     19-1137 (L)
     United States v. Atuana, Adeniran


                               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 TO 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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 11th day of June, two thousand twenty.
 4
 5            PRESENT:
 6                     BARRINGTON D. PARKER,
 7                     MICHAEL H. PARK,
 8                     WIILIAM J. NARDINI,
 9                           Circuit Judges.
10   _____________________________________
11
12   UNITED STATES OF AMERICA,
13
14                               Appellee,
15
16                        v.                                                19-1137-cr (Lead)
17                                                                          19-1141-cr (Con)
18   JOSEPH ATUANA, AYODELE ADENIRAN
19
20                               Defendants-Appellants.
21
22   _____________________________________
23
24            FOR DEFENDANTS-APPELLANTS:                      JAMESA J. DRAKE, Drake Law, LLC,
25                                                            Auburn, ME for Joseph Atuana
26                                                            ANDREW LEVCHUK, Andrew
27                                                            Levchuk, Counsellor at Law, LLC,
28                                                            Amherst, MA for Ayodele Adeniran.
29
30            FOR APPELLEE:                                   NICHOLAS FOLLY, Assistant United
31                                                            States Attorney (Rebekah Donaleski,
32                                                            Karl Metzner, Assistant United
 1                                                                States Attorneys, on the brief), for
 2                                                                Geoffrey S. Berman, United States
 3                                                                Attorney for the Southern District of
 4                                                                New York, New York, NY.

 5          Appeal from a judgment of the United States District Court for the Southern District of

 6   New York (Failla, J.).

 7          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 8   DECREED that the judgment of the district court is AFFIRMED.

 9          Defendants Joseph Atuana and Ayodele Adeniran appeal from judgments of conviction

10   entered April 19, 2019, by the United States District Court for the Southern District of New York

11   (Failla, J.) following jury verdicts of guilty on the following counts: conspiracy to commit wire

12   fraud and bank fraud, in violation of 18 U.S.C. § 1349; bank fraud, in violation of 18 U.S.C.

13   §§ 1344 and 2; wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; aggravated identity theft, in

14   violation of 18 U.S.C. § 1028A; conspiracy to commit money laundering, in violation of 18 U.S.C.

15   § 1956(h); and, with respect only to Atuana, making a false statement in an application for a United

16   States passport, in violation of 18 U.S.C. § 1542.   After trial but before sentencing, Defendants

17   submitted a joint pro se motion for judgment of acquittal and for a new trial under Rules 29 and

18   33 of the Federal Rules of Criminal Procedure alleging ineffective assistance of trial counsel.

19   The district court denied the Rule 29 and 33 motion as well as Defendants’ motion for leave to file

20   an untimely motion to suppress evidence under Rule 12(c)(3) of the Federal Rules of Criminal

21   Procedure.    On appeal, Atuana challenges two evidentiary rulings at trial, and Adeniran

22   challenges the denial of the motion for new trial and the denial of leave to file the untimely

23   suppression motion. We assume the parties’ familiarity with the underlying facts and the record

24   of prior proceedings, to which we refer only as necessary to explain our decision to affirm.




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 1            1. Atuana’s Evidentiary Challenges

 2            First, Atuana argues that the district court abused its discretion when it admitted a proffer

 3   letter drafted by Atuana’s attorney in connection with plea negotiations in a 2014 state-court case,

 4   where Atuana sought lenience based on the representation that he was unwittingly used by others

 5   to perpetrate a fraud.   Atuana submits that, because the probative value of the letter relies on the

 6   forbidden-propensity inference that Atuana is a “fraudster,” introduction of the letter ran afoul of

 7   both Federal Rules of Evidence 404(b) and 403. Second, Atuana argues that the district court

 8   abused its discretion by admitting evidence that Atuana failed to file federal income tax statements

 9   for business entities he controlled, which had been used as conduits in the fraudulent activity at

10   issue.   Atuana claims that the tax-related evidence should have been excluded under Federal Rule

11   of Evidence 403 because the failure to file tax returns was not probative of whether the entities

12   were legitimate businesses, and this evidence was highly prejudicial because it portrayed Atuana

13   to be a tax evader.

14            We conclude that the district court did not abuse its discretion by admitting this evidence.

15   Under Rule 404(b), evidence of a prior “crime, wrong, or other act” is admissible for non-

16   propensity purposes such as to show “intent,” “knowledge,” or “absence of mistake.”           Fed. R.

17   Evid. 404(b). The fact that Atuana’s lawyer made the innocence proffer to a prosecutor tended

18   to serve these purposes because it showed Atuana’s awareness, as of 2014, of alleged criminal

19   activity occurring through his accounts. And, under Rule 403, the district court’s weighing of

20   the probative value of both categories of challenged evidence against the risk of unfair prejudice

21   was not “arbitrary or irrational.”   United States v. Abu-Jihaad, 630 F.3d 102, 134 (2d Cir. 2010).

22   The 2014 letter was probative because it undermined the credibility of Atuana’s defense theory




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 1   that he was unknowingly caught in the middle of a criminal scam lasting beyond 2014.          As for

 2   the tax-related evidence, the district court reasonably concluded that Atuana’s failure to file any

 3   tax returns for his several companies over the course of the conspiracy was probative of whether

 4   the businesses were legitimate.    Moreover, as to both the 2014 letter and the tax-related evidence,

 5   the district court was well within its discretion in determining that the probative value was not

 6   substantially outweighed by the risk of unfair prejudice where, as here, the evidence was not “any

 7   more sensational or disturbing” than the charged crimes.        United States v. Roldan-Zapata, 916

 8   F.2d 795, 804 (2d Cir. 1990).     We thus reject Atuana’s argument that the district court abused its

 9   discretion in admitting this evidence.

