United States v. Odelakon , 150 F. App'x 374 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-20180
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HAEEIU ADEYEME ODELAKON, also known as Alliu Yemi Adelakun,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-23-1
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Before REAVLEY, JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Haeeiu Adeyeme Odelakon, also known as Alliu Yemi Adelakun,
appeals his jury-trial conviction for unlawful procurement of
citizenship, in violation of 18 U.S.C. § 1425(b).
Odelakon argues, for the first time on appeal, that the
Government constructively amended his indictment by introducing
facts at trial that were not presented to the grand jury and that
were not alleged in the indictment. In particular, he takes
issue with the testimony of Officer Saldivar and his introduction
*
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this opinion should not be published and is not precedent except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.
No. 04-20180
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into evidence of a set of fingerprints Saldivar had recently
taken from Okelakon. He contends that, instead of being tried
for falsifying information on his citizenship application, he was
tried for fraud.
“Where a claim of constructive amendment is raised for the
first time on appeal, review is for plain error.” United States
v. Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002).
There was no constructive amendment of the indictment in
this case. The indictment charged that Odelakon had obtained
citizenship by knowingly providing false information in his
citizenship application, aware that the truth would render him
ineligible for citizenship. Saldivar compared fingerprints from
Okelakon’s A26 386 119 file and his A70 524 550 file. He
testified that the prints matched. Odelakon gives no explanation
how Saldivar’s identification of the fingerprints, which showed
that Odelakon’s challenged statements were belied by his
immigration records, constitutes evidence of fraud rather than
false statement. See United States v. Millet, 123 F.3d 268, 272
(5th Cir. 1997). The evidence, in fact, was necessary to show
that the challenged statements were false. Accordingly, this
claim is meritless.
Asserting alternative legal theories, Odelakon contends that
his instant convictions violate the Double Jeopardy Clause
because (1) he previously was prosecuted for the instant offenses
in 1998; and (2) they were used as evidence to secure his 1998
No. 04-20180
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convictions for conspiracy to commit bank fraud, possession of
counterfeit securities, and aiding and abetting the possession of
counterfeit securities, were listed in the PSR for the 1998
convictions, and were considered in assessing his punishment.
This court reviews a claim that a conviction violates the
Double Jeopardy Clause de novo. United States v. Cihak, 137 F.3d
252, 257 (5th Cir. 1998).
To prove a § 1425(b) offense, the Government must show
beyond a reasonable doubt: “(1) the defendant . . . obtained
. . . naturalization or citizenship; (2) the defendant is not
entitled naturalization or citizenship; and (3) the defendant
knows that he or she is not entitled to naturalization or
citizenship.” United States v. Moses, 94 F.3d 182, 184 (5th Cir.
1996). Odelakon’s 1998 convictions were for conspiracy to commit
bank fraud, possession of counterfeit securities, and aiding and
abetting the possession of counterfeit securities. The offense
of conspiracy to commit bank fraud requires a showing that
Odelakon agreed with others to place a financial institution at
risk of civil liability or financial loss and that the bank was
insured by the Federal Deposit Insurance Corporation. United
States v. McCauley, 253 F.3d 815, 820 (5th Cir. 2001); 18 U.S.C.
§ 1344. To prove possession of counterfeit securities, the
Government must show that the defendant made, uttered, or
possessed a counterfeited or forged security of a State or
organization, with intent to deceive another person,
No. 04-20180
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organization, or government. 18 U.S.C. § 513(a). Bank fraud and
possession of counterfeit securities each require additional
elements of proof not required to establish unlawful procurement
of citizenship. See United States v. Delgado, 256 F.3d 264, 272
(5th Cir. 2001). As such, Odelakon cannot show that he has been
previously prosecuted for unlawful procurement of citizenship.
As for his argument that evidence underlying the instant offenses
was used to secure his 1998 guilty-plea conviction, was mentioned
in the PSR for his prior offenses, or was used to enhance his
prior sentence, the Fifth Amendment “does not bar admission of
the same evidence.” United States v. Morris, 46 F.3d 410, 420
(5th Cir. 1995).
Odelakon’s assertion that his convictions are the result of
prosecutorial misconduct are vague and conclusory. He has failed
to identify, in the record, any evidence that supports his claim
and he has failed to brief the issue raised. Accordingly, the
issues are deemed waived. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993) (issues must be briefed, even by prisoners
proceeding pro se, to be preserved on appeal).
Odelakon argues that the district court erred by failing to
follow the proper procedure for revoking his citizenship pursuant
to 8 U.S.C. § 1451(e). His argument focuses on the court’s
failure to comply with the various procedural requirements of
denaturalization procedures such as those set out in 8 U.S.C.
§ 1451(a) and (b) and 8 C.F.R. 340.1-.8.
No. 04-20180
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Section 1451(e) provides that, upon a conviction under 18
U.S.C. § 1425 for knowingly procuring naturalization in violation
of law,
the court in which such conviction is had
shall thereupon revoke, set aside, and
declare void the final order admitting such
person to citizenship, and shall declare the
certificate of naturalization of such person
to be canceled. Jurisdiction is conferred on
the courts having jurisdiction of the trial
of such offense to make such adjudication.
8 U.S.C. § 1451(e). The trial court has no discretion in
applying the statute. See Moses, 94 F.3d at 187-88. Section
1451(e) has none of the requirements set out in §§ 1451(a) and
(b). Odelakon’s reference to 8 C.F.R. 340.1 is unavailing; those
sections refer to the procedures set out in § 340(h) of the
Immigration and Naturalization Act, which is codified at 8 U.S.C.
§ 1451(h). As Odelakon’s procedural arguments are irrelevant to
the revocation of his citizenship under § 1451(e), this issue is
meritless. Accordingly, the judgment of the district court is
AFFIRMED.
Odelakon’s motion for reconsideration of our denial of his
request to unseal documents related to his 1998 conviction is
DENIED.