Appeals from the United States District Court for the
Southern District of Mississippi
STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.
WILLETT, CIRCUIT JUDGE.
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.
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.
argument is meritless, and we AFFIRM.
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.
they needed a safe way to transfer the fruits of their
crimes. Thus their digital dalliances. Using dating websites
like "seniorpeoplemeet.com," 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.
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.
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.
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.
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.
defendants filed post-trial motions for relief. But the
district court sentenced each defendant to the statutory
maximum for each conviction, running consecutively.
Standard of Review
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. And it is an abuse of discretion to apply
an erroneous view of the law or to clearly err in assessing
evidence. We review alleged Confrontation Clause
violations de novo.
sentencing, we review fact findings for clear error and
application of the Sentencing Guidelines de
novo. And as the Supreme Court requires, we
review the substantive reasonableness of sentences for abuse
the Supreme Court directs us to review arguments raised for
the first time on appeal for plain error. In
Puckett, the Court elaborated that under this
standard of review, defendants must first establish an
error. Next, they must show that it's clear
or obvious. Then, they must prove that the error
affected their substantial rights. 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."
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
Shackling the defendants at trial was not an abuse of
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." And the Court forbids visible restraints
altogether unless "justified by an essential state
interest" specific to that trial.
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. 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." And a few years before that, in
Ellender, we stated that district courts "may
rely heavily on the U.S. Marshal's advice" in
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.
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.
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.
The emails and copy of Mewase's passport were
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. 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
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.
Federal Rules of Evidence
Federal Rules of Evidence ban hearsay-out-of-court statements
made to prove the truth of what's asserted. 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.
Federal Rules of Evidence except business records from
hearsay.To qualify, a records custodian with
knowledge must testify unless they're
"self-authenticating." Records are
self-authenticating if they include a custodian certification
that the records "meet the requirements of Rule
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. 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. Thus, the district court didn't
abuse its discretion by finding a valid hearsay exception for
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. Same with the e-mule messages.
these statements were "the operative words of [the]
criminal action"-what we called "paradigmatic
nonhearsay" in our 1981 case
Jones.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).
Confrontation Clause analysis resembles our Federal Rules of
Evidence analysis. And likewise, the district court
didn't misstep in admitting the emails and records.
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.But that
prohibition applies only if the statements are
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." 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
this framework, Google and Yahoo!'s transmittal-data
records aren't testimonial. Consider our Towns
decision in 2013. There, we
considered a pharmacy's prescription-purchase
logs. We held that those
weren't testimonial. Rather, the pharmacy recorded those logs
"ex ante to comply with state regulatory
measures, not in response to active
prosecution." 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.
the coconspirator statements. Take our 2011 decision in
Jackson. 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. So the district court didn't violate
the defendants' Confrontation Clause rights by admitting
Best Evidence Rule
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. 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."
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 district court properly removed and replaced Juror
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. And as we
explained in Huntress, a court may not dismiss a
juror "without factual support or for a legally
irrelevant reason." 
Federal Rules of Criminal Procedure allow a judge to remove
jurors who cannot perform their duties. 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." 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."
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.
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 ...