United States of America v. Nnamdi Franklin Ojimba

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NNAMDI FRANKLIN OJIMBA,
Defendant - Appellant.
No. 20-6109
(D.C. No. 5:17-CR-00246-D-1)
(W.D. Oklahoma)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, BALDOCK, and BRISCOE, Circuit Judges.
_________________________________
Nnamdi Franklin Ojimba participated in a scheme to defraud older, widowed
women, including victim Pamela Bale. Mr. Ojimba appropriated the photograph of a
finance professional, Hill Feinberg, and posted it on fraudulent dating profiles used
to defraud victims into turning over control of their savings.
The government eventually discovered the scheme and indicted Mr. Ojimba on
two counts of wire fraud, conspiracy to commit wire fraud, and aggravated identity
theft. At Mr. Ojimba’s first trial, the jury acquitted him of the substantive wire fraud
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 20, 2021
Christopher M. Wolpert
Clerk of Court
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counts and the aggravated identity theft count, but it could not reach a verdict on the
conspiracy count. The district court declared a mistrial on that count. The
government elected to retry Mr. Ojimba on the conspiracy count, and the second jury
convicted him. The district court sentenced Mr. Ojimba to 102 months’
imprisonment, with a three-year term of supervised release.
Mr. Ojimba now appeals his conviction and sentence. He argues the district
court abused its discretion by (1) allowing Ms. Bale to testify at the second trial and
admitting evidence regarding the use of Mr. Feinberg’s likeness; (2) excluding
evidence of his prior acquittal; (3) admitting “WhatsApp” messages into evidence;
and (4) considering acquitted conduct and applying an offense level increase for
targeting vulnerable victims when determining his United States Sentencing
Guidelines range.
For the following reasons, we affirm his conviction and sentence.
I. BACKGROUND
A. Factual History
Mr. Ojimba was one of several individuals behind the fictitious dating profile
of “Edward Peter Duffey.” “Mr. Duffey” would contact women online and develop
fake romantic relationships with them. Many of the women were recently widowed or
divorced and had little experience with the internet or financial matters. Although
none of the women met “Mr. Duffey” in person, he would send them gifts and have
his fictitious daughter, “Heather,” reach out by telephone to tell them how happy she
was her father had finally found love.
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“Mr. Duffey,” supposedly a retired financial planner, would ask the women
questions about where their savings and retirement funds were invested. He would
then initiate one of two schemes. Under the first approach, “Mr. Duffey” would
express alarm and claim his contacts at the Securities and Exchange Commission
(SEC) had informed him the firms identified were about to fail. In other instances, he
would simply convince the woman that he could yield a higher return than their
current investors. To facilitate the first scheme, “Mr. Duffey” would volunteer to
have Mary Jo White, the then-Chairwoman of the SEC, confirm his concerns about
the financial health of the firm holding the woman’s money. Then, someone
purporting to be Chairwoman White would often call the potential victim to buttress
his claims. These tactics convinced the women to wire substantial sums of money to
“Mr. Duffey.” Once a woman made the transfer, “Mr. Duffey” ended the relationship
and absconded with the money.
According to Mr. Ojimba’s coconspirator, Akunna Ejiofor, “Mr. Duffey” was
actually a pseudonym used by Mr. Ojimba, Ken Ezeah, and Anthony Benson.
Ms. Ejiofor sometimes acted as “Heather,” although she testified other women played
that role as well. And Chairwoman White was impersonated by Curtissa Green,
Mr. Ezeah’s wife. At least one of the photographs used in “Mr. Duffey’s” dating
profile was a photograph of Mr. Feinberg, a finance professional in Dallas, Texas.
B. Procedural History
A federal grand jury sitting in the Western District of Oklahoma indicted
Mr. Ojimba, charging him with conspiracy to commit wire fraud in violation of
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18 U.S.C. § 1349 (Count 1); aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1) (Count 2); and two counts of wire fraud in violation of 18 U.S.C.
§ 1343 (Count 3 and Count 4).
Prior to the trial on these charges, Mr. Ojimba moved to exclude evidence of a
“WhatsApp” chat, arguing its accuracy could not be independently verified. The
district court ruled against Mr. Ojimba regarding the reliability of the evidence, but
reserved ruling on the admissibility of the messages on other grounds until trial.
