United States v. Adeniji, Adetoro ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 97-3821, 97-3826, 98-3885
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ADETORO ADENIJI,
ADEMOLA G. ALLISMITH, and
ABDUL R. ADEDIRAN,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 CR 259--James T. Moody, Judge.
Argued April 23, 1999/*--Decided July 26, 2000
Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury found the three
defendants in this case guilty of mail fraud.
They attack their convictions on a variety of
grounds that we find to be without merit.
I.
In April and May of 1991, the Motorola
Corporation issued a series of five checks
totaling $17,951.40 to Better Communications
Systems ("BCS") and Michael Owonla Marketer’s
Inc. ("MOM"), purportedly two of its vendors. The
first four checks were mailed and cashed. When
Motorola did some investigating before mailing
the fifth check, it could locate no invoice to
support any of the five checks. Upon further
investigation, Motorola determined that its
employee, defendant Adetoro Adeniji, had covertly
caused each of the five checks to issue. BCS and
MOM turned out to be fictitious businesses whose
mailing addresses and bank accounts were
established by her two co-defendants, Ademola
Allismith and Abdul Adediran.
Motorola hired Adeniji in January 1990, under
the name Toro Williams (her married name). In
January 1991, the company assigned her to work in
the accounts payable department at the company’s
headquarters in Schaumburg, Illinois, as a data
entry clerk. When an outside vendor provided
goods and services to one of the Motorola
entities in the United States--a "Motorolan"--the
vendor would submit an invoice requesting
payment; the Motorolan would then forward the
invoice to the accounts payable department in
Schaumburg. There the invoices were assigned to
one of three processing groups organized
alphabetically (A-G, H-O, and P-Z) based on the
vendor name.
A batch control person in each group would
quickly review the invoices to make sure they
contained the information required for payment,
including an account number and an authorizing
signature. Once the batch control operator had
reviewed the invoices, she would batch them into
groups of between twenty-five and forty invoices,
assign a control number to the batch and place
the invoices into a folder, record certain
information about each batch, including the total
dollar amount billed on the invoices in that
batch, on a batch control group log sheet ("batch
log"), and assign the batch to a data entry clerk
like Adeniji for processing. The identification
number of the assigned clerk would be entered
into the batch log. The data entry clerks had
access to the batch logs, and they were free to
visit the batch control person’s office and log
out batches of invoices for processing on their
own.
Data entry clerks would then enter information
from each invoice in the batch into the company’s
computer system, enabling checks to issue. This
information included the vendor number, Motorola
account number, date and number of the invoice,
and dollar amount of the invoice. The clerk would
also record the date she entered this data into
the computer and the batch control number. After
inputting the data from all of the invoices in
the batch, the clerk would complete a control
group ticket sheet, noting the total number of
invoices in the batch, the total dollar amount
billed on the invoices, the batch control number,
the date of entry into the computer system, and
her own operator identification number. It was
the data entry clerk’s responsibility to make
sure that the total invoice dollar amount she
entered on the control group ticket sheet jibed
with the amount reflected in the batch log. Once
all this was completed, the clerk would return
the batch to the batch control person. Each clerk
processed between two and three hundred invoices
daily. Checks were issued and mailed to vendors
three times weekly based on the information input
by the data entry clerks.
In the course of processing the invoices, the
data entry clerk might discover that the vendor
identified on a particular invoice had not yet
been set up in the company’s database. In such
cases, the clerk would take the invoice to the
vendor file maintenance person in her group. This
individual was responsible for assigning a unique
identification number to each new vendor, after
verifying the vendor’s legitimacy. Once this was
done, she would enter appropriate information for
the vendor into the database (including such
things as the terms of payment for this vendor),
enabling data entry clerks to process invoices
for the vendor.
In June 1991, Adeniji’s supervisor, Judith
Amerlan Johnson ("Amerlan"), began looking into
the five checks that Motorola had issued in April
and May to vendors MOM and BCS. Her investigation
commenced after it became apparent that the total
dollar amounts of the invoice batches from which
these checks emanated were out of balance, and
the invoices corresponding to these checks could
not be found. In the course of her investigation,
Amerlan reviewed the pertinent batches of
invoices, the batch log sheets, the control group
tickets, and two different computer records: the
terminal screen printouts, and daily accounting
activity reports for each data entry clerk. The
terminal screen printout reflected the data for
each invoice as entered into the computer system
by the clerk, including the clerk’s two-digit
operating code. The accounting activity report
tracked all of the invoices entered into the
system by a particular clerk on a particular day.
