United States v. Lutamila ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal No. 20-24 (JEB)
SALUSTHIAN LUTAMILA,
Defendant.
MEMORANDUM OPINION
This past May, a jury convicted Defendant Salusthian Lutamila on 21 counts of bank
fraud, theft by credit-union employee, wire fraud, and money laundering, in violation of 18
U.S.C. §§ 657, 1343, 1344, and 1957. Each of these counts originated from his decision to
orchestrate an embezzlement scheme lasting over two and a half months. During that time, he
stole a total of $610,000 from his employer, the Inter-American Development Bank – IIC Federal
Credit Union. Having recently been sentenced to 44 months of incarceration, Defendant now
moves this Court pro se to grant him release pending appeal. As there is no legitimate basis for
his request, the Court will deny his Motion.
I. Legal Standard
Under 18 U.S.C. § 3143(b)(1), a Court must detain a defendant pending appeal unless it
finds:
(A) by clear and convincing evidence that the person is not likely to
flee or pose a danger to the safety of any other person or the
community if released . . . and (B) that the appeal is not for the
purpose of delay and raises a substantial question of law or fact
likely to result in — (i) a reversal, (ii) an order for a new trial, (iii) a
sentence that does not include a term of imprisonment, or (iv) a
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reduced sentence to a term of imprisonment less than the total of the
time already served plus the expected duration of the appeal process.
Because the Government does not dispute that Lutamila has satisfied subsection (A) and
the first part of (B), the sole question here is related to the second part of (B). Such analysis is
generally construed as a dual inquiry: (1) Does the appeal raise a substantial question of law or
fact? (2) If so, would the resolution of that question in Defendant’s favor be likely to lead to any
of the results listed above? See United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987).
In determining whether Defendant has raised a substantial question, the Court keeps in
mind that there is a presumption of a valid conviction when assessing motions for release
pending direct appeal. Id. at 556. Defendant bears the burden of rebutting this presumption.
United States v. Libby, 498 F. Supp. 2d 1, 3 (D.D.C. 2007); see also United States v. Shoffner,
791 F.2d 586, 589 (7th Cir. 1986) (holding that defendant must “demonstrate that he has a
substantial question to present [on appeal] before he may be admitted to bail”). To determine
whether a substantial question exists, a court must inquire whether a defendant has raised an
issue that is “a close question or one that very well could be decided the other way.” Perholtz,
836 F.2d at 556; see id. at 555 (stating that “close question” standard is “more demanding” than
one that requires inquiry to be “fairly debatable,” “fairly doubtful,” or simply “not frivolous”);
see also United States v. Adams, 200 F. Supp. 3d 141, 144 (D.D.C. 2016) (setting out standard).
II. Analysis
In seeking his release, Lutamila asseverates that his appeal will indeed raise substantial
questions. See ECF No. 114 (Mot. for Release) at 15–16. These are: (1) whether he suffered
constructive denial of counsel; (2) whether the Government engaged in misconduct; and (3)
whether this Court sufficiently considered his extraordinary family circumstances when it
imposed his sentence. Id. at 2, 7, 11. The Court examines each of these issues in turn.
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A. Constructive Denial of Counsel
Lutamila first contends that his counsel were deficient at trial because they failed to
obtain evidence that could have helped him disprove the Government’s charges. Id. at 2.
To prevail on a claim for ineffective assistance of counsel, a defendant “must show (1)
‘that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment’ and (2) that the error prejudiced his defense.” United
States v. Tucker, 12 F.4th 804, 816 (D.C. Cir. 2021) (quoting Harrington v. Richter, 562 U.S. 86,
104 (2011)). Furthermore, there is a “strong presumption that counsel’s representation was
within the wide range of reasonable professional assistance.” Harrington, 562 U.S. at 104.
Defendant here meets neither prong of the Tucker test. As to the first, the Government
preliminarily notes that he was “represented by a team of five attorneys, including two
experienced attorneys from the Federal Public Defender office” and three private, pro bono
attorneys. See ECF No. 115 (Gov’t Opp.) at 7. Defendant’s counsel vigorously and zealously
represented him — as is made evident by the motions they filed, including one to stay trial in
order to investigate issues regarding the “systematic exclusion of [B]lack citizens from jury
service” in the District of Columbia. See ECF No. 70 (Mot. to Stay) at 13; see also Opp. at 7
(outlining skillful motions practice by Defendant’s team of five attorneys). As to Defendant’s
specific claim that a certain physical binder “containing records of [the] CEO’s reviews of draft
monthly financial statements[,] . . . approvals of transactions . . . , [and] notes of weekly one-on-
one meetings” was never obtained by his lawyers, he fails to explain how such a binder
contained exculpatory evidence or that it was ever in the Government’s possession to begin with.
