United States v. Otuya, No. 12-4096

Decided: June 19, 2013

The Fourth Circuit affirmed the conviction of Okechukwo Ebo Otuya on one count of conspiracy to commit bank fraud, two counts of substantive bank fraud, and one count of aggravated identify theft for his role in a scheme defrauding Bank of America of hundreds of thousands of dollars.  Otuya was sentenced to a 96-month prison sentence, which he appealed on several grounds to include his conviction and, in the alternative, his sentence.

In 2007, Otuya and several coconspirators were involved in an elaborate scheme to defraud Bank of the America through the use of stolen checks. Otuya and his partners would drive through affluent residential neighborhoods and steal mail out of roadside mailboxes searching for credit card convenience checks.  The conspirators would then pay local college students for access to their bank accounts and ATM cards so that they could process the stolen checks and then deposit the checks into the purchased student accounts and withdraw the funds.  Otuya and four co-defendants were indicted in September 2010.  Three of the co-defendants plead guilty and the fourth was convicted by jury trial.  A jury returned a verdict convicting Otuya on all counts charged and the district court, during sentencing, began its guidelines range calculation by noting that the base offense level for Otuya’s crimes was seven.  The district court then considered three enhancements relevant to the appeal before the Fourth Circuit.  The first was a twelve-level enhancement that the district court applied because it found that the intended amount of loss from the fraud exceeded $200,000.  The second enhancement was a four-level enhancement because the offense involved 50 or more victims.  The last enhancement was a three-level on the grounds that Otuya was a manager or supervisor in an offense involving five or more participants.  These enhancements coupled with Otuya’s criminal history category resulted in a guidelines range of 63 to 78 months for the bank fraud conspiracy and substantive bank fraud counts.  The court selected a within-guidelines range of 72 months for these counts, to run concurrently.  The court also imposed a sentence of 24 months for the aggravated identify theft count, which resulted in a total sentence of 96 months.   Otuya appealed the sentence.

Otuya also appealed his conviction on two separate grounds.  Prior to trial, the government moved to admit evidence that was discovered in Otuya’s backpack at the time of his arrest.  The government filed its motion pursuant to FRE 404(b)(2) to introduce of other bad acts.  Specifically, the government sought to introduce evidence found within the backpack that provided further evidence related to a modified version of the fraud.  The court admitted the evidence because the contents of the backpack “arose out of the ‘same series of transactions as the charged offenses’” and related to the on-going conspiracy.  In the alternative, the government asserted that the evidence was admissible because it went to show identity rather than character evidence through other bad acts.  Otuya renewed his objection to this evidence when it was brought up at trial.  Otuya also challenged his conviction for aggravated identity theft.  Otuya asserted that 18 U.S.C. § 1028A(a)(1), which supplies the law for the charge, imposes a mandatory consecutive two-year prison sentence against one who “during and in relation to any felony violation enumerated in subsection (c) [including bank fraud], knowingly . . . uses, without lawful authority, a means of identification of another person.”  Otuya argued that the use of the phrase “without lawful authority” means that a defendant must use another person’s identification without the person’s consent and Otuya had consent to use the college students’ identification.

The Fourth Circuit first rejected Otuya’s objection to the evidence in the backpack.  The court held that evidence was admissible because the government sustained its burden and proved (1) the evidence concerned acts “intrinsic to the alleged crime” or, in the alternative, (2) it was offered for non-character purpose to prove identity.  The Fourth Circuit also summarily rejected Otuya’s challenge to the aggravated identity theft conviction.  The court succinctly held that “no amount of consent from a coconspirator can constitute ‘lawful authority’ to engage in the kind of deplorable conduct that Otuya engaged in.”  Finally, the Fourth Circuit addressed Otuya’s several challenges to the sentence.

First, Otuya challenged the twelve-level enhancement on the ground that Otuya’s offense involved an intended loss amount in excess of $200,000.  The Fourth Circuit upheld the district court’s calculation because the court made a “reasonable estimate” that the intended loss reasonably foreseeable to Otuya was in excess of $200,000.  Next, the court took up Otuya’s challenge to the four-level enhancement for a crime having fifty victims or more.  The main argument Otuya made was that the district court counted as victims several individual account holders whose losses the bank reimbursed and, as such, they should not be considered victims because they did not suffer any actual loss.  The district court, in its decision, noted the circuit split on this issue and then decided that those who were reimburse were, nonetheless, victims.  However, the Fourth Circuit chose to address the issue on an alternative basis and relied on the fact that Otuya’s conduct created several other victims, pursuant to U.S.S.G. § 2B1.1 cmt. n.4(C) that provides an additional definition for victim that includes those who had undelivered mail taken and were the intended recipient of undelivered U.S. mail.  As a result, the Fourth Circuit upheld the district court’s decision by identifying a number of individuals who were victims of Otuya’s stealing mail from mailboxes.  Finally, the Fourth Circuit addressed Otuya’s imposition of the three-level enhancement for his role as a manager or supervisor in the offense.  The Fourth Circuit held that, given the facts presented at trial, enough evidence was available to prove that Otuya was intimately involved in the planning and directing of the scheme.

Full Opinion

-John G. Tamasitis

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