14-635 United States v. Ojo



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**

**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**

**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN**

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

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**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 19 th** **day of November, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **DEBRA ANN LIVINGSTON,** 7 **CHRISTOPHER F. DRONEY,** 8 **Circuit Judges**

**.** 9 10
- - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 14-635** 15 16 **DAVID OLUKAYODE OJO,** 17 **Defendant-Appellant**

**.** 18
- - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** BRUCE ROBERT BRYAN, BRYAN LAW 21 FIRM, Syracuse, New York. 22 23 **FOR APPELLEES:** MARGARET E. GANDY (withEmily 24 Berger & Douglas M. Pravda on 25 the brief ) forKelly T. Currie, 26 Acting United States Attorney 27

1for the Eastern District of New 1 York, Brooklyn, New York. 2 3 Appeal from a judgment of the United States District 4 Court for the Eastern District of New York (Ross, J. ). 5 6 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 7 **AND DECREED**that the judgment of the district court be 8
**AFFIRMED**

. 9 10 David Olukayode Ojo appeals from the judgment of the 11 United States District Court for the Eastern District of New 12 York (Ross, J. ), convicting him and sentencing him chiefly 13 to two concurrent terms of 37 months’ imprisonment and three 14 years of supervised release for conspiracy to commit wire 15 fraud, see18 U.S.C. §§ 1343, 1349, and conspiracy to 16 knowingly possess with intent to use unlawfully five false 17 identification documents . See18 U.S.C. §§ 1028(a)(3), 18 (b)(2)(B), (c)(3)(A), c(3)(B), (f). We assume the parties’ 19 familiarity with the underlying facts, the procedural 20 history, and the issues presented for review. 21 22 **1.** Ojo challenges the sufficiency of the evidence on 23 both convictions. “A defendant challenging the sufficiency 24 of the evidence bears a heavy burden, because the reviewing 25 court is required to draw all permissible inferences in 26 favor of the government and resolve all issues of 27 credibility in favor of the jury verdict.” United States v. 28 Kozeny , 667 F.3d 122, 139 (2d Cir. 2011). “The traditional 29 deference accorded to a jury’s verdict ‘is especially 30 important when reviewing a conviction for conspiracy . . . 31 because a conspiracy by its very nature is a secretive 32 operation, and it is a rare case where all aspects of a 33 conspiracy can be laid bare in court with the precision of a 34 surgeon’s scalpel.’” United States v. Jackson , 335 F.3d 35 170, 180 (2d Cir. 2003) (quoting United States v. Pitre , 960 36 F.2d 1112, 1121 (2d Cir. 1992)). 37 38 “[T]he conspiratorial agreement itself may be 39 established by proof of a tacit understanding among the 40 participants, rather than by proof of an explicit agreement 41 . . . .” United States v. Desimone , 119 F.3d 217, 223 (2d 42 Cir. 1997). Drawing all inferences in favor of the 43 government, the evidence adduced at trial was sufficient to 44 show that Ojo had a tacit understanding with his co45 conspirators and engaged in “purposeful behavior aimed at 46 furthering the goals of the conspiracy” for both wire fraud 47

2and knowing possession with intent to use unlawfully five 1 false identification documents. Id. 2 3 **2.** As to the conspiracy to knowingly possess with 4 intent to use unlawfully five false identification documents 5 offense, Ojo contends that the jury instruction was 6 improper. The government offered alternative theories of 7 liability: (1) that Ojo intended to use identification 8 documents unlawfully to participate in a conspiracy to 9 commit wire fraud; and (2) that Ojo intended to use the 10 identification documents unlawfully to violate New York 11 state law. If the jury found Ojo guilty on Count One for 12 conspiracy to commit wire fraud, as it did, the government’s 13 first theory of liability would be met. The district court 14 instructed the jury on both theories. Ojo’s argument 15 attacks the instruction given on the second theory. 16 However, because the instructions were proper and ample 17 evidence supports the first theory--conspiracy to commit 18 wire fraud--Ojo’s challenge must be rejected. “When the 19 jury is properly instructed on two alternative theories of 20 liability, as here, we must affirm when the evidence is 21 sufficient under either of the theories.” United States v. 22 Masotto , 73 F.3d 1233, 1241 (2d Cir. 1996). 23 24 **3.** Ojo challenges the denial of his motion to suppress 25 evidence seized during the stop of his car because the stop 26 was pretextual and because Ojo’s consent was involuntary. 27 But the subjective motivation of the officers who made the 28 stop is irrelevant; arguments “that the constitutional 29 reasonableness of traffic stops depends on the actual 30 motivations of the individual officers involved” are 31 “foreclose[d].” Whren v. United States , 517 U.S. 806, 813 32 (1996); seealsoUnited States v. Dhinsa , 171 F.3d 721, 724- 33 25 (2d Cir. 1999) (“In other words, an officer’s use of a 34 traffic violation as a pretext to stop a car in order to 35 obtain evidence for some more serious crime is of no 36 constitutional significance.”). 37 38 “It is . . . well settled that one of the specifically 39 established exceptions to the requirements of both a warrant 40 and probable cause is a search that is conducted pursuant to 41 consent.” Schneckloth v. Bustamonte , 412 U.S. 218, 219 42 (1973). “In considering a challenge to a district court 43 finding of consent, we are obliged to view the evidence in 44 the light most favorable to the government. We will not 45 reverse a finding of voluntary consent except for clear 46 error.” United States v. Snype , 441 F.3d 119, 131 (2d Cir. 47