Because this report was keyed to the clerk’s
security password, which the clerk had to use in
order to log on to Motorola’s computer system, it
was the most accurate record of the data that
each clerk had actually entered into the system.
The accounting activity reports pointed to
Adeniji as the clerk who entered the data for
each of the five checks that Amerlan was
investigating. The batch logs, the control group
tickets, and the terminal screen printouts all
indicated that clerks Linda Clark and Shirley
Williams had input the data. But the accounting
activity reports showed that Clark and Williams
were either logged off of their terminals at the
time the data was entered or busy entering data
from other invoices. These reports revealed that
Adeniji, in fact, was the person who had keyed in
the information. Her time cards confirmed that
she was working at these times. And, like any
other data entry clerk, she knew her fellow
clerks’ operator code numbers. At least two other
irregularities indicated that the five checks
were issued improperly.
First, Amerlan was never able to find any of
the invoices corresponding to these checks. The
invoices underlying the first four checks were
the only ones missing from their batches. On the
other hand, the batch that included the invoice
for the fifth check was missing altogether.
Computer records indicated that Adeniji had
entered the data for that fifth check six days
after a different clerk (Shirley Williams) had
completed the rest of the batch.
Second, on April 19, 1991, Adeniji had
approached Carol Rickman, the vendor maintenance
person for the H-O invoice group (recall that
Adeniji worked in the A-G group) to ask why an
invoice from MOM was on hold. That invoice had
been forwarded to Rickman because MOM had not yet
been validated and set up in Motorola’s computer
system. Adeniji told Rickman that someone from
MOM had called her to ask why the company was not
being paid. Rickman explained that she had
already tried to call MOM and obtain its
taxpayer’s identification number, but without
success. Adeniji urged Rickman to complete the
verification as quickly as possible so that MOM’s
invoice could be processed right away. Later that
same day, Adeniji returned to Rickman with a
taxpayer i.d. number she said she had obtained
from MOM. In violation of protocol, Rickman
entered the number into the system without
verifying it herself, assigned a vendor number to
MOM, and gave the invoice to Adeniji, who input
the data the same day. Adeniji would later deny
having asked Rickman to establish MOM as a
vendor, pointing out that as a member of the A-G
alpha group, she would have nothing to do with
MOM. Adeniji resigned from Motorola’s employ on
July 22, 1991.
Whereas Adeniji arranged for the checks to be
issued, Adediran and Allismith arranged for their
receipt. In early April 1991, Adediran, using the
aliases "Michael Owonla" and "Michael Olowanla,"
rented commercial mailboxes in the Chicago
suburbs of Northbrook and Vernon Hills, Illinois.
All three of the checks that Adeniji caused
Motorola to issue to MOM were later mailed to the
Vernon Hills address. Adediran used both
addresses to open three different checking
accounts--all under the name Michael or Micheal
C. Owonla--in Vernon Hills, Riverwoods, and
Northbrook. One of the three Motorola checks
issued to MOM was deposited into each of these
accounts; Adediran’s fingerprint was later
identified on one of the checks. Each account was
closed by the end of May, 1991, with a negative
balance. Tellers from two of these banks
identified Adediran as the individual who engaged
in transactions at the banks as "Michael Owonla".
At the end of March, 1991, Adediran opened a
fourth checking account at the Uptown National
Bank in Chicago. The account was for a company
named Beta Enterprises, and on the account
application, Adediran identified "Babatunde
Adediran" as the authorized signer on the
account. A handwriting expert identified the
signature on three different documents associated
with this account as Adediran’s. On May 11,
Adediran wrote a check on this account in the
amount of $3,000 to Toro Williams, the name that
Adeniji used while in Motorola’s employ. That
check was later deposited into a joint bank
account that Adeniji maintained with her husband
at another bank.
