court erred by holding him
accountable for intended loss instead of actual loss. We affirm.
In the PSR, the probation officer recommended a seven-level
increase for Ismoila’s specific offense characteristics under
U.S.S.G. § 2F1.1(b)(1)(H), based on a loss of $146,245. The
Government objected to this calculation, asserting that the
probation officer failed to include the intended loss in its loss
calculation. The intended loss consisted of credit card charges of
$85,203 and $6,200 that were attempted at Atom Auto and Main Check
Cashing--charges that the credit card companies declined to
process. With the inclusion of the attempted charges, the total
loss amount is $237,648, resulting in an eight-level increase,
under § 2F1.1(b)(1)(i).10 At the sentencing hearing, Ismoila
objected to the Government’s objection to the PSR.
Loss determinations are reviewed for clear error; as long as
the determination is plausible in light of the record as a whole,
clear error does not exist. United States v. Sowels, 998 F.2d 249,
251 (5th Cir. 1993), cert. denied,
114 S. Ct. 1076 (1994). In
addition, the loss “‘need not be determined with precision. The
court need only make a reasonable estimate of the loss, given the
available information.’” United States v. Chappell,
6 F.3d 1095,
10
In arriving at its figures, the Government did not include
all of the attempted charges on each specific card, only the
highest one. Often, participants in this scheme would process a
credit card through the point-of-sale terminal, only to have that
fraudulent sale be rejected. The participant would then use that
same card, but with a lesser dollar amount. The Government asserts
that in its calculations, it used only the highest attempt per
credit card, and not every failed attempt.
29
1101 (5th Cir. 1993) (quoting U.S.S.G. § 2F1.1 cmt. 8), cert.
denied, 114 S. Ct. 1232,
114 S. Ct. 1235 (1994). Further, comment
7 to § 2F1.1 states that “if an intended loss that the defendant
was attempting to inflict can be determined, this figure will be
used if it is greater than the actual loss.” U.S.S.G. § 2F1.1 cmt.
7; see also
Chappell, 6 F.3d at 1101. The Government was able to
determine the intended loss, which was greater than the actual
loss, and therefore the district court’s sentencing determination
based on the attempted loss was correct.
Ismoila relies on Sowels for the proposition that intended
loss calculation for stolen credit cards is determined by the
maximum available credit limit on each card because that is the
amount of loss for which the cardholder is at risk. Sowels, 998
F.2d 251-52. Ismoila contends that the charges were declined
because they were in excess of the credit card limit, and thus the
cardholder was not exposed to such a large loss. See also United
States v. Wimbish,
980 F.2d 312, 315 (5th Cir. 1992) (calculating
the loss value of stolen and forged checks as the entire face value
of those checks, and not the actual amount obtained, because the
defendant put his victims at risk for the whole amount of the
check), cert. denied,
113 S. Ct. 2365 (1993).
Sowels, however, actually holds that available credit limit
can be used as a measure of loss when the credit cards were stolen
but not used. See Sowels, 998 F.2d at 252 (“[T]his case is unique
because it involves an uncompleted offense.”). By basing its loss
calculation on the available credit limit, the Sowels Court
30
satisfied the dictates of comment 7 to § 2F1.1, which states that
intended loss will be used if it can be determined. Available
credit is simply one way of determining intended loss. In this
case, however, Ismoila actually attempted to make charges with the
credit cards, and using the dollar amounts of the attempted charges
is more accurate than using maximum available credit in determining
the loss that Ismoila intended to inflict. Cf. Chappell, 6 F.3d at
1101 (determining the intended loss of fifty-one blank checks to be
the average of the value of the checks actually recovered). The
fact that the victims were not at risk for the charges above their
credit limit is not dispositive. The intent of Ismoila is
critical, however, as the plain language of comment 7 makes clear.
He intended his victims to suffer losses equal to a total of
$237,648. He should not be rewarded because some of the charges
were over the available credit limit. See United States v.
Robinson,
94 F.3d 1325, 1328 (9th Cir. 1996) (stating that Ҥ 2F1.1
does not require the loss the defendant intended to inflict be
realistically possible”); cf. United States v. Brown,
7 F.3d 1155,
1159 (5th Cir. 1993) (finding that intended loss included two
$2,000 checks that the defendant did not cash due to police
vigilance because defendant “should not be rewarded simply because
law enforcement officials thwarted his plans”). The district
court’s inclusion of intended loss was not error.
C. Obstruction of Justice and Upward Departure
The district court increased Ismoila’s total offense level by
four levels--two for obstruction of justice under § 3C1.1 and two
31
by upward departure under § 5K2.0--because Ismoila and his wife hid
a co-defendant, Grace Eyikogbe, during trial and because Ismoila
advised Eyikogbe to flee. Ismoila asserts that the evidence is
insufficient to support the two-level obstruction of justice
enhancement, and departing upward by two additional levels was
error, because his conduct was not substantially in excess of that
which is ordinarily involved in the offense and because the
Guidelines already take such conduct into account. We disagree.
