USA v. Samuel Odekhiran

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13809
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL ODEKHIRAN,
a.k.a. Samuel Edeki Odekhiran,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cr-00391-LMM-JKL-1
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____________________
Before W ILSON , BRANCH, and L UCK , Circuit Judges.
PER CURIAM:
Samuel Odekhiran appeals his conviction for aiding and
abetting wire fraud, arguing that (1) the district court abused its
discretion in admitting evidence that he fled to Canada after he
learned that the government was filing a criminal complaint
against him, and (2) the evidence was insufficient to sustain his
conviction. After review, we affirm.
I. Background
On January 28, 2019, a magistrate judge authorized a
criminal complaint alleging that Odekhiran sent a wire transfer of
funds in furtherance of a scheme to defraud, in violation of 18
U.S.C. §§ 1343 and 2. Thereafter, in October 2021, a grand jury
indicted Odekhiran on one count of aiding and abetting wire fraud,
in violation of 18 U.S.C. §§ 1343 and 2. The indictment alleged that
the scheme ran from February 2017 to approximately June 2018.
During this time, Odekhiran registered a company, Davinci
Trading and Logistics, LLC, with the Georgia Secretary of State
and opened up at least 13 bank accounts with 12 different financial
institutions. He received wire transfers totaling more than $3
million from various persons and entities and then promptly
transferred the funds out of the business accounts “to destinations
including an entertainment business in Nigeria as well as unknown
entities in China.”
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The indictment further alleged that victims K.L. and M.L.
sought to sell a condominium they owned off the coast of
Venezuela, and they hired a management company to manage the
sale. In June 2017, an agent with the management company, R.G.,
received a fraudulent email which looked to be from K.L. with
wiring instructions for the proceeds from the sale of the
condominium. The instructions directed that the funds be wired
into an account opened and controlled by Odekhiran. The agent
followed the instructions and wired $259,312 to this account.
Odekhiran kept some of the funds for himself and then wired the
rest to other participants.
Prior to trial, the government filed a motion in limine
seeking to admit evidence of Odekhiran’s pre-trial flight to Canada.
Specifically, the government explained that it had engaged in
pre-indictment discussions with Odekhiran and his counsel in
hopes of obtaining a “pre-indictment resolution.” However, when
those discussions failed, the government applied for a criminal
complaint and arrest warrant for Odekhiran in January 2019, and it
coordinated a voluntary surrender with his attorney. However,
Odekhiran did not show up for the scheduled surrender. Instead,
agents discovered that he fled to Canada, and he remained there
while the government tried to extradite him. The government
argued that evidence of Odekhiran’s flight should be admitted as
consciousness of guilt.
Odekhiran objected to the admission of such evidence. He
argued that his flight was not probative of his guilt because it was
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too remote in time from the crime and start of the investigation to
support an inference of guilt given that he fled months after he
learned that he was a target of the government’s investigation and
had been engaged in negotiations with the government about a
deal. He argued that based on the delayed timing of his flight, there
were other plausible explanations for his flight other than guilt,
such as fear of detention, immigration consequences, and a
wrongful conviction.
The district court held a hearing on the motion. Following
extensive arguments by the parties, the district court held that the
evidence of flight was admissible. The district court rejected
Odekhiran’s argument that the flight was too remote in time,
explaining that there was no timing issue once all the facts and
circumstances were examined because this case involved a
“ramping up” situation where
there was an attempt to negotiate a pre-indictment
resolution, and that fell apart, and then you’ve got the
arrest warrant and then the voluntary surrender date
and the fleeing happening so close to the point at
which this is becoming extremely real, and he’s going
to have to voluntarily surrender . . . .
At trial, Kevin Hall, an FBI agent, testified that he
investigated business e-mail compromise schemes, which involved
using legitimate and spoofed e-mail addresses to change wire
instructions and divert payments to accounts controlled by the
scammers. In this case, e-mail accounts for K.L. and the
management company’s agent, R.G., were spoofed to perpetrate a
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fraud. K.L.’s spoofed e-mail account was traced back to an IP
address in Nigeria. K.L.’s spoofed e-mail account instructed R.G.
to send the money from the condominium sale to a SunTrust bank
account owned by Davinci Trading—which was registered to
Odekhiran—and not K.L. Indeed, K.L. did not have a bank account
with SunTrust.
