                                PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                                 No. 17-4102


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

VICTOR OYEWUMI OLOYEDE,

               Defendant - Appellant.


                                 No. 17-4186


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

BABATUNDE EMMANUEL POPOOLA, a/k/a Emmanuel Popoola, a/k/a Tunde
Popoola,

               Defendant - Appellant.


                                 No. 17-4191


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
          v.
MOJISOLA TINUOLA POPOOLA, a/k/a Mojisola Oluwakemi Tin Popoola, a/k/a
Moji T. Popoola,

                    Defendant - Appellant.


                                      No. 17-4207


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

GBENGA BENSON OGUNDELE, a/k/a Benson Ogundele,

                    Defendant - Appellant.


Appeals from the United States District Court for the District of Maryland, at Greenbelt.
Paul W. Grimm, District Judge. (8:15-cr-00277-PWG-3) (8:15-cr-00277-PWG-5) (8:15-
cr-00277-PWG-7) (8:15-cr-00277-PWG-1)


Argued: December 13, 2018                                        Decided: July 31, 2019


Before NIEMEYER, KING, and WYNN Circuit Judges.


Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King
and Judge Wynn joined.

ARGUED: Justin Eisele, SEDDIQ LAW FIRM, Upper Marlboro, Maryland; John O.
Iweanoge, II, THE IWEANOGES’ FIRM, PC, Washington, D.C.; Richard Alan
Seligman, LAW OFFICE OF RICHARD SELIGMAN, Washington, D.C.; Gerald Ruter,
LAW OFFICES OF GERALD C. RUTER, P.C., Baltimore, Maryland, for Appellants.
Thomas Patrick Windom, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee. ON BRIEF: Robert K. Hur, United States Attorney, Baltimore,
Maryland, Jennifer R. Sykes, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.


                                             2
NIEMEYER, Circuit Judge:

       The four defendants in these appeals, who were charged as participants in a

conspiracy that involved numerous others, were tried together and convicted of

conspiracy to commit wire fraud and related offenses based on an extensive online dating

fraud scheme that induced elderly victims to transfer money to the defendants’ bank

accounts based on postured romantic relationships. The district court found that the

defendants obtained over $2 million in this manner and sentenced the four defendants

variously from 18 months’ to 234 months’ imprisonment. From the judgments against

them, the defendants filed these appeals raising numerous pretrial, trial, and sentencing

issues — most significantly, an issue relating to a pretrial motion to suppress and an issue

relating to the government’s use at trial of charts offered under Rule of Evidence 1006.

After considering all of the issues raised, we affirm.


                                              I

       In May 2015, a grand jury indicted 10 individuals, including the four defendants in

these appeals — Gbenga Benson Ogundele; his wife, Mojisola Tinuola Popoola; her

brother, Babatunde Emmanuel Popoola; and Victor Oyewumi Oloyede — for their

participation in a widespread online dating fraud scheme that resulted in numerous

elderly victims suffering substantial financial losses. According to the indictment, from

2011 through 2015, coconspirators initiated sham romantic relationships with at least 17

elderly victims throughout the country by searching online dating websites and then used

fraudulent representations to convince the victims to transfer money to bank accounts


                                              3
controlled by the defendants. The defendants were charged with transferring this money

through various facilities to promote the conspiracy and to hide the nature and source of

the funds.   Based on these allegations, the indictment charged all defendants with

conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and conspiracy to

commit money laundering, in violation of 18 U.S.C. § 1956(h). In addition, it charged

Ogundele, Babatunde, and Oloyede with aggravated identify theft, in violation of 18

U.S.C. § 1028A. The district court scheduled two separate trials for the 10 indicted

defendants, and the government’s case against Ogundele, Mojisola, Babatunde, and

Oloyede proceeded to trial first, beginning in October 2016.

      At trial, the government’s evidence included testimony from 11 victims of the

fraud scheme, as well as a daughter of a victim who had recently died. The victims

testified as to how they had formed what they thought were meaningful long-distance

relationships with a person they met online and had eventually transferred significant

sums of money for various reasons as requested by the person, only to realize later that

they had been defrauded. These victims’ testimony showed that, between November

2012 and April 2014, five of them sent a total of approximately $140,000 to two business

bank accounts controlled by Ogundele; that, during a six-month period in 2012, five of

them sent a total of $138,000 to two bank accounts controlled by Oloyede, with all but

$3,000 of that going to a single business account; and that, in July 2014, one victim

deposited $5,000 in cash into an account in the name of Mojisola, who then promptly

wrote a check for the same amount to a company controlled by her husband, Ogundele.

In addition, the government’s evidence showed that some of this and other money was

                                            4
transferred to accounts controlled by Babatunde. For instance, on the same day in

October 2012 that one victim deposited $20,000 into Oloyede’s business account,

$10,000 was transferred from that account to an account that Babatunde controlled but

was in the name of one of his sisters.