Allismith’s activities were quite similar. In
mid-May, 1991, Allismith rented a post office box
in the Rogers Park neighborhood of Chicago for
BCS using the name "Steve T. Howard." (A
handwriting expert was able to positively
identify some of the entries on the application
form as Allismith’s.) This was the address
reflected on both of the checks that Motorola
issued to BCS. Also in mid-May, Allismith opened
a checking account at the Uptown National Bank
under the name "Henry A. Smith." On the same day
that Allismith opened this account, Adediran
withdrew $3,000 in cash from one of his Owonla
checking accounts. Two days later, $3,000 in cash
was deposited into the Henry Smith account. In
early June, Allismith opened a second account at
the Uptown National Bank under the name "Henry A.
Smith D/B/A Better Communication Systems." He
opened the account with one of the two checks
that Motorola issued to BCS. A handwriting expert
would later identify handwriting on documents
associated with both of the accounts at the
Uptown National Bank, as well as the endorsement
of the Motorola check, as Allismith’s
handwriting.
A postal inspector was unable to verify the
existence of either BCS or MOM. The inspector
went to each of the mailboxes linked to the two
companies, and in turn to the addresses listed on
the applications for those boxes, but could find
no evidence of an operating business.
Telephone records revealed a series of phone
calls between telephones registered or assigned
to Adeniji and her co-defendants (in some cases,
under their aliases) beginning in February 1991
and continuing through early October 1991. Many
of these calls took place on dates when key
events in the scheme to defraud Motorola took
place--when Adeniji inputted data from one of the
MOM or BCS invoices into the Motorola payment
system, for example, or Adediran opened a bank
account. So far as the telephone records reveal,
however, Adediran and Allismith never spoke to
each other. The records reflect calls between
Adeniji and Adediran, and Adeniji and Allismith,
but no calls between Adediran and Allismith.
II.
A.
Adediran and Allismith contend that the evidence
was insufficient to convict them of mail
fraud./1 Our review of the sufficiency of the
evidence is highly deferential. E.g., United
States v. Woolfolk, 197 F.3d 900, 904 (7th Cir.
1999), cert. denied, 120 S. Ct. 1705 (2000). Only
when the evidence, viewed favorably to the
government, would permit no reasonable jury to
find the defendant guilty of the crime charged
will we reverse the conviction. Id. Adediran and
Allismith argue that without proof that neither
MOM nor BCS ever provided any goods or services
to Motorola, the jury could not reasonably find
that they intended to defraud Motorola.
Although no Motorola witness ever confirmed that
MOM and BCS were not legitimate vendors, the jury
could still find beyond a reasonable doubt that
Adediran and Allismith were defrauding Motorola.
First, none of the invoices supporting the five
checks issued to MOM and BCS could be found.
Second, Adeniji input the data from these
(putative) invoices in a manner which bespoke
fraud: she used other operators’ codes, and
logged the invoices into batches assigned to
those operators, in an effort to conceal her own
connection to the checks. Third, Adeniji
personally intervened with the vendor maintenance
person for the H-O alpha group to have MOM
approved as a vendor, although Adeniji did not
even work in that group. Fourth, Motorola was
given commercial or post-office mailbox addresses
for both MOM and BCS that Adediran and Allismith
had rented under aliases. Fifth, MOM and BCS
purportedly issued the invoices to Motorola
before either vendor had established a mailing
address or bank account. For example, the data
that Adeniji entered into Motorola’s accounts
payable system indicated that MOM’s first invoice
to Motorola was dated February 12, 1991. Yet,
Adediran did not rent the commercial mailbox used
as MOM’s vendor address until April 3, 1991, and
he did not open any of the three checking
accounts into which the MOM checks were deposited
until the second week of April. Likewise,
although the putative invoices underlying the two
checks issued to BCS were (according to the data
input by Adeniji) issued in December 1990 and
January 1991, Allismith did not rent the post
office box for BCS or obtain an assumed name
certificate for the company until May 1991, and
he did not open a bank account for the business
until June. Sixth, each of the bank accounts into
which Adediran and Allismith deposited the checks
from Motorola was opened under an alias. Seventh,
when he visited the residential addresses that
Adediran and Allismith had given in renting the
mail boxes for the two companies, the postal
inspector could not confirm that either MOM or
BCS was an actual, legitimate business. These
circumstances, among others, supply more than
ample proof that Adediran and Allismith intended
to defraud Motorola.
