     Case: 12-20412         Document: 00512420631       Page: 1     Date Filed: 10/25/2013




                          REVISED OCTOBER 25, 2012

            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                            FILED
                                                                         October 24, 2013
                                       No. 12-20412
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

KOLAWOLE ONENESE; RAMONI ALADE MATTI,

                                                  Defendants - Appellants



                      Appeal from the United States District Court
                           for the Southern District of Texas
                                 USDC No. 4:11-CR-538


Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       A jury convicted defendants Ramoni Alade Matti and Kolawole Onenese
for conspiracy to commit bank fraud,1 aiding and abetting bank fraud,2 and




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
           18 U.S.C. §§ 1344, 1349.
       2
           18 U.S.C. §§ 2, 1344.
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                                       No. 12-20412

aggravated identity theft.3         On appeal, Matti and Onenese challenge the
sufficiency of the evidence supporting their convictions as well as the fifty-victim
sentencing enhancement that both received.4 Matti also argues that he is
entitled to a mitigating role sentencing reduction and that the district court
wrongly denied his motion to sever.5 We affirm all of the district court’s rulings
except for the fifty-victim sentencing enhancement, which we hold is not
adequately supported by the record.
                                              I.
      There was clearly sufficient evidence to convict Matti and Onenese. The
standard of review for a sufficiency of the evidence challenge is whether “after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
the original). Bank surveillance footage caught both defendants in the act of
extracting money from fraudulent accounts. They were later arrested in a small
apartment teeming with digital and hard copy documents suggesting they were
in the identity theft business. Both men partially confessed after having waived
their Miranda rights. We hold that the jury verdict is sustained because there
is “substantial evidence, taking the view most favorable to the Government.”
United States v. Achobe, 560 F.3d 259, 263 (5th Cir. 2008) (internal quotations
omitted).
      Additionally, we affirm the district court’s ruling that Matti is not a “minor
participant” in the enterprise who is “substantially less culpable than the
average participant.” USSG § 3B1.2(b) cmt. n. 3(A). The district court’s finding


      3
          18 U.S.C. §§ 2, 1028A.
      4
          USSG § 2B1.1(b)(2)(B).
      5
          USSG § 3B1.2(b); FED. R. CRIM. P. 14(a).

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                                  No. 12-20412

that Matti was not a “minor participant,” and thus not entitled to a mitigating
role sentencing adjustment, is a factual determination reviewed for clear error.
See United Sates v. Gayton, 74 F.3d, 545, 561 (5th Cir. 1996).         “A minor
participant must be peripheral to the advancement of the criminal activity.”
United States v. Martinez-Larrage, 517 F.3d 258, 272 (5th Cir. 2008). Matti
argues that there is no evidence that he did more than withdraw money from an
ATM in a single fraudulent transaction. But this argument overlooks the
countless documents relating to identity theft that littered his apartment and
computer at the time of his arrest. His apartment was at the heart of the
conspiracy, not its periphery.
      Furthermore, we hold that the district court did not abuse its discretion
in denying Matti’s motion to sever. The denial of severance is reviewed for abuse
of discretion. United States v. Erwin, 793 F.2d 656, 665 (5th Cir. 1986). Federal
Rule of Criminal Procedure 14 allows the courts the discretion to sever joinder
if joinder appears to prejudice the defendant.        FED. R. CRIM. P. 14(a).
Establishing an abuse of discretion in denying a motion to sever requires a
defendant to show that “(1) the joint trial prejudiced him to such an extent that
the district court could not provide adequate protection; and (2) the prejudice
outweighed the government's interest in economy of judicial administration.”
United States v. Snarr, 704 F.3d 368, 396 (5th Cir. 2013). The defendant must
also show prejudice that is both specific and compelling. Erwin, 793 F.2d at 665.
      The district court had good reasons to try Matti and Onenese together. As
we have stated, “[o]rdinarily, defendants who are indicted together should be
tried together.”   Id.    Both Matti and Onenese were named in the same
indictment. Any prospect of compelling prejudice in this case was mitigated by
the jury instructions to “give separate consideration to the evidence as to each
defendant.”



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       Matti makes much of Bruton v. United States, 391 U.S. 123 (1968), where
the Supreme Court held that admitting third party testimony about a confession
of a co-defendant in a joint trial deprives the non-confessing defendant of the
right to cross-examination secured by the Sixth Amendment. Id. at 126. Matti
argues that Bruton applies to the postal inspector’s testimony that Onenese
confessed to an identity theft scheme involving a Canadian identity thief.
However, Richardson v. Marsh, 481 U.S. 200 (1987) later cabined Bruton to
facially incriminating confessions – that is, confessions naming the non-
confessing defendant. Id. at 211. Bruton does not apply to Onenese’s confession
because it does not name Matti.
                                               II.
       Where the district court erred is applying the fifty-victim sentencing
enhancement based on insufficient evidence. The district court is “entitled to
find by a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range . . . .” United States v. Mares, 402
F.3d 511, 519 (2005). The district court’s factual findings relating to Sentencing
Guidelines are reviewed for clear error. See United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008).
       At issue is USSG § 2B1.1(b)(2)(B), a four-level enhancement for offenses
that involve more than fifty victims. The Sentencing Guidelines’ notes make
clear that, for cases involving “means of identification,” a victim is: a) any person
sustaining an actual loss when the cumulative loss the offense causes is more
than $5,000; b) any individual sustaining bodily injury as a result of the offense;
or c) “any individual whose means of identification was used unlawfully or
without authority.” USSG § 2B1.1 cmt. n.1, 4(E).6



       6
          “Means of identification” are names and numbers such as social security numbers or dates
of birth that are used to identify individuals. USSG § 2B1.1 cmt. n. 1; 18 U.S.C. § 1028(d)(7)(A).

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      For the third class of victims, an individual’s means of identification must
actually be “used” for that individual to count as a victim. This is contrasted
with “possession” of means of identification used elsewhere in the Sentencing
Guidelines. See, e.g., USSG § 2B1.1(b)(11). The Government has consistently
maintained that an orange notebook found in Matti’s apartment supports the
fifty-victim sentencing enhancement.        This notebook contains personal
information such as birth dates, social security numbers, and addresses of
approximately one hundred people.
      We find that it was clear error to rely on the Government’s argument that
the orange notebook indicates that there were more than fifty victims. There is
simply little to no evidence in the record suggesting that the defendants
victimized all of the people listed in the notebook. The Government conceded at
trial that the defendants’ conspiracy dated from December 2010 to June 27,
2011. The defendants’ labor-intensive scheme involved sorting through victims’
trashed mail and impersonating the victims over the phone. It is unclear
whether two defendants could have victimized more than fifty people in fewer
than seven months.
      Neither does the trial record support the fifty-victim enhancement. In its
brief, the Government cites a 200-page block of the record as supporting its
victim count. This citation does not resolve the specific questions attendant to
the issue. The Government in its brief mentions only nineteen victims by name.
If the Government cannot point to fifty identifiable victims who were in fact
defrauded or whose identities were used, it should have conceded as much. At
the least, it should have responded to identified items in the record evidence,
including the postal inspector’s testifying that he had followed up with fifteen
to twenty-five victims; or to the Chase Bank investigator suggesting that the
defendants fraudulently applied for forty accounts but not specifying how many
different names were used; or to the Government or its witnesses only naming

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approximately twenty-six individuals and financial institutions as the
defendants’ victims. Such evidence clearly falls short of the fifty victims needed
to support the enhancement.
                                       III.
      We AFFIRM the convictions on all counts, VACATE the sentences on all
counts and REMAND for resentencing that is not inconsistent with this opinion.




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