       The government also presented testimony from employees of Bank of America,

Capital One, and Wells Fargo regarding activity in approximately a dozen of the

defendants’ bank accounts, almost all of which had been closed by the banks during the

course of the conspiracy. Bank records not only showed numerous wire transfers and

cash deposits from the victims who testified but also showed other suspicious large cash

deposits made from States throughout the country. For example, bank records from

Mojisola’s Bank of America account, which had been closed in August 2014, showed

that it had received significant cash deposits or teller transfers from persons in Florida,

North Carolina, Georgia, Michigan, and Tennessee and that the funds were then quickly

withdrawn or transferred. The records also showed that Mojisola’s account received

several large wire transfers in 2011 from her half-brother, Mukhtar Haruna — a Nigerian

national and resident who was indicted with the others but never arraigned. These funds

were then transferred into an account controlled by Mojisola’s husband, Ogundele.

       Finally, the government presented testimony from numerous FBI agents about

evidence recovered from search warrants of the defendants’ homes, phones, and email

accounts. FBI agents also testified to post-arrest statements made by Ogundele, Oloyede,

and Babatunde. And an FBI forensic accountant created charts detailing certain activity



                                            5
in the defendants’ bank accounts from 2011 through 2014 and presented those charts to

the jury at trial.

        After the government rested and the district court denied the defendants’ motions

for judgment of acquittal, the defendants called a number of witnesses, and Oloyede and

Babatunde both testified in their own defense. Generally, their theory of the case was

that Haruna had made them believe that the money coming into their bank accounts was

to purchase cars for export to Nigeria, thus blaming Haruna for the entire scheme. They

also placed blame on Ogundele.

        The jury convicted all four defendants on all counts, and the district court

thereafter sentenced Ogundele and Oloyede each to 234 months’ imprisonment,

Babatunde to 144 months’ imprisonment, and Mojisola to 18 months’ imprisonment.

        From the judgments entered against them, the defendants filed these appeals,

which we then consolidated.


                                            II

        During execution of a search warrant and an arrest warrant at Mojisola’s house,

FBI Special Agent Monique Winkis handed Mojisola a locked cell phone that had been

found in her bedroom and asked her, “Could you please unlock your iPhone?” Mojisola

took the phone, entered her passcode, and handed the phone back to Agent Winkis, who

then gave the unlocked phone to a forensic examiner for it to be searched. Agent Winkis

did not ask for the passcode; Mojisola did not reveal the passcode to Agent Winkis; and

Agent Winkis did not see Mojisola enter her passcode.


                                            6
      Mojisola filed a motion to suppress the contents of her cell phone in the district

court, contending that Agent Winkis’s request to open her phone and her compliance with

that request without having been given Miranda warnings violated her Fifth Amendment

right against self-incrimination. The district court denied the motion on the ground that

Mojisola’s entry of a passcode to unlock her phone was not a “communicative response”

by her and therefore was not a testimonial statement subject to Miranda. It also found

that Agent Winkis’s request was not “coercive or threatening” and that Mojisola’s

compliance was “voluntary.”

      Mojisola now contends on appeal that, because she was in custody and not

informed of her Miranda rights, she “could not knowingly and voluntarily [have]

waive[d] her rights against self-incrimination.” Moreover, she argues that entering her

passcode was a communicative act that amounted to self-incrimination.

      The government contends that Mojisola’s physical action of typing her passcode

into a phone was not a testimonial statement that was subject to Miranda and that, in any

event, the evidence obtained from her cell phone was nonetheless admissible under

United States v. Patane, 542 U.S. 630 (2004) (plurality opinion), because her action was

voluntary.

      We thus are presented with the question of whether a person in custody, who has

not been given Miranda warnings, was compelled to incriminate herself in violation of

the Fifth Amendment when she voluntarily, pursuant to an officer’s request, used her

passcode to open her cell phone but did not disclose the passcode.



                                            7
       The Fifth Amendment provides that no person “shall be compelled in any criminal

case to be a witness against himself.” U.S. Const. amend. V. Therefore, a violation

occurs when “the accused is [1] compelled [2] to make a testimonial communication

[3] that is incriminating.” United States v. Sweets, 526 F.3d 122, 127 (4th Cir. 2007)

(quoting Fisher v. United States, 425 U.S. 391, 408 (1976)).          While a testimonial

communication is most often in verbal or written form, it may also be made by an act. Id.

But to be a testimonial communication, the act must “relate a factual assertion or disclose

information,” Doe v. United States, 487 U.S. 201, 210 (1988); it must “express the

contents of [the person’s] mind,” id. at 210 n.9.

       In this case, Mojisola is faced with the task of demonstrating that her simple act of

typing in the passcode out of the FBI’s agent’s view was a testimonial communication to

the agent. Certainly, Mojisola has not shown that her act communicated her cell phone’s

unique passcode. Unlike a circumstance, for example, in which she gave the passcode to

the agent for the agent to enter, here she simply used the unexpressed contents of her

mind to type in the passcode herself. See United States v. Hubbell, 530 U.S. 27, 43

(2000) (distinguishing “surrender[ing] the key to a strongbox,” which is not

communicative, from “telling an inquisitor the combination to a wall safe,” which is

communicative).

