United States v. Bankole ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4453
PRECIOUS OMUTUNDE BANKOLE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4544
OLUNIYI BANKOLE, a/k/a"T", a/k/a
Kevin Anthony Banks, a/k/a Niyi,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-96-479-A)
Submitted: July 21, 1998
Decided: October 14, 1998
Before MURNAGHAN and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Charles S. Cox, Alexandria, Virginia; Robert Stanley Powell, Arling-
ton, Virginia, for Appellants. Helen F. Fahey, United States Attorney,
Gordon D. Kromberg, Assistant United States Attorney, William G.
Otis, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In a joint jury trial, Oluniyi Bankole was convicted on four counts
of money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i),
(B)(i), 1957 (1994), and his mother, Precious Bankole, was convicted
of perjury, in violation of 18 U.S.C. § 1623 (1994), and obstruction
of justice, in violation of 18 U.S.C. § 1503 (1994). Additionally, both
were convicted of conspiracy to commit money laundering in viola-
tion of 18 U.S.C. § 1956(h) (1994). They were sentenced to 108
months' and 63 months' imprisonment, respectively. On appeal, the
Bankoles maintain that the trial court abused its discretion by (1)
denying Oluniyi's motion to sever his trial from his mother's; (2)
denying Precious's motion to sever the money laundering count from
the perjury and obstruction of justice counts; and (3) refusing to
declare a mistrial on the basis of the prosecutor's allegedly improper
statements during closing argument. Finding no reversible error, we
affirm the convictions and sentences.
The evidence at trial disclosed that Oluniyi engaged in drug traf-
ficking and used the resulting proceeds in part to purchase expensive
automobiles. Although he used the cars, he placed title of the vehicles
in others' name, including that of his mother, Precious, in order to
conceal his identity as the vehicle's true owner. Police seized three of
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these vehicles as vehicles used by Oluniyi in furtherance of his distri-
bution of crack cocaine. Two of these vehicles were tiled in Pre-
cious's name. Precious retrieved one of these vehicles, a 1990
Mercedes, by claiming it in a civil forfeiture action. During deposi-
tions of the civil forfeiture proceeding she testified that she purchased
the Mercedes with her own money.
During pre-trial motions, Precious moved to sever the conspiracy
to money launder charge from the perjury and obstruction of justice
charges, alleging that joinder of the claims prevented her from testify-
ing in her own defense. Oluniyi also moved to sever his trial from that
of his mother's on the ground that joinder of the cases prevented him
from introducing her testimony in his defense. The court denied both
motions. A jury ultimately convicted the Bankoles on all counts
charged in the indictment.
The Bankoles first allege on appeal that the court erred in not sev-
ering their trials. Oluniyi maintains that the court's refusal to sever his
trial from his mother's prejudiced him and denied him his right to a
fair trial because, as a result, he was deprived of his right to call his
mother as a witness in his defense. Specifically, he asserts that she
would have testified as to the source of funds used to purchase the
vehicles in question, consistent with her deposition testimony during
the civil forfeiture action that she paid for the vehicles with her own
funds.
We review a district court's denial of a motion for severance under
an abuse of discretion standard. See United States v. Ford, 88 F.3d
1350, 1361 (4th Cir.), cert. denied, #6D 6D6D# U.S. ___, 65 U.S.L.W. 3369(U.S., Nov. 18, 1996) (No. 96-6379). The general rule is that co-
conspirators who are indicted together should be tried together.
United States v. Hall, 93 F.3d 126, 131 (4th Cir. 1996), cert. denied,
___ U.S. ___, 65 U.S.L.W. 3586 (U.S., Feb. 24, 1997) (No. 96-6791).
The importance of this point is emphasized for defendants who partic-
ipated in the same conspiracy. See United States v. Tipton, 90 F.3d
861, 883 (4th Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3798 (U.S., June 2, 1997) (No. 96-7692). The defendant who seeks
severance must show that his joint trial would so prejudice him "that
a miscarriage of justice would result," United States v. Williams, 10
F.3d 1070, 1080 (4th Cir. 1993), not merely that he would have a bet-
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ter chance of acquittal in a separate trial. See United States v. Brooks,