At the first trial, the jury acquitted Mr. Ojimba on the count of identity theft
and the two counts of wire fraud. But it did not reach a verdict on the conspiracy
charge. Following the district court’s declaration of a mistrial, the government
informed the district court it intended to retry that count.
Thereafter, Mr. Ojimba filed two motions in limine relating to the effect of his
first trial on his second trial: he moved to exclude Ms. Bale’s and Mr. Feinberg’s
testimony, arguing it was collaterally estopped, irrelevant, and unfairly prejudicial;
and he moved to admit evidence of his prior acquittal. The government opposed both
motions. The district court agreed with the government and held the motion was moot
as to Mr. Feinberg, whom the government did not intend to call, collateral estoppel
did not apply to block Ms. Bale’s testimony, and Ms. Bale’s testimony would be
relevant and not substantially outweighed by the danger of unfair prejudice. It also
held the judgment of acquittal was inadmissible hearsay.
Mr. Ojimba later moved to preclude the government from questioning
Ms. Ejiofor about Mr. Feinberg’s photograph, claiming her testimony also was
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collaterally estopped, irrelevant, and unfairly prejudicial. The district court denied
the motion.
At trial, the government called four of “Mr. Duffey’s” victims (Ms. Bale,
Carol Hill, Nancy Meagher, and Beryl Wickliffe), Ms. Ejiofor, and FBI Special
Agent Timothy Schmitz to testify. Mr. Ojimba’s only witness was an investigator at
the Oklahoma Public Defender’s Office, Brenda McCray, who testified about the
reliability of the WhatsApp evidence. The government connected Mr. Ojimba to the
scheme through the testimony of Ms. Ejiofor and Agent Schmitz. They established
that connection through the WhatsApp messages and Ms. Ejiofor’s interview with the
FBI, as well as the fact that Mr. Ojimba resided at the same hotel as Mr. Benson, a
coconspirator.
The only references to Mr. Feinberg at trial were elicited by Mr. Ojimba. In
response to defense questions, Ms. Ejiofor testified she “specifically saw
[Mr. Feinberg’s] picture on a dating profile that [Mr. Ojimba] was working on.” ROA
Vol. III at 438.
The government moved for admission of the WhatsApp chat early in the
second trial. Defense counsel renewed his prior objection, “for the argument we made
previously, that it’s not reliable.” Id. at 418. He also stated, “we don’t have any
foundational objections or anything like that.” Id. The district court “adopt[ed] its
previous ruling with respect to the WhatsApp chats[,] allowing for their admission if
properly authenticated.” Id. at 419. It specifically noted, “[t]here has been no
objection to authentication.” Id. The court explained that Mr. Ojimba could attack the
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reliability of the messages at trial, but that reliability was ultimately a matter for the
jury. The second jury convicted Mr. Ojimba of conspiracy to commit wire fraud.
Prior to sentencing, the U.S. Probation Office filed a Presentence Investigation
Report (PSR). The PSR recommended a base offense level of seven. It then
recommended an eighteen-level increase because the loss amount was between
$3,500,000.00 and $9,500,000.00, pursuant to United States Sentencing Commission,
Guidelines Manual, §2B1.1(b)(1)(J) (Nov. 2018); a two-level increase due to the
financial hardship to victims, pursuant to USSG §2B1.1(b)(2)(A)(iii); a two-level
increase for misrepresenting that the defendant was acting on behalf of a government
agency, pursuant to USSG §2B1.1(b)(9)(A); a two-level increase for using
sophisticated means to further the commission of the offense, pursuant to USSG
§2B1.1(b)(10)(C); a two-level increase for unauthorized use of an identification
(Mr. Feinberg’s) to create the dating profile, pursuant to USSG §2B1.1(b)(11)(C)(i);
and a two-level increase for targeting vulnerable victims, namely 65- to 78-year-old
widows, pursuant to USSG §3A1.1(b).
Taken together, the PSR recommended a total offense level of thirty-five.
Combined with his criminal history category of I, Mr. Ojimba’s total offense level of
thirty-five yielded a Guidelines range of 168 to 210 months’ imprisonment.
Mr. Ojimba objected to every offense level increase recommended in the PSR.