Davinci Trading was registered to Odekhiran. The business
address for Davinci Trading was Odekhiran’s residence, and its
listed purpose was wholesale trading, “specifically other groceries
and related products.” Odekhiran opened the SunTrust bank
account and was the only signatory on the account. Between June
27 and June 28, 2017, $259,312 was deposited into Davinci
Trading’s SunTrust bank account with the purpose for the transfer
listed as the sale of “Seaside Apartment 301.”
Notably, on June 27, 2017, after receiving notification of the
impending wire, Odekhiran reached out to SunTrust via an online
customer portal and stated “please return any transfer from the
attachment herein. I am not expecting any money from them as it
is a transaction I don’t know.” However, the next day, Odekhiran
again e-mailed customer care asking the bank to disregard his prior
message and stating that he had “confirmed the origin and
purpose” of the transfer and that it came from a customer. A bank
employee from SunTrust testified that Davinci Trading confirming
the accuracy of the transaction would have delayed any type of
fraud investigation by the bank. The next day, $209,000 was
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transferred from Davinci Trading’s account to an overseas account
in China.
When Hall reviewed Odekhiran’s e-mail account, he found
e-mails tied to the K.L. real estate fraud but none that revealed
Odekhiran had direct knowledge of the fraud. Hall confirmed that
there was no evidence that Odekhiran created the spoofed e-mail
account.
Odekhiran told Hall during an interview at his home that
Davinci Trading imported groceries and clothing from Nigeria to
sell to the local community. Odekhiran told Hall that he obtained
customers by “word of mouth.” He explained that he sometimes
shipped goods directly to his customers, and other times, he
received the goods at his home and then distributed them.
Odekhiran said that customers sent money to him for goods in
Nigeria because they were uncomfortable sending money directly
to Nigeria and then he would forward the money on to Nigeria.
Upon execution of a search warrant on Odekhiran’s home—which
again was the registered address of the business—agents found no
inventory, invoices, customer lists, shipping boxes, or items related
to running a business.
Odekhiran told Hall that he was working with a sourcing
agent in Nigeria, Ethel Ikeji, who split the revenue with him. Hall
subpoenaed e-mails from Ikeji and discovered that he too was
“defrauding people.” Hall then obtained an international warrant
for Ikeji’s arrest.
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Hall further testified as to details concerning other bank
accounts at other financial institutions that belonged to Davinci
Trading on which Odekhiran was the signatory. Large-sum
suspicious wire transactions were also made into and out of these
accounts both domestically and internationally. Some of these
banks contacted Odekhiran and questioned the wire activity. In
total, Hall discovered 12 bank accounts with $3 million wired into
them. Yet, there were no tax records for Davinci Trading for 2016
through 2018. And Odekhiran personally reported $57,521 in
gross income for him and his wife for 2017.
Four victims of fraud involving Davinci Trading testified for
the government. In addition to testimony from K.L. about the
stolen proceeds from the condominium sale, another victim
testified that she was scammed by a person she met online claiming
to be an art dealer. She sent money on multiple occasions to this
person, and on one of those occasions she wired money into one
of Davinci Trading’s bank accounts. She never received any goods
in exchange and she did not know or interact with Odekhiran.
Another victim was a real estate investor. He purchased an
investment property and intended to wire approximately $73,000
to the title company. Prior to the transfer, his company received
an e-mail purportedly from the title company with new wiring
instructions. They followed the instructions and wired the money
into an account belonging to Davinci Trading, not the title
company. The victim did not know Odekhiran and had never
done business with him or Davinci Trading. The victim called his
bank and was able to stop the wire and recoup the money. Another
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victim was scammed by a man she met through a dating app. She
sent the man money for medical bills and legal fees. She wired the
money to an account owned by Davinci Trading. She did not
know Odekhiran and did not do any business with Davinci
Trading.
The district court then read a stipulation from the parties
including the following facts. In 2019, the government charged
Odekhiran with aiding and abetting wire fraud, and Odekhiran was
told by his counsel to voluntarily surrender to authorities on
February 7, 2019, at the courthouse. Odekhiran did not surrender
to authorities and was later found in Canada. He crossed over into
Canada on or about February 7 or 8, 2019.
