14-635

United States v. Ojo

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 19th 4 day of November, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 DEBRA ANN LIVINGSTON,

8 CHRISTOPHER F. DRONEY,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 UNITED STATES OF AMERICA, 

13 Appellee,

14

15 -v.- 14-635

16

17 DAVID OLUKAYODE OJO, 

18 Defendant-Appellant.

19 - - - - - - - - - - - - - - - - - - - -X

20

21 FOR APPELLANT: BRUCE ROBERT BRYAN, BRYAN LAW

22 FIRM, Syracuse, New York.

23

24 FOR APPELLEES: MARGARET E. GANDY (with Emily

25 Berger & Douglas M. Pravda on

26 the brief) for Kelly T. Currie,

27 Acting United States Attorney

1
1 for the Eastern District of New

2 York, Brooklyn, New York.

3

4 Appeal from a judgment of the United States District

5 Court for the Eastern District of New York (Ross, J.).

6

7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

8 AND DECREED that the judgment of the district court be

9 AFFIRMED. 

10

11 David Olukayode Ojo appeals from the judgment of the

12 United States District Court for the Eastern District of New

13 York (Ross, J.), convicting him and sentencing him chiefly

14 to two concurrent terms of 37 months’ imprisonment and three

15 years of supervised release for conspiracy to commit wire

16 fraud, see 18 U.S.C. §§ 1343, 1349, and conspiracy to

17 knowingly possess with intent to use unlawfully five false

18 identification documents. See 18 U.S.C. §§ 1028(a)(3),

19 (b)(2)(B), (c)(3)(A), c(3)(B), (f). We assume the parties’

20 familiarity with the underlying facts, the procedural

21 history, and the issues presented for review. 

22

23 1. Ojo challenges the sufficiency of the evidence on

24 both convictions. “A defendant challenging the sufficiency

25 of the evidence bears a heavy burden, because the reviewing

26 court is required to draw all permissible inferences in

27 favor of the government and resolve all issues of

28 credibility in favor of the jury verdict.” United States v.

29 Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). “The traditional

30 deference accorded to a jury’s verdict ‘is especially

31 important when reviewing a conviction for conspiracy . . .

32 because a conspiracy by its very nature is a secretive

33 operation, and it is a rare case where all aspects of a

34 conspiracy can be laid bare in court with the precision of a

35 surgeon’s scalpel.’” United States v. Jackson, 335 F.3d

36 170, 180 (2d Cir. 2003) (quoting United States v. Pitre, 960

37 F.2d 1112, 1121 (2d Cir. 1992)). 

38

39 “[T]he conspiratorial agreement itself may be

40 established by proof of a tacit understanding among the

41 participants, rather than by proof of an explicit agreement

42 . . . .” United States v. Desimone, 119 F.3d 217, 223 (2d

43 Cir. 1997). Drawing all inferences in favor of the

44 government, the evidence adduced at trial was sufficient to

45 show that Ojo had a tacit understanding with his co46 conspirators and engaged in “purposeful behavior aimed at

47 furthering the goals of the conspiracy” for both wire fraud

2
1 and knowing possession with intent to use unlawfully five

2 false identification documents. Id.

3

4 2. As to the conspiracy to knowingly possess with

5 intent to use unlawfully five false identification documents

6 offense, Ojo contends that the jury instruction was

7 improper. The government offered alternative theories of

8 liability: (1) that Ojo intended to use identification

9 documents unlawfully to participate in a conspiracy to

10 commit wire fraud; and (2) that Ojo intended to use the

11 identification documents unlawfully to violate New York

12 state law. If the jury found Ojo guilty on Count One for

13 conspiracy to commit wire fraud, as it did, the government’s

14 first theory of liability would be met. The district court

15 instructed the jury on both theories. Ojo’s argument

16 attacks the instruction given on the second theory. 

17 However, because the instructions were proper and ample

18 evidence supports the first theory--conspiracy to commit

19 wire fraud--Ojo’s challenge must be rejected. “When the

20 jury is properly instructed on two alternative theories of

21 liability, as here, we must affirm when the evidence is

22 sufficient under either of the theories.” United States v.

23 Masotto, 73 F.3d 1233, 1241 (2d Cir. 1996). 

24

25 3. Ojo challenges the denial of his motion to suppress

26 evidence seized during the stop of his car because the stop

27 was pretextual and because Ojo’s consent was involuntary. 

28 But the subjective motivation of the officers who made the

29 stop is irrelevant; arguments “that the constitutional

30 reasonableness of traffic stops depends on the actual

31 motivations of the individual officers involved” are

32 “foreclose[d].” Whren v. United States, 517 U.S. 806, 813

33 (1996); see also United States v. Dhinsa, 171 F.3d 721, 724-

34 25 (2d Cir. 1999) (“In other words, an officer’s use of a

35 traffic violation as a pretext to stop a car in order to

36 obtain evidence for some more serious crime is of no

37 constitutional significance.”). 