The district court overruled all of Mr. Ojimba’s objections to the offense level
increases and adopted the PSR’s recommended total offense level of thirty-five,
criminal history category of I, and resultant Guidelines range of 168- to 210-months.
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The district court determined, however, that a downward variance to 102 months’
imprisonment was warranted. It noted Mr. Ojimba “was not at the top or the bottom
of the hierarchy” of the conspiracy and the court was “[m]indful of the need for
proportionality in sentencing and the avoidance of unwarranted disparities in
sentencing.” Id. at 1033. It also noted Mr. Ojimba’s age, family status, and lack of
prior convictions.
The district court entered judgment on July 10, 2020. Mr. Ojimba filed a
timely notice of appeal.
II. DISCUSSION
Mr. Ojimba’s issues on appeal fall into two categories—evidentiary and
sentencing challenges. In the evidentiary category, Mr. Ojimba argues (1) Ms. Bale
should not have been allowed to testify and evidence about Mr. Feinberg should have
been excluded; (2) he should have been allowed to introduce evidence of his prior
acquittal; and (3) the WhatsApp messages should have been excluded. In the
sentencing category, Mr. Ojimba argues (1) the district court could not consider
acquitted conduct in calculating his Guidelines sentencing range, and (2) the district
court erred in applying a vulnerable victim enhancement.
We address Mr. Ojimba’s challenges in turn and affirm the district court on
each.
A. Evidentiary Challenges
This court “review[s] evidentiary decisions for abuse of discretion” and “legal
interpretations of the Federal Rules of Evidence de novo.” United States v. Silva, 889
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F.3d 704, 709 (10th Cir. 2018). An abuse of discretion occurs when the district court
“renders an arbitrary, capricious, whimsical, or manifestly unreasonable judgment,”
and this court will reverse “only if the [district] court exceeded the bounds of
permissible choice.” Id. (quotation marks omitted). On appeal, Mr. Ojimba argues the
district court abused its discretion by (1) admitting Ms. Bale’s testimony and all
testimony about Mr. Feinberg, (2) excluding evidence of Mr. Ojimba’s prior
acquittals, and (3) admitting the WhatsApp messages.
1. Testimony of Ms. Bale and about Mr. Feinberg
Mr. Ojimba argues the government was collaterally estopped, by reason of his
prior acquittal and because such evidence was unfairly prejudicial, from relying on
testimony from Ms. Bale and about Mr. Feinberg. He thus contends the district court
abused its discretion by admitting the testimony.
a. Collateral estoppel
Collateral estoppel is the principle that when an issue has been determined “by
a valid and final judgment,” it cannot be litigated again by the same parties. Ashe v.
Swenson, 397 U.S. 436, 443 (1970). It is “an established rule of federal criminal
law.” Id. The Fifth Amendment’s protection against double jeopardy incorporates the
principle of collateral estoppel. Id. at 442–43; see also Dowling v. United States, 493
U.S. 342, 350–51 (1990).
Where, as here, “a previous judgment of acquittal was based upon a general
verdict,” we must determine “whether a rational jury could have grounded its verdict
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upon an issue other than that which the defendant seeks to foreclose from
consideration.” Ashe, 397 U.S. at 444. The answer depends on two questions: “First,
what facts were necessarily determined in the first law suit? . . . Second, has the
government in a subsequent trial tried to relitigate facts necessarily established
against it in the first trial?” United States v. Rogers, 960 F.2d 1501, 1508 (10th Cir.
1992).
The district court found collateral estoppel did not apply in this instance
because the district court could not “divine the issue of fact at the heart of the [first]
jury’s verdict,” given “the problematic nature of general verdicts and parsing out the
issue or question of fact upon which the acquittal was based.” ROA Vol. I at 165–66.
We agree with the district court for two reasons.
