IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

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 involving fictitious

name and address, bank fraud, money

laundering, and fraudulent use of a social

security number. He contends that the

evidence is insufficient on two of the money

laundering counts and that, as to the other

counts, the court erred in denying motions for

continuance based on the inability 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, for insufficient evidence, the

convictions on the two subject money

laundering counts.

I.

We address only the facts relevant to the

two money laundering 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 notifying MBNA that

Porter’s address had changed to a mailbox

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

had been sent to that new address. After the

credit balance was partially paid bythe MBNA

check, the 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.

Olaniyi-Oke argued that anothermanwhom

he had met at a nightclub committed the

 

* 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 ofthe fraud scheme including the two

computers.

Olaniyi-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 promote

further fraud, or to conceal the proceeds of

unlawful activity, and therefore that there is

insufficient evidence to support his conviction

on those counts. He contends that the

purchases were merely acts of money

spending, in which funds generated by fraud

were used to buy computers for personal use.

He also avers that the court erred in denying

his motions for continuance based on his

inability to locate a prospective defense

witness and to investigate an alleged

underrepresentation of minorities on the jury

venire. 

II.

We 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 found each element

of the offense beyond a reasonable doubt.”

United States v. Brown, 186 F.3d 661, 664

(5th Cir. 1999). This review is de novo, and

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

favorable to the prosecution gives equal or

nearly equal circumstantialsupport to a theory

of guilt and a theory of innocence, a defendant

is entitled to a judgment of acquittal.” Id.

(internal quotation marks omitted).

Both counts charge money laundering in

violation of 18 U.S.C. § 1956(a)(1).2 The

statute requires the government to prove that

the defendant conducted or attempted to

conduct a financial transaction that he knew

involved the proceeds of unlawful activity.

See United States v. Burns, 162 F.3d 840, 847

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

(1999).

Olaniyi-Oke does not contend that the

government failed to provide sufficient

evidence of these elements. The statute

further requires the government to prove

either (1) that the defendant so acted with the

intent to promote or furtherspecified unlawful

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

knew the transaction was designed to conceal

or disguise the nature, location, 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 isinsufficient to demonstrate

eitherthe promotion prong or the concealment

prong, and we agree. 

The government argues that the computer

purchases were intended to promote a

 

2

 That section provides:

Whoever, knowing that 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

activitySS

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

carrying on ofspecified unlawful activity; or

. . . 

(B) knowing that the transaction is designed

in whole or in partSS

(i) to conceal or disguise the nature, the

location, the source, the ownership, or the

control of the proceeds ofspecified unlawful

activity; . . . 

shall be sentenced to a fine . . . or

imprisonment . . . or both.

“Specified unlawful activity” is defined at

§ 1956(c)(7).
3

fraudulent scheme, but it presented no

evidence that the computers were intended for

use in any scheme. There is no evidence that

the computers were intended for anything

other than fully legal personal use; the

government’s suggestion that the computers

were intended for sale is not substantiated by

any evidence.3 Absent a showing of specific

intent, the promotion prong is not satisfied

even by a showing that the financial

transaction did promote the carrying on of

unlawful activity. See Brown, 186 F.3d at

670. 

The government also argues that the

purchases were designed to conceal according

to the concealment 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

the government's contention, the only thing

obvious about such a transaction is that

Olaniyi-Oke was fraudulently using another

person’s credit card, for which he was

convicted on other counts. 

The government argues that an intent to

conceal can be inferred from the fact that

Olaniyi-Oke traveled to Houston to make the

purchasesrather thanmaking themin 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 into money laundering. Likewise,

making two separate purchases instead of one

is logical to reduce the 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

computers using his own name and Porter's

credit card. Without evidence to the contrary,

the intent of such a fraudulent purchase is

merely to obtain goods using funds rightfully

belonging 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 [concealment prong of the]

money laundering statute.” United 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 proceeds by converting

them into a different and more

legitimate-appearing form. But the

requirement that the transaction be

designed to conceal implies that more

than this trivial motivation to conceal

must be proved.

Willey, 57 F.3d at 1384 (internal citation

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

at 1474).

The government’s argument would convert

everypurchase ofgoodswithillegallyobtained

credit into money laundering, which we have

rejected: Money spending is not criminal

under § 1956(a)(1). See Brown, 186 F.3d

at 670-71. The statute is intended to punish

“conduct that is really distinct 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 computers creates an inference beyond a

reasonable doubt that 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 both of

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

of other purposes.
4

liability any time a defendant makes benign

expenditures with funds derived fromunlawful

acts.” Brown, 186 F.3d at 670. As with a

drug dealer who purchases cellular phones for

unrelated personal use, a mail/bank-fraud

operator who purchases two computers for

unrelated personal use does not thereby

commit money laundering. See Brown, 186

F.3d at 669 (discussing United States v.

