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United States v. Ayelotan

United States Court of Appeals, Fifth Circuit

March 4, 2019


          Appeals from the United States District Court for the Southern District of Mississippi

          Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.


         Three Africa-based cybercriminals-Oladimeji Ayelotan, Femi Mewase, and Rasaq Raheem-masterminded a sprawling international romance scam that stole hearts, and money. Posing as bachelors (and bachelorettes) online, these Nigerian nationals kindled digital romances with scores of lovelorn Americans. The fraudsters sat at overseas computers, prowling the Internet and spinning false promises of love and romance, ultimately duping their unsuspecting victims into sending money to Nigeria and South Africa.

         Many fauxmance swindlers escape scot-free, their victims, broke and brokenhearted, too embarrassed to come forward. Not this time. A wary target reported her suspicions, and the scammers didn't fare as well in court as they had online. After a 16-day trial, the jury convicted them, and the district court imposed lengthy prison sentences. This appeal alleges several errors-the district court's imposition of leg restraints during trial; the admission of emails and a nonoriginal passport; the dismissal of a juror during trial; and the sentences handed down.

         Each argument is meritless, and we AFFIRM.

         I. Background

         The transnational romance scam worked like this: Ayelotan, Mewase, and Raheem-along with their coconspirators-stole personal information such as names, Social Security numbers, credit card numbers, and bank account numbers. They then impersonated their victims-getting cash advances and transferring funds out of the victims' accounts.

         But they needed a safe way to transfer the fruits of their crimes. Thus their digital dalliances. Using dating websites like "," well-honed conversation scripts, and step-by-step guides, the conspirators cultivated online relationships, then sweet-talked their "paramours" into laundering their money. Next, the conspirators would cajole their enamored victims into becoming money mules, conduits for stolen funds, even providing prepaid shipping labels for the swindled cash and goods.

         Everything was going according to plan until one prospective money mule grew suspicious. She reported her experience to the police, who ran it by Homeland Security Investigations (the Department of Homeland Security's investigation arm). Agent Todd Williams, posing over email as the target victim, helped unravel the whole scheme.

         The district court held a 16-day trial, during which it put the three defendants in leg restraints. The court also removed and replaced one of the jurors.

         The jury convicted Ayelotan and Raheem on several counts of conspiracy to commit mail fraud, wire fraud, and bank fraud; conspiracy to commit identity theft, use of unauthorized access devices, and theft of government property; mail fraud; and conspiracy to commit money laundering.

         The jury acquitted Mewase of conspiracy to commit money laundering. But it convicted him of conspiracy to commit mail fraud, wire fraud, and bank fraud; and conspiracy to commit identity theft, use of unauthorized access devices, and theft of government property.

         The defendants filed post-trial motions for relief. But the district court sentenced each defendant to the statutory maximum for each conviction, running consecutively.

         II. Standard of Review

         The arguments raised on appeal involve varying standards of review. We review decisions to shackle criminal defendants, admit evidence, and remove jurors for abuse of discretion.[1] And it is an abuse of discretion to apply an erroneous view of the law or to clearly err in assessing evidence.[2] We review alleged Confrontation Clause violations de novo.[3]

         As for sentencing, we review fact findings for clear error and application of the Sentencing Guidelines de novo.[4] And as the Supreme Court requires, we review the substantive reasonableness of sentences for abuse of discretion.[5]

         Finally, the Supreme Court directs us to review arguments raised for the first time on appeal for plain error.[6] In Puckett, the Court elaborated that under this standard of review, defendants must first establish an error.[7] Next, they must show that it's clear or obvious.[8] Then, they must prove that the error affected their substantial rights.[9] And if they satisfy these three prongs, we may correct the error-if it "seriously affects the fairness, integrity, or public reputation of judicial proceedings."[10]

         III. Discussion

         Ayelotan, Raheem, and Mewase bring assorted challenges-none availing-to their convictions and sentences:

Ayelotan and Raheem-the shackling of their legs during trial
Raheem and Mewase-the admission of various emails and Mewase's nonoriginal passport
Ayelotan and Mewase-the dismissal of a juror
All three defendants-their sentences

         A. Shackling the defendants at trial was not an abuse of discretion.

         Ayelotan and Raheem claim that shackling their legs violated their due process rights. As the Supreme Court explained 14 years ago in Deck, the Fifth and Fourteenth Amendments' due process clauses require courts to have a "particular reason" for shackling; "only in the presence of a special need."[11] And the Court forbids visible restraints altogether unless "justified by an essential state interest" specific to that trial.[12]

         What reasons are enough? Some 25 years ago, in Wilkerson, we held that courts may shackle defendants when there's a danger of harm or escape.[13] As we said then, "[w]e do not underestimate the need to restrain dangerous defendants to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations."[14] And a few years before that, in Ellender, we stated that district courts "may rely heavily on the U.S. Marshal's advice" in considering restraints.[15]

         Here, the court had valid reasons: Ayelotan and Raheem posed a danger. And the facts show that. For example, at Ayelotan's extradition hearing, he and other defendants caused such a ruckus that SWAT had to be called in. The district court stressed this concern. And given the extradition escapades, the U.S. Marshals expressed unease too-recommending that the court restrain the defendants at trial. The court had a valid, particularized reason for shackling the defendants.

         Plus, the defendants' restraints weren't visible. Neither Ayelotan nor Raheem even claim that the restraints were visible. Neither defendant raises any evidence suggesting that the jury saw the restraints. And Raheem asserts merely that it's impossible to be sure that a juror never saw him in shackles.

         In sum, the district court had compelling reasons for shackling the defendants, and there's no evidence the jury even saw the restraints. And so the district court didn't violate the defendants' due process rights.

