                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2004

USA v. Adedoyin
Precedential or Non-Precedential: Precedential

Docket No. 02-3042




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Recommended Citation
"USA v. Adedoyin" (2004). 2004 Decisions. Paper 635.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/635


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                  PRECEDENTIAL

   UNITED STATES COURT OF                         Argued April 21, 2004
          APPEALS
    FOR THE THIRD CIRCUIT                   BEFORE: SCIRICA, Chief Judge,
                                             ROSENN and GREENBERG,
                                                   Circuit Judges
            No. 02-3042
                                                   (Filed May 28, 2004)

UNITED STATES OF AMERICA,
                                         Christopher J. Christie
                 v.                      United States Attorney
                                         George S. Leone
   LAWRENCE FAMAKINDE                    Chief, Appeals Division
         ADEDOYIN                        Sabrina G. Comizzoli (argued)
           a/k/a                         Assistant United States Attorney
   LAWRENCE FAMAKINDE                    Office of the United States Attorney
       OMOADEDOYIN                       970 Broad Street
           a/k/a                         Room 700
   LAWRENCE FAMAKINDE                    Newark, NJ 07102
           a/k/a
  SIR LAWRENCE ADEDOYIN                     Attorneys for Appellee
           a/k/a
  LAWRENCE OMOADEDOYIN                   Paul B. Brickfield (argued)
           a/k/a                         Brickfield & Donahue
   FAMAKINDE LAWRENCE                    70 Grand Avenue
         ADEDOYIN                        River Edge, NJ 07661
           a/k/a
   ADEDOYIN FAMAKINDE                       Attorneys for Appellant

        Lawrence Adedoyin,
                                               OPINION OF THE COURT
                             Appellant

                                         GREENBERG, Circuit Judge.
  On Appeal from the United States
           District Court                         I. INTRODUCTION
   for the District of New Jersey
   (D.C. Crim. No. 99-cr-00239)                 This matter comes on before this
   Honorable William H. W alls,          court on Lawrence Adedoyin’s appeal
           District Judge                from a judgment of conviction and
sentence entered in this criminal case on                After returning to the United
July 15, 2002.1 The district court               States Adedoyin, from 1997 through
exercised jurisdiction under 18 U.S.C. §         1999, attempted to set up a television
3231 and we exercise jurisdiction                network promoting African and African-
pursuant to 28 U.S.C. § 1291.                    American heritage. While engaging in
                                                 this endeavor, Adedoyin failed to pay
        The background of the case is as         several landlords, vendors and his own
follows. Adedoyin is a Nigerian national         employees. He also bounced a $180,000
who has entered the United States on             check to a vendor who had agreed to
several occasions. In August 1981,               provide satellite access for the television
Adedoyin, then using the name Lawrence           station.
Omoadedoyin, pled nolo contendere in
the Superior Court of California to a                    Adedoyin’s conduct led to an
felony. As a result of his plea, Adedoyin        indictment in the proceedings
was convicted and sentenced to one year          culminating in this appeal. After a
in prison and three years on probation.          superseding indictment was filed, a
In 1985, an immigration judge in San             second superseding indictment was filed
Francisco ordered Adedoyin, who was              on July 24, 2001. The second
using the name Lawrence Omoadedoyin,             superseding indictment charged
deported. At that time the judge issued a        Adedoyin with two counts of improper
Warrant of Deportation and Adedoyin              entry into the United States by an alien,
left the country.                                in violation of 8 U.S.C. § 1325(a) and 18
                                                 U.S.C. § 2; two counts of fraud and
        Adedoyin, however, returned to           misuse of visas, permits and other
the United States on November 27, 1994.          documents, in violation of 18 U.S.C. §§
Prior to returning, Adedoyin obtained a          1546(a), 2; three counts of mail fraud, in
Nigerian passport under the name                 violation of 18 U.S.C. §§ 1341, 2; and
Adedoyin Famakinde which he used                 three counts of wire fraud, in violation of
successfully in obtaining a United States        18 U.S.C. §§ 1343, 2. Adedoyin entered
visa. At the time he applied for the visa,       a plea of not guilty to all charges and
Adedoyin, in responding to a question in         moved to sever the mail and wire fraud
the application as to whether he had any         charges from the entry and visa counts.
criminal convictions, answered                   The court granted the motion and
negatively and accordingly did not               determined that the mail and wire fraud
disclose his 1981 California conviction.         case would be tried first. After various
                                                 continuances and changes of counsel,
                                                 Adedoyin’s trial on the mail and wire
                                                 fraud counts was scheduled to start on
  1                                              September 11, 2001, but the Islamic
   The district court issued an amended
                                                 terrorist attacks which, inter alia,
judgment on August 5, 2002.