1. Obstruction of Justice
We review for clear error. United States v. Storm, 36 F.3d
1289, 1295 (5th Cir. 1994), cert. denied,
115 S. Ct. 1798 (1995).
The Government presented evidence that Ismoila and his wife,
Tayo Ismail, hid Grace Eyikogbe at their home while Ismoila was in
jail during the trial. After the trial, FBI agents found Eyikogbe
and Ismail hiding in the attic of Ismoila’s house, and Ismail was
subsequently charged with harboring a fugitive. As part of Tayo
Ismail’s plea agreement, the Government questioned her under oath
and presented this testimony at Ismoila’s sentencing hearing.
Ismail testified that when Ismoila called her at home from jail,
she told him that Eyikogbe was present at Ismoila’s home. Ismail
further stated that Ismoila told her to place Eyikogbe into a motel
because he could be criminally charged for having Eyikogbe at his
house. Ismail’s testimony was bolstered by telephone records
produced by the Government confirming that Ismoila had indeed
called home while he was in jail. Ismoila contends that it is
hardly unusual for a person who is jailed to call home and that his
32
wife’s testimony does not establish that he obstructed justice,
only that he knew that Eyikogbe was present at his home.
The district court properly enhanced Ismoila’s sentence. The
PSR concluded, and the evidence at the sentencing hearing shows,
that Ismoila knew that his co-defendant, a fugitive, was present in
his home during the trial. This evidence is certainly enough to
support a two-level enhancement for obstruction of justice.
2. Upward Departure
In addition to the two-level enhancement pursuant to § 3C1.1,
the sentencing court departed upward an additional two levels
pursuant to U.S.S.G. §§ 5K2.0 and 5K2.2. “We employ an abuse of
discretion standard when reviewing the process used by the trial
court in sentencing.” United States v. Wylie, 919 F.2d 969, 980
(5th Cir. 1990). We review a district court’s decision to depart
from the guidelines for abuse of discretion, and such a departure
will be upheld if the district court provided acceptable reasons
for the departure and if the extent of the departure was
reasonable. United States v. Rosogie,
21 F.3d 632, 634 (5th Cir.
1994). The reasons given by the trial court are findings of fact,
which we review for clear error.
Id.
A court may depart even if the factor is taken into
consideration by the guidelines, “only if the factor is present to
a degree substantially in excess of that which ordinarily is
involved in the offense.” U.S.S.G. § 5K2.0. This Court has
developed a two-pronged test to determine whether a departure is
justified: (1) whether the circumstances were considered by the
33
guidelines, and (2) whether the circumstances are of a sufficient
magnitude and have a basis in fact. Wylie, 919 F.2d at 980.
The Government argues that the obstruction of justice
enhancements in the guidelines do not take into account the
seriousness of Ismoila’s offense because Ismoila actually
obstructed justice in two ways: (1) harboring a fugitive co-
conspirator, and (2) urging her to flee the Houston area. The
Government also contends that hiding Eyikogbe was such a serious
infraction as to warrant departure because it allowed Ismoila to
present a defense at trial that blamed Eyikogbe, all the while he
was concealing her in his house. Ismoila, on the contrary, asserts
that the § 3C1.1 of the guidelines adequately punish him for
obstruction of justice.
The facts discussed above are adequate to support a two-level
upward enhancement. See Rosogie, 21 F.3d at 634 (departing upward
because the guidelines did not adequately account for defendant’s
criminal history and use of aliases); United States v. Barakett,
994 F.2d 1107, 1112-13 (5th Cir. 1993) (departing upward on bank
fraud convictions because of the extended time period over which
the fraud occurred, the large number of victims, and the
substantial amount of planning), cert. denied,
114 S. Ct. 701
(1994). Reliance on these facts was not clearly erroneous, and the
district court did not abuse its discretion.11
11
Ismoila also asserts that the district court failed to give
him adequate opportunity to present information regarding the four-
level increase for obstruction of justice and upward departure, as
required by U.S.S.G. § 6A1.3(a). Ismoila claims that he was not
given notice of the Government’s intention to tender exhibits at
34
D. Restitution
Ismoila also asserts that the district court erred by ordering
him to pay $111,008 in restitution arguing that it failed to
resolve all factual disputes regarding the amount of restitution
pursuant to Fed. R. Crim. P. 32; failed to consider his indigence
pursuant to § 3664(a); and incorrectly held him jointly and
severally liable for the entire amount of loss. None of these
claims has merit.
