                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 08-2563
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                 ROMANUS OKORIE,

                                                Appellant
                                     _____________


                     On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. No. 2:07-cr-00477)
                         District Judge: Hon. William H. Walls

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 18, 2011

              Before: BARRY, CHAGARES, and ROTH, Circuit Judges.

                                  (Filed April 26, 2011)

                                     _____________

                                       OPINION
                                     _____________

CHAGARES, Circuit Judge.

       Romanus Okorie appeals his conviction, asserting that the District Court erred in

admitting various pieces of evidence during his trial. For the reasons set forth below, we

will affirm the District Court‟s evidentiary decisions and Okorie‟s conviction.
                                             I.

       Because we write solely for the benefit of the parties, we will only briefly recite

the facts. Okorie ran a business preparing taxes. The allegations of the underlying

conviction were that he falsely claimed that his clients were sole proprietors of businesses

and then created excessive business expenses to decrease his clients‟ taxable incomes.

He would then file tax returns without first presenting them to his clients for review and

signature, and also failed to identify himself as the preparer of the returns. His scheme

was discovered when one client, Maria Brown, received her refund check, realized that it

was for far too much, returned it to the IRS, and began cooperating in an investigation of

Okorie. As part of this investigation, the Government received a warrant to search

Okorie‟s home and to seize any documents relating to the preparation of taxes for the

years 2003 and 2004. In executing this warrant, the Government agents were required to

sort through stacks of papers that had not been separated by year, and noticed that forms

from 2002 also contained suspicious information. The Government then received a

second search warrant and seized all documents relating to 2002 as well.

       Okorie was indicted on June 11, 2007, and charged with ten counts of preparing

and filing false tax returns only for the years 2003 and 2004, in violation of 26 U.S.C. §

7206(2). He was convicted by a jury on all counts on January 22, 2008, and was

sentenced to 72 months of imprisonment on May 14, 2008. The instant appeal was filed

on May 15, 2008.




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                                              II.

       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and

this Court has jurisdiction under 28 U.S.C. § 1291. We review the underlying factual

findings of a District Court‟s refusal to suppress evidence for clear error, but exercise

plenary review over the application of the law to these factual findings. United States v.

Brown, 595 F.3d 498, 514 (3d Cir. 2010). On issues regarding the District Court‟s

decision to admit evidence, we review for abuse of discretion, United States v. Kemp,

500 F.3d 257, 295-96 (3d Cir. 2007), and this includes consideration of whether the

admission of evidence violated the Sixth Amendment‟s Confrontation Clause. United

States v. Jimenez, 513 F.3d 62, 76-77 (3d Cir. 2008).

                                             III.

       Okorie first argues that the District Court erred in denying his application to

suppress all evidence seized from his residence because the Government conducted a

broader search than authorized by the first warrant when it looked at documents from

2002 as well as 2003 and 2004. He argues that all evidence seized, including the

evidence that was plainly within the scope of the first search warrant, must be suppressed

“due to the blatant Fourth Amendment violation” that occurred when the executing

officials viewed his 2002 documents, which were not within the scope of the first

warrant.

       As a general matter, the exclusionary rule is used only in circumstances where it

will have a deterrent effect. United States v. Leon, 468 U.S. 897, 906 (1984). “Whether

the exclusionary sanction is appropriately imposed in a particular case . . . is „an issue

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separate from the question whether the Fourth Amendment rights of the party seeking to

invoke the rule were violated by police conduct.‟” Id. (quoting Illinois v. Gates, 462 U.S.

213, 223 (1983)).

       We see no reason that would justify the suppression of the 2003 and 2004

documents that were collected under the first warrant. Okorie does not allege that the

first warrant was defectively obtained or executed. Instead, he argues that the

overbreadth of the first search justifies the suppression of all evidence obtained during

that search, regardless of whether it was plainly within the scope of the warrant. The

conduct at issue in this case, however, is insufficient to impose the “substantial social

costs exacted by the exclusionary rule.” Id. at 907. Okorie‟s files were not neatly

organized or easily separable, and the agents were required to look through all of

Okorie‟s papers in order to separate out those that were from the years 2003 and 2004.

The evidence introduced at trial was obtained as a result of a valid warrant that was

properly executed, and we will affirm the District Court‟s refusal to suppress this

evidence.1


1
  We also note, per Okorie‟s contention that the search exceeded the scope of the initial
warrant, that the Supreme Court has made clear that “elaborate specificity” in a warrant is
not required. United States v. Ventresca, 380 U.S. 102, 108 (1965). Whether evidence is
within a search warrant‟s scope requires not a “hypertechnical” analysis, but a “common-
sense, and realistic” one. United States v. Srivastava, 540 F.3d 277, 291 (4th Cir. 2008).
In line with such reasoning, we have observed that “[w]hen an entire, discrete body of
evidence is described, the naming of every component of that body is mere surplusage.”
United States v. Kepner, 483 F.2d 755, 763 (3d Cir. 1988) (quotation marks omitted). In
addition, “the government is to be given more flexibility regarding the items to be
searched when criminal activity deals with complex financial transactions.” United
States v. Yusuf, 461 F.3d 374, 395 (3d Cir. 2006). On the facts here, both the warrant
and the search executed pursuant to it easily pass muster.
                                              4
       Okorie next argues that the District Court erred in allowing Maria and Raymond

Brown to testify as to their dealings with Okorie, despite the fact that their experience did

not form one of the underlying counts of Okorie‟s indictment. He argues that the

evidence was cumulative and that the Browns‟ testimony could not have served any non-

cumulative purpose other than to encourage the jury to convict based upon prior bad acts

or a propensity to commit crime, neither of which is permitted under Federal Rule of

Evidence 404(b).

       Federal Rule of Evidence 404(b) provides as follows:

       [e]vidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident, provided that upon request by the accused, the
       prosecution in a criminal case shall provide reasonable notice in advance of
       trial, or during trial if the court excuses pretrial notice on good cause
       shown, of the general nature of any such evidence it intends to introduce at
       trial.

This Court has noted that the threshold established by this rule is not overly high, and that

almost all evidence can be admitted under 404(b) so long as it is for a purpose other than

to demonstrate the defendant‟s bad character in order to encourage the jury to convict on

the basis of a propensity to commit crime. United States v. Green, 617 F.3d 233, 248-29

(3d Cir. 2010).

       In this case, the testimony of the Browns went to the non-propensity purpose of

demonstrating motive, voluntariness, and lack of mistake, as well as providing

background information regarding how the IRS began its investigation. The testimony

helped demonstrate that the criminal conduct was initiated by Okorie and not his clients,

                                              5
and, because Maria Brown returned her refund check, provided testimony from

individuals without any motivation to lie. In addition, the District Court provided a

limiting instruction immediately after each of the Browns testified, and then again when

charging the jury. The District Court did not abuse its discretion in allowing this

testimony, and we will affirm its decision on this issue.

       Finally, Okorie asserts that the District Court‟s decision to allow Deborahann

Westwood, the custodian of records for the New Jersey Department of the Treasury, and

Margaret Coe, a Human Resources specialist with the IRS, to testify regarding the results

of employment-records searches in their respective departments. Although the

Government initially planned to introduce only a certification of the non-existence of an

official record, the District Court directed that individuals be produced to testify to this

fact in order to avoid Confrontation Clause issues. This testimony was introduced to

demonstrate that Okorie never worked for either of these agencies, despite his

representations to the contrary to his clients. Okorie argues that he has a Sixth

Amendment right to cross-examine those who actually performed the searches of the

records, and that the production of a supervisor is insufficient to meet the Constitution‟s

demands.

       The Sixth Amendment prevents, with limited exceptions, the introduction of any

testimonial statement at trial without the opportunity for the defendant to cross-examine

the individual who made the statement. Crawford v. Washington, 541 U.S. 36, 50-51

(2004). The Supreme Court‟s more recent decision in Melendez-Diaz v. Massachusetts,

129 S. Ct. 2527 (2009), makes clear that the type of report produced in this case would

                                              6
certainly constitute a testimonial statement. Unlike Melendez-Diaz, however, where only

a single analyst‟s report was at issue, this case deals with a report that was produced

through the work of multiple individuals. In the present case, although Westwood and

Coe did not conduct the entire search personally, the testimonial import of the report that

was produced was simply that Okorie had not worked in either of their organizations.

Westwood and Coe certainly had sufficient knowledge about this report to justify the

admission of their testimony; both had knowledge of their institutions‟ records, the

searches conducted, and their results, and both were subject to cross-examination on

these issues. That they were not the individuals who physically sorted through every

piece of paper or who personally typed the search into the computer program does not

cause a constitutional problem. They both had knowledge of the ultimate testimonial fact

supplied by the report (that Okorie had not worked in either agency), and had knowledge

of the process that produced this testimonial fact. We certainly are not prepared to state

the District Court abused its discretion in its decision to admit the evidence, and we

therefore will also affirm its decision to allow the testimony of Westwood and Coe.

                                            IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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