United States District Court, M.D. Pennsylvania
CHRISTOPHER C. CONNER, Chief District Judge.
Presently before the court is convicted defendant Olufemi Adigun's ("Adigun") amended motion (Doc. 221) for a new trial. Adigun asserts that a new trial is warranted because (1) the court erred in denying Adigun's objection under Batson v. Kentucky , 476 U.S. 79 (1986); (2) the court erred in denying Adigun's request for a "missing witness" instruction; and (3) the jury's verdict was against the weight of the evidence. For the following reasons, the court will deny the motion.
The government's prosecution of Adigun is the result of a complex fraud and money laundering scheme that partially relied on Adigun's services as a Western Union and MoneyGram agent to transfer and launder profits from various mass marketing consumer fraud schemes. On April 27, 2011, Adigun was first indicted on one count of conspiracy to commit mail fraud, wire fraud, and money laundering. (Doc. 7). A superseding indictment followed on August 24, 2011, which charged Adigun with one count of conspiracy to commit mail and wire fraud (Count 1), one count of mail fraud (Count 2), eight counts of wire fraud (Counts 3-10), twenty counts of engaging in unlawful monetary transactions in criminally derived property (Counts 11-30), and one count of conspiracy to commit money laundering (Count 31). (Doc. 29).
Adigun's first trial commenced on May 7, 2012, and ended on May 17, 2012. On May 15, 2012, the court dismissed Count 14 on the government's motion and Counts 16, 19, and 26 on defendant's motion. (Doc. 121). The jury ultimately acquitted Adigun of Counts 2-15, 17, and 30 but was hopelessly deadlocked on Counts 1, 18, 20-25, 27-29, and 31. (Doc. 96). The court declared a mistrial on these counts. (Doc. 123).
On June 6, 2012, the government filed a notice of intention to retry the remaining counts. (Doc. 102). On December 12, 2012, the government filed a second superseding indictment against Adigun and two co-defendants, Uchechukwu Stanley Ohiri ("Ohiri"), and Benjamin Chikwe ("Chikwe"). (Doc. 134). The indictment charged Adigun with one count of conspiracy to commit mail and wire fraud (Count 1), ten counts of engaging in unlawful monetary transactions in criminally derived property (Counts 18, 20-25, 27-29), one count of conspiracy to commit money laundering offenses (Count 31), seven counts of engaging in unlawful monetary transactions over $10, 000 in criminally derived property (Counts 34-40), and five counts of money laundering (Counts 51-55). Chikwe ultimately pleaded guilty to conspiracy to commit money laundering offenses pursuant to a plea agreement requiring his full cooperation. (Docs. 166-172). Ohiri remains at large.
Adigun's second jury selection and trial commenced on July 15, 2013. Adigun was represented by John A. Abom, Esquire ("defense counsel"), throughout the trial. On July 18, 2013, the court dismissed counts 20, 21, 23-25, 27-29, 34, and 35 on the government's motion. ( Id. at 59). The jury convicted Adigun on the remaining 14 counts on July 19, 2013. (Doc. 200). On August 2, 2013, Adigun filed a motion for a new trial and motion for enlargement of time to amend the motion for a new trial and file a brief in support. (Doc. 207). The court granted Adigun's motion for enlargement of time to file amended post-trial motions until no later than 30 days after receipt of the trial transcripts. (Doc. 209). Adigun filed the instant, timely amended motion for new trial on October 16, 2013. (Doc. 221). This motion is fully briefed and ripe for disposition.
A. Batson Objection
During jury selection, the government exercised a peremptory challenge against a potential alternate juror, Juror 32, a 59-year-old African-American woman. (Doc. 214 at 96). Defense counsel challenged the government's strike as racially discriminatory under Batson v. Kentucky , 476 U.S. 79 (1986). (Id.) The government proffered several neutral reasons for its peremptory challenge: (1) the potential juror was an employee of the Commonwealth of Pennsylvania, and the government was concerned with her potential "liberal" viewpoint; (2) the potential juror recently relocated from Pittsburgh to Harrisburg; (3) the potential juror was a clerk typist and the government preferred to place a more educated potential alternate juror, Juror 30, who was a pharmacist. ( Id. at 96-97). A short discussion followed, and then the government added "and the other reason, Your Honor, she's also a woman, and we feel that we're looking for male jurors[, who] tend to be stronger leaders in the jury room[. This is] another reason why we've opted to keep the first two. She was the very last one of the four." ( Id. at 98).
