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                                                                  [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 11-15840
                             ________________________

                    D.C. Docket No. 3:10-cr-00298-HLA-TEM-1

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                          versus

AKINTUNDE AKINLADE,

                                                         Defendant-Appellant.

                            __________________________

                     Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________

                                     (May 22, 2013)

Before PRYOR and JORDAN, Circuit Judges, and PRO, * District Judge.

PER CURIAM:

       Akintunde Akinlade appeals his convictions for conspiracy to commit

aggravated identity theft, in violation of 18 U.S.C. § 371; bank fraud, in violation
*
 Honorable Philip M. Pro, United States District Judge for the District of Nevada, sitting by
designation.
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of 18 U.S.C. § 1344; mail fraud, in violation of 18 U.S.C. § 1341; access device

fraud, in violation of 18 U.S.C. §§ 1029(a)(5), 1029(c)(1); and aggravated identity

theft, in violation of 18 U.S.C. § 1028A(a)(1). Having reviewed the record, and

with the benefit of oral argument, we affirm.

                                 I.     BACKGROUND

      In early 2010, United States Postal Inspector Adam Schaefer issued a BOLO

crime alert flyer for an unidentified male suspected of bank fraud. 1 The BOLO

contained surveillance photographs of the suspect; a description of the suspect

(including his approximate height, build, and age range); the crimes allegedly

committed; the vehicle the suspect was believed to be driving, including its license

plate number; and surveillance photographs of the vehicle. See Crime Alert Flyer

(Govt. Ex. 1 at Suppression Hearing). On March 12, 2010, Keenan Haines—the

manager at Flagstar Bank, in Duluth, Georgia—called Inspector Schaefer to report

that a person resembling the subject of the BOLO had been in his bank and

attempted to open both personal and business accounts under the name “John Paul

Mozingo.” Pursuant to Inspector Schaefer’s advice, bank employees contacted the

local police department.

       Officer A.M. Kelley received a dispatch advising her that a male with active

warrants for identity fraud was believed to be at the bank. Upon her arrival, she

1
  “BOLO” is an abbreviation for “be on the lookout for.” This BOLO had been disseminated to
law enforcement agencies and financial institutions in the southeastern United States.

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was shown the BOLO and some paperwork that “Mr. Mozingo” had completed to

open the bank accounts. She observed “Mr. Mozingo,” who was seated in Mr.

Haines’ office, and after comparing him to the photograph in the BOLO, she

concluded that he was “extremely similar” to the man in the photo. See Transcript

of Suppression Hearing at 10 [D.E. 55]. Officer Justin Von Behren also arrived at

the bank and after Officer Kelley showed him the BOLO, he too agreed that “Mr.

Mozingo” matched the description of the subject.

       The two officers entered Mr. Haines’ office and asked “Mr. Mozingo” if he

would allow a pat down for officer safety, a request to which he agreed. Officer

Kelley noticed that he became “very fidgety” during the pat down and would not

stay still.   “Mr. Mozingo” asked if he was under arrest and Officer Kelley

responded that he was not under arrest, but was being detained for further

investigation. When Officer Von Behren pulled out his handcuffs, “Mr. Mozingo”

stepped away and headed for the door. The officers tried to stop him but he

resisted and the three of them ended up fighting in the bank lobby. In an effort to

subdue him, Officer Kelley pulled out her Taser and deployed it. She fired once,

hitting “Mr. Mozingo.” Although “Mr. Mozingo” fell to the ground, he was not

completely subdued, and continued to crawl toward the exit, kicking Officer Von

Behren in the process. Officer Kelley fired her Taser again and tried to handcuff

“Mr. Mozingo,” who was still resisting and fighting his way outside the bank.


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      The officers were eventually able to handcuff “Mr. Mozingo” with the aid of

additional officers, and placed him in Officer Kelley’s patrol vehicle.      When

Officer Kelley asked “Mr. Mozingo” for his name, he said that it was “Peter

Akinlade.” Officer Kelley did not read him Miranda warnings, nor was she aware

that any other officer read him any such warnings. While in the backseat of her

patrol vehicle, he asked her how much trouble he was in. She told him that he was

being charged with two counts of obstruction of a police officer and that other

jurisdictions were looking for him and would possibly charge him with financial

identity fraud. In response, he said “I’m screwed.” After he requested that Officer

Kelley call his mom and refer to him as “Mike,” she said “you seem to have a lot

of names,” to which he responded, “Yeah, I’ve gone by several names.” “Mr.

Mozingo” was later identified as Akintunde Akinlade.