Jackson, 935 F.2d 832 (7th Cir. 1991));

United States v. Cavalier, 17 F.3d 90, 93 (5th

Cir. 1994) (same). 

III.

Olaniyi-Oke contends that the court erred

in denying his motion for continuance to

secure the presence of a prospective defense

witness, his nephew Stephen Adebayo. We

review the denial of a continuance for abuse of

discretion. See United States v. Shaw,

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

continuance is requested based on the

unavailability of a witness, the party seeking a

continuance must demonstrate (1) that due

diligence was exercised to obtain the

attendance of the witness; (2) that the witness

would tender substantial favorable evidence;

(3) that the witness will be available and

willing to testify; and (4) that denial of the

continuance would materially prejudice the

movant. See id. The required prejudice has

also been termed “severe” prejudice and

“serious” prejudice. See id.; United States v.

Dupre, 117 F.3d 810, 823 (5th Cir. 1997).

Olaniyi-Oke argues that Adebayo would

corroborate his defense, namely that a man

staying with Olaniyi-Oke committed the

crimes. Before indicting Olaniyi-Oke, the

government obtained a sworn statement in

which Adebayo stated that he had never met

or heard of the man whom Olaniyi-Oke claims

was responsible for the crimes. While in a

later interview Adebayo did “recall” that

someone had st ayed at Olaniyi-Oke's

residence, thisrecollection directlycontradicts

portions of his previous sworn statement. In

light of these statements, Olaniyi-Oke’s mere

assertion that Adebayo would provide

favorable testimony does not establish that

Adebayo would tender substantially favorable

testimony. 
5

Olaniyi-Oke also failed 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 had attempted to locate

Adebayo without success. The court did not

abuse its discretion in denying a continuance.

IV.

Just before voir dire began, Olaniyi-Oke

sought a continuance 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 believed that the venire

underrepresented minorities in consisting of

only one black and four Hispanics. To the

extent that a district court’s decision rests on

its interpretation of the statutory language, the

standard of review is de novo. See United

States v. Hemmingson, 157 F.3d 347, 358 (5th

Cir. 1998). We review denial of a continuance

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

at 1230.

The Jury Act provides that “all litigants in

Federal courts entitled to trial by jury shall

have the right to . . . petit juries selected at

random from a fair cross section of the

community in the district or division where the

court convenes.” 28 U.S.C. § 1861. To

obtain relief under the Jury Act, a defendant

must prove a “substantial failure” to comply

with the Act’s provisions, a substantial failure

being one that destroys the random nature or

objectivity of the selection process. See

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 statistics. If it were

required that every venire match the

proportions of minorities in the community,

that would be the antithesis of randomness,

given the size of the sample. See United

States v. McKinney, 53 F.3d 664, 671 (5thCir.

1995) (noting that 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 of a

disproportionately white jury is simply not

enough to prevail under the Act.”

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

made no showing of anyfailure to complywith

the Jury Act, and therefore the court did not

abuse its discretion in denying his motion for

continuance on this ground.

“The Sixth Amendment guarantees a

criminal defendant the right to a trial by a jury

selected from a fair cross-section of the

community.” United States v. Alix, 86 F.3d

429, 434 (5th Cir. 1996). 

A defendant establishes a prima facie

violation of the fair-cross-section

requirement by showing the following:

The defendant must show (1) that the

group alleged to be excluded is a

“distinctive” group in the community;

(2) that the representation of this group

in venires from which juries are selected

is not fair and reasonable in relation to

the 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

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

demonstrate a violation, as required 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,

whatever the motion should be termed, the

appropriate standard of review is abuse of

discretion, which, apart from any district court

interpretations of law, is correct. See 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 did contain a

comparison of 1990 census figures with the jury

pool for November 1993. Given that trial took

place in 1998, however, this information is

irrelevant, and thus Olaniyi-Oke does not even cite

this “evidence” on appeal.
6

community; and (3) that this

underrepresentation is due to systematic

exclusion of the group in the juryselection process.

Id. A defendant cannot establish a prima facie

violation by relying solely on the composition

of the jury at his own trial. See id. at n.3.

Olaniyi-Oke presented no evidence of

element (3), and therefore he failed to establish

a prima facie violation. The court did 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 allother counts are

AFFIRMED. The judgment of sentence is

VACATED and REMANDED for

resentencing.7

 

7 The prison sentence and supervised release

imposed for counts 14 and 15 run concurrently

with the sentence 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 counts, however, and therefore

Olaniyi-Oke must be resentenced to eliminate that

assessment as to counts 14 and 15.