957 F.2d 1138, 1145 (4th Cir. 1992).
When, as here, a co-defendant seeks severance based on an alleged
need for a co-defendant's testimony, he must show (1) a bona fide
need for the co-defendant's testimony; (2) the likelihood that the co-
defendant would testify at a second trial and waive his Fifth Amend-
ment privilege; (3) the substance of his co-defendant's testimony; and
(4) the exculpatory nature and effect of such testimony. See United
States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995). During the pre-trial
hearing, the court asked Oluniyi's counsel whether Precious would
testify at his client's trial if he went first. Counsel could not give a
definitive answer. Given a second opportunity, counsel did not come
forward and state that Precious would testify nor is there any other
evidence of even a likelihood that she would do so. In light of coun-
sel's failure to establish this essential prerequisite to his motion, we
find no abuse of discretion in the court's denial of Oluniyi's motion
to sever the trials.
Along similar lines, the Bankoles also assert that the court abused
its discretion in denying Precious's motion to sever the conspiracy
charge from the perjury and obstruction of justice charge. During pre-
trial motions, Precious sought to have these two latter charges sepa-
rated, alleging they were not related to the other counts in the indict-
ment or connected to the charges against co-defendant Oluniyi,
because they were based on her deposition testimony at the civil for-
feiture action. Again, the decision to sever is within the discretion of
the trial court and will not be reversed absent an abuse of discretion.
See Brooks, 957 F.2d at 1145. The burden is upon Precious to make
a particularized showing of prejudice from the denial of severance.
See United States v. Clark, 928 F.2d 639, 645 (4th Cir. 1991).
Under Fed. R. Crim. P. 8(a), offenses are properly joined if "the
offenses charged . . . are of the same or similar character or are based
on the same act or transaction or on two or more acts or transactions
connected together or constituting parts of a common scheme or
plan." In this case, Precious's acts in making false claims to authori-
ties to get the vehicles released, directly forming the basis for the
obstruction of justice and perjury charges, are also the basis for the
conspiracy count in which she is charged with acting to obtain the
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release of the vehicles seized from Oluniyi for the facilitation of drug
trafficking offenses. Her role in the conspiracy, serving as an innocent
title owner of the vehicles, and reclaiming the vehicles asserting no
knowledge of drug trafficking, entailed perjuring herself and mislead-
ing the police as to the vehicles' true owner and the true source of the
funds used to purchase them.
We find that Precious's acts forming the basis for the perjury count
and the obstruction of justice count constituted a part of the "common
scheme or plan" in this conspiracy. Furthermore, the Government
would have introduced proof of the perjury and obstruction of justice
to establish the conspiracy charge in order to show the manner in
which Precious acted in furtherance of the conspiracy. Under these
circumstances, we find no abuse of discretion in the court's denial of
Precious's motion to sever.
Lastly, the Bankoles claim that the court erred in denying Pre-
cious's motion for a mistrial based on improper closing arguments
made by the prosecutor. The denial of a motion for a mistrial will be
reversed on appeal only for a clear abuse of discretion. See United
States v. West, 877 F.2d 281, 287-88 (4th Cir. 1989). Although a mis-
trial should be declared if the error is not likely to be cured by a reme-
dial instruction, see United States v. Tedder , 801 F.2d 1437, 1444 (4th
Cir. 1986), the moving party must show prejudice for the court's rul-
ing to constitute an abuse of discretion. See West, 877 F.2d at 288.
A two-prong test determines whether a prosecutor's remarks rise to
the level of prosecutorial misconduct: (1) the prosecutor's remarks or
conduct must have been improper, and (2) such remarks must have
prejudicially affected the defendant's rights so as to deprive the
defendant of a fair trial. See United States v. Chorman, 910 F.2d 102,
113 (4th Cir. 1990). Even if we assume that the Bankoles are able to
satisfy the first prong--that the prosecutor's remarks were improper
--the comments were not sufficiently prejudicial so as to deny the
Bankoles a fair trial.
Factors relevant to the issue of prejudice are: (1) the degree to
which the remarks had a tendency to mislead the jury and prejudice
the defendant; (2) whether the remarks were isolated or extensive; (3)
the strength of competent evidence to establish guilt absent the
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remarks; (4) whether the comments were deliberately placed before
the jury to divert attention to extraneous matters; (5) whether the
prosecutor's remarks were invited by improper conduct of defense
counsel; and (6) whether curative instructions were given to the jury.
