2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-26-2014

USA v. Osarhieme Obaygbona

Precedential or Non-Precedential: Non-Precedential

Docket 12-4582

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"USA v. Osarhieme Obaygbona" (2014). 2014 Decisions. Paper 235.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-4582

_____________

UNITED STATES OF AMERICA

v.

OSARHIEME UYI OBAYGBONA, 

AKA Uyi Obaygbona, 

AKA Bside Bside,

Appellant

____________

On Appeal from the United States District Court

for the District of New Jersey 

(No. 2-11-cr-00299-004)

District Judge: Honorable William J. Martini

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 13, 2013

Before: MCKEE, Chief Judge, FUENTES, and SLOVITER, Circuit Judges.

(Filed: February 27, 2014)
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____________

OPINION OF THE COURT

____________

FUENTES, Circuit Judge:

After a two-week trial, a jury convicted Osarhieme Obaygbona of conspiring to 

commit wire fraud, conspiring to commit identity theft, and conspiring to commit 

unauthorized computer access. Obaygbona appeals from his criminal conviction and 

sentence. He attacks the District Court’s instructions to the jury, the prosecutor’s 

argument at summation, and the calculation of his U.S. Sentencing Guidelines range. As 

none of these challenges has merit, we affirm Obaygbona’s conviction and sentence.

I. Background

Obaygbona, working with others, withdrew money from the bank accounts of 

strangers. The scheme was simple, but effective. A member of the conspiracy would

obtain the personal information of a target and pass the target’s information to 

Obaygbona. Obaygbona would use the information to access the target’s bank accounts 

by internet or telephone. Obaygbona or another member of the conspiracy would then 

dispatch a runner to the bank to pose as the target and withdraw funds from the target’s 

account. Afterwards, Obaygbona would verify the details of the transaction with the 

bank. 

The government and Obaygbona presented their cases during a two-week trial. 

The jury found that Obaygbona conspired to commit wire fraud, in violation of 18 U.S.C. 

§ 1349; conspired to commit identity theft, in violation of 18 U.S.C. § 1028(f); and 

conspired to gain unauthorized access to computers, in violation of 18 U.S.C. § 1030(b).
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At sentencing, the District Court found that enhancements increased Obaygbona’s 

Guidelines offense level. Among them, the District Court estimated that the scheme 

resulted in actual or intended losses in excess of $70,000. Accordingly, the District Court

applied an 8-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(E). The District 

Court also estimated that the number of victims exceeded 50. Accordingly, the District 

Court applied a 4-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(2)(B). Based on 

those findings, and others relating to the nature of the fraud, Obaygbona’s role, and 

Obaygbona’s prior criminal history, the District Court calculated Obaygbona’s 

Guidelines range as 63 to 78 months. The District Court sentenced Obaygbona to 70 

months’ imprisonment for conspiracy to commit wire fraud, 70 months’ imprisonment 

for conspiracy to commit identity theft, and 30 months’ imprisonment for conspiracy to 

gain unauthorized access to computers. The District Court ordered that all three sentences 

were to be served concurrently.

Obaygbona appealed, challenging both his conviction and his sentence. 

II. Conviction

Obaygbona contends that we must overturn his conviction for three reasons. First, 

the District Court improperly omitted an overt act requirement from its jury instructions

regarding the elements of conspiracy. Second, the District Court inadequately instructed 

the jury regarding wire fraud. Third, the District Court failed to declare a mistrial after 

the government prejudicially commented on Obaygbona’s decision not to testify at trial.

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None of these perceived errors merits reversal.

 

1 Because Obaygbona raised none of these issues before the District Court, we review for plain 

error. See United States v. Marcus, 560 U.S. 258, 262-64 (2010); United States v. Brown, 254 

F.3d 454, 458, 463 (3d Cir. 2001) (unpreserved objection to prosecutor’s summation). Under 

plain error review, an appellate court may correct an error only when the appellant demonstrates 

there is an error, the error is clear or obvious, the error affected the appellant’s substantial rights, 
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First, when the District Court instructed the jury regarding conspiracy, it did not 

plainly err in omitting an overt act requirement. The text of the relevant statute, 18 U.S.C. 

§ 1349, does not expressly require an overt act requirement, so it likely contains none. 