First, the basis of the first jury verdict is uncertain. The verdict form simply
listed the four charged counts in numerical order, with a place for the jury to check
“not guilty” or “guilty.” The jury placed checkmarks next to “not guilty” on the first
three counts and left the fourth blank. Without any additional information, it is
impossible to surmise the basis for the jury’s decision. Juries may make decisions for
any number of reasons. “[A] jury acquittal may simply be the result of the jury’s
‘mistake, compromise, or lenity,’ rather than a conclusion that the codefendants are
not guilty beyond a reasonable doubt.” United States v. Nichols, 374 F.3d 959, 970
(10th Cir. 2004) (quoting United States v. Powell, 469 U.S. 57, 64 (1984)), cert.
granted, judgment vacated on other grounds, 543 U.S. 1113 (2005), opinion
reinstated in relevant part, 410 F.3d 1186 (10th Cir. 2005). Even more granularly,
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we cannot tell what the jury thought about specific evidence presented. Therefore, we
cannot say the evidence Mr. Ojimba wishes to foreclose, the testimony from Ms. Bale
and about Mr. Feinberg, was the “actual basis for [his] prior acquittal.”
Second, the elements of the charges brought against Mr. Ojimba in the first
and second trials are different. While Mr. Ojimba was acquitted of the substantive
charges against him, the jury could not reach a decision on the conspiracy charge.
Importantly, the acquittals on those substantive charges do not preclude a finding of
guilty on the conspiracy count.
“[T]he essence of a conspiracy is ‘an agreement to commit an unlawful act.’”
United States v. Jimenez Recio, 537 U.S. 270, 274 (2003) (quoting Iannelli v. United
States, 420 U.S. 770, 777 (1975)). A conspiracy “may exist and be punished whether
or not the substantive crime ensues.” Id. (quoting Salinas v. United States, 522 U.S.
52, 65 (1997)). It follows that a verdict of acquittal on a substantive offense does not
bar the introduction of the same evidence in a subsequent prosecution for conspiracy
to commit that offense. See, e.g., United States v. Brackett, 113 F.3d 1396, 1400 (5th
Cir. 1997); United States v. Yearwood, 518 F.3d 220 (4th Cir. 2008). And in this
case, Mr. Ojimba’s acquittal on the substantive counts does not bar the introduction
of the same evidence in his subsequent prosecution because the elements of the
charges were inherently different.
Because we agree with the district court that collateral estoppel does not apply
here, we cannot say the district court’s decision was “arbitrary, capricious,
whimsical, or manifestly unreasonable.” Silva, 889 F.3d at 709.
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b. Undue prejudice
Nor do we agree with Mr. Ojimba that the introduction of the evidence was
unfairly prejudicial due to his prior acquittal. Relevant evidence may be excluded
only if “its probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Overturning a Rule
403 decision on appeal is an uphill battle” because “the district court has
considerable discretion in performing the Rule 403 balancing test.” United States v.
Alfred, 982 F.3d 1273, 1282 (10th Cir. 2020) (internal quotation marks and brackets
omitted), cert. denied, No. 20-8081, 2021 WL 2519390 (U.S. June 21, 2021).
We agree with the district court that the evidence here was relevant because it
went to the operation and existence of a conspiracy. Specifically, the testimony
regarding Mr. Feinberg’s photograph was probative because it made it more likely
than not that Mr. Ojimba was a knowing participant in the conspiracy. And
Ms. Bale’s testimony was relevant because it described the operation and means of
the conspiracy. This evidence was highly probative, and we cannot say the district
court abused its discretion in finding its probative value was not outweighed by the
danger of unfair prejudice.
We therefore affirm the district court on this issue.
2. Judgment of Acquittal
Mr. Ojimba also argues the district court should have allowed him to introduce
evidence of his prior acquittals. According to Mr. Ojimba, this evidence should have
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been admitted under the doctrine of curative admissibility to counter the impact of
the erroneously admitted testimony from Ms. Bale and about Mr. Feinberg.
But we have concluded that Ms. Bale’s testimony and the references to
Mr. Feinberg were not erroneously admitted. See supra at 9–12. As a result, the
doctrine of curative admissibility is inapplicable. See United States v. Morales-
Quinones, 812 F.2d 604, 610 (10th Cir. 1987). This alone is sufficient to reject
Mr. Ojimba’s argument. In addition, our precedent leaves no doubt that “a judgment
of acquittal is hearsay, and there is no exception to the hearsay rule for judgments of
acquittal.” United States v. Sutton, 732 F.2d 1483, 1493 (10th Cir. 1984) (citing
United States v. Viserto, 596 F.2d 531, 537 (2d Cir. 1979)). “The Federal Rules of
Evidence except from the operation of the hearsay rule only judgments of conviction,
Rule 803(22), not judgments of acquittal.” Id. at 1492 (quoting Viserto, 596 F.2d at
537). We cannot say the district court’s adherence to our established precedent was
an “abuse of discretion.”
