                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2005

USA v. Ayinde
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2353




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"USA v. Ayinde" (2005). 2005 Decisions. Paper 1389.
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                                                    NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 02-2353


               UNITED STATES OF AMERICA


                            v.

                 KEHINDE MUSILU AYINDE,
                  a/k/a KENDU AYERS,
                  a/k/a KENNY AYERS,
                  a/k/a KENDU AYERS,
                  a/k/a KENNY AYERS,
                  a/k/a KENNETH JOHNSON,

                        Kehinde Musilu Ayinde,
                                       Appellant


        On Appeal from the United States District Court
                   for the District of New Jersey
               District Court Crim. No.: 99-655-002
        District Judge: The Honorable William G. Bassler


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                      September 14, 2004


Before: SCIRICA, Chief Judge, ALITO, and AMBRO, Circuit Judges

                     (Filed: April 7, 2005 )
                                         OPINION


PER CURIAM:

       Kehinde Musilu Ayinde (“Ayinde”) was convicted of conspiracy to commit

identification document fraud, conspiracy to commit fraud in connection with federally

subsidized housing, and various mail and wire fraud charges connected to the

procurement of housing subsidies and credit cards. He was ordered to pay $601,340 in

restitution and sentenced to a term of 37 months of imprisonment and three years of

supervised release.

       On appeal, Ayinde raises three issues regarding the sentence imposed, as well as

an evidentiary issue and a Fourth Amendment issue. Regarding his sentence, Ayinde

contends that the trial court should not have departed upward by three levels, that it erred

in estimating loss, and that it should not have denied a two-level downward adjustment

for minor role participation. Ayinde also contends that the District Court erred in

admitting certain evidence pursuant to Federal Rule 404(b), and that it erred in admitting

certain evidence obtained from an automobile search.

       Counsel for Ayinde has requested a remand for resentencing pursuant to the

Supreme Court’s decision in United States v. Booker, 125 S.Ct. 738 (2005). Having

determined that the sentencing issues Ayinde raises are best determined by the District

Court in the first instance, we will vacate the sentence and remand for resentencing in



                                             -2-
accordance with Booker. However, because the District Court’s evidentiary and Fourth

Amendment rulings – the last two issues Ayinde raises – can be dealt with separately, we

will address those issues before remanding the case. For the reasons given below, we will

affirm the District Court’s evidentiary and Fourth Amendment rulings. Because we write

for the parties only we will not set out the facts.

                                               I.

       We review a decision to admit evidence under Federal Rule 404(b) for abuse of

discretion. United States v. Givan, 320 F.3d 452, 460 (3d Cir. 2003). We review a denial

of a motion to suppress for clear error as to the facts, and we exercise plenary review over

the application of the law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d

Cir. 2002).

                                              II.

       At trial the District Court admitted, pursuant to Rule 404(b), various false or

fraudulent documents prepared by, signed by, found on the person of, handled (as shown

by fingerprint evidence), or otherwise directly associated with Ayinde, but that involved

fraudulent activities not charged in indictment. Ayinde contends that the admission of

these documents was an abuse of discretion.

       Rule 404(b) provides as follows:

       Evidence 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 . . . .

                                              -3-
Fed. R. Evid. 404(b). The requirements of Rule 404(b) are not stringent; “[a]ll that is

needed is some showing of a proper relevance.” U.S. v. Sampson, 980 F.2d 883, 888 (3d

Cir. 1992) (emphasis in original). Also, evidence may be admitted under Rule 404(b)

only if the District Court “articulate[s] reasons why the evidence [ ] goes to show

something other than character.” Sampson, 980 F.2d at 888. The District Court more

than satisfied these two conditions here.

       As the District Court observed, Ayinde vigorously disputed intent and knowledge

at trial. He also argued that his association with Igein and Power Electronics was

innocent as he was merely an employee of the business. The District Court held that

given Ayinde’s defense, the false or fraudulent documents prepared by, signed by, found

on the person of, handled, or otherwise directly associated with Ayinde were proper

evidence under Rule 404(b) as they tended to show that Ayinde was aware of the

fabrication happening at Power Electronics and the methods by which such fabrication

was done, and that Ayinde had criminal intent. (App. 138, 139-40.) Note, for example,

the District Court’s detailed explanation of how Ayinde’s two fraudulent personal tax

returns, both for the same year, helped establish his intent to supply others with fraudulent

tax returns of their own. (App. 147.)

       After finding the documents proper under Rule 404(b), the District Court set forth

on the record its balancing analysis under Federal Rule of Evidence 403, finding that the

balancing analysis under Rule 403 weighed in favor of admission. This was due to the



                                             -4-
importance of intent as an issue at trial, Ayinde’s disputing of intent, the lack of

alternative ways for the Government to establish intent, and the ability to eliminate

whatever undue prejudice might potentially result by admonishing the jury with a limiting

instruction. As the District Court entered on the record a proper and detailed rationale in

support of its Rule 403 determination, the District Court was well-within its discretion.

See Sampson at 889 (“When a [trial] court engages in a Rule 403 balancing and

articulates on the record a rational explanation, we will rarely disturb its ruling.”).

                                              III.

       Ayinde seeks to suppress certain items that were recovered in a consent search of

an automobile that he was driving, a black Nissan that Ayinde said was owned by his

cousin. Ayinde contends that the District Court erred in failing to suppress the seized

materials because, he asserts, the Government did not carry its burden of proving that he

voluntarily consented to the search. The Government did offer adequate proof, however,

in the form of Special Agent David Recame’s testimony and the consent form he

submitted. At the suppression hearing Agent Recame testified that “I showed [Ayinde] a

consent to search form, which I held for him to read. I also told him orally that he had the

right to refuse. He said it was all right for us to search it, but that he did not want to sign

the form.” On the form Special Agent Recame wrote “Subject gave verbal consent to

search the above car belonging to his cousin who is out of the country. Consent was

given 11:12 a.m. 2/17/99. The [S]ubject refused to sign this consent form.” When the



                                              -5-
District Court denied Ayinde’s Motion to Suppress, holding that Ayinde orally consented

to the search despite his failure to sign the consent search form, it was essentially

crediting Agent Recame’s testimony over the testimony of Ayinde. This decision was not

clearly erroneous. See United States v. Kikumura, 918 F. 2d 1084, 1090-91 (3d Cir.

1990) (district court’s resolution of “swearing contest between live witnesses” is

“essentially unreviewable” on appeal).

                                             IV.

       For the reasons given above, we affirm the Defendant’s conviction but we vacate

his sentence and remand for resentencing in accordance with Booker.
