Summary
The Fourth Circuit affirmed Adetokunbo Adepoju’s convictions for bank fraud and aggravated identity theft and rejected his due process challenge under Alleyne. The court held that the evidence was sufficient to establish the offenses. It vacated the sentence and remanded for resentencing because the government had not shown that Adepoju used sophisticated means beyond the complexity inherent in the bank-fraud offenses.
Topics
Practice areas
Questions Presented
- Whether substantial evidence supported Adepoju's convictions for bank fraud under 18 U.S.C. § 1344.
- Whether substantial evidence supported the aggravated identity-theft conviction by showing that Adepoju knew T.A.'s identifying information belonged to a real person.
- Whether the district court clearly erred by applying the two-level sophisticated-means enhancement under U.S.S.G. § 2B1.1(b)(10)(C).
- Whether the aggravated identity-theft sentence violated due process under Alleyne because the facts supporting the mandatory minimum were not specially found by the jury.
Holdings
- Substantial evidence supported Adepoju's convictions under 18 U.S.C. § 1344(1). The government was not required to prove that the bank suffered a loss or that Adepoju personally presented the forged checks to the bank.
- The evidence was sufficient to establish that Adepoju knew T.A.'s identifying information belonged to a real person, satisfying the knowledge element of 18 U.S.C. § 1028A(a)(1).
- The district court clearly erred in applying the two-level sophisticated-means enhancement because the government did not prove by a preponderance of the evidence that Adepoju's conduct was especially complex or intricate beyond the conduct inherent in ordinary bank fraud.
- The aggravated identity-theft sentence did not violate due process or Alleyne because the statute imposes a fixed consecutive two-year sentence and does not create varying mandatory minimums based on additional factual findings.
Key quotations
“Even so, sophistication requires more than the concealment or complexities inherent in fraud.” (756 F.3d at 259)
“The district court clearly erred by essentially shifting the burden to Adepoju to disprove sophistication.” (756 F.3d at 260)
“The government’s burden demands more than the mere presence of the tools of fraud and the attempt to use the same.” (756 F.3d at 262)
“The presence of forgeries or stolen identification, and a plan to use such material to wrongfully acquire moneys, does not necessarily amount to sophistication.” (756 F.3d at 263)
Factual background
A confidential informant reported that Adepoju sought to sell counterfeit identification documents and later approached the informant with a plan to defraud a bank using accounts opened in another person's name and checks supplied by Adepoju. Adepoju provided personal identifying information for T.A. and two fraudulent checks payable to T.A. and T.A. Trucking, although the informant delivered the checks to law enforcement rather than depositing them. A search of Adepoju's home uncovered cellular phones, a laptop, a thumb drive containing images of identification documents and checks, and other evidence connecting him to the scheme. The government also presented testimony that T.A. had not authorized the accounts and that Wells Fargo was federally insured.
Procedural history
A jury convicted Adepoju of two counts of bank fraud under 18 U.S.C. § 1344 and one count of aggravated identity theft under 18 U.S.C. § 1028A. The district court sentenced him to seventy months, including forty-six-month bank-fraud sentences and a consecutive twenty-four-month sentence for aggravated identity theft, and applied a two-level sophisticated-means enhancement to the bank-fraud sentences. The Fourth Circuit affirmed the convictions and the aggravated-identity-theft sentence, vacated the sophisticated-means enhancement, and remanded for resentencing.
Remand instructions
Vacate the sophisticated-means enhancement and remand for resentencing without that enhancement and consistent with the opinion. The convictions and consecutive two-year aggravated-identity-theft sentence were affirmed.