We therefore affirm the district court’s exclusion of the prior acquittals.
3. WhatsApp Messages
Mr. Ojimba makes several arguments as to why the district court abused its
discretion in admitting the WhatsApp messages. Each depends on his assertion that
the WhatsApp platform is accessible to third-party hackers and therefore the
messages cannot be fairly attributed to Mr. Ojimba. Because it is uncertain whether
Mr. Ojimba was the author of the comments reflected in the WhatsApp messages, he
contends they are irrelevant, more prejudicial than probative, and inadmissible
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hearsay that runs afoul of the Sixth Amendment’s Confrontation Clause. The
government responds that these arguments are waived because Mr. Ojimba stated he
had no foundational objections to the WhatsApp messages, and because his
arguments are inadequately briefed.
a. Trial waiver
When the government sought to introduce the WhatsApp messages at trial, the
district court gave Mr. Ojimba an opportunity to place his objections on the record.
Mr. Ojimba’s counsel “renew[ed] our objection” from the first trial that the
WhatsApp chat was “not reliable” but also stated Mr. Ojimba did not “have any
foundational objections.” ROA Vol. III at 418–19. In response, the district court
acknowledged there was “no objection to authentication” and admitted the evidence,
noting that questions of reliability could be addressed to the jury. Id.
Relying on this exchange, the government argues Mr. Ojimba has waived the
objections he raises on appeal, which are foundational objections. We agree. With
one exception that we address below, Mr. Ojimba’s challenges to the WhatsApp
messages are related to authentication—whether they are what they purport to be.
And authentication is a foundational objection.
For example, in United States v. Durham, 902 F.3d 1180 (10th Cir. 2018), the
court held “testimony laid a sufficient foundation for authentication” of cellphone
videos, id. at 1230, stated the standard for authentication in terms of foundation, id.
at 1232, and ultimately determined the district court did not abuse its discretion in
finding “a sufficient foundation supporting the cellphone videos’ authenticity,” id.
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See also United States v. Bush, 405 F.3d 909, 918 (10th Cir. 2005) (“Rule 901 . . .
requires authentication or identification to establish a foundation for evidence as a
precursor to admitting audio recordings . . . .”); United States v. Zepeda-Lopez, 478
F.3d 1213, 1220 (10th Cir. 2007) (holding “that the admission of the audio tapes was
supported by sufficient evidence to satisfy the foundational requirements of Rule
901(a).”).
Here, Mr. Ojimba stated he had no foundational objections, and the court
noted there were thus no authentication objections. While Mr. Ojimba preserved his
right to bring concerns about reliability to the jury’s attention, he waived any
foundational objection to admissibility, including those related to authentication.
Under these circumstances, Mr. Ojimba has waived any objection to admissibility of
the WhatsApp chat based on foundation or authenticity.
b. Briefing waiver
On appeal, Mr. Ojimba raises one objection to the admission of the WhatsApp
messages that does not fall within the foundational waiver—his Sixth Amendment
argument. But this argument is inadequately briefed.
We have instructed that “a party’s failure to address an issue in its opening
brief results in that issue being deemed waived” and that “rule applies equally to
arguments that are inadequately presented in an opening brief” or advanced “only in
a perfunctory manner.” United States v. Walker, 918 F.3d 1134, 1151 (10th Cir.
2019) (internal quotation marks omitted). Here, the whole of Mr. Ojimba’s Sixth
Amendment argument is found in a single conclusory sentence: “Admission of this
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unreliable evidence also denied Mr. Ojimba the right to confront evidence or
witnesses against him. U.S. Const. Amend. VI.” Appellant Br. at 31. This argument
is wholly inadequate, and we do not consider it.