                                             2
destroyed the World Trade Center                   major corporations with one-hour
prevented the case from going forward.             promotional videos to be aired on the
Consequently, the court rescheduled the            television network for $150,000. In an
trial for September 19, 2001.                      attempt to counter the government’s
                                                   evidence, Adedoyin offered two
         Prior to the commencement of              witnesses. The first, Wilfred Warrick,
trial on September 19, 2001, Adedoyin              was involved with Adedoyin at the time
moved for a 90-day postponement. He                of trial in setting up another television
argued that he could not receive a fair            station seeking to promote Africa and
trial in the wake of the attack on the             African culture. The court asked
World Trade Center because he was a                Warrick several questions in an attempt
foreign national alleged to have                   to obtain information about the new
perpetrated a fraud against, among other           venture.
individuals and entities, the World Trade
Center. The court denied Adedoyin’s                        Adedoyin concluded his defense
motion, stating that inasmuch as he was a          with his own testimony. He testified that
Nigerian national and was not of Middle            a form which he presented to a
Eastern descent, there was little risk that        representative from U.S. Media to show
the jury unfairly would link him to the            that his business was economically viable
events of September 11th. The court also           was a projection of his future income
cited the long delay in bringing the case          rather than a reflection of money he
to trial. Nevertheless, to address                 actually had earned. The court
Adedoyin’s concerns, the court                     questioned Adedoyin on this point. At
questioned the jurors individually to              the conclusion of the trial, on October 5,
determine if each could be fair and                2001, the jury returned a verdict of guilty
impartial even though there were                   on the three mail fraud counts and not
allegations that he had defrauded the              guilty on the three wire fraud counts.
World Trade Center. Each of the
impaneled jurors informed the court that                   The trial on the four entry and
he or she could be fair and impartial.             visa charges began on November 27,
                                                   2001. At trial, the district court, over
        At trial, the government presented         Adedoyin’s objection, admitted a
various witnesses to prove the mail and            certified copy of his 1981 California
wire fraud alleged against Adedoyin.               felony conviction. As we have set forth,
Former landlords, vendors and former               Adedoyin had pled nolo contendere to
employees of the television network                the charges which led to that conviction.
testified against Adedoyin, detailing his          Adedoyin attempted to prevent evidence
failure to make payments. In addition,             of the conviction from being admitted,
persons Adedoyin had solicited testified           pointing out that Rule 410 of the Federal
that he sent out letters offering to provide       Rules of Evidence, except in certain

