### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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### m 98-51124

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### UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS



### JACKSON AYOBAM OLANIYI-OKE,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

December 30, 1999

Before HIGGINBOTHAM and SMITH,

Circuit Judges, and DUPLANTIER

, District Judge. *

JERRY E. SMITH, Circuit Judge:

Jackson Olaniyi-Oke was convicted of

conspiracy, fraud in connection with access devices, mail fraud, fraud invo lving fictitio u s

name a nd address, bank fraud, money

launder ing, and fraudulent use of a social

security number. He contends that the

evidence is insufficient on two of th e money laundering counts and that, as to the other

counts, the court erred in denying motions for

continuance based on the inab ility to locate a

prospective witness and the desire to challenge

the racial composition of the jury venire. We

find no error in the the denial of continuance

but reverse, fo r insufficient evidence, the

convictions on the two subject money laundering counts.

I. We address only t he facts relevant to the

two money la undering counts as to which

Olaniyi-Oke asserts there was insufficient

evidence. One Richard Porter was issued a

MasterCard by Maryland Bank of North

America (“MBNA”). Olaniyi-Oke

impersonated Porter in not ifying M BNA that

P orter’s address had changed to a mai lbox

owned by Olaniyi-Oke. MBNA later mailed

three convenience checks to the new address,

one of which later was found at Olaniyi-Oke's

residence.

One of the checks was used partially to pay

off the balance of another credit card owned

by Porter, a NationsBank Visa card. The

address for the Visa had also been changed by

Olaniyi-Oke, and a requested replacement card

h ad been sent to that new address. After the

credit balance was partially paid by the MBNA

check, t he Visa was used to purchase one

computer at each of two Houston businesses,

Computer City

and Office Max. The

computers were found in Olaniyi-Oke’s

residence, and his calling card had been used

to make calls to the Computer City location.

O laniyi-Oke argued that another man whom

he had met at a nightclub committed t he * District Judge of

the Eastern District of

Louisiana, sitting by designation.2

crimes. According to Olaniyi-Oke, that man

had stayed at Olaniyi-Oke's home, leaving

evidence of the fraud scheme including the two

computers.

Olan iyi-Oke contends there is insufficient

evidence on counts 14 and 15, which charge

money laundering for the purchase of the two

computers with Richard Porter's Visa.

Olaniyi-Oke argues that there is no evidence

that the purchases were made to prom ote

further fraud, or to conceal the proceeds of

unlawful activity, and therefore that th ere is

insufficient evidence to support his conviction

on tho se counts. He contends that the

purchases were merely act s of money

spending, in whic h funds generated by fraud

were used to buy computers for personal use.

He als o avers that the court erred in denying

his motions for continuanc e based on his

i nabilit y to locate a prospective def ense

witness and to invest igate an alleged

underrepresentation of minorities on the jury

venire.

II.

W e first consider the claim of insufficient

evidence. “In evaluating a challenge to the

sufficiency of the evidence, we view the

evidence in the light most favorable to the

verdict and uphold the verdict if, but only if, a

rational juror could have foun d each element

of the off ense beyond a reasonable doubt.”

United States v. Brown

, 186 F.3 d 661, 664

(5th Cir. 1999). This review is d e novo

, and

“[i]f the evidence viewed in the light most

favorable to the prosecution gives equal or

nearly equal circumstantial support to a theory

of guilt and a theory of innocence, a defendant

is entitled to a judg ment of acquittal.” I d.

(internal quotation marks omitted).

Bo t h counts charge money laundering in

violation of 1 8 U.S.C. § 1956(a)(1). 2 The statute requires the government to prove that

the defendant conduc ted or attem pted to

conduct a financial transa ction that he knew

involved the proceeds of unlaw ful activity.

See United States v. Burns

, 162 F.3d 840, 847

(5th Cir. 1998), cert. denied , 119 S. Ct. 1477

(1999).