Odekhiran called one witness—his sister. She testified that
Ikeji was Odekhiran’s childhood friend. She offered her opinion
that her brother was a law-abiding, honest, and truthful person.
At the close of the government’s evidence, Odekhiran
moved for a judgment of acquittal based on insufficient evidence,
arguing that the government failed to prove that he “knowingly
joined” a wire fraud offense. He argued that he was “duped” by
Ikeji and that there was no evidence that he knew that criminal
conduct was occurring, and that he made an informed choice to
participate.1
The district court denied Odekhiran’s motion and stated
that there was sufficient evidence of knowledge and intent to
1 Odekhiran later renewed this motion.
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submit the case to the jury. The court stated that as to the K.L.
wire in question, there was evidence that Odekhiran’s
communications with SunTrust Bank about that wire and its origin
delayed any investigation, and that Odekhiran lied to the bank
about talking with the customer for that transaction.
Prior to closing arguments, the court instructed the jury that
intentional flight “immediately after a crime has been committed
or after [the defendant] is accused of a crime” was not by itself
sufficient to show guilt but could be considered during the overall
determination of guilt. Further, the court instructed the jury that
whether or not Odekhiran’s conduct constituted flight or showed
a consciousness of guilt was exclusively for the jury to determine.
And, in making these determinations, the jury should “consider
that there may be reasons for [the defendant’s conduct] which are
fully consistent with innocence,” including “fear of being
apprehended, unwillingness to confront the police, or reluctance
to confront the witness.” Moreover, the court cautioned that “a
feeling of guilt does not necessarily reflect actual guilt of a crime.”
With regard to the knowledge element of the offense, the
district court instructed the jury that knowledge could also be
proven by showing that Odekhiran deliberately avoided learning
that he was part of a fraud but that “negligence, carelessness, or
foolishness” was not enough to show knowledge.
The jury returned a verdict of guilty, and Odekhiran was
subsequently sentenced to 60 months’ imprisonment to be
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followed by three years’ supervised release. Odekhiran now
appeals his conviction.
II. Discussion
A. Admission of the evidence of flight
Odekhiran argues that the district court abused its discretion
when it admitted the allegedly highly prejudicial evidence of his
flight to Canada. He maintains that he knew for nine months prior
to his flight that he was the suspect of an investigation, and,
therefore, his flight was too far removed from the criminal activity
and the initial investigation to support an inference of
consciousness of guilt.
We review the district court’s decision to admit evidence of
a defendant’s flight for abuse of discretion, and that decision will
not be overturned “absent a showing of clear abuse.” United States
v. Blakey, 960 F.2d 996, 1001 (11th Cir. 1992); see also United States v.
Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (“[T]he deference that
is the hallmark of abuse-of-discretion review[] requires that we not
reverse an evidentiary decision of a district court unless the ruling
is manifestly erroneous.” (quotations and internal citation
omitted)). Moreover, “even an abuse of discretion will not warrant
reversal where the resulting error was harmless. We will not
overturn an evidentiary ruling and order a new trial unless the
objecting party has shown a substantial prejudicial effect from the
ruling.” United States v. Barton, 909 F.3d 1323, 1330–31 (11th Cir.
2018) (quotations omitted); see also United States v. Al-Sadawi, 432
F.3d 419, 424–25 (2d Cir. 2005) (applying harmless error standard
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to evidence of flight). “Substantial prejudice goes to the outcome
of the trial; where an error had no substantial influence on the
outcome, and sufficient evidence uninfected by error supports the
verdict, reversal is not warranted.” Barton, 909 F.3d at 1331
(quotations omitted).
“Evidence of flight is admissible to demonstrate
consciousness of guilt and thereby guilt.” United States v. Williams,
541 F.3d 1087, 1089 (11th Cir. 2008) (quotations omitted). We have
explained that the probative value of flight evidence as
circumstantial evidence of guilt
depends upon the degree of confidence with which
four inferences can be drawn: (1) from the
defendant’s behavior to flight; (2) from flight to
consciousness of guilt; (3) from consciousness of
guilt to consciousness of guilt concerning the crime
charged; and (4) from consciousness of guilt
concerning the crime charged to actual guilt of the
crime charged.
United States v. Borders, 693 F.2d 1318, 1325 (11th Cir. 1982) (quoting
United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)).