                                               3
circumstances not relevant here,                 continuance for abuse of discretion. See
prohibits the admissibility of “a plea of        United States v. Lattany, 982 F.2d 866,
nolo contendere.” Fed. R. Evid. 410(2).          870 (3d Cir. 1993). Under 18 U.S.C. §
The district court overruled his objection       3161(h)(8)(A), a district court is
and admitted the certified copy of the           empowered to grant a continuance in a
1981 conviction. At the conclusion of            criminal trial under the Speedy Trial Act
the trial, the jury found Adedoyin guilty        if it makes findings “that the ends of
of two counts of improper entry into the         justice” would be served best by such a
United States by an alien but not guilty         delay. Prior to trial on the mail and wire
of two counts of fraud and misuse of             fraud charges, Adedoyin sought a 90-day
visas, permits and other documents.              postponement of the proceedings due to
After the court sentenced Adedoyin on            the September 11, 2001 terrorist attacks.
both sets of convictions he timely               As we have indicated, Adedoyin argued
appealed.                                        that because he was a Nigerian national
                                                 and one of the alleged victims of his
                                                 fraudulent activities was the World Trade
                                                 Center, he would be unable to receive a
            II. DISCUSSION                       fair trial. The court denied the motion
                                                 for continuance and the mail and wire
        Adedoyin raises three separate           fraud case proceeded to trial on
issues on this appeal. First, he maintains       September 19, 2001, eight days after the
that the district court abused its               terrorist attacks. The court reasoned that
discretion in denying his motion for a 90-       the case had been delayed on several
day continuance in the wake of the               occasions because Adedoyin frequently
September 11, 2001 terrorist attacks.            had changed attorneys and the court
Second, Adedoyin argues that the district        stated that inasmuch as Adedoyin was of
court further abused its discretion in           Nigerian origin and not of Middle
asking questions of both him and defense         Eastern descent and the allegations
witness Wilfred Warrick. Finally,                involved charges of fraud rather than
Adedoyin claims that the district court          violent action, starting the trial so soon
erred in admitting evidence that he              after September 11, 2001, would not
previously had been convicted of a               prejudice him.
felony on the basis of a plea of nolo
contendere. We will address each claim                   We reiterate that to ascertain if the
in turn.                                         terrorist attacks would prejudice
                                                 Adedoyin, the court conducted an
A. Denial of a further continuance               individual voir dire of each juror to
                                                 determine whether the events of
       We review the district court’s            September 11, 2001, would affect his or
denial of Adedoyin’s motion for a 90-day

                                             4
her ability to be fair and impartial. 2 Each       juror informed the court that he or she
                                                   could be fair and impartial.

  2                                                        Adedoyin maintains that “[i]n
   The judge individually asked each
                                                   refusing to grant the stay, the defendant’s
juror the same question (although
                                                   right to a fair trial was severely
varying the wording slightly with each
                                                   prejudiced.” Appellant’s br. at 9. While
juror). For example, the court stated to
                                                   he recognizes that each juror informed
juror number three:
                                                   the court, during individual questioning,
                                                   that he or she could be fair and impartial,
               As I told you and
                                                   Adedoyin states in his brief that “one
       your colleagues at the
                                                   questions whether jurors could truly
       outset, this case involves
                                                   understand or acknowledge the depth of
       charges by the government
                                                   their feelings so soon after this unique
       that the defendant, Mr.
                                                   national tragedy.” Appellant’s br. at 12.
       Adedoyin, committed acts
       of mail and wire fraud.
                                                          The Supreme Court has “stressed
       And, one of the victims,
                                                   the wide discretion granted to the trial
       one of the alleged victims
                                                   court in conducting voir dire in the area
       in this case, according to
                                                   of pretrial publicity and in other areas of
       the government, is the
                                                   inquiry that might tend to show juror
       World Trade Center. That
                                                   bias.” Mu’Min v. Virginia, 500 U.S.
       is because the government
                                                   415, 427, 111 S.Ct. 1899, 1906 (1991).
       claims that he allegedly
                                                   The trial court here exercised its
       defrauded the World Trade
                                                   discretion with great care and determined
       Center of rent due for
                                                   that Adedoyin could receive a fair trial in
       office space that had been
                                                   the wake of the September 11th terrorist
       rented in one of the towers.

               Now, in light of
       what happened last                          Supp. app. at 7.
       Tuesday, does that fact that
       one of the alleged victims                  All 12 jurors answered this question no.
       in this case, there are about               The court further asked if each juror
       ten alleged victims, does                   knew any victims of the terrorist attacks
       that fact that one of them is               and whether any relationships with
       the World Trade Center                      victims would affect the juror’s ability
       effect in any way your                      “to be fair and impartial in this trial
       ability to provide a fair trial             involving Mr. Adedoyin?” Id. at 8.
       to Mr. Adedoyin?                            Each juror who knew victims answered
                                                   no.

