18-3546(L)

United States v. Raheem Brennerman

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. 

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 

9th day of June, two thousand twenty.

Present: ROSEMARY S. POOLER,

REENA RAGGI,

WILLIAM J. NARDINI,

 Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 18-3546, 19-497

RAHEEM BRENNERMAN,

AKA JEFERSON R. BRENNERMAN, 

AKA AYODEJI SOETAN,

Defendant-Appellant.

Appearing for Appellant: John C. Meringolo, Meringolo & Associates, P.C., Brooklyn, N.Y.

Appearing for Appellee: Danielle R. Sassoon, Assistant United States Attorney (Nicholas 

Roos, Robert B. Sobelman, Matthew Podolsky, Assistant United 

States Attorneys, on the brief), for Geoffrey S. Berman, United 
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States Attorney for the Southern District of New York, New York, 

N.Y.

Appeal from the United States District Court for the Southern District of New York (Sullivan, 

J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment be and it hereby is AFFIRMED. 

Defendant-Appellant Raheem Brennerman appeals from the February 12, 2019,

amended judgment of conviction entered in the United States District Court for the Southern 

District of New York (Sullivan, J.), sentencing him principally to 144 months’ imprisonment, 3 

years’ supervised release, forfeiture in the amount of $4,400,000, and restitution in the amount of 

$5,264,176.19. Following a jury trial, Brennerman was convicted of one count of conspiracy to 

commit bank and wire fraud, in violation of 18 U.S.C. § 1349; one count of bank fraud, in 

violation of 18 U.S.C. §§ 1344 and 2; one count of wire fraud, in violation of 18 U.S.C. §§ 1343 

and 2; and one count of visa fraud, in violation of 18 U.S.C. § 1546(a). We assume the parties’ 

familiarity with the underlying facts, procedural history, and specification of issues for review.

On appeal, Brennerman argues: (1) there was insufficient evidence to convict him on the 

conspiracy count, the substantive bank fraud count, and the substantive wire fraud count; (2) the 

government made an impermissible constructive amendment to the indictment; (3) the search 

warrant for Brennerman’s Las Vegas apartment was unlawful; (4) the admission of the testimony 

of Julian Madgett violated Brennerman’s constitutional rights; (5) the district court erred by 

applying a two-offense level enhancement for obstruction of justice, pursuant to U.S.S.G. 

§ 3C1.1; and (6) the district court incorrectly determined the restitution amount. 

I. Sufficiency of the Evidence

A defendant challenging the sufficiency of the evidence bears a “heavy burden,” United 

States v. Gaskin, 364 F.3d 438, 459 (2d Cir. 2004), as the standard of review is “exceedingly 

deferential,” United States v. Hassan, 578 F.3d 108, 126 (2d Cir. 2008). Ultimately, “the task of 

choosing among competing, permissible inferences is for the [jury], not for the reviewing court.” 

United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001).

Brennerman argues there was insufficient evidence to convict him of a conspiracy. He 

argues the jury could not have adduced the existence of an agreement because the record does 

not contain a single response from Peter Aderinwale, the purported co-conspirator with whom

Brennerman corresponded over email. His argument is both factually and legally flawed. First, 

the record did contain two responsive emails from Aderinwale concerning draft emails to be sent 

to ICBC as part of the scheme. Second, a response from an alleged co-conspirator following 

conspiratorial communication is not legally necessary to establish the existence of a conspiracy. 

We agree with the government that a reasonable jury could infer the requisite intent from emails 

in which Brennerman solicited Aderinwale’s input on aspects of the fraud scheme and from

Brennerman’s transfer of substantial scheme proceeds to Aderinwale. These facts would have 

supported the inference that Aderinwale was a co-conspirator, even in the absence of any email 
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response from Aderinwale. The jury would have been entitled to infer that Aderinwale’s

responses had been conveyed over the phone or in person. “This is so because a conspiracy by its 

very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be 

laid bare in court with the precision of a surgeon’s scalpel.” United States v. Pitre, 960 F.2d 

1112, 1121 (2d Cir. 1992) (internal quotation marks and citation omitted). Thus, viewing the 

evidence in the light most favorable to the government, we find there was sufficient evidence 

from which the jury could have reasonably inferred the existence of a conspiracy. 

Brennerman also argues that there was insufficient evidence that he intended to defraud 

an institution insured by the Federal Deposit Insurance Corporation (“FDIC”) as required for

bank fraud, because most of the evidence offered at trial showed that he targeted the Industrial

and Commercial Bank of China’s London branch (“ICBC”), which is not FDIC-insured.