         B. The emails and copy of Mewase's passport were admissible.

         At trial, the Government admitted oodles of emails that the defendants sent to their romantic targets. These emails all came from Google and Yahoo! accounts. And they revealed the defendants' fraudulent activities. They also included instructions for money mules to send cash and progress updates on their various schemes.[16] The defendants filed pretrial objections to admission of the emails. But the district court held that the emails and transmittal records, accompanied by Google and Yahoo! records-custodian certificates, were admissible self-authenticating business records.

         On appeal, Raheem and Mewase challenge the admission of these emails and records under the Federal Rules of Evidence and the Confrontation Clause. Mewase also contends that admission of a duplicate copy of his passport identification page violated the Best Evidence Rule. Both challenges fail.

         1. Federal Rules of Evidence

         The Federal Rules of Evidence ban hearsay-out-of-court statements made to prove the truth of what's asserted.[17] But there are exceptions. Here, each email represented two "statements" for purposes of the Federal Rules of Evidence. First was the transmittal certificate-effectively, the email provider's statement that one user wrote and sent a message to another user at the recorded time. Second, the content of each email is also a statement. We take them in that order.

         The Federal Rules of Evidence except business records from hearsay.[18]To qualify, a records custodian with knowledge must testify unless they're "self-authenticating."[19] Records are self-authenticating if they include a custodian certification that the records "meet[] the requirements of Rule 803(6)(A)-(C)."[20]

         All the email records from this conspiracy included certificates. The certificates stated that Google or Yahoo! recorded the transmittal data automatically when users send emails, as part of the regular practice of a regularly conducted business activity. This satisfies Rule 803(6)'s requirements for admission.[21] As we explained in our 1991 Wilson decision, certificates from a records custodian that "track the language of Rule 803(6) nearly word for word" render the records self-authenticating.[22] Thus, the district court didn't abuse its discretion by finding a valid hearsay exception for the certificates.

         The second possible hearsay is the emails' substantive content: the messages between the defendants and their coconspirators. But these were admissible too. The Government didn't offer these statements to prove the content of them.[23] Same with the e-mule messages.

         Rather, these statements were "the operative words of [the] criminal action"-what we called "paradigmatic nonhearsay" in our 1981 case Jones.[24]The remaining content in the emails-updates between the coconspirators about their criminal scheme-was admissible as opposing party and coconspirator statements under Rule 801(d).[25]

         2. Confrontation Clause

         Our Confrontation Clause analysis resembles our Federal Rules of Evidence analysis. And likewise, the district court didn't misstep in admitting the emails and records.

         In 2004, the Supreme Court held in Crawford that the Confrontation Clause prohibits admitting out-of-court statements as evidence against defendants in a criminal case unless they can cross-examine the declarant.[26]But that prohibition applies only if the statements are "testimonial."[27]

         And two years later in Davis, the Court explained that statements are "testimonial" if their "primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution."[28] Or as the Court explained in Melendez-Diaz three years after that, business records must be "for the administration of the [business's] affairs and not for the purpose of establishing or proving some fact at trial."[29]

         Under this framework, Google and Yahoo!'s transmittal-data records aren't testimonial. Consider our Towns decision in 2013.[30] There, we considered a pharmacy's prescription-purchase logs.[31] We held that those weren't testimonial.[32] Rather, the pharmacy recorded those logs "ex ante to comply with state regulatory measures, not in response to active prosecution."[33] It's the same with Google and Yahoo! They didn't create the records to prove a particular fact at a particular trial-let alone this trial. The records are admissible as far as the Confrontation Clause goes.

         So are the coconspirator statements. Take our 2011 decision in Jackson.[34] In that case, we explained that-as a general matter- "coconspirator statements made during the course and in furtherance of a conspiracy" aren't testimonial.[35] So the district court didn't violate the defendants' Confrontation Clause rights by admitting this evidence.

         3. Best Evidence Rule

         Mewase also contends that the passport copy was inadmissible under the Best Evidence Rule. True, the Federal Rules of Evidence require using "[a]n original writing, recording, or photograph" as evidence of that item's contents at trial.[36] But the Rules clarify that "[a] duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit a duplicate."[37]

         Mewase's original passport went missing during his extradition. And Mewase acknowledges that it wasn't the Government's fault. Even so, he still claims that relying on the duplicate isn't fair. And yet he doesn't explain why. So the district court didn't abuse its discretion in admitting the duplicate.

         C. The district court properly removed and replaced Juror 20.

         Ayelotan and Mewase contend that the district court's decision to remove Juror 20 violated their due process rights. We review the removal and replacement of a juror for abuse of discretion.[38] And as we explained in Huntress, a court may not dismiss a juror "without factual support or for a legally irrelevant reason." [39]

         The Federal Rules of Criminal Procedure allow a judge to remove jurors who cannot perform their duties.[40] We explained what that means long ago. Forty-plus years ago in Smith, we held that "a juror who cannot remain awake during much of the trial is unable to perform his duty."[41] And in 2002, we explained in Edwards that other good reasons for removal include a "lack of candor" and an "inability or unwillingness to follow instructions."[42]

         Here, the district court identified legally relevant reasons for removing Juror 20. The juror slept through witness testimony; misrepresented this fact to the district court when asked; didn't understand, or else didn't follow, the jury instructions; and didn't deliberate.

         Ample evidence supported these legitimate reasons. Near the end of the first day of jury deliberations, the foreperson delivered two notes to the court:

We have one person that is undecided, and we [cannot] get an answer from him.
One, we have a juror that has admitted that he slept through some of the testimony; two, he doesn't believe you can't go to Western Union and pick up transaction, his opinion/own notation; three, he ...

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