     Case: 14-10630      Document: 00513290503         Page: 1    Date Filed: 12/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10630
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         December 1, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

OGIESOBA CITY OSULA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-132-5


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Ogiesoba City Osula was convicted by a jury of conspiracy to defraud the
Government with respect to claims and to commit wire fraud, mail fraud, and
bank fraud, making false claims upon the United States, fraud in connection
with access devices, and aggravated identity theft. He was sentenced to a total
of 210 months of imprisonment.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-10630

      Osula argues that the district court erred in refusing to grant a mistrial
on the basis that the jury improperly was exposed to an external influence that
affected its ability to deliberate objectively: the indictment, which set forth that
he was in custody at the time that the indictment was returned. However, the
record does not support that the reference to Osula’s custodial status affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Garcia, 567 F.3d 721, 727 n.2 (5th Cir. 2009). The disclosure
of Osula’s custodial status was unintentional and limited, did not necessarily
connote his guilt, see Leonard v. United States, 386 F.2d 423, 425 (5th Cir.
1967), and concerned his pretrial detention for the instant offense instead of
implicating a prior conviction or suggesting continuing detention, see United
States v. Barcenas, 498 F.2d 1110, 1113 (5th Cir. 1974). Further, the fact that
Osula was in custody was incidental to the matters at trial, and the district
court instructed the jury that the indictment was not evidence of guilt and that
Osula was presumed innocent. See Zafiro v. United States, 506 U.S. 534, 540
(1993). Moreover, there was overwhelming evidence of Osula’s guilt adduced
at trial. Thus, Osula has not shown how the reference to his pretrial custodial
status affected the outcome of the proceedings. See Puckett, 556 U.S. at 135.
      Osula further contends that his sentence was unreasonable because the
district court improperly calculated the amount of loss and the total number of
victims. He maintains that the district court incorrectly attributed to him as
relevant conduct the actions of his co-conspirators. The determinations of the
loss amount and number of victims are findings of fact that we review for clear
error. See United States v. Njoku, 737 F.3d 55, 75 (5th Cir. 2013), cert. denied,
134 S. Ct. 2319 (2014).
      The record reflects that the district court determined the amount of loss
after reviewing ample evidence, including testimony from the case agent, and



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                                 No. 14-10630

that no loss amount was included unless there were multiple connections to
the conspirators. The conspirators’ actions – i.e., obtaining stolen identifying
information, using the information to file tax returns using falsely procured
Electronic Filing Identification Numbers, and directing the resulting refunds
to fraudulently secured accounts and prepaid debit cards – conformed with
Osula’s understanding of the conspiracy, were related to the conspiracy that
gave rise to his conviction, and concerned conduct arising out of the conspiracy
in which he participated; the criminal conduct was undertaken by members of
the conspiracy, was identical to the acts in which Osula and the conspiracy
engaged, and was committed for the same purpose. To the extent that Osula
was responsible for the conduct of the related scheme operating in Cincinnati,
Ohio, the evidence reflected that Osula knew that his group and the Cincinnati
scheme arranged to collaborate to effectuate their crimes. Thus, the district
court did not clearly err in determining that Osula’s loss amount included the
relevant conduct of his co-conspirators. See United States v. Hammond, 201
F.3d 346, 351 (5th Cir. 1999); Njoku, 737 F.3d at 75; U.S.S.G. § 1B1.3(a)(1)(A),
(B), & comment. (n.2).
      Likewise, the district court did not clearly err in its determination of the
total number of victims. See United States v. Ford, 558 F.3d 371, 377 (5th Cir.
2009); Njoku, 737 F.3d at 75. To the extent that Osula argues that the district
court wrongly failed to calculate the loss for each victim, his argument is
misguided; the instant case involved the use of fraudulently obtained means of
identification and, thus, whether a person sustained a loss is immaterial to
whether he is a victim for purposes of the adjustment. See § 2B1.1, comment.
(n.4(E)). The record otherwise supports, for the reasons detailed, that Osula
was responsible for the victims generated by the actions of his co-conspirators




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                                  No. 14-10630

because it was relevant conduct.            See Hammond, 201 F.3d at 351;
§ 1B1.3(a)(1)(A), (B), & comment. (n.2).
      Finally, Osula contends that the district court erred in applying a four-
level adjustment under § 3B1.1(a) on the basis that he was a leader or
organizer of the offense. However, he has not shown that the district court
clearly erred. See United States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006).
The record reflects that Osula supplied assets needed for the conspiracy; Osula
had access to the identifying information that was crucial to the scheme and
controlled procurement of the information. See § 3B1.1, comment. (n.4). Osula
also exercised control over bank accounts in which tax refunds were diverted;
Osula decided how the accounts were accessed and managed and ran the bank-
fraud aspect of the conspiracy. See id.; United States v. Ochoa-Gomez, 777 F.3d
278, 282-83 (5th Cir. 2015). Further, Osula received a greater share of the
profits than other conspirators, was represented as a leader of the conspiracy,
and enabled an expansion of the conspiracy by negotiating an agreement with
the Cincinnati group. § 3B1.1, comment. (n.4). To the extent that Osula did
not control the action of another individual, that claim is unavailing because
he exercised authority over the property, assets, or activities of the conspiracy.
See Ochoa-Gomez, 777 F.3d at 282-83; § 3B1.1, comment. (n.4). Likewise, the
fact that Osula may not have been the ultimate leader of the conspiracy is not
dispositive. See United States v. Rodriguez, 897 F.2d 1324, 1327 (5th Cir.
1990).
      AFFIRMED.




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