Olaniyi-Oke do es not contend that the

government failed to provide s ufficient

evidence of these elements . The statute

f urther requires the government to p rove

either (1) that the defendant so acted with the

intent to prom ote or further specified unlawful

activity (the “promotion prong”) or (2) that he

knew the transaction was designed to conceal

or disguise the nature, lo cati on, source, ownership, or control of the proceeds of the

unlawful activity (the “concealment prong”).

See 18 U.S.C. §§ 1956(a)(1)(A)(i ),

1956(a)(1)(B)(i); Brown

, 186 F.3d at 667-68;

Burns

, 162 F.3d at 847. Olaniyi-Oke avers

that the evidence is insufficient to demonstrate

either the promotion prong or the concealment

prong, and we agree.

The government argues that the com puter purchases we re i ntended to prom ote a

2 That section provides:

Whoever, knowing th at the property

involved in a financial transaction represents

the proceeds of

some form of unlawful

(continued...) (...continued)

activity, conducts or attempts to conduct

such a financial transaction which in fact

involves the proceeds of specified unlawful

activity SS

(A)(i) with the intent to promote the

carrying on of specified unlawful activity; or

. . .

(B) knowing that the transaction is designed

in whole or in part SS

( i) to conceal or disguise the nature, the

location, the source, the ownership, or the

control of the proceeds of specified unlawful

activity; . . .

shall be sentenced t o a fine . . . or

imprisonment . . . or both.

“Specified unlawful a ctivity” is defined at

§ 1956(c)(7).3

fraudulent scheme, but it pr esented no

evidence that the computers were intended for

use in any scheme. There is no evidence that

the computers were intende d for anything

other than fully legal personal use; the

government’s suggestion that the computers

were intended fo r sale is not substantiated by

any evidence. 3 Absent a showing of specific

intent, the promotion prong is not satisfied

even b y a showing that the financial

transaction did prom ote the carrying on of

unlawful a ct ivity. S ee Brown

, 186 F.3d at

670.

The go v ernment also argues that the

purchases were designed to conceal according

to the c o ncealment prong. The argument is

that Olaniyi-Oke used Porter's name and credit

card to purchase the computers, making

“obvious” his intent to conceal. Contrary to

th e government's contention, the only thing

obviou s about such a transaction is that

Olaniyi-Oke wa s fraudulently using another

perso n’s credit card, for which he was

convicted on other counts.

The government argues tha t an intent to

conceal can

be inferred from the fact that

Olaniyi-Oke traveled to Houston to make the

purchases rather than making them in his home

city of Austin. If one desires fraudulently to

use another's credit card to make purchases, it

is merely logical to travel out of town to do so

to lessen the risk of discovery for illegal use of

the credit card, but such logic does not convert

the act int o money laundering. Likewise,

making two separate purchases instead of one

is logical to reduce t h e likelihood that any

store personnel would recall details of the

purchase. 4 Not wanting to be prosecuted for the illegal use of a credit card does not equate to money laundering.

Olaniyi-Oke could not have purchased the

co mputers using his own name and Porter's

credit card. Without evidence to the contrary,

the inte nt o f such a fraudulent purchase is

merely to o bt ain goods using funds rightfully

belong ing to another, not to conceal the

nature, location, source, ownership, or control

of those funds: “If transactions are engaged in

for present personal benefit, and not to create

the appearance of legitimate wealth, they do

not violate the [concealme nt prong of the]

money laundering statute.” U nited States v.

Garcia-Emanuel

, 14 F.3d 1469 (10th Cir.

1994) (quoted in United States v. Willey

, 57 F.3d 1374, 1384 (5th Cir. 1995)).

In one sense, the acquisition of any asset

with the proceeds of illegal activity

conceals those procee d s by converting

them into a different and more legitimate-appearing form. But the

requir e ment that the transaction be

designed to conceal implies that more

than t his trivial motivation to conceal

must be proved.

Willey

, 57 F.3d at 1384 (int ernal citation

omitted) (citing Garcia-Em anuel , 14 F.3d

at 1474).