38

39 “It is . . . well settled that one of the specifically

40 established exceptions to the requirements of both a warrant

41 and probable cause is a search that is conducted pursuant to

42 consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219

43 (1973). “In considering a challenge to a district court

44 finding of consent, we are obliged to view the evidence in

45 the light most favorable to the government. We will not

46 reverse a finding of voluntary consent except for clear

47 error.” United States v. Snype, 441 F.3d 119, 131 (2d Cir.

3
1 2006) (internal citation omitted). The district court’s

2 determination that Ojo voluntarily consented to a search of

3 his car was not clearly erroneous given: (1) Ojo’s signature

4 on a handwritten consent form for a search of his car,

5 including its interior, trunk, and glove box; (2) testimony

6 that Ojo also gave oral consent; and (3) further testimony

7 that, after the search was completed, Ojo signed a standard

8 FBI “consent to search” form confirming his prior consent. 

9

10 4. Ojo contends that the district court’s decision to

11 dismiss the indictment without prejudice based on a Speedy

12 Trial Act violation was erroneous. A proper and principled

13 consideration of the relevant factors shows otherwise.

14

15 “The determination of whether to dismiss an indictment

16 with or without prejudice is committed to the discretion of

17 the district court, and we will reverse such a determination

18 only upon a finding that the district court abused its

19 discretion.” United States v. Wilson, 11 F.3d 346, 352 (2d

20 Cir. 1993) (internal citation omitted). Factors considered

21 in this determination are: (1) the seriousness of the

22 offense; (2) the facts and circumstances of the case which

23 led to the dismissal; (3) the impact of a re-prosecution on

24 the administration of the Speedy Trial Act and the

25 administration of justice; and (4) prejudice to the

26 defendant. See id. “Where the crime charged is serious,

27 the sanction of dismissal with prejudice should ordinarily

28 be imposed only for serious delay.” United States v.

29 Simmons, 786 F.2d 479, 485 (2d Cir. 1986).

30

31 Ojo’s offense was unquestionably serious: it was

32 punishable by a prison term of up to 20 years, and the

33 evidence established a loss of approximately $80,000

34 suffered by more than 30 victims. The nonviolent nature of

35 this offense cannot overcome these indicia of seriousness. 

36 See United States v. Kiszewski, 877 F.2d 210, 214 (2d Cir.

37 1989) (noting that perjury was a serious crime “since false

38 testimony strikes at the heart of administering the criminal

39 law”). Moreover, the length of the speedy trial violation

40 was only one day, a delay that does not amount to “serious

41 delay.” Simmons, 786 F.2d at 485.

42

43 As for the facts and circumstances leading to

44 dismissal, the government explained that the one-day delay

45 was likely a byproduct of the prosecutor counting the 30

46 days from the date of the arraignment rather than the date

47 of the arrest. Nothing in the record suggests bad faith or

4
1 misconduct on the part of the government. For this reason,

2 the interests of justice weighed in favor of dismissal

3 without prejudice. See Simmons, 786 F.2d at 486 (“[W]here

4 the violation of the Act was unintentional and the resulting

5 delay not overly long, and where appellant has not presented

6 evidence of prejudice, we do not believe that the

7 administration of justice would be adversely affected by

8 reprosecution.”).

9

10 Ojo can point to no prejudice he suffered as a result

11 of the one-day delay. While prejudice is presumed to flow

12 from any delay, this factor requires an incremental showing

13 of actual prejudice; otherwise, this factor would always be

14 satisfied and would not be a variable. See United States v.

15 Wells, 893 F.2d 535, 540 (2d Cir. 1990) (“We detect nothing

16 in the record to indicate that the Government’s delay caused

17 any prejudice . . . .”) (emphasis added); United States v.

18 Hernandez, 863 F.2d 239, 244 (2d Cir. 1988) (“[S]hort delays

19 of the kind present here do not become ‘serious’ violations

20 of the Speedy Trial Act unless there is some resulting

21 prejudice to the defendant.”). A scrupulous application of

22 the applicable standards and rules necessitates the

23 conclusion that the district court did not abuse its

24 discretion in dismissing the indictment without prejudice.

25

26 5. Ojo’s claims that perjured testimony was presented

27 before the grand jury, during the suppression hearing, and

28 at trial are meritless and lack record support. Nor was

29 there a double jeopardy violation because Ojo successfully

30 withdrew his guilty plea after initially pleading guilty. 

31 See United States v. Olmeda, 461 F.3d 271, 279 n.7 (2d Cir.

32 2006) (“[J]eopardy is not deemed to attach at the time of a

33 guilty plea, for example, where a defendant subsequently

34 withdraws his plea.”). 

35

36 For the foregoing reasons, and finding no merit in

37 Ojo’s other arguments, we hereby AFFIRM the judgment of the

38 district court.

39

40 FOR THE COURT:

41 CATHERINE O’HAGAN WOLFE, CLERK

42

43

5