In sum, Mr. Ojimba’s counsel objected to the WhatsApp messages only on the
basis that they were “not reliable,” expressly waiving all foundational objections. He
cannot now challenge the foundation of the WhatsApp messages for the first time on
appeal. Based on Mr. Ojimba’s concession, the district court did not abuse its
discretion by admitting the WhatsApp messages and permitting Mr. Ojimba to raise
his concerns about reliability with the jury. Although Mr. Ojimba’s Sixth
Amendment challenge to the WhatsApp messages was not included in his waiver of
foundational objections, it is inadequately briefed and we do not consider it.
For the foregoing reasons we affirm each of the district court’s evidentiary
rulings and turn now to Mr. Ojimba’s sentencing challenges.
B. Sentencing Challenges
This court typically “review[s] sentences for reasonableness under a
deferential abuse of discretion standard.” United States v. Nkome, 987 F.3d 1262,
1268 (10th Cir. 2021) (quotation marks omitted). A sentence’s procedural
reasonableness implicates the district court’s Guidelines calculation and the court’s
explanation of the underlying sentence, while a sentence’s substantive reasonableness
focuses on the court’s application of the sentencing factors in 18 U.S.C. § 3553(a).
Id.
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Mr. Ojimba claims the district court made two errors in calculating his
Guidelines sentencing range: it improperly considered acquitted conduct and it
inappropriately applied the vulnerable victim increase. A challenge to the district
court’s calculation of the Guidelines range implicates the sentence’s procedural
reasonableness. Id. In analyzing such a challenge, we “review de novo the district
court’s legal conclusions regarding the [G]uidelines and review its factual findings
for clear error.” Id. (quotation marks omitted). “[W]hether facts satisfy a prescribed
standard is a mixed question of fact and law;” the court reviews “mixed questions
under the clearly erroneous standard or de novo standard, depending on whether the
mixed question involves primarily a factual inquiry or legal principles.” United States
v. Patton, 927 F.3d 1087, 1101 (10th Cir. 2019) (quotation marks and ellipses
omitted).
We consider Mr. Ojimba’s argument that the district court should not have
considered his acquitted conduct in sentencing before turning to his argument that the
vulnerable victim enhancement was not properly applied. “In evaluating the
application of a Guidelines enhancement, we review factual findings for clear error,
but to the extent the defendant asks us to interpret the Guidelines or hold that the
facts found by the district court are insufficient as a matter of law to warrant an
enhancement, we must conduct a de novo review.” United States v. Scott, 529 F.3d
1290, 1300 (10th Cir. 2008) (quotation marks and brackets omitted).
1. Acquitted Conduct
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Mr. Ojimba argues the district court’s imposition of his sentence was
procedurally unreasonable because the court’s consideration of acquitted conduct
violated his “Sixth Amendment right to a jury trial and his Fifth Amendment rights to
due process of law and equal protection of th[e] law.” Specifically, he challenges the
district court’s consideration of the misappropriation of Mr. Feinberg’s identity and
the loss incurred by Ms. Bale. He posits that because he was acquitted of the
substantive charges, the district court was precluded from considering this evidence
at sentencing.
To the contrary, “[t]he Supreme Court and this circuit have both expressly held
that acquitted conduct can be considered for purposes of sentencing.” United States
v. Todd, 515 F.3d 1128, 1137 (10th Cir. 2008) (emphasis in original); see also United
States v. Lewis, 594 F.3d 1270, 1289 (10th Cir. 2010) (same). In United States v.
Watts, 519 U.S. 148, 155–57 (1997) (per curiam), the Supreme Court explained the
Double Jeopardy Clause does not bar considering acquitted conduct at sentencing for
several reasons: (1) sentencing implicates a lower standard of proof; (2) it is
impossible to know exactly why a jury found a defendant not guilty on a certain
charge; and (3) it does not constitute punishment for a separate offense. The Court
thus held “that a jury’s verdict of acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long as that conduct has been
proved by a preponderance of the evidence.” Id. at 157. And we have held that
United States v. Booker, 543 U.S. 220 (2005)—a Sixth Amendment case—did not
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change this reasoning. United States v. Magallanez, 408 F.3d 672, 684 (10th Cir.
2005).
Mr. Ojimba fails to show why we should depart from our precedent on this
issue, and we decline his invitation to do so. We therefore affirm the district court’s
consideration of previously acquitted conduct in sentencing.