Allismith secondarily argues that the evidence
did not establish his joint participation in the
scheme to defraud Motorola with Adeniji and
Adediran. As we mentioned earlier, there is
abundant proof of telephone calls between
Allismith and Adeniji on the one hand, and
Adeniji and Adediran on the other, but no direct
proof of contact between Allismith and Adeniji.
Indeed, as Allismith points out, there is no
proof that he and Adediran even knew one another.
Whether or not the government established a
direct link between Adediran and Allismith is
irrelevant, however. The joint agreement that is
essential to a defendant’s liability for the
crime of conspiracy is not a prerequisite to a
conviction for mail fraud. United States v. Read,
658 F.2d 1225, 1240 (7th Cir. 1981); accord,
United States v. Bibby, 752 F.2d 1116, 1124 (6th
Cir. 1985), cert. denied, 475 U.S. 1010, 106 S.
Ct. 1183 (1986); United States v. Camiel, 689
F.2d 31, 36 (3rd Cir. 1982). Allismith need not
even have been aware of Adediran’s identity or
his specific acts in furtherance of the
fraudulent scheme, so long as the evidence
adequately establishes Allismith’s own knowing
participation in the same scheme. United States
v. Wilson, 506 F.2d 1252, 1257 (7th Cir. 1974);
see also United States v. Silva, 781 F.2d 106,
108-09 (7th Cir. 1986); United States v. Wormick,
709 F.2d 454, 461 (7th Cir. 1983).
The record lends ample support to the jury’s
conclusion that Allismith was liable as a
participant in a single scheme to defraud
Motorola. Adeniji, of course, worked at the core
of this scheme, arranging for all five checks to
issue to MOM and BCS; and one can infer from the
telephone records that Allismith was in
telephonic contact with her throughout the life
of the scheme. See infra at 17-18. For his part,
Allismith established a mailing address and bank
account for BCS in much the same manner that
Adediran did for MOM, and closely on the heels of
Adediran’s efforts. These facts establish one
unified scheme to defraud the same victim
(Motorola). Moreover, Allismith not only set up
the post office box and bank account for Motorola
using aliases, he also received and negotiated
the one check to BCS that Motorola placed in the
mail before its suspicions were aroused. These
actions betray Allismith’s knowing participation
in the scheme. Additional evidence linking him to
Adediran was therefore unnecessary. We note,
however, that Allismith made a cash deposit of
$3,000 into one of the "Henry A. Smith" accounts
at the Uptown National Bank two days after
Adediran withdrew the same amount in cash from
one of the "Michael Owonla" bank accounts and
five days after Adediran wrote a check in the
same amount to "Toro Williams," the name that
Adeniji used at Motorola. These transactions took
place shortly after Motorola issued the three
checks to MOM totaling $10,440.40, and considered
with all of the other evidence, reasonably
suggest that Adediran was sharing the proceeds of
the MOM checks with Allismith as well as Adeniji.
See infra at 14-15.
B.
Allismith contends that the district court
improperly refused an instruction that would have
directed the jury not to consider any of the
evidence offered against his co-defendant
Adediran, or which related to the scheme as it
involved Adediran and Adeniji, unless the jury
was persuaded beyond a reasonable doubt that
Allismith "associated himself in a common scheme
with defendant Adediran." R. 86, Allismith
Instruction No. 4. The evidence regarding the MOM
component of the scheme arguably was the stronger
part of the government’s case: Adediran had
opened a series of three different checking
accounts in Michael or Micheal Owonla’s name, MOM
was established as a Motorola vendor after
Adeniji herself intervened with Carol Rickman,
and ultimately three different checks were issued
to MOM and deposited into an Owonla account. This
evidence was unduly prejudicial to Allismith, he
argues, in the absence of proof that BCS, like
MOM, was not a genuine venture and that Allismith
was, in fact, co-scheming with Adediran.
The district court properly rejected the
instruction, however. As we have already pointed
out, the evidence established a single scheme to
defraud Motorola irrespective of whether or not
Adediran and Allismith knew exactly what the
other was doing. Although, as our discussion thus
far also makes clear, mail fraud and conspiracy
are distinct offenses with distinct elements,
certain evidentiary principles apply to both
crimes. Principal among these is that evidence of
one participant’s actions in furtherance of a
scheme to defraud is admissible against the other
participants in that scheme, just as it is in a
conspiracy case. United States v. Read, supra,
658 F.2d at 1239, citing United States v. Serlin,
538 F.2d 737, 743 (7th Cir. 1976); see also United
States v. Silva, supra, 781 F.2d at 108-09;
United States v. Dick, 744 F.2d 546, 552 (7th Cir.