      Officer Von Behren stayed at the scene and located a vehicle in the bank

parking lot which matched the description of the vehicle mentioned in the BOLO,

“a 2006 silver Nissan Maxima SL bearing Georgia tag #BKF8636,” with a given

VIN number, registered to Randy Glover, a name on “a fraudulently obtained

driver’s license.” Officer Von Behren compared the vehicle to the information in

the BOLO, and ran the license plate number through dispatch. When dispatch

indicated that the vehicle was registered to Randy Glover, Officer Von Behren

determined that this was indeed the vehicle mentioned in the BOLO. He decided


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to impound the vehicle; he completed the police department impound form and

inventoried the contents of the vehicle pursuant to standard procedure.

      All this information was relayed to Inspector Schaefer, who prepared an

affidavit and application for a search warrant of the vehicle, which was granted by

a magistrate judge in the Northern District of Georgia. Pursuant to the search,

Inspector Schaefer found cellular phones, computer thumb drives, and a laptop

computer. Inspector Schaefer obtained an additional search warrant to search the

contents of the electronic devices, thereby uncovering more incriminating

evidence, including evidence of identity theft.

      Mr. Akinlade was indicted by a federal grand jury in the Middle District of

Florida on one count of conspiracy to commit aggravated identity theft, four counts

of bank fraud, five counts of mail fraud, one count of access device fraud, and one

count of aggravated identity theft. Prior to trial, he filed a motion to suppress

statements he made and the evidence seized from the vehicle, arguing that they

were the fruits of an unlawful stop, arrest, and search. Following a suppression

hearing, the magistrate judge recommended that Mr. Akinlade’s motion be denied,

and the district court later adopted the report and recommendation.

      At the end of the first day of trial, the district judge disclosed that two of the

victim-witnesses, Jack James and Viola Walker, owned property in his

neighborhood. The district judge explained that:


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        Mr. James has been a resident in that neighborhood, or he has owned
        a home in that neighborhood, for a very long time, but he hasn’t lived
        there in probably 10, 15 years. I didn’t even think he still owned that
        property. Miss Walker, I don’t know what her situation is, but she
        lives up north, as well as in the neighborhood. So I thought I would
        throw that out to you.

Trial Transcript at 63 [D.E. 121]. He also added that “Viola Walker and I served

on a homeowners board in that neighborhood.” Id. Mr. Akinlade filed a motion

for recusal pursuant to 28 U.S.C. § 455(a), asserting that the judge’s impartiality

might be in question because both witnesses were also victims in the case. See id.

at 7-9 [D.E. 122]; Motion for Recusal [D.E. 92]. The district judge clarified that

he had seen Ms. Walker two or three times, but never officially met her. He

further noted that Ms. Walker spent most of her time in some other city and that

since she was elected to serve on the board of property owners, he had seen her at

two or three board meetings. He added that they had never been to each other’s

homes, that “there [was] no relationship between [them] other than being board

members,” and denied the motion for recusal. See Trial Transcript at 10-12 [D.E.

122].

        The jury found Mr. Akinlade guilty of all twelve counts. The district court

sentenced him to a term of 95 months’ imprisonment.

        On appeal, Mr. Akinlade argues that (1) the district court erred in denying

the motion to suppress because the police officers lacked reasonable suspicion to

detain him and probable cause to arrest him; (2) he was entitled to but was not

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advised of his Miranda rights; (3) the search and seizure of the items found in his

vehicle violated Arizona v. Gant, 556 U.S. 332 (2009); and (4) the district judge

abused his discretion when he denied the motion for recusal.

                         II.    STANDARDS OF REVIEW

      We review the district court’s denial of a motion to suppress evidence under

a mixed standard of review. See United States v. Jiminez, 224 F.3d 1243, 1247

(11th Cir. 2000). “A district court’s denial of a motion to suppress evidence is

reviewed as a mixed question of law and fact, with the rulings of law reviewed de

novo and the findings of fact reviewed for clear error, in the light most favorable to

the prevailing party.” United States v. De La Cruz Suarez, 601 F.3d 1202, 1213

(11th Cir. 2010). We review a district court’s denial of a motion for recusal for

abuse of discretion. See United States v. Bailey, 175 F.3d 966, 968 (11th Cir.

1999).

                                 III.   DISCUSSION

                               A. The Stop and Arrest

      The Fourth Amendment protects individuals from unreasonable government

search and seizure. U.S. CONST. amend. IV. An officer may briefly detain a

person if she has a reasonable and articulable suspicion based on objective facts

that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1, 30 (1968). See also

United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000) (“Under Terry, law


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enforcement officers may detain a person briefly for an investigatory stop if they

have a reasonable, articulable suspicion based on objective facts that the person has

engaged in, or is about to engage in, criminal activity.”). A determination of

reasonable suspicion is based on the totality of the circumstances and may be

formed even if the conduct is ambiguous or can be given an innocent explanation.