Contrary to Brennerman’s assertions, however, the record did establish that he defrauded 

Morgan Stanley, an FDIC-insured institution, as part of his broader scheme by, among other 

things, inducing it to issue him a credit card based on false representations about his citizenship, 

assets, and the nature and worth of his company. Indeed, the government argued just this theory 

on summation, asserting that Brennerman was guilty of bank fraud because “he engaged in a 

scheme to defraud Morgan Stanley” through lies told to a Morgan Stanley employee, which were 

“all part of an attempt to defraud an FDIC-insured institution.” App’x at 1709-10. Defense 

counsel in summation also emphasized that Morgan Stanley was the sole FDIC-insured 

institution involved. And the district court instructed the jury on the proper elements of bank 

fraud, including the FDIC-insured institution element. Brennerman’s challenge, therefore, is 

foreclosed by “the law’s general assumption that juries follow the instructions they are given,”

which applied here would indicate that the jury properly accounted for the evidence related to 

Morgan Stanley when convicting Brennerman of the bank fraud count. United States v. Agrawal, 

726 F.3d 235, 258 (2d Cir. 2013).

As to the wire fraud count, Brennerman argues there was insufficient evidence to 

establish a domestic violation of the statute. “[W]ire fraud involves sufficient domestic conduct 

when (1) the defendant used domestic mail or wires in furtherance of a scheme to defraud, and 

(2) the use of the mail or wires was a core component of the scheme to defraud.” Bascuñán v. 

Elsaca, 927 F.3d 108, 122 (2d Cir. 2019). We conclude that the evidence here was sufficient.

The record at trial established that Brennerman used domestic wires to carry out the fraudulent 

scheme. Indeed, he concedes that he used telephone lines and email in the United States to make 

fraudulent representations in furtherance of the scheme. In addition, the account to which ICBC 

wired the loan money was a Citibank account within the United States, and Brennerman 

subsequently moved that money to domestic accounts. This is precisely the kind of use of

domestic wires that we have held sufficient under the wire fraud statute. See, e.g., United States 

v. Kim, 246 F.3d 186, 190 (2d Cir. 2001). 

II. Constructive Amendment

An impermissible constructive amendment occurs only when the government’s proof and 

the trial court’s jury instructions “modify essential elements of the offense charged to the point 

that there is a substantial likelihood that the defendant may have been convicted of an offense 
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other than the one charged by the grand jury.” United States v. Vebeliunas, 76 F.3d 1283, 1290 

(2d Cir. 1996) (internal quotation marks and citation omitted).

Brennerman contends that the government constructively amended counts one and two of 

the indictment by proving a fraud against Morgan Stanley at trial—while the indictment, 

especially the speaking part, focuses on the fraud against ICBC. We disagree. It is clear from the 

indictment that the scheme against ICBC was merely one target of Brennerman’s alleged fraud.

The indictment alleged that Brennerman’s scheme in fact targeted “several financial institutions 

around the world, including in the United States.” App’x at 39. It also specifically alleged that 

Brennerman defrauded an FDIC-insured financial institution. The indictment did not limit the 

proof only to Brennerman’s scheme against ICBC. While the indictment discusses ICBC activity 

at length, it makes clear that those allegations are illustrations, asserting that “[b]eginning in or 

about January 2013, [Brennerman] made similar [false] representations to other financial 

institutions in an effort to induce those institutions to provide financing to Blacksands Pacific 

and Blacksands Alpha.” App’x at 42. At trial, the government offered evidence that Morgan 

Stanley was one of those “other financial institutions.” See App’x at 608-09 (testimony of 

Morgan Stanley’s Kevin Bonebrake about a January 2013 telephone call with Brennerman 

discussing financing to develop oil asset). Thus, there was not a “a substantial likelihood that the 

defendant may have been convicted of an offense other than the one charged by the grand jury.” 

Vebeliunas, 76 F.3d at 1290. 

III. Search Warrant

Brennerman challenges the lawfulness of the search warrant of his Las Vegas apartment.

Even assuming, for the sake of argument only, that the search warrant was unlawful, we 

conclude that the good faith exception to the Fourth Amendment’s exclusionary rule would 

apply. We therefore need not address the propriety of the search warrant. The district court found 

that the law enforcement agents who executed the warrant reasonably relied on its terms in good 

faith, and Brennerman has not challenged this finding. Where, as here, evidence is obtained by 

police officers executing the search “in objectively reasonable reliance” on a warrant, 

the good faith exception to the exclusionary rule applies. United States v. Falso, 544 F.3d 110,

125 (2d Cir. 2008) (internal quotation marks and citation omitted).