32006) (internal citation omitted). The district court’s 1 determination that Ojo voluntarily consented to a search of 2 his car was not clearly erroneous given: (1) Ojo’s signature 3 on a handwritten consent form for a search of his car, 4 including its interior, trunk, and glove box; (2) testimony 5 that Ojo also gave oral consent; and (3) further testimony 6 that, after the search was completed, Ojo signed a standard 7 FBI “consent to search” form confirming his prior consent. 8 9 **4.** Ojo contends that the district court’s decision to 10 dismiss the indictment without prejudice based on a Speedy 11 Trial Act violation was erroneous. A proper and principled 12 consideration of the relevant factors shows otherwise. 13 14 “The determination of whether to dismiss an indictment 15 with or without prejudice is committed to the discretion of 16 the district court, and we will reverse such a determination 17 only upon a finding that the district court abused its 18 discretion.” United States v. Wilson , 11 F.3d 346, 352 (2d 19 Cir. 1993) (internal citation omitted). Factors considered 20 in this determination are: (1) the seriousness of the 21 offense; (2) the facts and circumstances of the case which 22 led to the dismissal; (3) the impact of a re-prosecution on 23 the administration of the Speedy Trial Act and the 24 administration of justice; and (4) prejudice to the 25 defendant. Seeid. “Where the crime charged is serious, 26 the sanction of dismissal with prejudice should ordinarily 27 be imposed only for serious delay.” United States v. 28 Simmons , 786 F.2d 479, 485 (2d Cir. 1986). 29 30 Ojo’s offense was unquestionably serious: it was 31 punishable by a prison term of up to 20 years, and the 32 evidence established a loss of approximately $80,000 33 suffered by more than 30 victims. The nonviolent nature of 34 this offense cannot overcome these indicia of seriousness. 35 SeeUnited States v. Kiszewski , 877 F.2d 210, 214 (2d Cir. 36 1989) (noting that perjury was a serious crime “since false 37 testimony strikes at the heart of administering the criminal 38 law”). Moreover, the length of the speedy trial violation 39 was only one day, a delay that does not amount to “serious 40 delay.” Simmons , 786 F.2d at 485. 41 42 As for the facts and circumstances leading to 43 dismissal, the government explained that the one-day delay 44 was likely a byproduct of the prosecutor counting the 30 45 days from the date of the arraignment rather than the date 46 of the arrest. Nothing in the record suggests bad faith or 47

4misconduct on the part of the government. For this reason, 1 the interests of justice weighed in favor of dismissal 2 without prejudice. SeeSimmons , 786 F.2d at 486 (“[W]here 3 the violation of the Act was unintentional and the resulting 4 delay not overly long, and where appellant has not presented 5 evidence of prejudice, we do not believe that the 6 administration of justice would be adversely affected by 7 reprosecution.”). 8 9 Ojo can point to no prejudice he suffered as a result 10 of the one-day delay. While prejudice is presumed to flow 11 from any delay, this factor requires an incremental showing 12 of actual prejudice; otherwise, this factor would always be 13 satisfied and would not be a variable. SeeUnited States v. 14 Wells , 893 F.2d 535, 540 (2d Cir. 1990) (“We detect nothing 15 in the record to indicate that the Government’s delay caused 16 any prejudice . . . .”) (emphasis added); United States v. 17 Hernandez , 863 F.2d 239, 244 (2d Cir. 1988) (“[S]hort delays 18 of the kind present here do not become ‘serious’ violations 19 of the Speedy Trial Act unless there is some resulting 20 prejudice to the defendant.”). A scrupulous application of 21 the applicable standards and rules necessitates the 22 conclusion that the district court did not abuse its 23 discretion in dismissing the indictment without prejudice. 24 25 **5.** Ojo’s claims that perjured testimony was presented 26 before the grand jury, during the suppression hearing, and 27 at trial are meritless and lack record support. Nor was 28 there a double jeopardy violation because Ojo successfully 29 withdrew his guilty plea after initially pleading guilty. 30 SeeUnited States v. Olmeda , 461 F.3d 271, 279 n.7 (2d Cir. 31 2006) (“[J]eopardy is not deemed to attach at the time of a 32 guilty plea, for example, where a defendant subsequently 33 withdraws his plea.”). 34 35 For the foregoing reasons, and finding no merit in 36 Ojo’s other arguments, we hereby **AFFIRM** the judgment of the 37 district court. 38 39 FOR THE COURT: 40 CATHERINE O’HAGAN WOLFE, CLERK 41 42 43

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