United States v. Atorbe Isibor ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50151
Plaintiff-Appellee, D.C. No.
2:17-cr-00143-RGK
v.
ATORBE AARON ISIBOR, AKA Solomon MEMORANDUM*
Okuonghae,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted December 13, 2019
Pasadena, California
Before: N.R. SMITH and WATFORD, Circuit Judges, and KORMAN,** District
Judge.
Atorbe Isibor appeals his convictions and sentence for: two counts of making
false statements in a passport application in violation of 18 U.S.C. § 1542 (Counts
1-2); one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
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(Count 3); and five counts of bank fraud in violation of 18 U.S.C. § 1344 (Counts 4-
8). We have jurisdiction under 28 U.S.C. § 1291. We vacate three conditions of
supervised release and remand to correct the same, and otherwise affirm.
1. Isibor argues, for the first time on appeal, that the evidence was insufficient
to support venue. When a party fails to challenge venue “until after the jury ha[s]
returned its verdict of guilty,” he may not do so on appeal. United States v. Powell,
498 F.2d 890, 891–92 (9th Cir. 1974). Isibor insists that his failure to raise this issue
in a pre-trial motion is excusable because although venue was not defective on the
face of the indictment, he did not know until trial that the evidence would be
insufficient to establish venue as alleged. Nonetheless, we have held that, even when
an alleged “venue defect is not evident on the face of the indictment,” venue
objections must be made at the close of the case-in-chief. United States v. Ruelas–
Arreguin, 219 F.3d 1056, 1060 (9th Cir. 2000); United States v. Marsh 144 F.3d
1229, 1242 (9th Cir. 1998).
2. Isibor next argues that the district court erred in admitting certain prior
bad acts against him under Federal Rule of Evidence (FRE) 404(b). Specifically, he
asserts the district court should have excluded: (1) his 2011 conviction for
conspiracy to commit bank fraud; (2) his uncharged prior use of multiple aliases;
and (3) his guilty plea to Count 1 of the indictment in the current case. Isibor argues
this evidence was not admissible under FRE 404(b), and that it was unduly
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prejudicial and should have been excluded under FRE 403. We disagree.
While prior acts are not admissible to show that a defendant committed a
crime in accordance with their character, they are admissible to show motive,
opportunity, intent, preparation, knowledge, or absence of mistake. Fed. R. Evid.
404(b)(1)-(2). Even in such instances, the government must articulate how the prior
acts are probative of a material element in question. United States v. Lateju, 163 F.3d
608 (9th Cir. 1998). To satisfy this requirement, the government must show that: (1)
the evidence tends to prove a material point; (2) the other act is not too remote in
time; (3) the evidence is sufficient to support a finding that defendant committed the
other act; and (4) (in certain cases) the act is similar to the offense charged. Id.;
United States v. Lloyd, 807 F.3d 1128, 1157–58 (9th Cir. 2015); United States v.
Ramos-Atondo, 732 F.3d 1113, 1123 (9th Cir. 2013). If these criteria are satisfied,
admission is warranted unless the evidence is deemed too prejudicial under Rule
403. United States v. Major, 676 F.3d 803, 808 (9th Cir. 2012).
We have long recognized that similar acts are particularly probative in cases
charging forgery, deceit, and counterfeiting, where, as here, the charges include
mens rea elements of knowledge and intent. See United States v. Evans, 796 F.2d
264, 265 (9th Cir. 1986); United States v. Jenkins, 785 F.2d 1387, 1395 (9th Cir.
1986); United States v. Bettencourt, 614 F.2d 214, 217 n.7 (9th Cir. 1980); United
States v. Ford, 632 F.2d 1354, 1375 (9th Cir. 1980); York v. United States, 241 F.
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656, 659 (9th Cir. 1916).
While a trial judge may exclude otherwise admissible evidence if its
probative value is substantially outweighed by a danger of unfair prejudice or
confusion, Fed. R. Evid. 403, our review of the record persuades us that the trial
court did not abuse its discretion in admitting the challenged evidence. Moreover,
the trial judge gave a clear limiting instruction, emphasizing that Isibor was only
on trial for the charged conduct. Thus, admission of the similar act evidence was
not unduly prejudicial.
3. Isibor argues that, because he was convicted and sentenced for aggravated
identity theft under 18 U.S.C. § 1028A(a)(1), the district court should not have also
enhanced his sentence for an offense involving ten or more victims under U.S.S.G.
§ 2B1(b)(2)(A)(i). As a general rule, “[i]mpermissible double counting occurs when
one part of the Guidelines is applied to increase a defendant's punishment on account
of a kind of harm that has already been fully accounted for by application of another
part of the Guidelines.” United States v. Holt, 510 F.3d 1007, 1011 (9th Cir. 2007).
However, because the number-of-victims enhancement serves the distinct purpose
of punishing offenders based on the number of victims rather than punishing the
identity theft, there is no impermissible double counting.
4. Finally, following United States v. Ped, 943 F.3d 427, 432–34 (9th Cir.
2019), we vacate conditions five, six, and fourteen of Usher’s supervised release,
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which are unconstitutional under United States v. Evans, 883 F.3d 1154, 1162–64
(9th Cir. 2018), and remand to the district court with instructions to impose any
alternative conditions it deems appropriate.
AFFIRMED in part, VACATED in part, and REMANDED for the
limited purpose of modifying the Standard Conditions of Appellant’s
supervised release.