See Mot. at 4. The record thus contradicts any allegation suggesting that Defendant received
ineffective assistance.
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Lutamila also does not show that any purported attorney error prejudiced his defense.
His Motion consists of a series of complaints that are “not probative of the ultimate issue at trial
— whether the Defendant stole $610,000.” Opp. at 7. Nothing that he raises would have had
any likelihood of changing the outcome here; indeed, as he offered essentially no defense on the
merits at trial, he is a long way from demonstrating prejudice.
B. Government Misconduct
In next contending that the Government engaged in conduct by failing to adequately
investigate the case, permitting perjury by its witnesses, and making improper arguments in
opening and closing remarks, Defendant again offers only self-serving, conclusory statements.
None of the issues he raises regarding such alleged Government misconduct would undermine
the evidence adduced at trial and the crux of the case: that he stole $610,000 from his employer.
Begin with the legal standards for each claim. To the extent that Lutamila’s challenge to
the Government’s investigation invokes due process, then “the defendant bears the burden of
proving that the government failed in bad faith to preserve material and potentially exculpatory
evidence.” United States v. McKie, 951 F.2d 399, 403 (D.C. Cir. 1991) (citing Arizona v.
Youngblood, 488 U.S. 51 (1988)); see also Brady v. Maryland, 373 U.S. 83, 83 (1963) (holding
that “suppression by the prosecution of evidence favorable to an accused upon request violates
due process”). As to failure to correct a witness’s misrepresentations, courts have held that such
conduct is indeed “improper and warrants a new trial” when such testimony leads the jury to an
“erroneous conclusion.” United States v. Iverson, 637 F.2d 799, 802–03 (D.C. Cir. 1980).
Finally, parties must confine their “remarks in summation to facts which are in evidence and the
reasonable inferences therefrom.” United States v. Jones, 482 F.2d 747, 753 (D.C. Cir. 1973).
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Lutamila’s arguments on these points hold no water. First, there is no due-process
violation because Defendant never contends that the Government had information that it refused
to turn over. To the extent that he argues that the Government failed to preserve such evidence
(e.g., the binder), he has not shown that it was in the possession of his employer. See Opp. at 10
(“[T]here was never any evidence produced in trial, before trial, or since, that such a binder even
exists — despite a lot of effort by [Defendant’s] counsel to seek it out and extensive questioning
of the witnesses in trial about whether it existed.”). Finally, even if a binder like the one
Defendant describes did exist, he has not explained how it would be exculpatory.
Second, as to Defendant’s allegation that the Government’s witnesses perjured
themselves, he only identifies Marianne Quinn’s testimony as problematic. See Mot. at 10. Yet,
there was nothing false in Marianne Quinn’s testimony that needed to be corrected in order to
ensure that the jury was not led to an erroneous conclusion. See Opp. at 11.
Third, while the Court acknowledges that “the line between permissible and
impermissible arguments will not always be clear,” United States v. Moore, 651 F.3d 30, 53
(D.C. Cir. 2011), closing arguments in this case were appropriately “confined to ‘facts which
[were] in evidence and the reasonable inferences therefrom.’” United States v. McGill, 815 F.3d
846, 916 (D.C. Cir. 2016) (quoting Jones, 482 F.2d at 753); see also Moore, 651 F.3d at 53(explaining that prosecutor may draw inferences that support Government’s theory of case “so
long as the prosecutor does not intentionally misrepresent the evidence”). In this case, there was
sufficient evidence presented at trial for the reasonable inference, offered by the Government in
its closing argument, that Lutamila’s failure to become CFO was the motive for his crime. See
Mot. at 10; Opp. at 11.
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Because Defendant’s claims regarding alleged Government misconduct are baseless, the
Court finds that he does not raise a substantial question of law or fact.
C. Family Circumstances
Finally, Defendant asserts that this Court at sentencing “didn’t give sufficient
consideration to [his] extraordinary family circumstances.” Mot. at 11. The Court is unclear as
to what relief he is seeking in taking such a position. If he thinks that an appellate court would
thus find his sentence substantively unreasonable, that is exceedingly unlikely, as the 44 months
imposed was below the Guidelines range. As the Government rightly notes, the Court took his
circumstances into consideration “in varying downward from the applicable Guideline[] range.”
Opp. at 12 (emphasis added). As a result, the Court finds that this claim, too, raises no
substantial question.
III. Conclusion
Because the Court concludes that none of the issues presented by Defendant constitutes a
substantial question of law or fact, it will deny his Motion for Release Pending Appeal. An
accompanying Order so stating shall issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 7, 2022
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