The government’s argument would convert

every purchase of goods with illegally obtained

credit into money laundering, which we have

r ejected: Money spending is not criminal

under § 1956(a)( 1). S ee Brown

, 186 F.3d

at 670-71. The statute is intended to punish

“conduct that is really dist i nct from the

underlying specified unlawful activity[,]

. . . [not to] provide overzealous prosecutors with

a means of imposing additional criminal

3 At least one of the computers was partially

assembled for use.

4 It is logical to think that more individuals

purchase only one computer than purchase two.

The government therefore argues that the purchase

of two co mputers creates an inference beyond a

reasonable doubt th at the computers were not for

personal use. This argument is not credible. While

(continued...) (...continued)

the stockpiling of numerous computers might lead

to such an inference, it is not even unknown for one individual to purchase two computers for his own personal use, let alone to purchase one or bo th of

them as gifts, for use in a business, or for a myriad

of other purposes.4

liabilit y any time a defendant mak es benign

expenditures with funds derived from unlawful

acts.” B rown

, 186 F.3d at 670. As with a

drug dealer who purchases cellular phones for

unrelated person al use, a mail/bank-fraud

operat o r who purchases two computers for

unrelated personal use does not thereby

commit money laundering. See Brow n , 186

F.3d at 669 (discussing United State s v.

Jackson

, 935 F.2d 832 (7th Cir. 1 991));

United States v. Cavalier

, 17 F.3d 90, 93 (5th

Cir. 1994) (same).

III.

Olaniyi-Oke contends tha t the court erred

in denying his motion for continuance to

secure the presence of a pro spective defense

witness, his nephew Stephen Adebayo. We

review the denial of a continuance for abuse of

discretion. S ee United St ates v. Shaw

, 920 F.2d 1225, 1230 (5th Cir. 1991). When a

continuance is reques t ed based on the

unavailabilit

y of a witness, the party seeking a

continuance must demonstrate (1) that due

diligence was exercised to obtai n the

attendance of the witness; (2) that the witness

would tender substantial favorable evidence;

(3) that the witness will be available and

willing to t est ify; and (4) that denial of the

continuance would materially prejudice the

movant. S ee id

. The required prejudice has

al so been termed “severe” prejudice and

“serious” prejudice. S ee id. ; United States v. Dupre , 117 F.3d 810, 823 (5th Cir. 1997).

Olaniyi-Oke argues that Adebayo would

co rroborate his defense, namely that a man

staying with Olaniyi-Oke committed the

crimes. Before indicting Olaniyi-Oke, the

government obtained a swor n statement in

which Adebayo stated that he had never m et

or heard of the man whom Olaniyi-Oke claims

was responsible for the cri mes. While in a

later interview Adebayo did “recall” that

s o meo ne had st ayed at Olaniyi-Oke's

residence, this recollection directly contradicts

portions of

his previous sworn statement. In

light of these s t atements, Olaniyi-Oke’s mere

assertion that Adebayo would provide

favorable testimony does not esta b lish that

Adebayo would tender substantially favorable

testimony.5

Olaniyi-Oke also fail e d to establish that

Adebayo would be available and willing to

testify, because Adebayo had failed to appear

at trial despite a subpoena. The government

and Olaniyi-Oke h ad attem pted to l ocate Adebayo without success. The court di d not

abuse its discretion in denying a continuance.

IV.

Just before voir dire began, Olaniyi-Oke

sought a continuan ce to investigate whether

the composition of the jury venire was a result

of a violation of the Jury Selection and Service

Act of 1968 (“Jury Act”), 28 U.S.C. §§ 1861-

1878, and/or of the Sixth Amendment.

Olaniyi-Oke bel

i eved that the venire

underrepresented minorities in consisting of

only one black and four Hispanics. To the

e xtent that a district court’s decision rests on

its interpretation of the statutory language, the

st andard of review is d e novo

. S ee Unit e d

States v. Hemmingson

, 157 F.3d 347, 358 (5th

Cir. 1998). We review denial of a continuance

for abuse of discretion. 5 S ee Shaw , 920 F.2d

at 1230.