See United States v. Young, 470 U.S. 1, 12 (1985); Chorman, 910
F.2d at 113. This issue of whether improper argument by government
counsel has so prejudiced the trial process as to require reversal must
be gauged from the facts of each trial. See Young, 470 U.S. at 12.
During closing argument, defense counsel made the following
remarks:
Mr. Kromberg is the United States attorney. He came into
this court. He sponsored their testimony. He is putting it up
here and saying to you, ladies and gentlemen, believe it.
Believe it, despite the fact that they have gotten deals
because deals are legal. Believe it, besides the fact that if
they didn't cooperate with the United States of America,
they'd hang them out to dry. Believe it, besides the fact that
they get up here even after they have made their deal, try to
minimize their involvement, try to back down on what they
did, basically tell you things about themselves that aren't
true, but believe what they say anyway because we have
made a deal.
. . . . Mr. Kromberg is going to get up here in rebuttal, I
know he will, and he's going to tell you, look at some of the
deals that have been admitted into evidence, and they are
going to say: Well, you know what, these people all know
that they have to obey Mr. Kromberg's number one rule, tell
the truth, or otherwise this deal is going to get ripped up,
thrown away, and we're going to prosecute them.
But look at that deal. It's not the Judge who is going to
decide whether or not they are telling the truth on the stand.
It's not you who is going to make the determination in that
deal whether or not they are telling the truth and whether or
not their deal could get set aside. The people that are making
that determination, and whether Mr. Kromberg wants to
admit it or not, is the United States Attorney's Office. And
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whether or not it's in the District of Columbia or here in the
Eastern District of Virginia, it's them.
J.A. at 585-87. With respect to one of the Government's witnesses,
a law enforcement officer, defense counsel in his closing stated:
This is a law enforcement officer. And I'm not suggesting
that she's lying. What I'm saying is, this is a law enforce-
ment officer who has been intricately involved in some
stage of the prosecution of this case. She knows what the
case is all about, the facts of the case. She knows it because
she has investigated it. She's not only investigated it, but she
has come to the assistance of the people that are cooperating
with the government.
Now, let Mr. Kromberg get up and rebut that.
J.A. at 589-90.
During closing rebuttal, Kromberg, the Assistant U.S. Attorney,
made the following statement:
You heard the exhaustive nature of her investigations of
auto dealerships one, two and three. Select, Eagle, and East-
ern, looking at hundreds of transactions, interviewing hun-
dreds of people, debriefing the owners, the salesmen, the
repossession people, the finance people. And, of course, the
government didn't even ask her opinion of this case, Mr.
Abbenante he did. But you know what her opinion of this
case is.
If you believe that after all that work she wants to convict
someone, regardless of whether they are innocent or guilty,
then you should acquit these people. Mr. Abbenante says
that I sponsored the testimony. I, Assistant United States
Attorney Gordon Kromberg, sponsored the testimony. I
said, believe it. Well, you're damn right. The difference
between a government attorney and a defense attorney is,
the government wins when innocent people are acquitted. If
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these people are innocent, acquit them. I'd like them to
come up and say, if their clients are guilty, find them guilty.
J.A. at 258. The Bankoles claim that this argument was improper
because it amounted to improper vouching for the credibility of a
government's witness, an agent, and it suggested that defense counsel
had the burden to tell the jury that if their clients were guilty, the jury
should find them guilty.
Viewing the totality of the circumstances, we do not find that the
prosecutor's comments prejudiced the Bankoles substantial rights. In
light of defense counsel's own closing remarks regarding the law
enforcement officer's partiality towards the government's case and
the prosecutor's personal "sponsoring" of the government witnesses,
we find that the prosecutor's statements were invited. See Young, 470
U.S. at 12-13. The prosecutor's argument did no more than "right the
scale." See id. Moreover, given the court's subsequent curative
instruction and the substantial evidence against the Bankoles, we do
not find that the prosecutor's comments substantially prejudiced the
Bankoles. We therefore find that the court did not abuse its discretion
in refusing to grant a mistrial on the basis of the argument.
Accordingly, we affirm Appellants' convictions and sentences. We
grant their motion to file pro se supplemental briefs. We have consid-
ered the issues raised in those briefs and find them to be without
merit. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court,
and oral argument would not aid the decisional process.
AFFIRMED
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