1984); United States v. Wormick, supra, 709 F.2d
at 461; United States v. Joyce, 499 F.2d 9, 16-17
(7th Cir.), cert. denied, 419 U.S. 1031, 95 S. Ct.
512 (1974). The district court in this case found
that there was but one scheme to defraud
Motorola, and that finding rendered the evidence
relating to Adediran and the MOM component of the
scheme admissible against Allismith. The notion
that Allismith was unfairly prejudiced by that
evidence is untenable. However compelling the
evidence against Adediran may have been,
additional proof--including the use of aliases to
open a post office box and bank account for BCS,
the fraudulent issuance of checks to BCS, and the
endorsement and deposit of one of those checks
into an account Allismith had opened for BCS--
unquestionably demonstrated Allismith’s own
deliberate actions in furtherance of the fraud.
Moreover, as the government reminds us, the jury
was instructed to give separate consideration to
each defendant, to assess each defendant’s
culpability based on his or her own actions, and
in particular to determine, based on the
defendant’s own acts and statements, whether each
defendant was aware of the scheme’s common
purpose and became a willing party to the scheme.
Tr. 1246-47, 1250, 1252-54. We presume that the
jury followed these instructions. E.g., United
States v. Hernandez, 84 F.3d 931, 935 (7th Cir.
1996); United States v. Anderson, 61 F.3d 1290,
1300 (7th Cir.), cert. denied, 516 U.S. 1000, 116
S. Ct. 543 (1995).
C.
When the district court determined the amount
of loss in sentencing Allismith, see U.S.S.G.
sec. 2F1.1(b)(1), it held him to account not only
for the two BCS checks but also for the three MOM
checks that Motorola mailed to Adediran.
Allismith Sentencing Tr. 15. Section 1B1.3(a)
(1)(B) of the Guidelines indicates that when the
defendant engaged in a criminal scheme with other
individuals, the court should calculate the loss
based not only on the defendant’s own actions,
but "all reasonably foreseeable acts and
omissions of others in furtherance of the jointly
undertaken criminal activity." The guideline
therefore poses two separate questions with
respect to the loss amount that can be attributed
to the defendant: (1) Were the acts resulting in
the loss in furtherance of jointly undertaken
criminal activity? and (2) Were those acts
reasonably foreseeable to the defendant? See id.
(comment.) (n.2); United States v. Thomas, 199
F.3d 950, 953 (7th Cir. 1999). Judge Moody
answered both questions in the affirmative. He
found that there was a single scheme to defraud
Motorola in which Allismith participated, and
that the individual efforts of Adediran and
Allismith represented coordinated prongs of that
scheme. See R.119 at 5-6; Allismith Sent. Tr. 15.
He found further that the acts culminating in the
issuance of the three checks to MOM were
reasonably foreseeable to Allismith. Allismith
Sent. Tr. 15. Allismith contends that the court
erred in both assessments, given the lack of
direct proof that he was involved in the MOM
component of the scheme. Both determinations are
findings of fact subject to review for clear
error. Thomas, 199 F.3d at 953-54; United States
v. Jarrett, 133 F.3d 519, 531 (7th Cir.), cert.
denied, 523 U.S. 1112, 118 S. Ct. 1688 (1998).