                                               5
attacks. As stated above, the criminal              entitled to a new trial where trial took
activity of which he was charged at the             place immediately after the first World
first trial, that is mail and wire fraud, had       Trade Center terrorist attack in 1993);
no similarity to the terrorism of that              see also United States v. Lampley, 127
horrific day. Nor was Adedoyin’s                    F.3d 1231, 1235-39 (10th Cir. 1997)
national origin similar to that of the              (finding that it was not plain error for the
terrorist attackers and he hardly could be          district court to conduct trial of
confused with them. In this regard we               defendants on charges of, among other
can take judicial notice of the fact that by        things, conspiracy to make and possess a
September 19, 2001, there had been                  destructive device, on the one-year
massive publicity in the United States as           anniversary of the bombing of the Alfred
to the Middle Eastern origin of the                 P. Murrah Federal Building in Oklahoma
terrorists. See Fed. R. Evid. 201(b).               City). We therefore will uphold the
                                                    district court’s decision not to postpone
        The district court determined that          the trial.
the allegation that Adedoyin defrauded
the World Trade Center of rent several              B. The court’s questioning
years prior to the terrorism on September
11, 2001, could be addressed fairly by                     Our review of the district court’s
the jury. As a means of determining                 questioning of Adedoyin and Warrick
whether the jury in fact could be fair, the         pursuant to Federal Rule of Evidence
court conducted an individual voir dire             614(b) is for abuse of discretion. If we
of each juror. In view of these cautious            find that the court abused its discretion,
procedures, we cannot say that the court            we must determine whether the
abused its discretion in denying                    questioning was harmless or prejudiced
Adedoyin’s motion for a 90-day                      Adedoyin’s substantial rights. See
postponement. See, generally, United                United States v. Beaty, 722 F.2d 1090,
States v. Koubriti, 252 F. Supp. 2d 437             1093 (3d Cir. 1983).
(E.D. Mich. 2003) (finding that
postponement until the end of the war                        Federal Rule of Evidence 614(b)
against Iraq was not warranted in case              provides that the district court may
where defendants of M iddle Eastern                 interrogate witnesses. Inasmuch as a
descent were indicted on charges of,                trial is “a search for the truth” and the
among other things, conspiracy to                   court is more than a “mere umpire” of
provide material support or resources to            the proceedings, it is certainly within its
terrorists) ; United States v. El-Jassem,           province to question witnesses. Riley v.
819 F. Supp. 166, 177-79 (E.D.N.Y.                  Goodman, 315 F.2d 232, 234 (3d Cir.
1993) (holding that defendant of M iddle            1963) (citations omitted). However, as
Eastern descent convicted of attempting             we have recognized, a judge must not
to explode three car bombs was not                  “abandon his [or her] proper role and

                                                6
assume that of an advocate.” United                States of having committed a felony. 3
States v. Green, 544 F.2d 138, 147 (3d             The jury convicted him on this count.
Cir. 1976).                                        Therefore, it found him guilty of
                                                   attempting to enter or obtain “entry to the
       We find that the district court did         United States by a willfully false or
not abuse its discretion in asking                 misleading representation or the willful
questions of Adedoyin and Warrick,                 concealment of a material fact.” 8
though we acknowledge that the court               U.S.C. § 1325(a).
approached close to the limit of what
would be appropriate questioning.                          Prior to trial on the four entry and
Moreover, we point out that the jury               visa counts, Adedoyin brought a motion
found Adedoyin guilty on the mail fraud            in limine seeking to prevent the
counts but not guilty on the wire fraud            prosecution from introducing evidence of
counts. This mixed verdict tends to                his 1981 felony conviction in California,
demonstrate that the jury did not simply           arguing that under Federal Rule of
take the court’s questioning as a signal to        Evidence 410 that conviction, which was
find Adedoyin guilty and that the court’s          pursuant to a plea of nolo contendere,
questioning did not prejudice Adedoyin.            was not admissible. Rule 410 provides,
                                                   in relevant part, “[e]xcept as otherwise
C. The prior conviction                            provided in this rule, evidence of the
                                                   following is not, in any civil or criminal
       We review the court’s ruling                proceeding, admissible against the
admitting the 1981 conviction on an                defendant who made the plea or was a
abuse of discretion standard.                      participant in the plea discussions: . . .
Nevertheless to the extent that it based its       (2) a plea of nolo contendere.”
determination on an interpretation of the          Surprisingly, we seem not to have
Federal Rules of Evidence our review is            controlling precedent on the admissibility
plenary. United States v. Furst, 886 F.2d          of a conviction predicated on a plea of
558, 571 (3d Cir. 1989).                           nolo contendere as distinguished from