First, the factual findings by the district court were
the sentencing hearing. Because Ismoila failed to make this
objection at trial, we will affirm absent plain error. United
States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc),
cert. denied,
115 S. Ct. 1266 (1995).
Ismoila’s position is without merit. The PSR and the
Government’s evidence at sentencing supported the four-level
increase. Ismoila received the initial PSR, which recommended a
two-level obstruction of justice enhancement based upon Ismoila’s
concealment of Eyikogbe, on May 7, 1993, almost six weeks before
the date of sentencing. He had two opportunities to present
objections to the PSR, in writing prior to the sentencing hearing
and orally at the hearing itself. United States v. Mueller,
902
F.2d 336, 346 (5th Cir. 1990). On May 20, 1993--approximately four
weeks before the sentencing hearing--the Government filed its
objections to the PSR, in which it stated that it was prepared to
prove at sentencing that Ismoila both harbored Eyikogbe and
encouraged Eyikogbe and Oyewuwo to flee the Houston area and that
it would seek a two-level upward departure. Furthermore, the
Government stated that it had telephone records showing that
Ismoila called home after his arrest. On May 24, 1993--over three
weeks before sentencing--Ismoila’s wife testified under oath that
she told Ismoila that Eyikogbe was present at their house. The
record thus shows that Ismoila had ample opportunity to present
information to the court.
Ismoila’s claim that the court failed to issue findings of fact
before the sentencing hearing as required by § 6A1.3(b) and Fed. R.
Crim. P. 32 is similarly without merit. Rule 32 does require the
court to resolved disputed issues of fact, but the sentencing court
made sufficient findings to support its decision. Fed. R. Crim. P.
32(c)(3);
Mueller, 902 F.2d at 346. Although the court did not
issue these factual findings before sentencing, the PSR forms the
factual basis for the sentencing decision.
Mueller, 902 F.2d at
346.
35
sufficient because the court adopted the findings of the PSR, which
expressly evaluated Ismoila’s financial condition. United States
v. Thomas, 13 F.3d 151, 153 (5th Cir. 1994). The court ordered
restitution in the amount of $111,008, the same figure recommended
by the PSR.
Second, as a participant in a conspiracy, Ismoila “is legally
liable for all the actions of her co-conspirators in furtherance of
this crime.” United States v. Chaney, 964 F.2d 437, 453 (5th Cir.
1992). The district court was therefore well within its discretion
to order restitution for the losses resulting from the entire
fraudulent scheme and not merely the losses directly attributable
to Ismoila’s actions. Id.; United States v. All Star Industries,
962 F.2d 465, 478 (5th Cir.), cert. denied,
113 S. Ct. 377 (1992).
V. THE JURY CHARGE
The district court charged the jury that they must find that
Ismoila “knowingly created a scheme to defraud.” Ismoila asserts
that this instruction omitted an essential element of wire fraud by
using the word “knowingly” instead of “willfully.” We disagree.
Ismoila relies on United States v. Mekjian, 505 F.2d 1320,
1324 (5th Cir. 1975), a case in which this Court reversed a
conviction on the ground that the word “willfully” was omitted from
the indictment and that the word “knowingly” was not an adequate
substitute.
Id. However, the statute at issue in Mekjian was 18
U.S.C. § 1001, which by its terms requires a mens rea of both
“knowingly” and “willfully.”
Id. at 1322 n.1. The wire fraud
statute, 18 U.S.C. § 1343, does not specifically mention an intent
36
element, but this Court has held that the “requisite intent to
defraud under § 1343 exists if the defendant acts ‘knowingly and
with the specific intent to deceive.’” United States v. Keller, 14
F.3d 1051, 1056 (5th Cir. 1994) (quoting United States v. St.
Gelais,
952 F.2d 90, 96 (5th Cir.), cert. denied,
113 S. Ct. 439
(1992)). In this case, the district court instructed the jury that
it must find that the defendant acted “knowingly . . . with a
specific intent to commit fraud,” a charge that is nearly identical
to that set forth in Keller. The jury instruction was therefore
entirely proper.
VI. THE REMAINING ISSUES
Ismoila also raises the following issues: (1) that the
district court erred by admitting into evidence the testimony of
Roxanne Sebring, the FBI financial analyst who summarized the bank
account evidence; (2) that the statements made by the prosecutor in
the Government’s closing argument undermined his right to a fair
trial; (3) that the district court erred by failing to give a
specific unanimity instruction regarding the conspiracy count; (4)
that the $2,800 seized from him upon his arrest be returned to him;
(5) that his alien registration card be returned to him; and (6)
that his restitution obligation be stayed.
We do not discuss these issues because they are wholly without
merit.
AFFIRMED IN PART, REVERSED AND VACATED IN PART, and RENDERED.
37