Allismith argues in the first instance that the
MOM prong of the scheme was beyond the scope of
the criminal activity to which he agreed. His
argument in this regard is founded in principal
part upon the multi-factor test that the Second
Circuit articulated in United States v. Studley,
47 F.3d 569, 575 (2d Cir. 1995). Studley
identified three factors that bear on the scope
of the activity that the defendant agreed to
jointly undertake with others: (1) whether the
participants in the activity pooled their profits
and resources, or worked independently; (2)
whether the defendant assisted in designing and
executing the scheme; and (3) what role the
defendant agreed to play in the operation. Here,
Allismith argues, there is no evidence that he
had any part in designing the scheme, no evidence
that he and his co-defendants pooled profits and
resources, and no evidence that he agreed to play
any role in the scheme apart from the activities
related to BCS. We have yet to embrace Studley as
authoritative, however. Instead, we have
consistently distinguished the facts presented to
us from the facts that the Second Circuit found
insufficient to establish a joint undertaking in
that case. See Thomas, 199 F.3d at 953
(collecting cases). So long as we are satisfied
that the facts permit the inference that the
defendant agreed to jointly undertake the acts
for which he is being held to account, we will
sustain the district court’s determination even
if those facts do not fit neatly within the
Studley framework. See Thomas, 199 F.3d at 953-
54; United States v. Giang, 143 F.3d 1078, 1080-
81 (7th Cir. 1998); United States v. Senn, 129
F.3d 886, 898 (7th Cir. 1997); United States v.
Boatner, 99 F.3d 831, 837 (7th Cir. 1996).
We believe that the record lends adequate
support to the district court’s finding that
Allismith agreed to a joint undertaking that
embraced the entire scheme, not just the BCS
component. There was, as we have already
emphasized, a single scheme to defraud at work
here. It was not a scheme to defraud multiple
victims, as was true in Studley, but rather one
victim, Motorola. See Boatner, 99 F.3d at 837.
Furthermore, Adediran and Allismith took
virtually identical steps in setting up mailing
addresses and bank accounts for the fictional BCS
and MOM vendors. See Giang, 143 F.3d at 1080.
They did so within the same period of
approximately 8 to 9 weeks in April, May, and
early June of 1991, and contemporaneously with
Adeniji’s own efforts to arrange for the issuance
of the checks. Multiple telephone calls between
phones associated with Adediran and Allismith on
the one hand, and with Adeniji on the other,
supply confirmation that all three defendants
were coordinating their activities. Finally,
there is the fact that Allismith made a $3,000
cash deposit into one of the "Henry A. Smith"
accounts at the Uptown National Bank just two
days after Adediran withdrew the same amount in
cash from one of the "Michael Owonla" bank
accounts and five days after Adediran wrote a
check in the same amount to Adeniji. In a vacuum,
we agree with Allismith that it would be sheer
speculation to infer a link between those three
transactions. But considered against the backdrop
of the fraudulent scheme, we believe it is
plausible to infer that Adediran, Adeniji, and
Allismith were, in fact, sharing the proceeds of
the checks that Motorola issued to MOM--a factor
that Studley itself identifies as relevant. 47
F.3d at 575. Cumulatively, all of these
circumstances permitted the district court to
find, by a preponderance of the evidence, that
the issuance of checks to MOM was a joint
undertaking among all three defendants, including
Allismith.
Allismith separately contends that there is no
evidence that Adediran’s actions in furtherance
of the scheme were foreseeable to him. There is
no evidence that he ever had a discussion with
Adeniji about Adediran or his activities,
Allismith maintains, and no evidence that he ever
had contact with Adediran or knew that Adediran
caused Motorola to issue checks to MOM.
We reject this argument for the same reasons we
have found the evidence sufficient to establish
a joint undertaking. Granted, there is no
evidence concerning the content of Allismith’s
conversations with Adeniji, and no evidence of
any contact or conversations between Allismith
and Adediran. Still, the fact that both men
coordinated their efforts with Adeniji, the fact
that both took nearly identical steps closely in
time to establish mailing addresses and bank
accounts to receive funds from MOM and BCS, and
the apparent sharing of the proceeds from the
three MOM checks, all permitted the district
court to find that the actions of Adediran were
foreseeable to Allismith.
For these reasons, we find no clear error in
the district court’s decision to hold Allismith
to account for the full amount of money (i.e.,
the total of all five checks) put at risk by the
fraudulent scheme.
D.
The district court ordered Allismith to make
restitution in the amount of $13,951.40, which
represents the total of the four checks that were
actually sent to Adediran and Allismith. (Recall
that the fifth check was never sent.) Allismith
argues in the first instance that it was improper
for the court to impose a restitution obligation
for any of the checks to MOM, but we reject that
argument for the same reasons we have overruled
his contention that the MOM losses were not part
of his joint undertaking with the two other
defendants and were not foreseeable to him.
