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Date: 09-01-2021
Case Style:
United States of America v. Chukwuma Jonas Osuagwu
Case Number: 18-11108
Judge: Before King, Higginson, and Wilson, Circuit Judges.
Per Curiam
Court: United States Court of Appeals
for the Fifth Circuit
Plaintiff's Attorney: Not Listed
Defendant's Attorney:
Description:
New Orleans, LA- Criminal defense lawyer represented defendant with five counts of bank fraud and one count of conspiracy to commit bank fraud charge.
This criminal appeal challenges the district court’s evidentiary rulings
and the sufficiency of the evidence, focusing predominately on whether the
government proved beyond a reasonable doubt that the victim banks—Bank
of America, J.P. Morgan Chase, and Wells Fargo—were insured by the
Federal Deposit Insurance Corporation (“FDIC”) at the time of the alleged
fraud.
Following a seven-day jury trial, during which he represented himself,
Chukwuma Jonas Osuagwu was convicted of five counts of bank fraud and
one count of conspiracy to commit bank fraud.1
At trial, the government adduced evidence of a scheme in which
Osuagwu fraudulently obtained mortgage loans for residential condominium
units in Dallas, Texas, and assisted others in doing the same. This scheme
resulted in a total loss of over $1.5 million to the victim banks, including Bank
of America, J.P. Morgan Chase, and Wells Fargo.
In proving its case, the government submitted affidavits from counsel
for FDIC regarding the banks’ FDIC-insured status.2 Osuagwu did not object
to the affidavits’ admission at trial, though he now contends that their
admission violated the Sixth Amendment’s Confrontation Clause.
1 Osuagwu was sentenced to seventy-two months of imprisonment as to each
count, to be served concurrently. The district court also imposed concurrent sentences of
five years of supervised release. Osuagwu does not challenge his sentence on appeal.
2 As relevant here, an essential element of bank fraud—and a requirement for
establishing federal jurisdiction—is that the victim banks are FDIC insured such that they
constitute “financial institution[s]” within the meaning of the bank fraud statute. See
18 U.S.C. § 1344; see also 18 U.S.C. § 20 (defining “financial institution”); United States v.
Davis, 735 F.3d 194, 198–99 (5th Cir. 2013) (explaining that a victim bank must be a
financial institution and that the government may prove as much by demonstrating that the
victim bank is FDIC insured).
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No. 18-11108
3
Additionally, the government submitted bank and mortgage loan records, the
authenticity or foundation of which Osuagwu did not challenge at trial.
Osuagwu did, however, move for judgment of acquittal, which the district
court denied. Osuagwu timely appeals.
II.
Osuagwu challenges the government’s proof of the FDIC-insured
status of the victim banks in two ways: (1) the admission of the affidavits from
FDIC’s counsel violated the Confrontation Clause, and (2) there was
insufficient evidence from which a jury could reasonably conclude that the
victim banks were insured by FDIC at the time of the alleged fraud. Neither
challenge is successful.
1. Osuagwu’s Confrontation Clause challenge fails plain-error review.
Osuagwu argues for the first time on appeal that admission of
affidavits from FDIC’s counsel regarding the victim banks’ FDIC-insured
status violated the Sixth Amendment’s Confrontation Clause.
Although “[w]e usually review an alleged Confrontation Clause
violation de novo, subject to harmless-error analysis,” where a defendant does
“not make a timely and specific Confrontation Clause objection to the
introduction of . . . [certain] evidence,” we review that challenge for plain
error only.3 United States v. Martinez-Rios, 595 F.3d 581, 584 (5th Cir. 2010)
(citation omitted).
3 To the extent that Osuagwu argues that we should review this challenge de novo,
he is incorrect. Osuagwu never raised a Confrontation Clause challenge to the admission
of the affidavits from FDIC’s counsel. Accordingly, plain-error review applies. See United
States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009) (“To preserve error, an objection must be
sufficiently specific to alert the district court to the nature of the alleged error and to
provide an opportunity for correction.”).
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Under plain-error review, Osuagwu must show that (1) the district
court erred; (2) the error was clear or obvious; (3) the error affected his
substantial rights; and, (4) we should exercise our discretion to correct the
error because “the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Escalante-Reyes, 689 F.3d
415, 419 (5th Cir. 2012) (en banc) (quoting Puckett v. United States, 556 U.S.
129, 135 (2009)).