See Illinois v. Wardlow, 528 U.S. 119, 125 (2000); Powell, 222 F.3d at 917-18.

“[I]f a flyer or bulletin has been issued on the basis of articulable facts supporting a

reasonable suspicion that the wanted person has committed an offense, then

reliance on that flyer or bulletin justifies a stop to check identification, to pose

questions to the person, or to detain the person briefly while attempting to obtain

further information.” United States v. Hensley, 469 U.S. 221, 232 (1985) (internal

citations omitted).

      Here, the officers were permitted to question and briefly detain Mr. Akinlade

to obtain additional information because he matched the description of the suspect

in the BOLO.          See id. The officers arrived in response to a dispatch call

announcing that a male with active warrants for identity fraud was believed to be at

the bank. Both officers testified that, after comparing the photograph in the BOLO

to Mr. Akinlade, they believed him to be the suspect in the BOLO. Moreover, Mr.

Akinlade was “fidgety” during the pat down, providing a reasonable belief that he

might flee because he may have been engaged in criminal activity. See Wardlow,


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528 U.S. at 124 (“Our cases have also recognized that nervous, evasive behavior is

a pertinent factor in determining reasonable suspicion.”); Transcript of Suppression

Hearing at 74 (Officer Von Behren testified that Mr. Akinlade acted “fidgety”

almost “from the time we came in, he became nervous and increased in

nervousness as our contact continued, culminating with his attempted escape”).

Under the totality of these circumstances, the officers had reasonable suspicion that

Mr. Akinlade had engaged in the fraudulent identity theft scheme described in the

BOLO and had the right to momentarily detain him so they could complete their

investigation. See Hensley, 469 U.S. at 232. See also Transcript of Suppression

Hearing at 76 (Officer Von Behren testified that the decision to detain Mr.

Akinlade was based “on a number of factors,” including the “information we had

received at dispatch, the bolo we scanned, the pictures and then what he stated his

purpose being there was,” which he and Officer Kelley “believed . . . warranted

further investigation”).

      When Mr. Akinlade attempted to leave the bank and resisted, the officers

had additional reason to believe he was the suspect referenced in the BOLO. And

when Mr. Akinlade actively struggled with the officers, kicking and crawling in an

attempt to flee, the officers acquired probable cause to arrest him for obstruction.

See GA. CODE ANN. § 16-10-24 (“Obstruction of Officers”); Spence v. State, 672




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S.E. 2d 538, 540 (Ga. Ct. App. 2009) (holding that officer had probable cause to

arrest defendant for obstruction once he fled from sergeant).

                                      B. The Statements

       Mr. Akinlade asserts that his post-arrest statements to Officer Kelley were

obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). That contention

is moot, however, because the government did not offer those statements into

evidence at trial. See United States v. Diecidue, 603 F.2d 535, 561 (5th Cir. 1979)

(“[The Defendant] also contends that the fruits of this entire search should be

suppressed because some of the items were improperly seized . . . . Since the

Government did not introduce these items into evidence, the issue is moot.”).2

                    C. The Impoundment and Search of the Vehicle

       Mr. Akinlade argues that the search of, and seizure of items from, his

vehicle were unconstitutional. As Mr. Akinlade sees it, he did not have access to

his vehicle, as he was already arrested, and the officers did not have information

that there would be evidence relating to his obstruction offense in the vehicle. See

Arizona v. Gant, 556 U.S. 332, 344 (2009) (“Because police could not reasonably

have believed either that Gant could have accessed his car at the time of the search

or that evidence of the offense for which he was arrested might have been found


2
  In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.

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therein, the search in this case was unreasonable.”). Mr. Akinlade also argues that

the search was illegal because his vehicle was impounded in violation of the rules

of the Gwinnett County Police Department. We need not address Mr. Akinlade’s

Gant argument because the impoundment and inventory of the vehicle were

permissible on other grounds.

      A police officer may impound and inventory a vehicle when he has acted

pursuant to standard criteria or police procedures. See Colorado v. Bertine, 479

U.S. 367, 375-76 (1987) (holding that officer’s inventory of impounded van was

permissible under the Fourth Amendment because it was done according to

standard criteria and on the basis of something other than suspicion of evidence of

criminal activity); South Dakota v. Opperman, 428 U.S. 364, 376 (1976) (holding

that routine inventory search—pursuant to standard police procedures—of an

automobile lawfully impounded by police for violations of municipal parking

ordinances did not violate the Fourth Amendment); United States v. Roberson, 897

F.2d 1092, 1096-97 (11th Cir. 1990) (police officer’s impoundment and inventory

of car in accordance with standard police procedures was not unreasonable under

the Fourth Amendment). See also Sammons v. Taylor, 967 F.2d 1533, 1543 (11th

Cir. 1992) (qualified immunity case: “Even if an arrestee’s vehicle is not impeding

traffic or otherwise presenting a hazard, a law enforcement officer may impound

the vehicle, so long as the decision to impound is made on the basis of standard


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criteria and on the basis of ‘something other than suspicion of evidence of criminal

activity.’”). Mr. Akinlade asserts that, according to the Gwinnett County Police

Department Directives Manual, if the operator of a vehicle is arrested, the officer’s

decision to impound the vehicle must be reasonable under the circumstances. Mr.