       Mojisola argues nonetheless that “[o]nly through her communicative conduct of

unlocking the iPhone was the government able to ascertain that it belonged to her” and

that her act was therefore a testimonial communication. Yet, the ownership of the phone



                                             8
was neither an issue before the district court at the suppression hearing nor an issue

before the jury.

       In any event, even were we to accept Mojisola’s argument that she made a

testimonial communication when she unlocked her phone, it would provide no

meaningful help to her defense because the fruit of that voluntary communication, even

though made without a Miranda warning, would nonetheless be admissible into evidence.

In Patane, officers failed to provide a Miranda warning to a suspect before asking him

the location of his firearm, which he then disclosed. 542 U.S. at 635. The plurality

opinion in Patane deemed the firearm admissible, reasoning that “the Miranda rule is a

prophylactic employed to protect against violations of the Self-Incrimination Clause” and

that the Clause “is not implicated by the admission into evidence of the physical fruit of a

voluntary statement.” Id. at 636 (emphasis added). The plurality therefore saw “no

justification for extending the Miranda rule to this context,” explaining that “[t]he Clause

cannot be violated by the introduction of nontestimonial evidence obtained as a result of

voluntary statements.” Id. at 636–38; see also id. at 644–45 (Kennedy, J., concurring)

(agreeing with the plurality that “evidence obtained following an unwarned interrogation”

is admissible). Accordingly, the admission into evidence of data from Mojisola’s phone

— the fruit of her opening it — “present[ed] no risk that . . . coerced statements (however

defined) [would] be used against [her] at a criminal trial.” Id. at 643 (emphasis added).

       We conclude therefore that the district court did not err in denying Mojisola’s

motion to suppress.



                                             9
                                            III

       Several defendants contend that the district court abused its discretion in admitting

into evidence under Federal Rule of Evidence 1006 a series of charts detailing selected

deposits made into their bank accounts. Ogundele and Oloyede note that the charts

included deposits related to a “subjective list” of suspected victims and represented an

“editorialized subsection of transactions.” They also maintain that many of the charts’

entries, including those reflecting many of the cash deposits, were never proven to be

related to fraudulent activity, but that admitting the charts into evidence implied that

every entry was fraudulent. Babatunde contends that the chart relating to his bank

account was erroneously admitted because there was no direct evidence that the account

was connected to fraudulent activity.

       In creating the charts introduced against Ogundele and Oloyede, FBI Forensic

Accountant David Rutledge included selected deposits that had been made into the bank

accounts consistent with the government’s theory of which deposits were tied to illegal

activity. For example, with respect to Ogundele’s accounts, while Rutledge included all

cash deposits and all ATM deposits to the extent that bank records did not identify

whether it was a cash or check deposit, he included wire transfers only to the extent that

the bank statement identified the name of the sender and that name was on a list provided

to him by the case agent. Similarly, he included check deposits only to the extent that the

check was written by an individual on the list and out-of-state teller transfers only to the

extent that a receipt associated with the transfer was included as an attachment in a batch

of emails that Rutledge was provided.

                                            10
      We agree with Ogundele and Oloyede that the charts relating to their accounts

failed to comport with Rule of Evidence 1006 because of their selectivity. They did not

fully represent the accounts that they were purportedly summarizing.           Rule 1006

provides:

      The proponent may use a summary, chart, or calculation to prove the
      content of voluminous writings, recordings, or photographs that cannot be
      conveniently examined in court. The proponent must make the originals or
      duplicates available for examination or copying, or both, by other parties at
      a reasonable time and place. And the court may order the proponent to
      produce them in court.

Fed. R. Evid. 1006 (emphasis added). This rule authorizes the admission of charts into

evidence that serve “as a surrogate for underlying voluminous records that would

otherwise be admissible into evidence,” thereby “reduc[ing] the volume of written

documents that are introduced into evidence.” United States v. Janati, 374 F.3d 263, 272

(4th Cir. 2004) (emphasis added). Stated otherwise, “the chart itself is admitted as

evidence in order to give the jury evidence of the underlying documents,” id. at 273, and

therefore it must be an objectively accurate summarization of the underlying documents,

not a skewed selection of some of the documents to further the proponent’s theory of the

case, see id. at 272. “In this respect, Rule 1006 summary charts are distinguishable from

other charts and summaries that may be presented under Federal Rule of Evidence 611(a)

to facilitate the presentation and comprehension of evidence already in the record.” Id.

(emphasis added). Rule 611(a) charts are not evidence themselves; they are used “merely

to aid the jury in its understanding of the evidence that has already been admitted,” by,

for example, “reveal[ing] inferences drawn in a way that would assist the jury.” Id.


                                            11
       It is apparent that the government in this case was not using the charts as surrogate

evidence offered in lieu of voluminous underlying bank records, but rather was seeking to

help the jury understand how various related records demonstrated a pattern of suspicious

activity engaged in by the defendants. Thus, while the charts could have been shown to

the jury under Rule 611(a), it was improper to have admitted them into evidence under

Rule 1006. Nonetheless, in the circumstances of this case, we are confident that the error

did not affect the defendants’ substantial rights, particularly as the same information in

the same form could have been shown to the jury under Rule 611(a).

       But Ogundele and Oloyede argue further that their right to a fair trial was

prejudiced because the government cherry-picked individual records, unfairly spinning

the facts. This argument, however, ignores the role of a trial, where each side selects the

evidence to be presented to the jury. Each side can challenge facts and respond to the

other’s facts. In this case, in creating the charts, the government applied criteria to help

present its theory of the case, and those criteria were clearly detailed to the jury. The

defendants were thus free to cross-examine the government’s witnesses about the

soundness of the selection, just as if the charts had been shown to the jury under Rule

611(a).

       Babatunde contends with respect to the chart admitted under Rule 1006 for his

bank account that, even though the chart did summarize all non-payroll deposits

involving more than $1,000, the admission was erroneous because there was no direct

evidence that the particular bank account represented by the chart was connected to

fraudulent activity. But that objection goes to the relevance of the underlying bank

                                            12
records — not to any requirement for admission of a chart under Rule 1006 — and those

records were clearly relevant to the alleged money laundering activities and Babatunde’s

involvement in them.


                                           IV

      Next, Mojisola and Babatunde contend that the district court abused its discretion

in denying their motions for a severance. They argue that, by being tried together with

Ogundele, they were denied the benefit of his testimony because he would not testify at a

joint trial but, they believe, would have testified on their behalf had they been tried

separately. They also contend that they were prejudiced by a joint trial because of the

possibility that the jury found them guilty by association. In denying this motion, the

district court concluded that they did not meet their threshold burden of showing that

Ogundele would waive his Fifth Amendment privilege and testify if there were a

severance. The court also rejected their argument that the disparity in the amount of

evidence relating to them as compared to their codefendants warranted a severance.

      Federal Rule of Criminal Procedure 8(b) provides that the government may charge

defendants together “if they are alleged to have participated in the same act or

transaction, or in the same series of acts or transactions, constituting an offense or

offenses,” while Rule 14 permits the district court to grant a severance if the joinder

“appears to prejudice a defendant or the government.” In considering these rules, there is

“a preference in the federal system for joint trials of defendants who are indicted

together.” Zafiro v. United States, 506 U.S. 534, 537 (1993). Indeed, where, as here,


                                           13
“defendants properly have been joined under Rule 8(b), a district court should grant a

severance under Rule 14 only if there is a serious risk that a joint trial would compromise

a specific trial right of one of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence.” Id. at 539.

         In the case before us, Mojisola and Babatunde did not make the requisite showing.

As to obtaining Ogundele’s testimony, they were required to make a threshold showing

that it was likely “that [Ogundele] would testify at a second trial and waive his Fifth

Amendment privilege.” United States v. Parodi, 703 F.2d 768, 779 (4th Cir. 1983).

While they were not required to establish Ogundele’s willingness to testify at a severed

trial “to an absolute certainty,” they were required at least to show “[a] reasonable

probability . . . that the proffered testimony would, in fact[,] materialize.” Id. They did

not meet this threshold showing, however, conceding that they had no evidence that

Ogundele would waive his Fifth Amendment privilege. The district court accordingly

did not abuse its discretion in denying the severance motion on this basis.

         These defendants also contended in the district court that they would be prejudiced

by the disparity in evidence against them and the other codefendants and by the “unfair

spillover effect on [their] right to a fair trial.” But it would take an exceptional case to

grant a severance on this basis, and they have not made the necessary showing that the

court abused its discretion. Indeed, we have previously recognized that “[a] defendant is

not entitled to severance merely because . . . the evidence against one defendant is not as

strong as that against the other.” United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir.

1999).

                                             14
       At bottom, this is not one of the “rare” cases where a defendant properly joined

under Rule 8(b) with others has established that a severance was required to preserve his

or her right to a fair trial. See United States v. Dinkins, 691 F.3d 358, 368 (4th Cir.

2012). Accordingly, we affirm the district court’s denial of Mojisola and Babatunde’s

motions.


                                                V

       Each defendant has raised challenges to evidentiary rulings made by the district

court during the course of trial. Of course, it is well established that the district court, as

a trial court, has broad discretion to admit evidence in the management of a trial, and we

will overrule the district court’s evidentiary rulings only when the court has abused its

broad discretion to the prejudice of a party.


