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United States v. Akindele

May 23, 1996




Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 CR 855 Brian Barnett Duff, Judge.

Before POSNER, Chief Judge, and HARLINGTON WOOD, JR., and EVANS, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

ARGUED DECEMBER 6, 1995 *fn*

DECIDED MAY 23, 1996

Adegboyega Ayorinde Oladapo Oladipo Akindele ("Akindele") and Babatunde Lawal ("Lawal") appeal the sentences imposed by the district court following their guilty pleas to charges of mail fraud, credit card fraud, bank fraud, aiding and abetting, and unlawful use of social security numbers. We affirm the sentences imposed by the district court.


The intricate web of deceit and intrigue woven by Akindele and Lawal first began to unravel in October 1993, when Akindele was arrested for a traffic violation. The police officers on the scene noted that Akindele, who claimed that his name was Garland Crum, had numerous documents in his possession bearing different social security numbers and names. Shortly thereafter, on November 26, 1993, Akindele was arrested by federal officials as he attempted to execute a large withdrawal from an account that had been opened in the name of Garland Crum. Lawal was arrested on December 4, 1993, after officials investigating Akindele's fraudulent schemes established Lawal's involvement.

The fraudulent activities in question commenced shortly after Akindele first moved to Chicago from New York in the spring of 1990. Falsely claiming that he was indigent, Akindele used a variation of his name and a false social security number to begin receiving benefits from the Illinois Department of Public Aid. Using a different variation of his name and a different social security number, Akindele secured employment in the accounting department of the A.B. Dick Company a short while later. After working for a few months, Akindele quit his job in January 1991, allegedly for the purpose of receiving unemployment compensation. Akindele continued to employ false names and social security numbers to receive unemployment compensation and public assistance benefits up until the time of his arrest.

Lawal, whom Akindele had first met in Nigeria *fn1 several years before, moved to Chicago from New York around May 1992. Akindele and Lawal became reacquainted and eventually shared an apartment together. In June 1992, Akindele advertised that his "business," which he had recently incorporated under the name Addison Properties, Inc., was in the market to purchase mortgages. Akindele's ploy was successful, and he received numerous completed mortgage applications from a mortgage loan company. Akindele and Lawal used the social security numbers and other personal information contained in these mortgage applications to fraudulently obtain credit cards and bank loans and to open checking accounts. Akindele and Lawal then used these credit cards, lines of credit, and checking accounts to obtain cash, goods, and services.

Around this time, Lawal established a sham business of his own, the Hawthorne Brokerage Company, which Lawal and Akindele used to process further fraudulent credit card and loan applications. Akindele also used the Hawthorne Brokerage Company as a personal reference in order to obtain an apartment under a false name and Akindele then used this new mailing address to receive further credit cards and other loan documents.

Beginning in September 1992, Akindele began using the name and social security number of Garland Crum. Unlike the other names and social security numbers which they had obtained, Akindele and Lawal were careful to safeguard and enhance Crum's credit history. *fn2 Toward this end, Akindele and Lawal opened several bank accounts under the Crum name, into which they funneled much of their ill-gotten gains. The creditworthy Crum identity, and the several large bank accounts established under this name, were then used to secure further bank loans, including two car loans, personal loans, and a mortgage loan.

Akindele and Lawal were initially indicted on January 26, 1994, and February 3, 1994, respectively. On June 29, 1994, a thirty-five count superseding indictment was returned, following the failed efforts of Akindele and Lawal to negotiate a guilty plea. Lawal then moved for severance of the proceedings, and a second superseding indictment was returned shortly thereafter; the charges were reduced to twenty-one counts. The charges included mail, bank, and credit card fraud, aiding and abetting, and unlawful use of social security numbers.

After the defendants pleaded not guilty to the counts contained in the second superseding indictment, the district court set a trial date for October 3, 1994. Before this date, Akindele twice informed the court that he intended to plead guilty, but his offers were rejected because they failed to encompass the entire indictment. On October 3, 1994, the jury was impaneled.

The next day, Akindele and Lawal informed the court that they wished to plead guilty. After verifying that the defendants were willing to enter guilty pleas to the entire second superseding indictment, the district court accepted their pleas. The district court reviewed the nature of each of the counts, the defendants formally pleaded guilty, and sentencing was set for January 9, 1995.

In the interim, the U.S. Probation Office prepared a Presentence Investigative Report ("PSI") for each defendant. Both defendants objected to the government's loss calculations. In addition, Lawal raised several pro se objections to the PSI which seemed to contradict his earlier guilty plea. Following a 3-day hearing, the district court rejected the defendants' objections to the PSI and sentenced Akindele to 58 months imprisonment, 5 years of supervised release, 500 hours of community service, and he was ordered to pay $50,700 in restitution; Lawal was sentenced to 30 months imprisonment, 2 years of supervised release, 300 hours of community service, and he was ordered to pay $25,000 in restitution. These sentences included a two-level increase for obstruction of justice for Akindele under U.S.S.G. sec. 3C1.1 and an upward departure of two-levels for both defendants under U.S.S.G. sec. 5K2.0. No sentencing credit was granted to either defendant for acceptance of responsibility under U.S.S.G. sec. 3E1.1. These appeals followed.


Akindele and Lawal raise a host of challenges to their sentences. We need only address the most meritorious of these arguments here.

A. Upward Departures

Akindele and Lawal first challenge the district court's decision to upwardly depart from their base offense levels pursuant to U.S.S.G. sec. 5K2.0. Section 5K2.0 states, in pertinent part:

[T]he sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." (quoting 18 U.S.C. sec. 3553(b)).

Acting under this authority, the district court increased each defendant's offense level by two levels. The district court reasoned that the nature and degree of harm suffered by the individual victims of Akindele and Lawal's ...

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