The Jury Act provides that “all litigants in

Federal co urts entitled to trial by jury shall

have the right to

. . . petit juries selected at

random from a fair cross secti on of the

community in the district or division where the

co urt convenes.” 28 U.S.C. § 1861. To

obtain relief under the Jury Ac t , a defendant

must prove a “substantial failure” to comply

with the Act’s provisions, a substantial failure

being one t hat destroy s the random nature or object ivit y of the selection process. S ee Hemmingson

, 157 F.3d at 358; 28 U.S.C. §

1867(a).

Olaniyi-Oke has no evidence with which to challenge the selection process, which is what

§ 1867 is designed for, but instead wants to

investigate solely because his venire had “too

few” minorities. 6 First, Olaniyi-Oke fails to

understand the nature of

st atistics. If it were

required that every venire match the

proporti ons of minorities in the community,

that would be the antithesis of randomness,

given the size of the sample. S ee United

States v. McKinney

, 53 F.3d 664, 671 (5th Cir.

1995) (noting th at in a truly random system,

minorities will be over-represented in some panels and under-represented in others).

Second, his claim is not cognizable under the

Jury Act: “The happenstance o f a

disproportionately w hite jury is simply not

enough to prevail under the Act .”

Hemmingson , 157 F.3d at 359. Olaniyi-Oke

made no showing of any failure to comply with

the Ju ry Act , and therefore the court did not

abuse its discretion in denying his mo tion for

continuance on this ground.

“The Sixth Amendm

ent guarantees a

criminal defendant the right to a trial by a jury

selected from a fair cross-se ction of the

community.” U

nited States v. Alix

, 86 F.3d

429, 434 (5th Cir. 1996).

A defendant establi shes a prima facie

vio lation of the fair-cross-sect io n requirement by showing the foll owing:

T he defendant must show (1) that the

group alleged to be excluded is a

“distinctive” group in the commun it y; (2) that the representation of this group

in venires from which juries are selected

is not fair and reasonable in rel ation to

th e number of such persons in the 5 Olaniyi-Oke refers to his motion as a motion

for continuance, but it was termed a “motion to

sta y.” The discrepancy occurs because OlaniyiOke was not claiming to have sufficient evidence to

demonstrate a violation, as requ ir ed under either

the Jury Act or the Sixth Amendment, but rather

was requesting a continuance of at least 30 days to investigate. Therefore, both parties agree that,

wha tever the motion should be termed, the

appropriate stand ard of review is abuse of

discretion, which, apart from any district court interpretations of law, is correct. S ee Murphy v

. Uncle Ben's, Inc.

, 168 F.3d 734, 737 (5th Cir.

1999) (stating the general standard for motions to

stay). 6 Olaniyi-Oke’s motion di d contain a

comparison

of 1990 census figures with the jury

pool for November 1993. Given that trial took

place in 1998, ho wever , this information is

irrelevant, and thus Olaniyi-Oke does not even cite

this “evidence” on appeal.6

co mmunity; and (3) that t his

underrepresentation is due to systematic

exclusion of the group in t he juryselection process.

Id. A defendant cannot establish a p rima facie

violation by relying solely on the composition

of the jury at his o wn trial. S ee id. at n.3.

Olaniyi-Oke presented no evidence of

element (3), and therefore he failed to establish

a prima facie viol ation. The court di d not

abuse its discretion in denying a continuance.

The judgments of conviction on counts

14 and 15 are REVERSED and REMANDED

for entry of judgments of acquittal, and the

judgments of conviction on all other counts are

AFFI R MED. The judgment of sentence is

VACATED and REMANDED for

resentencing. 7

7 The prison sentence

and supervised release

imposed for counts 14 and 15 r u n concurrently

with the sent ence on the remaining counts, and

therefore reversing the two counts does not reduce

Olaniyi-Oke's prison term or period of supervised

release. The court imposed a $100 special

assessment on all count s

, however, and therefore

Olaniyi-Oke must be resentenced to eliminate that

assessment as to counts 14 and 15.