Allismith also points out that both Adediran and
Adeniji were likewise ordered to make restitution
in the same amount; and he appears to suggest
that this raises the possibility of excessive
(i.e., duplicative) restitution. Yet, the
judgment makes clear that his obligation will be
discharged once payments by any or all of the
defendants have totaled $13,951.40. R. 124 at 5.
Congress has specifically authorized joint and
several liability for restitution in cases
involving joint criminal endeavors, see 18 U.S.C.
sec. 3664(h), and we have previously indicated
that such restitution orders are appropriate, so
long as the total restitution mandated does not
exceed the amount of the loss. E.g., United
States v. Trigg, 119 F.3d 493, 501 & n.6 (7th Cir.
1997).
E.
Finally, Adeniji contends that in five different
instances during opening statements and closing
arguments, prosecutors made remarks that were
improper. No contemporaneous objection was made
to four of these remarks, and because none of
them approaches the gravity of plain error, see,
e.g., United States v. Robbins, 197 F.3d 829, 843
(7th Cir. 1999); United States v. Hartmann, 958
F.2d 774, 785 (7th Cir. 1992), we shall confine
our discussion to the one line of argument that
Adeniji objected to at trial.
While laying out the evidence against Adeniji
and her co-defendants in closing, the government
referred repeatedly to telephone conversations
between Adeniji and her co-defendants. The
assertion that Adeniji was conferring by phone
with Adediran and Allismith was based, of course,
on the telephone records that reflected the many
calls between numbers associated with Adeniji and
with her co-defendants. But Adeniji argues, as
she did (unsuccessfully) to the district court,
that because the telephone records relied upon by
the government do not reveal either the content
of the conversations or the speakers, it was
improper for the government to assert that
Adeniji was a party to any of the telephone
calls.
The government may properly put before the jury
the inferences that one can reasonably draw from
the evidence, however, United States v. Ward, 211
F.3d 356, 365 (7th Cir. 2000), and for that reason
we find nothing improper in the prosecutor’s
argument. See, e.g., United States v. Poole, 207
F.3d 893, 899 (7th Cir. 2000) (first step in
assessing whether prosecutor committed misconduct
in closing argument is to examine objected-to
comment in isolation to determine whether it was
improper). Records that reflect calls to and from
telephone numbers associated with the
participants in a criminal scheme permit the
inference that the participants were in
telephonic contact with one another; and where,
as here, the timing and frequency of the calls
coincide with key events in the scheme, one may
reasonably infer that the participants were
consulting one another in regard to those events.
See, e.g., United States v. Magana, 118 F.3d
1173, 1202 (7th Cir. 1997), cert. denied, 522 U.S.
1139, 118 S. Ct. 1104 (1998), quoting United
States v. Garcia, 35 F.3d 1125, 1129 (7th Cir.
1994); United States v. Knox, 68 F.3d 990, 999
(7th Cir. 1995), cert. denied, 516 U.S. 1119, 116
S. Ct. 926 (1996); and see United States v.
Theodosopoulos, 48 F.3d 1438, 1451 (7th Cir.),
cert. denied, 516 U.S. 871, 116 S. Ct. 191 (1995)
(collecting cases). Of course, it is
theoretically possible that persons other than
the defendants were parties to the telephone
calls at issue in this case, and even if the
defendants themselves were conversing, they were
not necessarily speaking about the scheme to
defraud Motorola. But it would have been
reasonable for the jury to infer that that these
calls reflected conversations between Adeniji and
her co-defendants about the nuts and bolts of the
effort to defraud Motorola. And because the jury
was entitled to draw that inference, it was
entirely appropriate for the prosecutor to argue
that inference in his closing remarks.
III.
For the reasons set out above, we AFFIRM the
defendants’ convictions and sentences.
/* On the appellant’s motion, the appeal of Adetoro
Adeniji was submitted without argument and
decided on the briefs and record alone.
/1 On the same grounds that Adediran challenges the
sufficiency of the evidence, he maintains that
the district court erroneously denied his motions
for a judgment of acquittal pursuant to Fed. R.
Crim. P. 29. As the thrust of both lines of attack
is the same, we need not address the denial of
the Rule 29 motion separately. See United States
v. Douglas, 874 F.2d 1145, 1155 & n.12 (7th Cir.),
cert. denied, 493 U.S. 841, 110 S. Ct. 126
(1989).