However, the probative value of flight evidence “is diminished . . .
if there has been a significant time delay between the commission
of the crime or the point at which the accused has become aware
that he is the subject of a criminal investigation, to the time of
flight.” Williams, 541 F.3d at 1089 (quotations omitted).
Odekhiran’s argument that the district court abused its
discretion in admitting the flight evidence because it was too
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removed from his commission of the crime or the point at which
he became aware that he was the subject of investigation is
unpersuasive. In this case, there was sufficient circumstantial
evidence to support the district court’s conclusion that a jury could
reasonably infer consciousness of guilt of the crime charged from
Odekhiran’s flight. Although the flight was remote in time to when
the crime occurred and when Odekhiran first learned of the initial
investigation, it was proximate in time to the filing of the formal
criminal complaint against him and the scheduled date of his
voluntary surrender. Given the totality of the circumstances, it was
within the court’s broad discretion to conclude that there was no
“immediacy” problem with the flight evidence, and Odekhiran has
not shown that the district court’s decision was “manifestly
erroneous.” Frazier, 387 F.3d at 1258. Furthermore, we have
upheld admission of flight evidence under similar circumstances.
See, e.g., Blakey, 960 F.2d at 1000–01 (upholding admission of
evidence of flight where “[t]he flight occurred three years after the
[crime]” and where “there was some evidence that [the defendant]
knew than an indictment had been issued against him or at least
that he was under investigation”); United States v. Ramon-Perez, 703
F.2d 1231, 1232–33 (11th Cir. 1983) (holding flight evidence
admissible as consciousness of guilt where defendant fled within
several weeks of his formal arrest and release on bond and a few
days before a scheduled hearing).
Moreover, even assuming that the district court abused its
discretion in admitting this evidence, any error was harmless in
light of the court’s limiting instruction on the flight evidence and
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the other overwhelming evidence against Odekhiran. Barton, 909
F.3d at 1331; Al-Sadawi, 432 F.3d at 425. Accordingly, Odekhiran is
not entitled to relief on this claim.
B. Sufficiency of the evidence
Odekhiran argues that the evidence was not sufficient to
prove beyond a reasonable doubt that he knew about and intended
to aid a scheme to defraud at the time of the wire transfer in June
2017 related to the K.L. property.
“We review the sufficiency of the evidence to support a
conviction de novo, viewing the evidence in the light most favorable
to the government and drawing all reasonable inferences and
credibility choices in favor of the jury’s verdict.” United States v.
Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007). “[W]e will not disturb
a guilty verdict unless, given the evidence in the record, no trier of
fact could have found guilt beyond a reasonable doubt.” United
States v. White, 663 F.3d 1207, 1213 (11th Cir. 2011) (quotations
omitted). “[T]he evidence need not be inconsistent with every
reasonable hypothesis except guilt, and the jury is free to choose
between or among the reasonable conclusions to be drawn from
the evidence presented at trial.” United States v. Watts, 896 F.3d
1245, 1251 (11th Cir. 2018) (quotations omitted). Notably, “[t]he
test for sufficiency of the evidence is identical regardless of whether
the evidence is direct or circumstantial, and no distinction is to be
made between the weight given to either direct or circumstantial
evidence.” Id. (quotations omitted).
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Odekhiran was convicted of aiding and abetting wire fraud
in violation of 18 U.S.C. §§ 1343 and 2. “In order to prove that the
defendant aided and abetted an offense, the government must
establish that: (1) someone else committed [wire fraud]; (2) the
defendant committed an act that contributed to and furthered the
offense; and (3) the defendant intended to aid in the commission of
the offense.” United States v. Cruickshank, 837 F.3d 1182, 1189 (11th
Cir. 2016). Wire fraud requires that the government prove beyond
a reasonable doubt that the defendant knowingly “(1) participated
in a scheme or artifice to defraud; (2) with intent to defraud; and
(3) used, or caused the use of, interstate wire transmissions for the
purpose of executing the scheme or artifice to defraud.” United
States v. Machado, 886 F.3d 1070, 1082–83 (11th Cir. 2018)
(quotations omitted); see also United States v. Maxwell, 579 F.3d 1282,
1299 (11th Cir. 2009) (explaining that mail and wire fraud require
the government to prove that the defendant “knew of and willfully
joined in the unlawful scheme to defraud”).
