     14-635
     United States v. Ojo

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 19th day of November, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-635
16
17       DAVID OLUKAYODE OJO,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        BRUCE ROBERT BRYAN, BRYAN LAW
22                                             FIRM, Syracuse, New York.
23
24       FOR APPELLEES:                        MARGARET E. GANDY (with Emily
25                                             Berger & Douglas M. Pravda on
26                                             the brief) for Kelly T. Currie,
27                                             Acting United States Attorney


                                                  1
 1                              for the Eastern District of New
 2                              York, Brooklyn, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Eastern District of New York (Ross, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        David Olukayode Ojo appeals from the judgment of the
12   United States District Court for the Eastern District of New
13   York (Ross, J.), convicting him and sentencing him chiefly
14   to two concurrent terms of 37 months’ imprisonment and three
15   years of supervised release for conspiracy to commit wire
16   fraud, see 18 U.S.C. §§ 1343, 1349, and conspiracy to
17   knowingly possess with intent to use unlawfully five false
18   identification documents. See 18 U.S.C. §§ 1028(a)(3),
19   (b)(2)(B), (c)(3)(A), c(3)(B), (f). We assume the parties’
20   familiarity with the underlying facts, the procedural
21   history, and the issues presented for review.
22
23        1. Ojo challenges the sufficiency of the evidence on
24   both convictions. “A defendant challenging the sufficiency
25   of the evidence bears a heavy burden, because the reviewing
26   court is required to draw all permissible inferences in
27   favor of the government and resolve all issues of
28   credibility in favor of the jury verdict.” United States v.
29   Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). “The traditional
30   deference accorded to a jury’s verdict ‘is especially
31   important when reviewing a conviction for conspiracy . . .
32   because a conspiracy by its very nature is a secretive
33   operation, and it is a rare case where all aspects of a
34   conspiracy can be laid bare in court with the precision of a
35   surgeon’s scalpel.’” United States v. Jackson, 335 F.3d
36   170, 180 (2d Cir. 2003) (quoting United States v. Pitre, 960
37   F.2d 1112, 1121 (2d Cir. 1992)).
38
39        “[T]he conspiratorial agreement itself may be
40   established by proof of a tacit understanding among the
41   participants, rather than by proof of an explicit agreement
42   . . . .” United States v. Desimone, 119 F.3d 217, 223 (2d
43   Cir. 1997). Drawing all inferences in favor of the
44   government, the evidence adduced at trial was sufficient to
45   show that Ojo had a tacit understanding with his co-
46   conspirators and engaged in “purposeful behavior aimed at
47   furthering the goals of the conspiracy” for both wire fraud

                                  2
 1   and knowing possession with intent to use unlawfully five
 2   false identification documents. Id.
 3
 4        2. As to the conspiracy to knowingly possess with
 5   intent to use unlawfully five false identification documents
 6   offense, Ojo contends that the jury instruction was
 7   improper. The government offered alternative theories of
 8   liability: (1) that Ojo intended to use identification
 9   documents unlawfully to participate in a conspiracy to
10   commit wire fraud; and (2) that Ojo intended to use the
11   identification documents unlawfully to violate New York
12   state law. If the jury found Ojo guilty on Count One for
13   conspiracy to commit wire fraud, as it did, the government’s
14   first theory of liability would be met. The district court
15   instructed the jury on both theories. Ojo’s argument
16   attacks the instruction given on the second theory.
17   However, because the instructions were proper and ample
18   evidence supports the first theory--conspiracy to commit
19   wire fraud--Ojo’s challenge must be rejected. “When the
20   jury is properly instructed on two alternative theories of
21   liability, as here, we must affirm when the evidence is
22   sufficient under either of the theories.” United States v.
23   Masotto, 73 F.3d 1233, 1241 (2d Cir. 1996).
24
25        3. Ojo challenges the denial of his motion to suppress
26   evidence seized during the stop of his car because the stop
27   was pretextual and because Ojo’s consent was involuntary.
28   But the subjective motivation of the officers who made the
29   stop is irrelevant; arguments “that the constitutional
30   reasonableness of traffic stops depends on the actual
31   motivations of the individual officers involved” are
32   “foreclose[d].” Whren v. United States, 517 U.S. 806, 813
33   (1996); see also United States v. Dhinsa, 171 F.3d 721, 724-
34   25 (2d Cir. 1999) (“In other words, an officer’s use of a
35   traffic violation as a pretext to stop a car in order to
36   obtain evidence for some more serious crime is of no
37   constitutional significance.”).
38
39        “It is . . . well settled that one of the specifically
40   established exceptions to the requirements of both a warrant
41   and probable cause is a search that is conducted pursuant to
42   consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219
43   (1973). “In considering a challenge to a district court
44   finding of consent, we are obliged to view the evidence in
45   the light most favorable to the government. We will not
46   reverse a finding of voluntary consent except for clear
47   error.” United States v. Snype, 441 F.3d 119, 131 (2d Cir.