10          In any event, the alleged error would have been harmless in light of the robust evidence of

11   Atuana’s guilt.   See United States v. Paulino, 445 F.3d 211, 219 (2d Cir. 2006) (holding error to

12   be harmless where “other evidence overwhelmingly established [defendant’s] culpability with

13   respect to the charged crime”).    For example, the government’s evidence included uncontradicted

14   testimony from several witnesses who had been the direct victims of the email “spoofing” and

15   bank account takeover schemes, and whose money ended up in accounts controlled by Atuana.

16   These victims detailed the deceptive solicitations and instructions they received, and the

17   government’s evidence linked these deceptive means to Defendants, for example, in the form of

18   forged letters and emails found in their electronic files.   Moreover, the jury saw Defendants’ text

19   messages and email correspondence regarding the frauds they perpetrated on specific victim-

20   witnesses.    These included Defendants’ real-time communications exchanging victim bank

21   account information, discussing wire amounts, and conferring about how to avoid detection.

22          For these reasons, we reject Atuana’s challenges to the district court’s evidentiary rulings.




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 1          2. Rule 33 Motion for New Trial and Evidentiary Hearing

 2          After trial, Defendants filed a pro se motion for a new trial based on their trial counsel’s

 3   failure to make a pre-trial motion to suppress evidence obtained through a search warrant executed

 4   in their home.      Adeniran now argues that the district court abused its discretion in denying his

 5   motion for new trial and denying him a full evidentiary hearing on the merits of his ineffective

 6   assistance claim.

 7          First, in light of this Court’s “baseline aversion to resolving ineffectiveness claims on direct

 8   review,” United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003) (internal quotation marks

 9   omitted), we decline to consider the ineffective assistance claim in the absence of a complete

10   factual record.     Neither Adeniran nor his trial counsel have submitted affidavits or otherwise

11   proffered evidence regarding the decision not to file a pre-trial motion to suppress.        We thus

12   decline to consider the claim here. See United States v. Brown, 623 F.3d 104, 112–13 (2d Cir.

13   2010) (stating that declining to consider such claims “permit[s] the appellant to raise the issue as

14   part of a subsequent 28 U.S.C. § 2255 petition”).

15          Second, the district court did not abuse its discretion in declining to hold a full evidentiary

16   hearing on Adeniran’s ineffective-assistance claim.      “When a claim of ineffective assistance of

17   counsel is first raised in the district court prior to the judgment of conviction, the district court

18   may, and at times should, consider the claim at that point in the proceeding.”      Brown, 623 F.3d

19   at 113 (emphasis added). Although the district court stopped short of a full evidentiary hearing,

20   it took some testimony from Adeniran before concluding that “I feel that I have had the hearing

21   that I need to have” and “I don’t believe anything is gained by having [trial counsel] present.”

22   Adeniran App’x at 232–33.        In so doing, the district court charted “a middle road that avoided




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 1   the delay, the needless expenditure of judicial resources, the burden on trial counsel and the

 2   government . . . that would have resulted from a full testimonial hearing.”         Chang v. United

 3   States, 250 F.3d 79, 86 (2d Cir. 2001).    Furthermore, the district court noted that it was “trying

 4   to minimize the degree to which [it was] invading the attorney-client privilege,” Adeniran App’x

 5   at 233, by avoiding the possibility that Adeniran (who was pro se at the time) might unknowingly

 6   waive the privilege. We thus affirm the district court’s decision not to hold a full evidentiary

 7   hearing.

 8          Third, Adeniran fails to carry his heavy burden of demonstrating “extraordinary

 9   circumstances” warranting a new trial.     United States v. Imran, 964 F.2d 1313, 1318 (2d Cir.

10   1992) (internal quotation marks omitted) (emphasis omitted). As discussed above, the evidence

11   of Adeniran’s guilt was overwhelming.      Adeniran fails to show that the district court abused its

12   discretion in denying him a new trial because there is no “real concern that an innocent person may

13   have been convicted.” United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (internal

14   quotation marks omitted).

15          For these reasons, we reject Adeniran’s arguments with respect to his Rule 33 motion for

16   a new trial, and we decline to consider the merits of his ineffective-assistance claim.

17          3. Good Cause under Fed. R. Crim P. 12(c)(3)

18          Finally, Adeniran argues that that he had “good cause” under Rule 12(c)(3) to file a post-

19   trial suppression motion. It is well established, however, that “[a] strategic decision by counsel

20   not to pursue a claim, inadvertence of one’s attorney, and an attorney’s failure to timely consult

21   with his client are all insufficient to establish ‘cause’ [under Rule 12(c)(3)].”   United States v.

22   Yousef, 327 F.3d 56, 125 (2d Cir. 2003) (citing United States v. Forrester, 60 F.3d 52, 59 (2d Cir.




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 1   1995) (holding that there was no cause where defendant “la[id] the blame at the door of trial

 2   counsel whose competence he says he questioned”)).            On this record, Adeniran fails to

 3   demonstrate or even explain how his trial counsel’s conduct went beyond a strategic decision, a

 4   failure to timely consult, or inadvertence, none of which is sufficient to show good cause.   Thus,

 5   the district court did not abuse its discretion and correctly ruled that Adeniran “demonstrated no

 6   cause for his non-compliance.”    Forrester, 60 F.3d at 59.

 7            We have considered Defendants’ remaining arguments and conclude that they are without

 8   merit.   For the foregoing reasons, the judgment of the district court is AFFIRMED.

 9                                                FOR THE COURT:
10                                                Catherine O’Hagan Wolfe, Clerk of Court




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