Here, Odekhiran argues that the evidence was insufficient
to show that he knowingly participated in a scheme or artifice to
defraud and that he knowingly acted with an intent to defraud. A
defendant acts knowingly when he acts with actual knowledge or
deliberate ignorance. United States v. Rivera, 944 F.2d 1563, 1570–
71 (11th Cir. 1991). Deliberate ignorance means that the defendant
had “his suspicion aroused but then deliberately omits to make
further enquiries, because he wishes to remain in ignorance.” Id.
at 1570; see also United States v. Hristov, 466 F.3d 949, 952 (11th Cir.
2006) (“We have long recognized that the knowledge element of a
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violation of a criminal statute can be proved by demonstrating
either actual knowledge or deliberate ignorance.” (quotations
omitted)). Additionally, a jury may infer intent from the
defendant’s conduct and circumstantial evidence. Maxwell, 579
F.3d at 1299.
Odekhiran’s argument that there was insufficient evidence
to prove his knowledge and intent to defraud at the time of the
June 28, 2017, wire transfer involving K.L.’s condominium sale is
premised on the idea that in determining knowledge and intent,
the jury was limited to considering only evidence that occurred
prior to the June 28, 2017, transaction. In other words, according
to Odekhiran, the jury could not look to the evidence concerning
transactions that occurred after that date to determine Odekhiran’s
knowledge and intent. His argument is misplaced. Here, it was
necessary for the government to prove that the Odekhiran
intentionally aided and abetted a scheme and artifice to defraud.
And it is well-established that “[o]ther transactions connected with
the offenses charged have long been used to show a general
pattern, the necessary criminal intent, or the guilty knowledge of
the defendant.” United States v. Muscatell, 42 F.3d 627, 631 (11th Cir.
1995); United States v. Martinez, 466 F.2d 679, 683–84 (5th Cir. 1972)2
(“When intent and knowledge are essential elements of the crime
2 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(holding that all decisions from the Fifth Circuit Court of Appeals issued prior
to the close of business on September 30, 1981, are binding precedent in the
Eleventh Circuit).
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for which the defendant is being tried, evidence of other
transactions, even though criminal in nature, is admissible to prove
the necessary criminal intent or guilty knowledge, if the
transactions are so connected with the offense charged that they
serve to show a general pattern.” (quotations omitted)); Gilstrap v.
United States, 389 F.2d 6, 9 (5th Cir. 1968) (“Evidence that similar or
related offenses were committed over a period of time tends to
show a consistent pattern of conduct highly relevant to the issue of
intent.”).
Regardless, even setting aside the evidence of fraudulent
activity that occurred with Davinci Trading’s bank accounts after
the June 28, 2017, transaction, we conclude that there was ample
evidence from which a jury could find beyond a reasonable doubt
that Odekhiran was deliberately ignorant of his role in the scheme.
For instance, the government presented evidence that Odekhiran
registered Davinci Trading with the Georgia Secretary of State in
February 2017 as a wholesale trading company operated out of his
residence. But there was no evidence that the company ever
engaged in any legitimate business activity—there was no record
of any goods received or shipped or any sales and Davinci did not
file taxes for 2017. Yet, between March 2017 and June 2017,
Odekhiran opened multiple business bank accounts in the name of
the company at different financial institutions and was the sole
signatory. He then received and sent several large sum domestic
and international wire transfers from each of the accounts between
March and June 2017 despite no indication of legitimate business
activity. Furthermore, although he initially flagged the K.L.
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transaction and requested that SunTrust return the funds, he
retracted his request the next day, stating that he had confirmed
the origin and purpose of the transfer and that it came from a
customer—and it is undisputed that this was a false statement.
Viewed in the light most favorable to the government, the
jury could have reasonably inferred from the above stated evidence
that Odekhiran was deliberately ignorant. In other words, it was
entirely reasonable for the jury to conclude that, after Odekhiran
received no goods and had no orders for goods but was receiving
wire transfers for large sums, his suspicions should have been
aroused and he deliberately declined to inquire into the true nature
of Davinci Trading. See Rivera, 944 F.2d at 1570; Hristov, 466 F.3d
at 952. Accordingly, there was sufficient evidence to support the
knowledge and intent element and to sustain his conviction for
aiding and abetting wire fraud.
III. Conclusion
For the above reasons, we affirm Odekhiran’s conviction.
AFFIRMED.
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