                                  3
 1   2006) (internal citation omitted). The district court’s
 2   determination that Ojo voluntarily consented to a search of
 3   his car was not clearly erroneous given: (1) Ojo’s signature
 4   on a handwritten consent form for a search of his car,
 5   including its interior, trunk, and glove box; (2) testimony
 6   that Ojo also gave oral consent; and (3) further testimony
 7   that, after the search was completed, Ojo signed a standard
 8   FBI “consent to search” form confirming his prior consent.
 9
10        4. Ojo contends that the district court’s decision to
11   dismiss the indictment without prejudice based on a Speedy
12   Trial Act violation was erroneous. A proper and principled
13   consideration of the relevant factors shows otherwise.
14
15        “The determination of whether to dismiss an indictment
16   with or without prejudice is committed to the discretion of
17   the district court, and we will reverse such a determination
18   only upon a finding that the district court abused its
19   discretion.” United States v. Wilson, 11 F.3d 346, 352 (2d
20   Cir. 1993) (internal citation omitted). Factors considered
21   in this determination are: (1) the seriousness of the
22   offense; (2) the facts and circumstances of the case which
23   led to the dismissal; (3) the impact of a re-prosecution on
24   the administration of the Speedy Trial Act and the
25   administration of justice; and (4) prejudice to the
26   defendant. See id. “Where the crime charged is serious,
27   the sanction of dismissal with prejudice should ordinarily
28   be imposed only for serious delay.” United States v.
29   Simmons, 786 F.2d 479, 485 (2d Cir. 1986).
30
31        Ojo’s offense was unquestionably serious: it was
32   punishable by a prison term of up to 20 years, and the
33   evidence established a loss of approximately $80,000
34   suffered by more than 30 victims. The nonviolent nature of
35   this offense cannot overcome these indicia of seriousness.
36   See United States v. Kiszewski, 877 F.2d 210, 214 (2d Cir.
37   1989) (noting that perjury was a serious crime “since false
38   testimony strikes at the heart of administering the criminal
39   law”). Moreover, the length of the speedy trial violation
40   was only one day, a delay that does not amount to “serious
41   delay.” Simmons, 786 F.2d at 485.
42
43        As for the facts and circumstances leading to
44   dismissal, the government explained that the one-day delay
45   was likely a byproduct of the prosecutor counting the 30
46   days from the date of the arraignment rather than the date
47   of the arrest. Nothing in the record suggests bad faith or

                                  4
 1   misconduct on the part of the government. For this reason,
 2   the interests of justice weighed in favor of dismissal
 3   without prejudice. See Simmons, 786 F.2d at 486 (“[W]here
 4   the violation of the Act was unintentional and the resulting
 5   delay not overly long, and where appellant has not presented
 6   evidence of prejudice, we do not believe that the
 7   administration of justice would be adversely affected by
 8   reprosecution.”).
 9
10        Ojo can point to no prejudice he suffered as a result
11   of the one-day delay. While prejudice is presumed to flow
12   from any delay, this factor requires an incremental showing
13   of actual prejudice; otherwise, this factor would always be
14   satisfied and would not be a variable. See United States v.
15   Wells, 893 F.2d 535, 540 (2d Cir. 1990) (“We detect nothing
16   in the record to indicate that the Government’s delay caused
17   any prejudice . . . .”) (emphasis added); United States v.
18   Hernandez, 863 F.2d 239, 244 (2d Cir. 1988) (“[S]hort delays
19   of the kind present here do not become ‘serious’ violations
20   of the Speedy Trial Act unless there is some resulting
21   prejudice to the defendant.”). A scrupulous application of
22   the applicable standards and rules necessitates the
23   conclusion that the district court did not abuse its
24   discretion in dismissing the indictment without prejudice.
25
26        5. Ojo’s claims that perjured testimony was presented
27   before the grand jury, during the suppression hearing, and
28   at trial are meritless and lack record support. Nor was
29   there a double jeopardy violation because Ojo successfully
30   withdrew his guilty plea after initially pleading guilty.
31   See United States v. Olmeda, 461 F.3d 271, 279 n.7 (2d Cir.
32   2006) (“[J]eopardy is not deemed to attach at the time of a
33   guilty plea, for example, where a defendant subsequently
34   withdraws his plea.”).
35
36        For the foregoing reasons, and finding no merit in
37   Ojo’s other arguments, we hereby AFFIRM the judgment of the
38   district court.
39
40                              FOR THE COURT:
41                              CATHERINE O’HAGAN WOLFE, CLERK
42
43




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