United States v. Abidemi Ajayi
2015 U.S. App. LEXIS 21435
| 7th Cir. | 2015Background
- Ajayi, an electrical engineer who formed GR Icon to sell MRI equipment, deposited a $344,657.84 check he received from Charles Brown into his business account in November 2009; the account previously had a very small balance.
- The check had been altered from its original payee; ABM (the issuer) later determined the payee name had been changed, but there was no direct evidence who altered it or how it reached Ajayi.
- After the bank released funds, Ajayi withdrew about $171,000 over several days by writing and cashing checks to himself, making a wire transfer, and making retail purchases; the bank then froze the account.
- Ajayi was indicted on five counts of bank fraud (18 U.S.C. § 1344), one count of money laundering (18 U.S.C. § 1957), and one count for making/possessing an altered check (18 U.S.C. § 513); a jury convicted him of the bank fraud and money laundering counts.
- On appeal Ajayi challenged (1) sufficiency of evidence that he knew the check was altered; (2) exclusion of business-related emails; (3) a truncated jury instruction on “scheme”; (4) multiplicity of the five bank-fraud counts; and (5) a claimed variance/constructive amendment between indictment and proof.
Issues
| Issue | Ajayi's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that Ajayi knew the check was altered | The gov’t failed to prove he knew the check was altered, so convictions must be reversed | Circumstantial evidence (obvious alterations, tiny prior balance, ATM deposit, rapid large withdrawals) permitted a rational jury to infer knowledge | Affirmed: evidence sufficient for bank fraud and money laundering convictions |
| Exclusion of business emails | Emails showing legitimate MRI-business efforts were relevant to show legitimate purpose and negate intent | Emails were not tied to the forged check, Brown, or intent to commit fraud — therefore irrelevant | Affirmed: district court did not abuse discretion in excluding emails |
| Jury instruction on “scheme” (omission of bracketed pattern language about misrepresentation) | Omission allowed conviction without proof of misrepresentation; plain error or at least non-waiver due to government not disclosing alteration to pattern language | Defense waived by saying “no objection”; even if not waived, other instructions required proof of a materially false or fraudulent representation so no plain error | Affirmed: no plain error; instructions read as a whole required misrepresentation proof |
| Multiplicity of the five bank-fraud counts | Multiple counts merely charged acts in furtherance of a single execution; convictions multiplicitous | Each withdrawal/check was a separate execution of the scheme and thus separately punishable | Reversed in part: counts 2, 3, 5, and 6 vacated as multiplicitous of count 1; remanded for resentencing |
| Variance / constructive amendment between indictment and proof | Indictment allegedly alleged Ajayi diverted the check; trial evidence showed only that he deposited an obviously altered check, leaving him unprepared | Indictment charged scheme of depositing check he knew was altered; trial proof concerned the same essential elements — only additional detail (face-obvious alteration) was presented | Affirmed: no constructive amendment or prejudicial variance |
Key Cases Cited
- United States v. Morris, 576 F.3d 661 (7th Cir. 2009) (standard for sufficiency review)
- United States v. Anderson, 188 F.3d 886 (7th Cir. 1999) (bank-fraud crime completes when bank is put at risk; each execution punished)
- United States v. Longfellow, 43 F.3d 318 (7th Cir. 1994) (distinguishing executions from acts in furtherance)
- United States v. Allender, 62 F.3d 909 (7th Cir. 1995) (unit of prosecution analysis under § 1344)
- United States v. Hord, 6 F.3d 276 (5th Cir. 1993) (deposits of fraudulently obtained funds constitute execution of scheme)
- United States v. Holt, 460 F.3d 934 (7th Cir. 2006) (abuse-of-discretion standard for evidentiary rulings)
- United States v. Van Allen, 524 F.3d 814 (7th Cir. 2008) (admissibility requires bearing on elements of the crime)
- United States v. Parker, 716 F.3d 999 (7th Cir. 2013) (elements of § 1344(1) bank fraud)
- United States v. Podell, 869 F.2d 328 (7th Cir. 1989) (double jeopardy and remedy where convictions are multiplicitous)
- United States v. Keskes, 703 F.3d 1078 (7th Cir. 2013) (presumption that juries follow instructions)