       Count II of the second
superseding indictment charged                       3
                                                       Count I charged that Adedoyin had
Adedoyin with attempting to enter the
                                                   violated that same statute when he
United States on November 27, 1994, in
                                                   attempted to enter the United States
violation of 8 U.S.C. § 1325(a) and 18
                                                   using the alias of Adedoyin Famakinde.
U.S.C. § 2, by willfully concealing that
                                                   This count did not implicate his felony
he had been convicted in the United
                                                   conviction. Defendant was convicted on
                                                   Counts I and II, but acquitted on Counts
                                                   III and IV for fraud and misuse of visas,
                                                   permits and other documents.

                                               7
the admissibility of the plea itself.            contendere are admissible to prove the
                                                 fact of conviction. It is true that a plea of
        The Advisory Committee Notes to          nolo contendere is not an admission of
Rule 410 recognize that the exclusion of         guilt and thus the fact that a defendant
nolo contendere pleas as admissible              made such a plea cannot be used to
evidence promotes the disposition of             demonstrate that he was guilty of the
criminal cases. As several other courts          crime in question. See id. at 60.
of appeals have recognized there is,             Nevertheless, a plea of nolo contendere
however, a clear distinction between             has the same legal consequences as a
pleas of nolo contendere and convictions         plea of guilty and results in a conviction.
entered on the basis of such pleas. See          See Brewer, 210 F.3d at 1096; Myers,
Brewer v. City of Napa, 210 F.3d 1093,           893 F.2d at 844; Williams, 642 F.2d at
1096 (9th Cir. 2000) (“Rule 410 by its           138 (“It is well settled that a plea of nolo
terms prohibits only evidence of pleas           contendere admits ‘every essential
(including no contest pleas), insofar as         element of the offense (that is) well
pleas constitute statements or                   pleaded in the charge.’”) (citations
admissions.”); Olsen v. Correiro, 189            omitted).
F.3d 52, 58 (1st Cir. 1999) (“The
evidentiary rules that exclude evidence                  At trial, the prosecution did not
of nolo pleas do not directly apply to the       seek the admission of a certified copy of
convictions and sentences that result            Adedoyin’s conviction for the purpose of
from such pleas.”); Myers v. Sec’y of            proving that he was in fact guilty of a
HHS, 893 F.2d 840, 843 (6th Cir. 1990)           felony in 1981. The prosecution put
(stating that Federal Rule of Evidence           forth the evidence in order to show that
410 and Federal Rule of Criminal                 he previously had been convicted of a
Procedure 11(e)(6) “prohibit use of ‘a           felony which he failed to disclose when
plea of nolo contendere,’ not a                  he sought entry into the United States.4
conviction pursuant to a nolo plea”)
(citation omitted); United States v.
Williams, 642 F.2d 136, 138 (5th Cir.              4
                                                    During the charge to the jury, the
1981) (“A judgment entered on a plea of
                                                 district court stated:
nolo contendere adjudicates guilt with
the same finality and force as a judgment
                                                               Evidence that the
entered pursuant to a guilty plea or
                                                        defendant Adedoyin was
conviction following trial.”).
                                                        convicted of having
                                                        committed a crime in
       We agree with the persuasive
                                                        California in 1981 has been
reasoning of the court in Olsen v.
                                                        admitted into evidence.
Correiro, 189 F.3d at 58-62, that
                                                        But you may consider that
convictions based on pleas of nolo
                                                        evidence only in

