Argued May 21, 2015.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 190 -- Rebecca R. Pallmeyer, Judge.
For United States of America, Plaintiff - Appellee: Yasmin Best, Attorney, Office of The United States Attorney, Chicago, IL.
For Abidemi Ajayi, Defendant - Appellant: Sarah O'Rourke Schrup, Attorney, Northwestern University School of Law, Chicago, IL.
Before WOOD, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges.
Williams, Circuit Judge.
Abidemi Ajayi deposited a $344,657.84 fraudulent check, which had originally been written to another company, into his bank account. Ajayi spent about half of the money before the bank froze his account. He was indicted and convicted after a jury trial of five counts of bank fraud and one count of money laundering. He now appeals his conviction arguing that the evidence was insufficient to establish that he knew the check was altered. However, we find that the evidence of his guilt, which includes all the facts and circumstances surrounding the check, was compelling and sufficient to support the conviction. He also challenges the district court's decision to exclude certain emails related to his business plan to secure MRI machines because they were not related to the case. We agree with the district court and find that the emails were irrelevant because the emails had nothing to do with the fraudulent check or the person Ajayi claims sent him the check. Next, Ajayi contends that the district court erred by only submitting to the jury a portion of the pattern jury instruction that defines scheme, which would permit the jury to find him guilty without proof of misrepresentation. But, we find no error in the jury instructions because the instructions, reviewed as a whole, did not permit the jury to find him guilty without finding proof of misrepresentation. He also contends that the five bank fraud counts were multiplicitous. Since the four counts of bank fraud arose from Ajayi's acts of withdrawing funds after he deposited the fraudulent check and were merely in furtherance of the bank fraud, we conclude that four bank fraud counts were multiplicitous. Therefore, we vacate four of the bank fraud convictions. Finally, he asserts that there was a variance or a constructive amendment between the indictment and the proof offered at trial, but this contention is without merit.
The following facts were introduced at Ajayi's trial. Ajayi, a U.S. citizen of Nigerian descent, was an electrical engineer, with a specific background related to magnetic resonance imaging (" MRI" ) machines. Ajayi wanted to start a business selling MRI products in Africa. So, he incorporated GR Icon (" GRI" ) in Illinois and another company in Africa. To fund the business he sought money from private investors and African governments.
While traveling to Cameroon in 2009, he struck up a conversation with Charles Brown, a man on the plane who was reading an issue of Scientific American that had an MRI machine on the cover. Ajayi introduced himself, explained he worked with MRI machines, and eventually told
Brown about his business and showed him his business materials. They talked for six hours. Brown indicated that he was a venture capitalist and by the end of the conversation, he stated that he would be interested in investing $45,000.
After returning home, Ajayi received an envelope from Brown with a $344,657.84 check. He called Brown to ask about the check amount. Brown explained that the accounting department had made an error, told Ajayi to deposit the check right away, and stated that they would work out a way for Ajayi to refund the difference.
On November 27, 2009, Ajayi deposited the check through an automatic teller machine (" ATM" ) into his GRI account. Before this deposit, the account balance was $90.08. (And during 2009, it never had an ending balance over $332.) The bank held the check for about two weeks before releasing the funds around December 8, 2009. Ajayi called Brown and told him that the check had cleared. Thereafter, Brown flew to Chicago unannounced and told Ajayi to meet him downtown. They met, and Brown demanded the difference between the check and the $45,000 promised.
Pursuant to Brown's instructions, between December 9 and December 12, 2009, Ajayi wrote at least five checks to himself from the GRI account and cashed them. As charged in the indictment, on December 9, 2009, he wrote a $9,600 check to himself and cashed it at a Chase branch in Evanston. The next day, he wrote a $16,500 check to himself and cashed it at a Chase branch in downtown Chicago. On December 11, 2009, he wrote a $17,000 check to himself and cashed it at a Chase branch just north of downtown Chicago. During that bank visit, he also made a $53,000 wire transfer from the account. On December 12, 2009, he wrote a $9,650 check to himself and cashed it at a Chase branch on the north side of Chicago. That day, he also wrote a $9,800 check to himself and cashed it at a different Chase branch on the north side of Chicago. At some point during this period, Ajayi also made retail purchases at Gap and the Apple Store. There were additional checks cashed in a similar manner that were not charged in the indictment.
In total, he was able to withdraw more than $171,000 before the bank froze his account. The bank learned from ABM, the Texas company that issued the check, that ABM believed the check's payee had been changed because the intended payee, Pollock, another Texas company, had contacted ABM asking for payment. After investigating, ABM learned that the payee's name on the check had been altered. There are no facts as to who altered the check and how it got from Texas to Illinois.
Ajayi attempted to offer into evidence emails between him and individuals who would help facilitate his purchase of MRI equipment. These emails were exchanged around July 20-21, 2009, December 9-30, 2009, and January 16, 2010. In response to the government's argument that Ajayi's business was not legitimate, Ajayi offered these emails to show that he was legitimately trying to enter the MRI business. The district court deemed the emails not relevant because they did not relate to the fraudulent check, the charges, or Brown.
During a hearing held at the close of evidence, the government proposed pattern jury instructions, and stated that any exceptions were noted. As to the jury instruction defining " scheme," the government did not use all the wording of the pattern jury instruction, and it did not contain a statement indicating any alteration. The government did not inform ...