See Whitfield v. United States, 543 U.S. 209, 213 (2005). Indeed, Obaygbona’s trial 

counsel, when asked by the District Court, agreed that § 1349 contained no overt act 

requirement. In any event, we need not decide the issue. Whether a § 1349 conspiracy 

requires an overt act is, at the very least, “subject to reasonable dispute” and therefore not 

plain error. See Marcus, 560 U.S. at 262.

Second, the District Court did not commit plain error by omitting a detailed 

instruction on the meaning of an interstate wire. According to Obaygbona, the District 

Court failed “to give the jury the necessary clarifying instruction on what” it means to 

transmit a writing, signal, or sound by means of a wire, radio, or television 

communication. (Obaygbona Br. 37.) But Obaygbona did not dispute at trial that the 

conspiracy involved interstate wire communications. Accordingly, any further instruction 

to the jury about of the meaning of a “wire” would not have had any reasonable 

probability of affecting the trial’s outcome. See United States v. Olano, 507 U.S. 725, 734 

(1993).

Third, the Government did not make a constitutionally impermissible comment on 

his silence during the trial. Obaygbona contends that the prosecutor violated 

Obaygbona’s Fifth Amendment rights by describing certain evidence as “not in dispute.” 

(Obaygbona Br. 42.) In particular, the prosecutor described the existence of the identity 

theft ring, the ring’s use of fake IDs, and the ring’s focus on making fraudulent 

withdrawals as “not even in dispute.” App’x 924. The prosecutor’s language, however,

 

and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. 

Marcus, 460 U.S. at 262.
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does not appear to have been “manifestly intended” or “of such character that the jury 

would naturally take it to be a comment on the failure of the accused to testify.” Cf. 

Brown, 254 F.3d at 463 (quoting Bontempo v. Fenton, 692 F.2d 954, 958 (3d Cir. 1982)).

Accordingly, the District Court had no obligation to declare a mistrial.

III.Sentence

Obaygbona next challenges two aspects of the District Court’s Guidelines 

calculation. First, Obaygbona contends that the District Court miscalculated the actual or 

intended loss cause by his conduct. Second, Obaygbona challenges the District Court’s

factual finding that the victims numbered at least 50.

2 We reject both arguments.

The District Court did not commit clear error when it determined that Obaygbona 

caused losses in excess of $70,000. The District Court had before it evidence showing the 

identity theft conspiracy caused actual or intended losses in excess of $120,874. 

Obaygbona does not dispute this. Rather, he asserts that much of the loss ought to be 

attributed to other members of the conspiracy, not to him, because his co-conspirators

used the stolen information to withdraw money from more banks than Obaygbona

instructed them to visit. Having provided fake identities to his co-conspirators for the 

purpose that they use them to make unauthorized bank withdrawals, however,

Obaygbona cannot disclaim responsibility when his collaborators used the same tactics at 

other banks. We credit the District Court’s conclusion that these losses were reasonably 

foreseeable to Obaygbona. Therefore, the District Court reasonably found facts that 

supported an 8-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(E).

 

2 We review a district court’s interpretation of the Guidelines de novo. We review a district 

court’s factual findings for clear error. We accord a district court’s application of its factual 

findings to the Guidelines with due deference. See United States v. Richards, 674 F.3d 215, 218-

23 (3d Cir. 2013).
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The District Court did not commit clear error when it estimated that the number of 

victims numbered at least 50. The District Court found Obaygbona’s offense “involved 

50 or more victims” and thus increased the Guideline offense-level by 4 levels. U.S.S.G. 

§ 2B1.1(b)(2)(B). Obaygbona contends that the District Court ought to have counted only 

those individuals whose identifying information Obaygbona and his co-conspirators used 

to commit fraud. Had Obaygbona merely possessed or transferred identifying 

information, he perhaps would not have “used” that information within the meaning of 

§ 2B1.1. See, e.g., United States v. Hall, 704 F.3d 1317, 1321 (11th Cir. 2013). But the 

trial record shows that the conspirators accessed the private financial accounts of more 

than 40 persons, in addition to at least 10 persons whose accounts they had plundered or 

credentials they had forged. Thus, the District Court did not clearly err when it concluded 

that Obaygbona’s conduct affected at least 50 victims. 

IV.Conclusion

We affirm Obaygbona’s conviction and sentence. The District Court did not 

commit plain error in instructing the jury about conspiracy or wire fraud. Nor did it allow

the government to improperly comment on Obaygbona’s silence. Nor did it err when it 

found that Obaygbona’s conduct caused more than $70,000 in losses and affected more 

than 50 victims.