                                             8
See Pearce v. United States Dep’t of                      For the first time on appeal,
Justice, 836 F.2d 1028, 1029 (6th Cir.            Adedoyin challenges the admissibility of
1988) (“Notwithstanding Rule 410, a               the certified copy of the conviction as
conviction pursuant to a nolo contendere          hearsay that falls outside of the ambit of
plea is a conviction within the meaning           Federal Rule of Evidence 803(22). That
of [21 U.S.C. § 824] and gives rise to a          rule states, in pertinent part, that
variety of collateral consequences in             “[e]vidence of a final judgment, entered
subsequent proceedings.”); Qureshi v.             after a trial or upon a plea of guilty (but
INS, 519 F.2d 1174, 1176 (5th Cir. 1975)          not upon a plea of nolo contendere),
(“[I]t is the fact of conviction that is of       adjudging a person guilty of a crime
moment here, not the collateral                   punishable by death or imprisonment in
evidentiary uses of whatever plea may             excess of one year, to prove any fact
have resulted in it.”).                           essential to sustain the judgment, but not
                                                  including, when offered by the
        Indeed, it did not even matter in         Government in a criminal prosecution for
this case whether Adedoyin was guilty of          purposes other than impeachment” is not
the California crime. The material                hearsay. Adedoyin argues that the
question at trial was whether his                 exception for judgments based on pleas
representation that he did not have a             of nolo contendere prevents the
criminal conviction was willfully false or        admission of the certified copy of the
misleading and the conviction, though             judgment. Even assuming that we
based on a plea of nolo contendere,               should address this issue in the first
established that his representation was           instance, Adedoyin’s argument is without
false, though not necessarily willfully so.       merit. The district court admitted the
Thus, evidence of it was admissible.              certified copy of the conviction pursuant
                                                  to Federal Rule of Evidence 803(8) as a
                                                  public record and not under Rule
                                                  803(22). App. at 808-09. Furthermore,
                                                  Rule 803(22) deals with evidence
       connection with whether or
                                                  introduced “to prove any fact essential to
       not the government has
                                                  sustain the judgment.” As explained
       established beyond a
                                                  above, the certified copy of Adedoyin’s
       reasonable doubt that M r.
                                                  conviction was not introduced for the
       Adedoyin concealed that
                                                  purpose of establishing any of the facts
       prior conviction in regard
                                                  related to the underlying conviction. It
       to his application to obtain
                                                  was admitted to prove the fact of the
       a United States visa for
                                                  conviction itself.
       purposes of attempting to
       enter the United States.
                                                         The Advisory Committee’s Note
                                                  to Rule 803(22) states, “[j]udgments of
App. at 858.

                                              9
conviction based upon pleas of nolo
contendere are not included. This
position is consistent with the treatment
of nolo pleas in Rule 410 and the
authorities cited in the Advisory
Committee’s Note in support thereof.”
Therefore, the same reasoning animates
Rule 803(22) as Rule 410, that is, that
pleas of nolo contendere and convictions
on the basis of such pleas are not
admissible for purposes of proving that
the defendant is guilty of the crime in
question. However, the government did
not introduce the certified copy of the
conviction for purposes of proving that
Adedoyin committed the California
crime. It offered the evidence solely for
the purpose of showing that Adedoyin
had a prior felony conviction.
Accordingly, the district court correctly
admitted the certified copy of the 1981
California conviction.




          III. CONCLUSION

       For the foregoing reasons the
judgment of conviction and sentence
entered July 15, 2002, will be affirmed.




                                            10