The Sixth Amendment guarantees a criminal defendant the right “to
be confronted with the witnesses against him.” U.S. Const. amend. VI.
And “that right is violated where the prosecution introduces ‘testimonial
statements of a witness who did not appear at trial unless he was unavailable
to testify, and the defendant had had a prior opportunity for crossexamination.’” Martinez-Rios, 595 F.3d at 585 (quoting Crawford v.
Washington, 541 U.S. 36, 53–54 (2004)); see also United States v. Acosta, 475
F.3d 677, 680 (5th Cir. 2007).
Testimonial statements include those statements that “would lead an
objective witness reasonably to believe that the statement would be available
for use at a later trial[.]” Crawford, 541 U.S. at 51–52. In other words, “a
statement is testimonial if its ‘primary purpose’ is to ‘establish or prove past
events potentially relevant to later criminal prosecution.’” United States v.
London, 746 F. App’x 317, 321 (5th Cir. 2018) (quoting United States v.
Duron-Caldera, 737 F.3d 988, 992–93 (5th Cir. 2013)). We have held that
“[r]ecords ‘specifically produced for use at trial,’ as opposed to those kept
in the ordinary course of government business, ‘are testimonial and are at the
heart of statements triggering the Confrontation Clause.’” Id. (quoting
Martinez-Rios, 595 F.3d at 586).
And indeed, in this case, it is undisputed that certain statements in the
affidavits were likely testimonial—i.e., the statements of FDIC’s counsel in
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the affidavit that “after diligent search, no record or entry in the official
records of the FDIC has been found to exist which terminated the status” of
the banks as insured by the FDIC and that the banks retained their insured
statuses through the relevant dates. See id. at 321–22. But, on plain-error
review, even if admission of the affidavits without presenting FDIC’s counsel
as a witness for cross-examination was an error, Osuagwu must show, inter
alia, that the error affected his substantial rights. See Martinez-Rios, 595 F.3d
at 587.
Specifically, Osuagwu must show “a reasonable probability that, but
for [the Confrontation Clause violation], the result of the proceeding would
have been different.” Martinez-Rios, 595 F.3d at 587 (alterations in original)
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)).
Osuagwu has failed to show as much.
As we discuss below, the government introduced ample evidence,
other than the affidavits from FDIC’s counsel, to establish that the victim
banks were insured by FDIC. Namely, the government proffered bank
employee testimony regarding each bank’s FDIC-insured status and the
FDIC insurance certificates. And this type of unchallenged bank employee
testimony, together with FDIC insurance certificates for each bank,
establishes each victim bank’s FDIC-insured status. See United States v.
Slovacek, 867 F.2d 842, 845–47 (5th Cir. 1989); United States v. Maner, 611
F.2d 107, 108–12 (5th Cir. 1980); cf. United States v. Schultz, 17 F.3d 723, 727
(5th Cir. 1994) (explaining that if bank officials with personal knowledge of
the bank’s insurance status had testified, then that testimony, if
unchallenged, would have been sufficient). In light of this ample evidence of
the victim banks’ FDIC-insured status, detailed more fully below, Osuagwu
cannot show a reasonable probability that, but for the Confrontation Clause
violation, the outcome of the proceeding would have been different.
Therefore, there was no plain error in the admission of the affidavits.
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2. There was sufficient evidence from which a jury could reasonably
conclude that the victim banks were insured by FDIC at the time of the alleged
fraud.
Osuagwu also challenges the sufficiency of the evidence as to the
FDIC-insured status of the victim banks.
We review the sufficiency of the evidence supporting a conviction de
novo, but the review is “nevertheless highly deferential to the verdict.”
United States v. De Nieto, 922 F.3d 669, 677 (5th Cir. 2019) (quoting United
States v. Chapman, 851 F.3d 363, 376 (5th Cir. 2017)). Indeed, we “must
affirm a conviction if, after viewing the evidence and all reasonable inferences
in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Id.(quoting United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014)
(en banc)). Plainly put, “a defendant seeking reversal on the basis of
insufficient evidence swims upstream.” United States v. Mulderig, 120 F.3d
534, 546 (5th Cir. 1997).
To establish federal jurisdiction and prove a violation of
18 U.S.C. § 1344, the government must prove beyond a reasonable doubt
that the victim banks were “financial institutions” within the meaning of the
statute. See 18 U.S.C. § 1344; Davis, 735 F.3d at 198–99. Put differently, the
government must prove that the victim banks were insured by FDIC at the
time of the alleged fraud. See 18 U.S.C. § 1344; Davis, 735 F.3d at 198–99; see
also 18 U.S.C. § 20 (defining “financial institution”). To be sure, even if the
government presents sparse proof of such insurance, “[s]parse
evidence . . . can be enough.” United States v. Brown, 616 F.2d 844, 848 (5th
Cir. 1980). Consequently, “[u]ncontradicted testimony [that] the deposits
were federally insured is sufficient.” United States v. Baldwin, 644 F.2d 381,
385 (5th Cir. 1981).
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In this case, based on the unchallenged testimony of bank employees
alongside the FDIC insurance certificates,4 a rational jury could reasonably
conclude that the victim banks were insured by FDIC at the time of the
alleged fraud.
5 See Slovacek, 867 F.2d at 845–46; Maner, 611 F.2d at 108–12.
For these reasons, Osuagwu’s sufficiency of the evidence argument fails.
4 Specifically, as to Bank of America’s FDIC-insured status, a senior vice-president
identified the FDIC insurance certificate for “Bank of America, National Association,”
dated July 23, 1999, and testified that, to her knowledge, Bank of America had been insured
by FDIC every day since then to the present. Similarly, a branch manager for Chase Bank
and custodian of records for J.P. Morgan Chase Bank identified the FDIC insurance
certificates for “Chase Bank USA, National Association,” which reflected a date of March
1, 2005, and “J.P. Morgan Chase, National Association,” which reflected a date of
November 13, 2004. The branch manager testified that “J.P. Morgan Chase” had been an
“FDIC-insured entity in 2004, 2005, 2006, and 2007.” Additionally, the vice-president of
the Home Advisory Support Line for Chase Bank, testified that “JP Morgan Chase” had
been FDIC insured in 2006 and 2007. As for Wells Fargo, a financial crimes investigations
manager, testified that “Wells Fargo” had been FDIC insured in 2007 when the fraudulent
loan had been made, and the government introduced the FDIC insurance certificate for
“Wells Fargo Bank, National Association,” which was dated February 20, 2004.
5 To the extent that Osuagwu argues that the entities referenced in the indictment,
the FDIC insurance certificates, and the bank employee testimony do not match (e.g., the
indictment and witness testimony referred to “Bank of America,” and the FDIC insurance
certificate referred to “Bank of America, National Association”), this argument misses the
mark. Plainly, although the bank employees did not specifically utilize the names of the
entities identified in the FDIC insurance certificates when testifying about each victim
bank’s FDIC-insured status, a reasonable jury could have inferred from the context that
the employees were referring to the entities named in the certificates since their testimony
was presented during the introduction of each FDIC insurance certificate into evidence.
See United States v. Rangel, 728 F.2d 675, 676 (5th Cir. 1984) (determining that jury could
have reasonably inferred from bank official’s testimony that credit union was insured meant
it was insured at all times); see also United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012)
(noting that we evaluate all evidence, “whether circumstantial or direct, in the light most
favorable to the [g]overnment[,] with all reasonable inferences to be made in support of the
jury’s verdict” (alteration in original) (quoting United States v. Moser, 123 F.3d 813, 819
(5th Cir. 1997))). Furthermore, the loan applications Osuagwu submitted reflect signature
blocks for employees of entities that appear to be consistent with the entities listed on the
FDIC insurance certificates.
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No. 18-11108
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III.
On appeal, Osuagwu also argues for the first time that the government
failed to lay a proper foundation for the admission into evidence of Bank of
America and J.P. Morgan Chase Bank mortgage loan and account records.
Because Osuagwu did not raise this challenge below, we review for plain
error.6 United States v. Lewis, 796 F.3d 543, 545 (5th Cir. 2015).
Below, we first discuss Osuagwu’s challenges to the Bank of America
records before turning to his challenges to the J.P. Morgan Chase Bank
records.
As a general matter, the district court “has broad discretion to
determine the admissibility of . . . documents” into evidence. United States
v. Box, 50 F.3d 345, 356 (5th Cir. 1995). Before business records—such as the
mortgage loan and account records at issue here—may be admitted into
evidence under Federal Rule of Evidence 803(6), “the custodian of the
business records or ‘other qualified witness’ [must first] lay a
foundation . . . .”7 United States v. Brown, 553 F.3d 768, 792 (5th Cir. 2008).