IV. Testimony of Julian Madgett

Brennerman argues that Julian Madgett’s testimony at trial violated due process and his 

Sixth Amendment rights to confrontation and compulsory process because he was unable to 

obtain certain exculpatory personal notes from Madgett, and the government would not turn the

notes over or otherwise retrieve them from ICBC. 

The government has an obligation under the Due Process Clause to make a timely 

disclosure of any exculpatory or impeaching evidence that is material and in its possession. See 

Brady v. Maryland, 373 U.S. 83 (1963); see also Giglio v. United States, 405 U.S. 150 (1972).

Additionally, the Jencks Act provides that, “[a]fter a witness called by the United States has 

testified on direct examination, the court shall, on motion of the defendant, order the United 

States to produce any statement . . . of the witness in the possession of the United States which 

relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b).
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Brennerman’s argument claiming constitutional violations as a result of Madgett’s 

testimony is without merit. The government’s discovery and disclosure obligations extend only 

to information and documents in the government’s possession. United States v. Avellino, 136 

F.3d 249, 255 (2d Cir. 1998) (explaining that the Brady obligation applies only to evidence “that 

is known to the prosecutor”). The government insists that every document it received from ICBC 

was turned over to Brennerman and that it is not aware of the personal notes referenced by 

Brennerman. Therefore, the government has not violated its disclosure obligation. Nor was the 

government under any obligation under the Jencks Act to collect materials about Madgett that 

were not in the government’s possession. See United States v. Bermudez, 526 F.2d 89, 100 n.9 

(2d Cir. 1975).

Even if the documents exist and are material and favorable, Brennerman never sought a

subpoena pursuant to Federal Rule of Criminal Procedure 17, never made a timely request for a 

deposition under Federal Rule of Criminal Procedure 15, and never asked the district court to 

issue letters rogatory pursuant to 28 U.S.C. § 1781 to obtain documentary evidence or secure 

testimony from the United Kingdom where ICBC maintains its records. The only indication that 

such documents are extant comes from Brennerman’s bare assertions. 

V. Sentence

At sentencing, the court applied a two-offense level enhancement for obstruction of 

justice, pursuant to U.S.S.G. § 3C1.1, a finding that relied on, as an alternative basis,

Brennerman’s false representations in his bail applications to the court. Brennerman argues that 

those misrepresentations cannot support an obstruction of justice enhancement because the 

misstatements “were at most minimally connected to the offense conduct in this case and did not 

obstruct the prosecution in any meaningful way.” Appellant’s Br. at 54. However, this argument

has already been rejected by our Court in United States v. Mafanya, 24 F.3d 412, 415 (2d Cir.

1994) (“Appellant’s false statement to a judicial officer (the magistrate judge) was an attempt to

obstruct justice. Therefore, the district court properly Applied the [Section 3C1.1] enhancement .

. . .”). Accordingly, the district court did not err in applying the enhancement. 

VI. Restitution

The Mandatory Victims Restitution Act of 1996 (“MVRA”) provides that “[i]n each 

order of restitution, the court shall order restitution to each victim in the full amount of each 

victim’s losses as determined by the court and without consideration of the economic 

circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A). “[A]t sentencing, the government 

bears the preponderance burden of proving actual loss supporting a restitution order.” United 

States v. Rutigliano, 887 F.3d 98, 109 (2d Cir. 2018). “[W]e review a district court’s order of 

restitution under the MVRA for abuse of discretion.” United States v. Zangari, 677 F.3d 86, 91 

(2d Cir. 2012).

Brennerman argues that the district court improperly imposed restitution in the full

amount of the $5 million ICBC loan even though Brennerman had already made a payment of 

$446,466.13. But the testimony at trial established that ICBC released approximately $4.4 

million to Brennerman and the rest was used to finance loan servicing fees. The $446,466.13 
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paid to ICBC by Brennerman was an interest-only payment that did not reduce the $5 million 

principal owed. Therefore, ICBC’s loss of $5 million as a result of the fraud was supported, and 

Brennerman points to nothing that undermines the district court’s finding. 

We have considered the remainder of Brennerman’s arguments and find them to be 

without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk