           Case: 18-14622   Date Filed: 12/02/2019   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14622
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:15-cr-00457-SCJ-JSA-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

OLAYINKA OLANIYI,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (December 2, 2019)



Before WILLIAM PRYOR, GRANT and BLACK, Circuit Judges.

PER CURIAM:
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      Olayinka Olaniyi appeals his convictions for conspiracy to commit wire

fraud, in violation of 18 U.S.C. § 1349, computer fraud, in violation of 18 U.S.C.

§ 1030(a)(4), and aggravated identity theft, in violation of 18 U.S.C. § 1028A.

First, Olaniyi contends the district court erred by failing to suppress (a) all tangible

evidence seized during the search of his residence in Malaysia, and (b) his

statements to U.S. law enforcement officials during his arrest and interrogation.

Second, he asserts the evidence was insufficient for a reasonable juror to conclude

beyond a reasonable doubt he knew that Tasha Story, the victim of one of his

aggravated identity theft counts, was a real person. Finally, he argues the district

court abused its discretion by denying his motion for mistrial because he was

prejudiced by evidence of uncharged criminal conduct. After review, we affirm.

                                   I. DISCUSSION

A. Motion to Suppress

      1. Tangible evidence

      “The general rule is that evidence obtained from searches carried out by

foreign officials in their own countries is admissible in United States courts, even

if the search would not otherwise comply with United States law or the law of the

foreign country.” United States v. Emmanuel, 565 F.3d 1324, 1330 (11th Cir.

2009). We have recognized two narrow exceptions to this rule. Id. “The first

exception is that evidence from foreign searches is inadmissible if the conduct of


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the foreign officials during the search ‘shocks the judicial conscience.’” Id. This

exception derives from a federal court’s inherent supervisory powers over the

administration of federal justice. Id. The “shock the conscience” standard is not

well-defined, but it “is meant to protect against conduct that violates fundamental

international norms of decency.” Id. at 1331. The second exception is based on a

defendant’s Fourth Amendment rights and provides “evidence from foreign

searches is subject to the exclusionary rule if American law enforcement officials

substantially participated in the search or if the foreign officials conducting the

search were actually acting as agents for their American counterparts.” Id. at 1330.

      The district court did not err by refusing to suppress the evidence seized

during the search of Olaniyi’s residence, specifically the HP laptop and Olaniyi’s

cell phone. See id. at 1330 (explaining a district court’s denial of a motion to

suppress presents a mixed question of fact and law, and we review the factual

findings for clear error and the interpretation and application of law de novo). The

general rule is this evidence is admissible because it was seized by foreign officials

in their own countries, and Olaniyi is a non-resident with no connections to the

United States. As to the two exceptions identified in Emmanuel, Olaniyi failed to

show the conduct of the Royal Malaysian Police (RMP) officers shocked the

judicial conscience. Even assuming a beating occurred, the evidence supports it

occurred after the RMP officers had seized the items, suggesting the beating did


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not effectuate the seizure. Moreover, while the alleged beating may violate

American norms of decency, Olaniyi did not show it violates international norms

of decency. See id. at 1331. The second exception is inapplicable because Olaniyi

concedes he is not protected by the Fourth Amendment. See United States v.

Verdugo-Urquidez, 494 U.S. 259, 271, 274-75 (1990) (stating the Fourth

Amendment does not apply to the search and seizure by U.S. agents of property

that is owned by a nonresident alien and located in a foreign country as aliens do

not enjoy the protections of the Fourth Amendment if they have no previous

significant voluntary connection with the United States).

      2. Statements

      Under the Fifth Amendment to the U.S. Constitution, the government may

not use an involuntary confession against a defendant in a criminal trial. United

States v. Thompson, 422 F.3d 1285, 1295 (11th Cir. 2005). The threshold inquiry

is whether the defendant was informed of his Miranda 1 rights, and if so, whether

he voluntarily waived those rights. See United States v. Barbour, 70 F.3d 580,

584-85 (11th Cir. 1995). The Supreme Court has articulated a two-part inquiry

into whether a defendant’s waiver of Miranda rights was voluntary, knowing, and

intelligent. Moran v. Burbine, 475 U.S. 412, 421 (1986).

      First, the relinquishment of the right must have been voluntary in the
      sense that it was the product of a free and deliberate choice rather than

      1
          Miranda v. Arizona, 384 U.S. 436 (1966).
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      intimidation, coercion, or deception. Second, the waiver must have
      been made with a full awareness of both the nature of the right being
      abandoned and the consequences of the decision to abandon it. Only if
      the totality of the circumstances surrounding the interrogation reveal
      both an uncoerced choice and the requisite level of comprehension may
      a court properly conclude that the Miranda rights have been waived.

Id. (quotations omitted).

      The district court did not err by refusing to suppress Olaniyi’s statements to

the FBI agents. See Barbour, 70 F.3d at 584 (stating the district court’s conclusion

on the voluntariness of a confession or the waiver of Miranda rights raises

questions of law to be reviewed de novo). First, Olaniyi was given his Miranda

warnings, and the totality of the circumstances surrounding his interview reveal

both an uncoerced choice to speak and the requisite level of comprehension of the

rights he was giving up by speaking. See Burbine, 475 U.S. at 421. At the outset,

Agent Fowler made sure Olaniyi understood English, and Olaniyi assured him that

he did. Throughout the course of the interview, Olaniyi did not appear to have

trouble understanding or speaking English. Fowler also explained he and Agent

Hunt were from the United States and worked for the FBI, and Olaniyi

acknowledged he understood. Fowler and Hunt used a conversational tone

throughout the interview and did not raise their voices. They offered Olaniyi water

and kept the interview to a reasonable time of just under two hours. See

Thompson, 422 F.3d at 1295-96 (stating examples of sufficiently coercive conduct

includes subjecting the defendant “to an exhaustingly long interrogation, the
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application of physical force or the threat to do so, or the making of a promise that

induces a confession”).

      Moreover, the totality of the circumstances show Olaniyi’s statements were

voluntary. Olaniyi comprehended the situation and tried to negotiate with Fowler

and Hunt, stating he would tell them everything if they agreed to protect his rights

by not outing him as a snitch. He wanted something in return for giving

information and chose to speak to the agents because he believed he would benefit

from the bargain, not because he was coerced by them. Additionally, Olaniyi’s

confession was not causally linked to the RMP officers’ alleged beating. Olaniyi’s

interview occurred hours after his arrest by different officials from a different

sovereign. Olaniyi confessed because he felt the agents could protect him and get

him out of Malaysia. Fowler and Hunt did not participate in the arrest and were

not aware of Olaniyi’s alleged beating.

B. Judgment of Acquittal

      The aggravated identity theft statute provides, a person who, “during and in

relation to any felony violation enumerated in [18 U.S.C. § 1028A(c)], knowingly

transfers, possesses, or uses, without lawful authority, a means of identification of

another person shall, in addition to the punishment provided for such felony, be

sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1). That

statute requires the government show the defendant knew the means of


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identification at issue belonged to another person. Flores-Figueroa v. United

States, 556 U.S. 646, 657 (2009). In “the classic case of identity theft,” the

knowledge element could be proven by:

      For example, where a defendant has used another person’s
      identification information to get access to that person’s bank account,
      the Government can prove knowledge with little difficulty. The same
      is true when the defendant has gone through someone else’s trash to
      find discarded credit card and bank statements, or pretends to be from
      the victim’s bank and requests personal identifying information.
      Indeed, the examples of identity theft in the legislative history
      (dumpster diving, computer hacking, and the like) are all examples of
      the types of classic identity theft where intent should be relatively easy
      to prove, and there will be no practical enforcement problem.

Id. at 656.

      Viewing the evidence in the light most favorable to the Government, a jury

could reasonably conclude beyond a reasonable doubt Olaniyi knew Tasha Story

was a real person. See United States v. Descent, 292 F.3d 703, 706 (11th Cir.

2002) (explaining a district court’s denial of a motion for judgment of acquittal is

reviewed de novo, construing all facts and inferences in the light most favorable to

the government, and affirming if a reasonable fact finder could conclude the

evidence established the defendant’s guilt beyond a reasonable doubt). The

evidence showed: (1) all Olaniyi’s fraudulent activities involved real, not fictitious,

people; (2) he knew about romance fraud and witnessed people participating in it;

(3) he obtained Story’s bank information, including her name, home address, bank

address, bank account and routing numbers, online username and password, and
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her security questions and answers; (4) he exchanged the personal information of

real people, including Story’s, with Damilola Ibiwoye; and (5) he needed bank

accounts of real people in order to deposit money from his fraudulent activities.

      Although Olaniyi argues the account could have been a real account in a

fictitious name, the record did not demand that construction of the evidence, as

there was no evidence that Olaniyi ever used fictitious identities. Rather, the

evidence showed he exclusively used bank accounts for real people and Story was

no different, which was a reasonable construction of the evidence under which a

reasonable jury could find him guilty. See United States v. Holmes, 595 F.3d 1255,

1257 (11th Cir. 2010) (stating we will “upset a conviction only if the jury could not

have found the defendant guilty under any reasonable construction of the

evidence” (quotations omitted)).

C. Motion for Mistrial

      Federal Rule of Evidence 404(b) provides evidence of other crimes, wrongs,

or acts is not admissible to prove a defendant’s character in order to show that on a

particular occasion the person acted in accordance with the character. Fed. R.

Evid. 404(b). Such evidence may be admitted for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. Id. Upon a defendant’s request, the prosecutor must provide




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reasonable notice of the general nature of any such evidence that the prosecutor

intends to introduce at trial. Id.

      The district court did not abuse its discretion by denying Olaniyi’s motion

for mistrial. See United States v. Capers, 708 F.3d 1286, 1298 (11th Cir. 2013)

(reviewing a district court’s decision not to grant a mistrial for abuse of discretion).

The evidence of his unindicted conduct was not extrinsic evidence under Rule

404(b) because it was inextricably intertwined with the evidence of his charged

offenses. United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007)

(explaining “evidence of criminal activity other than the charged offense is not

extrinsic under Rule 404(b), and thus falls outside the scope of the Rule, when it is

(1) an uncharged offense which arose out of the same transaction or series of

transactions as the charged offense, (2) necessary to complete the story of the

crime, or (3) inextricably intertwined with the evidence regarding the charged

offense” (quotations omitted)). Fowler’s brief testimony regarding uncharged

conduct from 2011 and 2012 showed Olaniyi and Ibiwoye had been stealing

personal information from others well before they were charged and this was a

system they had been working on and perfecting for years. They began living

together in 2011 and worked together and developed contacts in the United States

to carry out the charged offenses. The testimony spoke to the background and set-

up of the charged crimes and was not extrinsic under Rule 404(b). See id.


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(“Evidence, not part of the crime charged but pertaining to the chain of events

explaining the context, motive, and set-up of the crime, is properly admitted if

linked in time and circumstances with the charged crime, or forms an integral and

natural part of an account of the crime, or is necessary to complete the story of the

crime for the jury.” (alterations omitted)). As the evidence was not extrinsic under

Rule 404(b), the Government was not required to give pretrial notice of its intent to

use the evidence at trial.

      Further, the probative value of the evidence was not substantially

outweighed by any unfair prejudice caused by that evidence. See Fed. R. Evid.

403 (providing a “court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence”). Fowler did not testify to the details

of Olaniyi’s and Ibiwoye’s uncharged conduct in 2011 and 2012, and the testimony

was brief. And any unfair prejudice possibly caused by the introduction of this

evidence was mitigated by the trial judge’s limiting instruction. See United States

v. Butler, 102 F.3d 1191, 1196 (11th Cir. 1997) (explaining the law assumes the

jury follows the court’s instructions). The trial judge cautioned the jurors they

were there to try only the conduct charged in the indictment and instructed them to

disregard Fowler’s testimony regarding the uncharged conduct. He asked them to


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raise their hands if they could not follow that instruction, and no one responded.

Olaniyi therefore cannot show a reasonable probability that, but for the testimony,

he would have been found not guilty. See Capers, 708 F.3d at 1298 (stating a

district court should grant a mistrial where the defendant’s substantial rights are

prejudicially affected which occurs when there is a reasonable possibility that, but

for the alleged error, the outcome of the trial would have been different).

                                 II. CONCLUSION

      First, the district court did not err by failing to suppress the tangible

evidence seized from Olaniyi’s residence or his statements to U.S. law

enforcement officials. Second, the evidence was sufficient for a reasonable juror

to conclude beyond a reasonable doubt that Olaniyi knew Tasha Story was a real

person. Third, the district court did not abuse its discretion in denying Olaniyi’s

motion for mistrial. Accordingly, we affirm.

      AFFIRMED.




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