2. Vulnerable Victim Enhancement
Mr. Ojimba also argues the district court abused its discretion in applying the
vulnerable victim enhancement. The Guidelines provide for a two-level increase “[i]f
the defendant knew or should have known that a victim of the offense was a
vulnerable victim.” USSG §3A1.1(b)(1). Vulnerable victim “means a person (A) who
is a victim of the offense of conviction and any conduct for which the defendant is
accountable under §1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable
due to age, physical or mental condition, or who is otherwise particularly susceptible
to the criminal conduct.” USSG §3A1.1 comment (n.2).
Mr. Ojimba argues application of the enhancement here “merely reflects
unfortunate ‘ageism.’” Appellant Br. at 35. The government disagrees, claiming that
the coconspirators carefully selected their victims based on their particular
vulnerability to the scheme. Under the present facts, we agree with the government.
In United States v. Proffit, 304 F.3d 1001, 1008 (10th Cir. 2002), this court
reversed the district court’s application of the vulnerable victim enhancement. There,
the defendant pretended to be a wealthy rancher interested in buying the victim’s
cattle ranch. Id. at 1004. During the negotiations, the victim revealed he was selling
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the ranch due to his cancer diagnosis. Id. The defendant continued to express interest
in buying the ranch and eventually defrauded the victim out of $50,000, allegedly to
invest in cattle futures. Id. The defendant instead used the money for personal
expenses, while the victim retained ownership of the ranch. Id.
The defendant pleaded guilty to a single count of mail fraud. Id. at 1003. At
sentencing, the district court imposed a two-level vulnerable victim offense increase.
Id. at 1004. On appeal, this court reversed. We explained that:
Membership in a class of individuals considered more vulnerable than the
average individual is insufficient standing alone. See United States v.
Tissnolthtos, 115 F.3d 759, 761-62 (10th Cir. 1997) (rejecting enhancement
based on advanced age alone).
Id. at 1007 (additional citations omitted).
In reaching that conclusion, the panel noted the victim was “a successful
businessman who built a multi-million dollar ranch from the ground up.” Id. It also
acknowledged the victim’s “illness may have opened the door for [d]efendant’s
criminal conduct,” because it allowed the defendant to approach the victim as an
interested buyer. Id. at 1008. We found it significant that the defendant never
fraudulently obtained ownership of the ranch and never attempted to do so. Rather,
pretending to be interested in buying the ranch was simply how the defendant
initiated communications with the victim about cattle futures. Id.
Importantly, we clarified that the result may have been different if
“[d]efendant had defrauded Mr. Cook of his ranch after discovering Mr. Cook was ill
and wished to sell it.” Id. We explained that under those circumstances, “the
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correlation between Mr. Cook’s health, his decision to sell the ranch, and
[d]efendant's ability to defraud him of ranch ownership would be direct.” Id. In this
case, the connection between the scheme to defraud and the vulnerabilities of the
victims is direct.
The dating profile conspiracy in the instant case targeted not only women who
were older, but also women who were vulnerable in other ways that made them
desirable targets of this specific fraud. As the district court noted, “the trial evidence
established that the scheme targeted older, divorced, or widowed women,” many of
whom “only recently became users of online dating websites.” ROA Vol. III at 1038–
39. And the PSR related Mr. Ezeah’s testimony at Ms. Ejiofor’s separate trial, in
which Mr. Ezeah admitted the scam targeted a particular age group to “reflect people
who were either divorced, widowed, more - - more available both emotionally and
physically” and those who were “less sophisticated enough to understand the ropes of
investments.” ROA Vol. II at 37.
This evidence/testimony provided ample support for the district court’s
application of the vulnerable victim offense level increase. See United States v.
Brown, 7 F.3d 1155, 1160–61 (5th Cir. 1993) (holding that a “district court could
have reasonably concluded that lonely, elderly widows, as a group, are more
susceptible than the general public to” a scam involving a “lonely hearts pen-pal
magazine”) (emphasis in original). The district court therefore did not err in finding
the victims were unusually vulnerable and in applying the Guidelines enhancement.
We therefore affirm the district court’s application of the enhancement.
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III. CONCLUSION
For the foregoing reasons, we AFFIRM Mr. Ojimba’s conviction and
sentence.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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