                                                A

       First, Mojisola, Babatunde, and Ogundele contend that the district court abused its

discretion in admitting inculpatory portions of a post-arrest statement given by Ogundele

while excluding, as untrustworthy hearsay, other portions, including statements tending

to exculpate Mojisola and Babatunde.

       After being arrested and read his Miranda rights, Ogundele agreed to be

interviewed by Special Agent Custer. In his statement, Ogundele said that he ran a used

car business and admitted that he used his business accounts to move money from the

United States to Nigeria, working with Haruna, his brother-in-law in Nigeria, to do so.

When shown a statement for one of his business bank accounts that reflected wire

                                                15
transfers from various victims, he admitted that he did not always know the people who

were putting money into his account but stated that he believed they were exploring

business opportunities in Nigeria. After making those statements against his interests,

Ogundele also made statements to exculpate Babatunde and Mojisola.                 He said,

“Babatunde Popoola does not help him with the business at all.” Similarly, he said that

his wife, Mojisola Popoola, was “not involved in the business at all,” but acknowledged

that after one of his accounts had been closed, she had “accepted deposits into her

account at [his] direction.” Nonetheless, he reiterated that she “does not know anything

about the business and [that] no one calls or contacts [her] to deal with the business.”

       At trial, the district court, applying Federal Rule of Evidence 801(d)(2)(A),

allowed the government to introduce into evidence portions of the statement made by

Ogundele but excluded, as untrustworthy hearsay, the portions in which Ogundele

exculpated Babatunde and Mojisola. In finding the exculpatory hearsay portions not

sufficiently trustworthy to be admitted, the court explained that Ogundele was motivated

“to shift blame away from” his wife and her brother “and onto himself.” The court also

noted “the nature and strength of the government’s proffered evidence.” The court

rejected the defendants’ argument that the hearsay portions should be admitted under

Rule 106, the “rule of completeness,” noting that that rule only applies to written or

recorded statements and that, in any event, it could not be used to overrule explicit

hearsay rules.

       Mojisola now contends that the court abused its discretion, arguing that the portion

of the statement made by her husband about her accepting deposits into her account at his

                                             16
direction rendered the entire exculpatory portion admissible under Rule 804(b)(3) as a

statement against Ogundele’s interest. Alternatively, she invokes Rule 807’s residual

exception, which requires “equivalent circumstantial guarantees of trustworthiness.”

While Rule 804(b)(3) does, as a general matter, provide a hearsay exception for

statements made against one’s interest, the particular portion of Ogundele’s statement

that Mojisola seeks to admit barely included any self-inculpatory material and was

directed mostly to shifting responsibility away from his wife. Thus, we conclude that the

district court did not abuse its discretion in relying on Ogundele’s motive for exculpating

his wife to find this portion of the statement untrustworthy. See Williamson v. United

States, 512 U.S. 594, 600–01 (1994) (holding that Rule 804(b)(3) “does not allow

admission of non-self-inculpatory statements, even if they are made within a broader

narrative that is generally self-inculpatory”); United States v. Dargan, 738 F.3d 643, 650

(4th Cir. 2013) (identifying factors to assess trustworthiness).

       Ogundele and Babatunde also contend that the district court abused its discretion

by not applying a common law rule of completeness to admit Ogundele’s entire post-

arrest statement.   While they recognize that Rule 106 applies only to writings and

recorded statements, they maintain that there is a “still-viable common law on the rule of

completeness” that should have allowed the entire statement to come in. While we doubt

that a residual common law rule of completeness survives Rule 106’s codification, we

hold that any such common law rule cannot be used to justify the admission of

inadmissible hearsay. See Fed. R. Evid. 802 (“Hearsay is not admissible unless any of



                                             17
the following provides otherwise: a federal statute; these rules; or other rules prescribed

by the Supreme Court”).

       Accordingly, we conclude that the district court did not abuse its discretion in

allowing the government to introduce only portions of Ogundele’s post-arrest statement.


                                              B

       In a similar vein, Babatunde contends that the district court abused its discretion in

restricting him from cross-examining an FBI agent about whether he had made certain

exculpatory statements to that agent during his post-arrest interview. He argues that the

statements were not being offered for their truth but for the fact that he made them to the

FBI. The district court rejected the argument, noting that if Babatunde wanted to rely on

portions of his prior statement, he would have to take the stand and satisfy the

requirements of Rule 801(d)(1)(B) (providing that a statement is not hearsay if the

declarant testifies and is subject to cross-examination about a prior consistent statement

that is offered to rebut a fabrication charge or to rehabilitate the declarant’s credibility).

We conclude the district court did not abuse its discretion in so ruling.


                                              C

       Next, Babatunde contends that the district court abused its discretion in preventing

him from cross-examining Agent Custer about Custer’s knowledge of a Nigerian named

“Marcus” — a man whom Babatunde claims was a car dealer in Nigeria with whom he

was doing legitimate business. The issue arose when counsel for Babatunde, cross-

examining Agent Custer, asked him if he knew to whom “chairman” referred in a

                                             18
communication in which an indicted coconspirator told Babatunde that the “chairman

said [you] should give me $3900.” When Custer stated that he could not “answer that

question with any specificity as [it] relates to this investigation,” Babatunde’s counsel

sought to refresh his recollection by handing him a copy of a redacted email that Custer

had sent to the prosecutors describing information found on the coconspirator’s cell

phone, including that Marcus’s phone number had been saved in the phone’s contacts

under “chairman.” After counsel attempted to describe the contents of the email, the

government objected, leading to a bench conference where Babatunde’s counsel stated

that he was trying to elicit that Agent Custer had “identified who Marcus is.” The court

first indicated that Babatunde’s counsel could ask the agent “if, based on his refreshed

recollection, he knows who Marcus is,” but then the government indicated that on

redirect, it would “ask the agent if he had seen other people in other documents

referenced as chairman,” which would create a problem because Ogundele is also

“referenced as chairman in various other communications.” To avoid the confusion, the

court then instructed Babatunde’s counsel simply not to “refer to the name Marcus.”

      We conclude that the district court did not abuse its discretion in so ruling and, in

any event, any error was certainly not so serious as to warrant vacating Babatunde’s

convictions. Despite Babatunde’s assertions to the contrary, it is far from clear that

“Marcus” was not also involved in the scheme, and if Babatunde’s counsel had been

allowed to establish that the government had learned of Marcus during its investigation,

that fact would likely have done little to show that Babatunde’s dealings with Marcus

were legitimate.

                                           19
                                             D

       Babatunde also contends that while the government introduced evidence at trial to

show his sophistication in tax and banking matters — including a college transcript

reflecting his high grades in accounting courses — the court erroneously prevented his

counsel from eliciting from Agent Custer that Custer was aware of other fraud schemes

targeting attorneys in an effort to show that even sophisticated individuals could be fraud

victims. We conclude that the district court did not abuse its discretion in excluding this

evidence as irrelevant. Moreover, even if its exclusion was error, it was clearly harmless.


                                             E

       Babatunde contends finally that the district court abused its discretion in admitting

his tax returns for 2011 through 2013, arguing that “[t]his was simply done to inflame the

jury against [him] by suggesting [he] was not paying taxes on taxable income” and thus

“committing a separate crime, tax evasion.” Again, we conclude that the court did not

abuse its discretion in admitting the tax returns. The fact that Babatunde did not report

the substantial sums flowing through his account was relevant to the government’s effort

to show that the funds were ill-gotten.


                                             F

       Mojisola contends that the district court abused its discretion in allowing the

government to introduce (1) her 2013 federal bankruptcy filing; (2) her 2013 Maryland

welfare and food stamp application; and (3) her application to purchase a timeshare in

2014 — none of which reported the funds that came through her bank account during the

                                            20
relevant time period. She asserts that the “government’s theory of admissibility” — that

her failure to disclose those funds in those documents tended to show that she knew that

the funds coming through her account were illegitimate — “was based on a false premise

absent establishing through an expert witness that the money flowing in and out of her

account was her income [that] she had a duty to disclose on these various forms.”

Invoking Federal Rules of Evidence 404(b) and 403, she maintains that the admission of

this evidence constituted a “thinly veiled attack on [her] character and any legitimate

probative value was outweighed by the serious risk of unfair prejudice.”

       We conclude, however, that these documents were admissible under Rule 404(b)

as both relevant to and probative of her knowledge that the funds coming into her bank

account were illegitimate. See Fed. R. Evid. 404(b) (providing that evidence of a crime,

wrong, or other act, while not admissible to prove a person’s character, is admissible for

proving knowledge); see also United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).

Mojisola was, of course, free to counter that inference by showing that she had no duty to

disclose the funds on the various forms because they only passed through her account.

       Moreover, we conclude that the district court did not abuse its discretion in ruling

that the probative value of the evidence was not substantially outweighed by a danger of

unfair prejudice. See Fed. R. Evid. 403; Queen, 132 F.3d at 997–98.


                                            VI

       The defendants next contend that the district court erred in giving three particular

instructions to the jury. We address each in turn.


                                            21
                                                A

          First, all defendants contend that the district court erred in giving a willful

blindness instruction to the jury, maintaining “that there was not sufficient evidence as a

threshold matter to support the assertion that [they] deliberately avoided learning the

truth.”

          The willful blindness doctrine “is premised on the idea that defendants should not

be permitted to ‘escape the reach’ of criminal statutes that require proof that a defendant

acted knowingly or willfully ‘by deliberately shielding themselves from clear evidence of

critical facts that are strongly suggested by the circumstances.’” United States v. Hale,

857 F.3d 158, 168 (4th Cir. 2017) (quoting Global-Tech Appliances, Inc. v. SEB S.A., 563

U.S. 754, 766 (2011)). “But, to ensure that the willful blindness doctrine retains ‘an

appropriately limited scope that surpasses recklessness and negligence,’ its application

has ‘two basic requirements: (1) the defendant must subjectively believe that there is a

high probability that a fact exists and (2) the defendant must take deliberate actions to

avoid learning of that fact.’” Id. (quoting Global-Tech Appliances, 563 U.S. at 769).

Thus, we have made clear that while “requests for willful blindness instructions should be

handled with caution,” it is nonetheless “appropriate to instruct the jury on willful

blindness when the defendant claims lack of guilty knowledge in the face of evidence

supporting an inference of deliberate ignorance.” Id. (cleaned up).

          We conclude that, in this case, the evidence justified the district court’s decision to

instruct the jury on willful blindness, as it amply allowed the inference that the

defendants “subjectively believe[d] that there [was] a high probability” that the funds

                                                22
coming into their bank accounts were illicit. Global-Tech Appliances, 563 U.S. at 769.

For instance, there was evidence that when banks closed certain defendants’ bank

accounts, the defendants simply opened new ones and continued the same activity. There

was also evidence that many of the defendants’ bank statements reflected significant wire

transfers from individuals they did not know. And certain defendants took deliberate

actions to avoid confirming that the money in fact represented proceeds of fraud. For

example, Ogundele indicated to the FBI that he told Haruna that he was uncomfortable

seeing those names on his bank statements and that the deposits should be in cash or

otherwise structured to avoid that. The deposits into Oloyede’s accounts followed a

similar pattern. Similarly, the jury could have inferred that Mojisola thought it was

highly likely that the funds flowing through her account were illegitimate but was careful

never to confirm the details of the operation with her husband. And while Oloyede

argues that he gave testimony that he actually took affirmative steps to discover the

source of the funds and was reasonably assured by Haruna and Ogundele that the funds

were legitimate, the jury was not required to believe his version of events.

       In addition, the defendants challenge the form of the willful blindness instruction

given by the district court, but, after carefully reviewing the instruction, we find no

reversable error.


                                             B

       Ogundele contends that the district court erred in instructing the jury on the

elements of aggravated identity theft, particularly “the required mental state.”


                                            23
Specifically, he appears to contend that the district court did not instruct the jury that the

government must show that he knew that the means of identification belonged to another

person. But the record does not support his argument. The court specifically instructed

the jury that “the government must prove that the means of identification was that of an

actual person either living or dead, and that the defendant knew that the means of

identification was that of a natural person.” (Emphasis added).


                                              C

       Finally, Ogundele and Babatunde (adopting Ogundele’s argument) contend that

the court erred in giving the form of the aiding-and-abetting instruction that it gave when

applied to aggravated identity theft, arguing that the instruction “did not sufficiently

inform the jury of the required mental state” and relying on the Supreme Court’s decision

in Rosemond v. United States, 572 U.S. 65 (2014). The Rosemond Court held that to

prove that a defendant aided and abetted a violation of 18 U.S.C. § 924(c) — which

prohibits using or carrying a firearm during and in relation to any crime of violence or

drug trafficking crime — the government must show “that the defendant actively

participated in the underlying drug trafficking or violent crime with advance knowledge

that a confederate would use or carry a gun during the crime’s commission.” Id. at 67

(emphasis added). It further concluded that the jury instructions given at Rosemond’s

trial “were erroneous because they failed to require that the defendant knew in advance

that one of his cohorts would be armed.” Id. Pointing to Rosemond, Ogundele argues

that the same “advanced knowledge” requirement should apply to the aggravated identity


                                             24
theft statute, 18 U.S.C. § 1028A, and that the jury instructions given in this case were

deficient because they “could allow the jury to determine that the defendants were guilty

of aiding and abetting the crime without prior knowledge of the aggravated nature of the

crime.”

      We disagree. As the Rosemond Court explained, “a person aids and abets a crime

when (in addition to taking the requisite act) he intends to facilitate that offense’s

commission,” and “the intent must go to the specific and entire crime charged.” 572 U.S.

at 76; see also id. at 77 (“[F]or purposes of aiding and abetting law, a person who

actively participates in a criminal scheme knowing its extent and character intends that

scheme’s commission”). The problem in Rosemond was that the challenged instruction

allowed the jury to convict if the defendant (1) “knowingly and actively participated in

the drug trafficking crime” and (2) “knew his cohort used a firearm in the drug

trafficking crime,” id. at 82 (emphasis added), thus allowing a conviction even if the

defendant had no advance knowledge that one of his confederates would be carrying a

gun. Here, by contrast, the district court instructed the jury that “the government must

establish the defendant knowingly participated in the aggravated identity theft charged in

Counts Three through Six.” The instruction also required the government to “prove that

the defendant engaged in some affirmative conduct or overt act for the specific purpose

of bringing about that crime.” And elsewhere, the instructions made clear that the

defendant must have “participate[d] in the crime as something he or she wished to bring

about,” “knowingly associate[d] him or herself with the criminal venture,” and sought

“by his or her actions to make the criminal venture succeed.” Accordingly, we conclude

                                           25
that there was no Rosemond problem with the aiding-and-abetting instruction given by

district court.


                                            VII

       Babatunde contends that the evidence was insufficient to support each of his

convictions — for conspiracy to commit wire fraud, conspiracy to commit money

laundering, and aggravated identity theft. Alternatively, he argues that, at the very least,

the district court should have granted his motion for a new trial based on the weakness of

the government’s case against him.

       As to his conviction for conspiracy to commit wire fraud, Babatunde argues that

“there was absolutely no evidence tying [him] to the scheme to defraud the alleged

victims” and that instead the transactions at issue were “related to his automobile

business and from legitimate sources.” But while, as he notes, he “testified at trial that he

was not part of any scheme but was a legitimate businessman that performed a few

financial transactions in relation to what he was led to believe was a legitimate business,”

the jury was not required to accept his account in light of the government’s substantial

evidence to the contrary. Such evidence included Babatunde’s pattern of using other

people’s bank accounts to accept the fraudulent funds despite having his own bank

accounts and his incriminating communications recovered from his cell phone, such as

text messages in which he instructed another charged coconspirator to structure

transactions to avoid a $10,000 reporting requirement.




                                             26
      Similarly, this and other evidence was sufficient to support Babatunde’s

conviction for conspiracy to commit money laundering. Babatunde argues that this

“conviction cannot be sustained because [he] did not conspire to ‘conceal’ the funds.”

But that ignores how, for example, he wrote himself 11 checks totaling $70,000 in 2011

solely to move money from one bank account to another and how he quickly withdrew

victims’ money from the bank accounts he controlled, engaging a pattern of maxing out

ATM withdrawals.

      Finally, Babatunde argues that the evidence was insufficient to support his

conviction for aggravated identity theft. The aggravated identity theft statute imposes a

mandatory consecutive two-year prison sentence against anyone who, “during and in

relation to [a qualifying felony], knowingly transfers, possesses, or uses, without lawful

authority, a means of identification of another person.” 18 U.S.C. § 1028A(a)(1). Here,

both Babatunde and Oloyede were convicted of aggravated identity theft based on their

use of the name and bank account number of one of Babatunde’s sisters, a woman named

Abiola Akinmboni. Babatunde argues, however, that he had Akinmboni’s permission to

use her account and therefore possessed “lawful authority.” But we have previously

rejected this precise argument. See United States v. Otuya, 720 F.3d 183, 189 (4th Cir.

2013) (“[I]t is obvious that, with or without permission from its rightful owner, a

defendant who uses the means of identification of another ‘during and in relation to any

felony violation enumerated’ in the statute necessarily lacks a form of authorization

recognized by law”); see also id. at 190 (“[T]he plain meaning of § 1028A(a)(1) is



                                           27
unambiguous: one who uses a means of identification to commit an enumerated felony

does not act with ‘lawful authority’”).

       Accordingly, we conclude that the evidence was sufficient to support each of

Babatunde’s convictions and that the district court did not abuse its discretion in denying

his motion for a new trial.


                                            VIII

       Finally, three of the defendants raise issues pertaining to their sentences.

       First, Babatunde challenges the district court’s calculation of his advisory

sentencing range — particularly, (1) its determination that he was accountable for a loss

of more than $250,000 but less than $555,000, triggering a 12-level increase under

U.S.S.G. § 2B1.1(b)(1)(G), as compared to the 8-level increase he argued was applicable

for a loss of $119,000; (2) its application of a 3-level enhancement under § 3B1.1(b) for

his role in the offense; and (3) its application of a 2-level enhancement under

§ 2S1.1(b)(3) for sophisticated laundering.        After carefully reviewing the record,

however, we cannot conclude that the district court clearly erred in the factual findings

supporting any of these enhancements.

       Next, Ogundele challenges his sentence on the ground that the district court erred

in its calculation of his advisory sentencing range by applying a 16-level increase to his

offense level based on a finding that he was accountable for more than $1.5 million but

less than $3.5 million in loss. The record shows, however, that this was a conservative




                                             28
estimate of the loss for which he was accountable based on the activity in his own bank

accounts.

       Finally, Oloyede challenges the district court’s decision to hold him accountable

for a loss amount of $1.6 million. But that determination too was based on a reasonable

estimate of the fraudulent proceeds that flowed through Oloyede’s bank accounts. He

also argues more broadly that his sentence was both “procedurally and substantively

unreasonable because the court failed to make an individualized assessment of all factors

set forth in 18 U.S.C. § 3553(a) and in so doing imposed a sentence greater than

necessary to accomplish the goals of sentencing.” But the record reflects that the district

court thoroughly considered how the § 3553(a) factors applied to Oloyede in imposing a

sentence that was at the top of the advisory sentencing range.

                                      *      *      *

       For the foregoing reasons, we affirm the judgments of the district court.

                                                                              AFFIRMED




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