Crediting the government's first three reasons for the strike, the court determined that the government proffered non-racial reasons for his peremptory challenge. ( Id. at 98-100). Defense counsel never objected on the record to the government's gender-based explanation. The parties completed jury selection and trial commenced.
At the end of the first day of trial, the court noted on the record that, pursuant to the Supreme Court's holding in J.E.B. v. Alabama , 511 U.S. 127 (1994), intentional discrimination on the basis of gender in the use of peremptory strikes violates the Equal Protection Clause. ( Id. at 225-27). Citing Gattis v. Snyder , 278 F.3d 222 (3d Cir. 2002), the court also noted that the strike of a juror motivated in part by an impermissible reason - such as gender - may nevertheless be valid if the party demonstrates that it would have taken the same action in the absence of the impermissible motivation. ( Id. at 227). The court noted that the government offered the gender-related reason for the strike at the end of the explanation, "almost as an after thought, " and only after the government tendered the potential alternate juror's low educational level, employment, and recent relocation to the area. (Id.) The court specifically found that the government would have struck the potential alternate juror even in the absence of any gender-related reason and that the government's impermissible gender-based consideration was "strictly de minimus ." ( Id. at 227-28). Defense counsel did not place any objection on the record after the court's determination.
B. Evidence Introduced at Trial
During trial, the government set forth substantial evidence implicating Adigun's involvement in perpetuating mass market consumer fraud schemes. Testimonial and documentary evidence introduced at trial shows that beginning in early November 2007, Adigun became the owner/operator of FAB Tax Services in Houston, Texas. (Doc. 215 at 257-311; Govt's Exhs. 18, 20.3). The business was headquartered in an empty storefront at 10876 Westheimer Drive. (Id.) According to the building's landlord and two witnesses who worked next door, FAB was never open for business and had no customers. (Doc. 215 at 292-95; Doc. 216 at 87-114). Adigun became both a Western Union and MoneyGram money transfer agent in the following months. (Govt's Exhs. 9, 10, 75). Adigun was also the only person who maintained signature authority over all three of FAB's bank accounts at Capital One, Bank of America, and Washington Mutual Banks. (Govt's Exhs. 40, 41, 42, 194).
From December, 2007 to September, 2008, FAB handled over $3 million sent through the MoneyGram and Western Union money transfer systems. (Govt's Exhs. 5, 7, 176, 181). The money was sent to FAB by over 1, 000 fraud victims from the United States and Canada. (Id.) To process the payouts, Adigun, Ohiri, and Chikwe created numerous false payee identifier information, including false Texas drivers' license numbers, names, and addresses. (Govt's Exhs. 5, 7). Not a single payout in this nine month period was a legitimate transaction. (Id.)
Much of the proceeds were converted into cash. (Govt's Exhs. 52, 146-149, 175, 187). Adigun personally converted over $1 million of the Western Union and Moneygram proceeds into cash. (Govt's Exhs. 174, 197). To convert the proceeds, Adigun personally issued more than 600 handwritten Western Union money transfer checks payable to FAB instead of the intended payee and then deposited the funds into FAB's Bank of America account. (Govt's Exh. 77). Adigun also made 203 individual cash withdrawals from 17 different bank branches between February 20, 2008 and September 8, 2008. (Govt's Exhs. 208, 212, 215). Notably, on August 11, 2008, Adigun withdrew $72, 000 in cash from five separate bank transactions. (Id.) Adigun also transferred over $500, 000 of the proceeds to other accounts controlled by Chikwe and other suspected co-conspirators. ...