Akinlade argues that because the vehicle was parked in the bank parking lot and

there were no safety concerns with leaving the vehicle there, the decision to

impound was improper.       See Directives Manual § 427.03 (Supp. Ex. to the

Suppression Hearing) [D.E. 54-1 at 1-2].

      The Manual, however, also permits an officer to impound and “hold” a

vehicle if “there is a question as to who the lawful owner of the vehicle is.” See

Directives Manual § 427.05. See also United States v. Shareef, 100 F.3d 1491,

1508 (10th Cir. 1996) (car can be impounded until ownership is determined).

Here, the BOLO stated that the vehicle was registered under a fraudulently

obtained driver’s license and that it was unknown who the true owner might be. In

addition, Mr. Akinlade had used three different names (Mr. Mozingo, Peter

Akinlade, and Mike), creating more questions about the vehicle’s ownership and

Mr. Akinlade’s relationship to the vehicle. Officer Von Behren’s impoundment

and inventory thus adhered to the requirement that they be conducted according to

standardized criteria. See Bertine, 479 U.S. at 375; Directives Manual § 427.06

(“Before impound . . . [the] vehicle will be inventoried”); Transcript of


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Suppression Hearing at 53 (Officer Von Behren testified that inventory of the

contents of the vehicle was “standard procedure for any impounded vehicle”); id.

at 67 (“Department policy requires me to inventory the contents of the vehicle to

identify any items of value”).

      Inspector Schaefer’s searches after the inventory were lawful because they

were conducted pursuant to valid search warrants.          We therefore reject Mr.

Akinlade’s Fourth Amendment arguments.

                                       D. Recusal

      A judge shall disqualify himself in any proceeding in which his impartiality

might reasonably be questioned. See 28 U.S.C. § 455(a). The standard for recusal

is whether an objective, disinterested lay observer fully informed of the facts

would entertain a significant doubt about the judge’s impartiality. See United

States v. Kelly, 888 F.2d 732, 744-45 (11th Cir. 1989) (holding that district judge

abused his discretion in failing to recuse himself from criminal bench trial in which

a defense witness’ wife was a close personal friend of his spouse and judge had

spoken to witness’ wife in chambers prior to testimony). “The very purpose of §

455(a) is to promote confidence in the judiciary by avoiding even the appearance

of impropriety whenever possible.” Id. at 744. “[C]onsidering that the standard of

review is abuse of discretion, we will affirm a district judge’s refusal to recuse




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himself unless we conclude that the impropriety is clear and one which would be

recognized by all objective, reasonable persons.” Bailey, 175 F.3d at 968.

      Relying on Kelly, Mr. Akinlade asserts that a lay observer might reasonably

question the judge’s impartiality because the judge recognized the two victim-

witnesses as neighbors, served on a homeowners association board with one of

them, and his neighborhood was allegedly a target for the fraud scheme. Unlike

the situation in Kelly, however, the district judge here did not have a close

friendship with any of the witnesses, did not express any doubt about the propriety

of presiding over this case, and did not react with a personal dilemma that

culminated in making comments specifically blaming the defendant for not raising

recusal earlier.   Notably, the judge in Kelly concluded that he should recuse

himself but because he was concerned about double jeopardy, he gave the parties

the option to seek a mistrial or proceed with a bench trial. See Kelly, 888 F.2d at

738-39.

      Here, the district judge did not perceive grounds for recusal and simply

disclosed that Mr. James and Ms. Walker owned property in his neighborhood and

although he had never officially met Ms. Walker, he had seen her at two or three

board meetings. On this record, Mr. Akinlade has not shown that the judge’s

previous contact with Mr. James and Ms. Walker objectively placed his

impartiality in question. See, e.g., United States v. Young, 39 F.3d 1561, 1570


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(11th Cir. 1994) (“The former business dealings between Judge Butler and a

potential defense witness in this case simply do not rise to the level of manifest

conflict of interest”). Given our review, we cannot say that the district judge

abused his discretion by failing to recuse himself in this case.

                                 IV.   CONCLUSION

      We affirm the district court’s denial of Mr. Akinlade’s motion to suppress

and motion for recusal.

      AFFIRMED.




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