6 To the extent that Osuagwu argues that we should review this evidentiary
challenge for abuse of discretion, he is incorrect. Although Osuagwu unsuccessfully
opposed the government’s introduction of certain bank records prior to trial, the record
does not reflect that Osuagwu objected to the admission of the bank records on the basis of
authenticity or on a failure to lay a proper foundation. As such, plain-error review applies.
Neal, 578 F.3d at 272.
7 Specifically, Federal Rule of Evidence 803(6) provides that a record of regularly
conducted activity may be admitted if:
(A) the record was made at or near the time by—or from information
transmitted by—someone with knowledge; (B) the record was kept in the
course of a regularly conducted activity of a business, organization,
occupation, or calling, whether or not for profit; (C) making the record was
a regular practice of that activity; (D) all these conditions are shown by the
testimony of the custodian or another qualified witness, or by a
certification that complies with [Federal Rule of Evidence] 902(11) or (12)
or with a statute permitting certification; and (E) the opponent does not
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That said, “[t]here is no requirement that the witness who lays the
foundation be the author of the record or be able to personally attest to its
accuracy.” Id. (quoting United States v. Duncan, 919 F.2d 981, 986 (5th Cir.
1990)). “A qualified witness is one who can explain the record keeping
system of the organization and vouch that the requirements of Rule 803(6)
are met.” Id. (quoting United States v. Iredia, 866 F.2d 114, 120 (5th Cir.
1989)).
In challenging the foundation laid for the Bank of America records,
Osuagwu contends that the testimony of a senior vice-president of Bank of
America and a Bank of America records custodian was insufficient to show
that the records were made as part of a “regular practice” as required by
Federal Rule of Evidence 803(6). Osuagwu is incorrect.
Specifically, the senior vice-president testified that she has been
employed with Bank of America for thirty-two years and that her entire
career involved mortgages and underwriting. She also detailed all of the
documents that comprise a mortgage loan file at Bank of America and
identified, inter alia, the loan files for properties charged in the indictment.
Finally, the senior vice-president explicitly testified that the records were
“kept in the regular course of a regularly conducted business activity of Bank
of America,” were “made by someone with personal knowledge of the events
reflected in those documents,” and were “made at or near the time the
events in the documents occurred.” This was sufficient testimony to
establish that the Bank of America mortgage loan records were made as part
of a regular practice as required by the Federal Rules of Evidence. See Fed.
show that the source of information or the method or circumstances of
preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6).
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R. Evid. 803(6)(C); see also United States v. Wilson, 249 F.3d 366, 376 (5th
Cir. 2001), abrogated on other grounds by Whitfield v. United States, 543 U.S.
209, 212 (2005); Iredia, 866 F.2d at 120 (finding no error where bank
employees “testified that to [their] own knowledge the records were received
and kept in the ordinary course of business activity, and it was each
employee’s regular business practice to receive the business records”).
Therefore, admission of the Bank of America mortgage loan records was not
an error, much less a plain error.
The same is true of the Bank of America account records. As to those
records, the custodian of records for Bank of America testified to the records’
authenticity, detailed the process for certifying records for court, identified
the account records (i.e., bank statements) in Osuagwu’s name, and
confirmed that such records were “part of a regularly conducted business
activity of Bank of America.” As such, admission of the Bank of America
account records was similarly not an error, much less a plain error. See Iredia,
866 F.2d at 120; see also United States v. Ayelotan, 917 F.3d 394, 402 (5th Cir.
2019).
Finally, as to the J.P. Morgan Chase Bank records, Osuagwu argues
that, in the absence of testimony from a qualified witness, these records were
improperly admitted because the records are from a foreign bank. This is not
so. The records reflect the lender as “Chase Bank USA, N.A.” in “Ontario,
CA 91764.”8 And the Federal Rules of Evidence provide that certified
domestic records of regularly conducted activity are self-authenticating and
so may be admitted without the trial testimony of a qualified witness. See
8 It appears that Osuagwu has mistaken “Ontario, CA 91764” for Ontario, Canada
as opposed to Ontario, California. See Organic Cannabis Found., LLC v. CIR, 962 F.3d
1082, 1096 (9th Cir. 2020) (taking judicial notice of a ZIP code listed on a government
website).
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Fed. R. Evid. 803(6)(D), 902(11). Because these records were introduced
pursuant to a Rule 902(11) affidavit, there was no error in their admission,
much less a plain error
Outcome: For the foregoing reasons, we AFFIRM.
Plaintiff's Experts:
Defendant's Experts:
Comments: