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Date: 09-21-2021
Case Style:
United States of America v. Yusuf Adebowale Masha
Case Number: 19-20673
Judge: Edith H. Jones
Court: United States Court of Appeals
for the Fifth Circuit
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
New Orleans, LA - Criminal defense lawyer represented defendant with eight charges of false use of a passport, and eight charges of misuse of a passport.
At trial, John Weber testified that he was president and owner of
Software Toolbox, Inc., a software manufacturing company located in
United States Court of Appeals
Fifth Circuit
FILED
March 8, 2021
Lyle W. Cayce
Clerk
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No. 19-20673
2
Charlotte, North Carolina. On February 5, 2016, his chief financial officer
(CFO) received an email ostensibly from him, instructing the CFO to wire
transfer $20,500 to an account at Chase Bank in the name of Adam Adewale
Carter in Austin, Texas. The CFO, believing the email was from Weber who
happened to be out of town at the time, complied as instructed and completed
the transfer. When Weber returned later that day, he and the CFO soon
realized that the email was fraudulent. Weber and his CFO immediately
contacted the company’s bank, PNC, which in turn requested that Chase
Bank stop the transfer. The transfer, however, could not be terminated in
time and Weber’s company lost the $20,500.
Edward Reed, a fraud investigator with Chase Bank, identified a
signature card in the name of Adam Adewale Carter. Mr. Reed explained
that a customer is required to sign a signature card when opening a new
account. The signature card for Carter indicated that the account had been
opened on December 16, 2015, at a Chase Bank located west of Houston.
The Carter account was opened with an address of 10901 Meadowglen Lane,
Apartment 79, Houston, and a date of birth of February 14, 1990. Mr. Reed
further explained that a customer is required to provide two forms of
identification when opening an account – in this case the person provided a
Nigerian passport and a utility bill. Mr. Reed identified a monthly statement
for the Carter account, which reflected a $20,504.08 transfer from Software
Toolbox, Inc., via PNC Bank on February 5, 2016. The statement indicated
that the $20,504.08 was withdrawn from the account on February 16, 2016.
Mr. Reed identified a signature card for an account opened in the
name of Moses Campbell on April 13, 2017, at a Chase Bank located in Katy,
Texas. The signature card for Campbell indicated an address of 11655 Briar
Forest Drive, Apartment 98, Houston. Documentation identified by
Mr. Reed indicated that the individual who opened the account provided a
passport from the United Kingdom of Great Britain and Northern Ireland, as
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well as a bank statement from Wells Fargo. The individual provided a date
of birth of July 4, 1990. Bank statements associated with this account
indicated that monthly statements were mailed to a different address than the
one provided at the time the account was opened – 1919 South Kirkwood
Road, Apartment 98, Houston. The July statement for the Campbell account
reflected a $2,000 deposit on July 18 with a subsequent withdrawal on
July 19. Banking documentation also indicated a deposit on July 18 of two
postal money orders made payable to Moses Campbell for $1,000 each.
Mr. Reed explained that a fraud investigation was not conducted into
the Carter and Campbell accounts because Chase Bank did not suffer a
financial loss. Mr. Reed further explained that Chase Bank keeps
surveillance video and photos for approximately ninety days. Because ninety
days had elapsed at the time the Government subpoenaed the records for the
aforementioned accounts, no surveillance video or photos were available of
any banking transactions.
Michelle Reed, a regional sales consultant for Wells Fargo Bank,
identified a consumer account application for an account opened on
November 6, 2017, in the name of Moses Campbell. The address provided
at the time the account was opened was 1919 South Kirkwood, Apartment
98, Houston. The two forms of identification presented when the Campbell
account was opened were a passport from the United Kingdom of Great
Britain bearing a date of birth of July 4, 1990, and a debit card from Bank of
America. Ms. Reed identified several transactions regarding the Campbell
account, including a deposit on November 10, 2017, for $12,000.
Ms. Reed identified a second consumer application for an account that
was opened on November 24, 2015, in the name of Adam A. Carter. The
address provided at the time the account was opened was 10901 Meadowglen
Lane, Apartment 79, Houston. The two forms of identification presented
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4
when the account was opened were a Nigerian passport bearing a date of birth
of February 14, 1990, and a Nigerian driver’s license. Wells Fargo did not
have a photocopy of the Nigerian passport or driver’s license in its records
because it is not the bank’s practice to make copies of identification.
Ms. Reed identified banking statements for the account reflecting various
transactions that eventually resulted in a $1 balance. Ms. Reed explained that
a Wells Fargo customer can enter a branch and perform a transaction by
providing a form of identification or by utilizing a debit card with a personal
identification number (PIN). Wells Fargo did not have any video or photos
depicting the person making any of the transactions associated with the
Campbell or Carter accounts.
Deborah Mitschke, a district operations specialist for Capital One
Bank, identified documentation indicating that Adam A. Carter opened an
account on December 22, 2015, at a Capital One branch located on Eldridge
Road in Houston. The individual who opened the account provided a
Nigerian passport and a Visa card as identification. Capital One did not have
copies of the identification because it is not the bank’s practice to make
copies at the time an account is opened. The individual who opened the
account provided the address of 10901 Meadowglen Lane, Apartment 79,
Houston, and a date of birth of February 14, 1990. Mitschke identified
several bank statements associated with the Carter account, which included
several chargebacks, i.e., the paying bank requested a stop payment of the
check. Capital One never initiated a fraud investigation into the Carter
account. Capital One also did not have any photos or surveillance video,
which the bank keeps for only ninety days, regarding any of the transactions
reflected in the banking statements for the Carter account.
Gayle Wayne Geddes, an investigator for Bank of America, identified
a signature card for an account opened on November 24, 2015, in the name
of Adam Adewale Carter. The individual who opened the account presented
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a Nigerian passport as identification. Geddes began investigating the Carter
account due to several suspicious transactions, including three $7,000
withdrawals on three different occasions. During the investigation, Geddes
also discovered that one of the transactions occurred at a Bank of America
branch located on Dunvale at 10:47 a.m. on March 18, 2016. Surveillance
video captured a person leaving the bank within three minutes of this
transaction. With the assistance of the teller who performed the withdrawal
and the supervisor who approved the transaction due to the large amount,
Geddes identified a still picture taken from that surveillance video of the
suspect. It was also determined during the investigation that the Nigerian
passport used to open the account “appeared to be . . . counterfeit” because
the name on the passport did not match any person on public record searches.
The bank elected to freeze the Carter account due to suspicious activity.
Even though Bank of America did not suffer a loss with respect to the Carter
account, Geddes sent the still photo from the surveillance video and
information regarding the account to the Postal Inspection Service for further
investigation.
Geddes identified a signature card for an account opened on April 13,
2017, in the name of Moses Campbell. The individual who opened the
account used a passport from the United Kingdom of Great Britain. The
address provided at the time the account was opened was 1919 South
Kirkwood Road, Apartment 98, Houston.
Azeez Balogun, an inmate in the Bureau of Prisons (BOP), testified
that he had been a friend of Masha’s for the last four years. Balogun, who is
also from Nigeria, stated that he met Masha through a mutual friend.
Balogun identified Masha in court, as well as in the photo Geddes captured
in the surveillance video leaving Bank of America on March 18, 2016.
Balogun also identified the photo on the United Kingdom passport as being
Masha. Balogun acknowledged that he had been convicted of aggravated
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6
identify theft and mail fraud. Balogun further acknowledged that he was
cooperating with the Government in the hope of having his 75-month
sentence reduced. Balogun did not have personal knowledge regarding the
allegations of Masha misusing passports.
Benjamin Rupenthal, a special agent with the Diplomatic Security
Service, testified that he is responsible for investigating crimes involving
passports and visas. Agent Rupenthal identified a printout from the Consular
Consolidated Database, which he described as a database “use[d] to track
passports and visas, their applications, and then their use.” This document
reflected that Masha applied for a visa with the date of birth of January 7,
1992. It also indicated that Masha first officially entered the United States
on June 23, 2013. He also entered the country on May 16, 2016, January 20,
2017, and January 14, 2018. Agent Rupenthal testified that a check in the
database for Adam Adewale Carter and Moses Campbell returned no results,
which meant there was no record of these individuals entering the United
States.
Kyle Shadowens, a United States Postal Inspector, testified that he
obtained several driver’s licenses and applications for Masha during his
investigation. The driver’s licenses for Masha indicated that he had a date of
birth of January 7, 1992. However, the driver’s licenses and applications
reflected various addresses in the Houston area for Masha, including
10901 Meadowglen Lane, Apartment 104. Shadowens created a map
depicting the location of all the addresses belonging to Masha, as well as the
addresses of the banks where accounts belonging to Adam Carter and Moses
Campbell were opened. Shadowens observed that a majority of the locations
were “all very close together.” During his investigation, Shadowens also
discovered that the phone numbers associated with the Adam Carter and
Moses Campbell accounts were the same.
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PROCEDURAL HISTORY
At the conclusion of the Government’s case, Masha renewed his
motion to dismiss the indictment as to the § 1544 counts. After hearing
arguments on the issue, the district court denied Masha’s motion. Following
the district court’s ruling on his motion to dismiss, Masha moved for a
judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29.
The Government conceded there was insufficient evidence as to counts nine
and ten but argued that the motion should be denied as to the remaining
counts. The district court agreed and granted Masha’s motion as to counts
nine and ten but denied the motion as to the remaining counts. The jury
returned a guilty verdict as to all the remaining counts charged in the second
superseding indictment. Masha was sentenced to concurrent sentences of
eighteen months of imprisonment and three years of supervised release.
Masha timely appealed.
STANDARD OF REVIEW
The standard of review of the sufficiency of the evidence is de novo.
See United States v. Davis, 735 F.3d 194, 198 (5th Cir. 2013). When
considering the sufficiency of the evidence, this court evaluates 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.” United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012)
(internal quotation marks and citation omitted). The jury may choose among
any reasonable constructions of the evidence. United States v. Mitchell,
484 F.3d 762, 768 (5th Cir. 2007). This court will uphold the verdict if “any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” See United States v. Vargas-Ocampo, 747 F.3d
299, 301 (5th Cir. 2014) (en banc) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)).
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This court reviews “whether an indictment sufficiently alleges the
elements of an offense” de novo. United States v. Santos-Riviera, 183 F.3d
367, 369 (5th Cir. 1999). As a motion to dismiss an indictment for failure to
state an offense is a challenge to the sufficiency of the indictment, we are
required to “take the allegations of the indictment as true and to determine
whether an offense has been stated.” United States v. Hogue, 132 F.3d 1087,
1089 (5th Cir. 1998). “An indictment is sufficient if (1) it contains the
elements of the offense charged, (2) it ‘fairly informs’ the defendant of the
charge he must meet, and (3) there is no risk of future prosecutions for the
same offense.” United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991)
(citation omitted). “An indictment that tracks a statute’s words is generally
sufficient as long as those words fully, directly, and expressly, without any
uncertainty or ambiguity, set forth all the elements necessary to constitute
the offense intended to be punished.” Id. at 145 (internal quotation marks
and citation omitted).
This courtreviews de novo the district court’sinterpretation and application of the Sentencing Guidelines. See United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s factual
findings are reviewed for clear error. United States v. Rodriguez, 602 F.3d
346, 362 (5th Cir. 2010). “There is no clear error if the district court’s
finding is plausible in light of the record as a whole.” Cisneros-Gutierrez,
517 F.3d at 764 (internal quotation marks and citation omitted). Factual
findings relevant to sentencing must be proven by a preponderance of the
evidence. United States v. Duhon, 541 F.3d 391, 395 (5th Cir. 2008). A
presentence report (PSR) generally bears sufficient indicia of reliability to
be considered by the sentencing judge in making factual determinations.
United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013).
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DISCUSSION
1. Sufficiency of the Evidence
Misuse of a passport convictions
To meet its burden at trial as to the § 1544 counts, the Government
was required to prove that Masha (1) used or attempted to use a passport;
(2) that the passport was issued or designed for the use of someone other than
Masha; and (3) that the use was willful and knowing, i.e., that Masha knew
that the passport was issued or designed for the use of someone other than
himself. 18 U.S.C. § 1544; 5TH CIR. PATTERN JURY INSTRUCTIONS
(CRIMINAL) § 2.66 (2019) (copy available at
http://library.circ5.dcn/JuryInstructions/crim2019.pdf). This Court is not
bound to accept the Government’s concession that it failed to meet its
burden, United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008), but we agree
in this case.
The plain text of the statute indicates that it applies to misuse/abuse
of an actual passport, “[w]hoever willfully and knowingly uses, or attempts
to use, any passport issued or designed for the use of another…”. 18 U.S.C.
§ 1544 (emphasis added). Case law, albeit sparse, supports this reading.1
Here, evidence at trial demonstrated that Masha utilized passports
that looked like they were issued by Nigeria and the United Kingdom. On
cross-examination Special Agent Rupenthal acknowledged that he could not
testify as to whether or not the passports had been actually issued by those
1 United States v. Casillas-Casillas, 845 F.3d 623, 624-25 (5th Cir. 2017) (defendant
convicted under § 1544 for using a valid United States passport card bearing the name,
photograph, and date of birth of another person); United States v. Spencer, 609 F. App’x
781, 782 (5th Cir. 2015) (defendant convicted under § 1544 for using brother’s stolen
United States passport to reenter the country after fleeing to Mexico).
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nations. Bank of America investigator Geddes testified that the Adam
Adewale Carter passport appeared “counterfeit” since it did not match “any
person on public records with that name.” Finally, the Government’s case
centered on the passports being counterfeit.
Therefore, the Government now concedes, there was insufficient
evidence at trial to demonstrate that the passports used by Masha were in fact
issued by a government entity for someone else. These convictions must be
vacated.
False use of passport convictions
Next, Masha argues that the district court erred in denying his Rule 29
motion for judgment of acquittal as to all seven § 1543 counts based on
insufficiency of the evidence. To meet its burden, the Government had to
have shown that Masha (1) willfully and knowingly, (2) used or attempted to
use, (3) an instrument purporting to be a passport. 18 U.S.C. § 1543.
Masha argues that the Government failed to prove that the passports
involved were in fact counterfeit, and that even if the passports were
counterfeit, the Government failed to connect him to the use of the passports.
He thus asserts that his convictions for all seven § 1543 counts should be
vacated. On these counts, Masha’s argument fails.
The Government points out that there was ample circumstantial
evidence for a rational jury to conclude that the Carter and Campbell
passports were counterfeit, and ample evidence for the jury to reasonably
conclude that the photograph on the Carter and Campbell passports was
Masha. This supports the reasonable conclusion that the passports were not
only counterfeit but also used by Masha in violation of § 1543. Masha is right
that no evidence was introduced at trial demonstrating that the Carter and
Campbell passports were found on his person or that he was actually involved
in “crafting them.” However, “identity . . . may be proved by inference and
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circumstantial evidence.” United States v. Royals, 777 F.2d 1089, 1091 (5th
Cir. 1985). In the instant case, inference, circumstantial evidence, and
corroborating facts combine to prove that Masha used fraudulent passports
to open accounts at various banks throughout Houston.
Bank employee testimony established that the individual who opened
the Carter and Campbell accounts provided a foreign passport as one of the
two forms of identification needed, per bank policy, to open a new bank
account. The jury could have reasonably inferred that a bank employee
would not have authorized the opening of the accounts unless the individual
matched the photo in the passports. See Mitchell, 484 F.3d at 768. Images of
these passports, copies of Masha’s driver’s licenses, as well as the
surveillance photo taken at the Bank of America, minutes after a transaction
was completed involving the Carter account, were admitted at trial. The jury
was able to examine these images and determine whether they matched
Masha.
Furthermore, the jury heard the testimony of Balogun, a friend of
Masha, who positively identified Masha as the person in the surveillance
photo taken at the Bank of America branch, as well as the British passport.
Although Balogun acknowledged that he was testifying in order to reduce his
sentence, it was within the sole province of the jury to assess his credibility.
See United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994). Furthermore,
the address on the Carter bank accounts matched the address on one of
Masha’s driver’s licenses, albeit a different apartment number.
Nevertheless, the jury could have reasonably concluded that, like Balogun,
Masha used an unsecured mailbox at his apartment complex for receipt of
mail during his fraudulent scheme. Lastly, a check in the public record
databases and the Consular Consolidated Database revealed no results for an
Adam Adewale Carter or a Moses Campbell.
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When viewing all of the evidence and reasonable inferences therefrom
in the light most favorable to the Government, there was ample evidence,
both direct and circumstantial, to conclude that Masha used fraudulent
passports to open accounts at various banks in the Houston area.
2. Motion to dismiss the indictment
Next, Masha contends that the district court erred in denying his
motion to dismiss the § 1544 counts alleged in the second superseding
indictment. Specifically, he asserts that the Government’s inclusion of the
phrase “purported to be issued by” negated its burden of proving the
essential element that the passport was “issued or designed for the use of
another.” He thus asserts that he is entitled to have the § 1544 counts of
conviction vacated. Because we have determined that there is insufficient
evidence to support Masha’s § 1544 convictions, we need not address
Masha’s argument that the district court erred in denying his motion to
dismiss the indictment as to those charges. See United States v. Whitfield,
590 F.3d 325, 344 n.14 (5th Cir. 2009) (declining to address Rule 12 motion
to dismiss indictment because Rule 29 motion was dispositive).
3. Admission of identification testimony
Masha arguesthat Balogun gave inadmissible lay-opinion testimony
when he identified him as the person in the surveillance picture from Bank
of America and in the passport photos. As he acknowledges, his failure to
object at trial results in this court reviewing his argument for plain error.
United States v. Leach, 918 F.2d 464, 467 (5th Cir. 1990). To establish plain
error, a defendant must show a forfeited error that is clear or obvious and
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). Masha fails to meet this burden.
Under Rule 701 of the Federal Rules of Evidence, a lay witness may
testify as to opinions that are “(a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony or to
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13
determining a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of [Federal Rule of Evidence] 702.”
FED. R. EVID. 701. A lay witness may give an opinion that is based upon
first-hand knowledge or observation. United States v. West, 22 F.3d 586, 591
n.15 (5th Cir. 1994). To be admissible, “a lay opinion must be based on
personal perception, must be one that a normal person would form from
those perceptions, and must be helpful to the jury.” United States v. Riddle,
103 F.3d 423, 428 (5th Cir. 1997) (internal quotation marks and citations
omitted). Lay opinion testimony is admissible if it requires “[n]o great leap
of logic” and draws “straightforward conclusions from observations
informed by [the witness’s] own experience.” Id. at 428–29.
The record reflects that the Government laid the foundation for the
lay opinion by questioning Balogun about his relationship with Masha.
Balogun testified that he, also a native of Nigeria, met Masha through a
mutual friend; he has known Masha for approximately four years; he has
interacted with Masha approximately thirty to forty times during those four
years; and he considered Masha a “close” friend. Contrary to Masha’s
assertion, Balogun’s testimony was helpful to the jury given that the Bank of
America surveillance photo, as well as the British passport photo, had been
taken several years prior to trial but during a time Balogun knew Masha.
Accordingly, Masha has failed to show that the district court plainly erred in
allowing the lay opinion testimony. See Puckett, 556 U.S. at 135.
4. Loss Calculation
Masha challenges the district court’s loss amount calculation. He
asserts that there was no evidence indicating that $375,825.89 found in the
banks associated with the Carter and Campbell accounts were attributable
to fraudulent conduct. He asserts that the only deposit that the Government produced evidence of being linked to fraudulent conduct was the
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$20,500 from Software Toolbox, Inc. As such, he argues that he should
have only received a four-level increase to his base offense level under U.S.
Sentencing Guidelines § 2B1.1(b)(1)(C).
Fraud cases are governed by § 2B1.1 of the Sentencing Guidelines.
“The Guidelines’ commentary explains that under § 2B1.1, loss serves as
a measure of the seriousness of the offense and the defendant’s relative
culpability and is a principal factor in determining the offense level under
this guideline.” United States v. John, 597 F.3d263, 279 (5th Cir. 2010)
(quoting U.S. Sent’g Guidelines Manual § 2B1.1, cmt. background (U.S. Sent’g Comm’n 2007)). “Accordingly, § 2B1.1(b)(1)
creates a sliding scale that increases the defendant’s base offense level by
zero to thirty points depending on the amount of loss.” John, 597 F.3d at
279. Further, “loss is the greater of actual loss or intended loss.” § 2B1.1,
cmt. n.3(A). “Actual loss” is “the reasonably foreseeable pecuniary harm
that resulted from the offense.” § 2B1.1 cmt. n.3(A)(i). To be “reasonably foreseeable,” the harm must be “pecuniary harm that the defendant
knew or, under the circumstances, reasonably should have known, was a
potential result of the offense.” § 2B1.1 cmt. n.3(A)(iv). “The district
court receives wide latitude to determine the amount of loss and should
make a reasonable estimate based on available information.” United States
v. Jones, 475 F.3d 701, 705 (5th Cir. 2007).
As pointed out by the Government, this court’s decision in United
States v. Jackson, 798 F. App’x 793 (5th Cir. 2020), although unpublished,
is instructive. In Jackson, the defendant was convicted of five counts of
using a counterfeit Nigerian passport to open several bank accounts. Id. at
795. Using the amount of funds transferred through the accounts, the PSR
determined the loss amount to be $389,252.79. Id. at 798. When the
defendant objected to the PSR’s loss calculation, the Government
supplemented the PSR with various text messages involving interviews
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15
from five of the defendant’s fraud victims. Id. at 798-99. These interviews
accounted for $32,950, approximately 10% of the entire loss amount. Id. at
799. On appeal this court rejected the defendant’s challenge to the loss
amount. Id. Pointing to evidence indicating that the accounts were opened
in order to receive fraudulent transfers, coupled with the victim interviews
and evidence of the defendant misrepresenting himself, the court
concluded that it was “plausible that the total loss amount was derivative
of fraudulent activity, especially considering that Jackson failed to submit
rebuttal evidence legitimizing the funds.” Id.
Similarly, the PSR used the amount of funds transferred through the
Carter and Campbell accounts and determined that the loss calculation in the
instant case amounted to $375,825.89. This loss amount included the
$20,500 loss John Weber testified to at trial. In response to Masha’s objection, the Government submitted four additional examples of fraudulent
transfers involving the Carter and Campbell accounts. These examples were
taken from the case agent’s review of bank records involving the Carter and
Campbell accounts. It its addendum, the PSR cited to these examples, aswell
as to the fact that Masha used fake names, addresses, phone numbers, and
counterfeit passports to open the accounts. Given this evidence, coupled
with the fact that Masha failed to offer any rebuttal evidence legitimizing the
remaining funds, the PSR maintained its position that the loss amount was
$375,825.89. In overruling Masha’s objection at sentencing, the district
court concluded that a preponderance of the evidence supported the conclusion that Masha’s purpose and motivation in opening the accounts was fraud
and that the PSR’s loss amount calculation was correct.
In light of the foregoing, the district court’s finding that the deposits
into these accounts were fraudulent is plausible in light of the record as a
whole. See Cisneros- Gutierrez, 517 F.3d at 764. Accordingly, Masha has failed
to demonstrate the district court clearly erred in its loss calculation. See id.;
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16
see also Zuniga, 720 F.3d at 591 (“Rebuttal evidence must consist of more
than a defendant’s objection; it requires a demonstration that the information
is ‘materially untrue, inaccurate or unreliable.’” (quoting United States v.
Harris, 702 F.3d 226, 230 (5th Cir. 2012))).
Outcome: Accordingly, the 18 U.S.C. § 1544 convictions are VACATED, the
§ 1543 convictions and sentence are AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: