21 F.4th 338
5th Cir.2021Background:
- In 2016–2017 Ademola Babatunde Okulaja opened multiple U.S. bank accounts using counterfeit U.K. passports that carried the same photograph as his U.S. visa application.
- Two accounts (Millet, June 2016; Allen, Nov. 2016) formed the two-count indictment under 18 U.S.C. § 1543; a third account (Schnur, Mar. 2017) and other uncharged accounts appeared in the PSR as relevant conduct.
- At trial the district court admitted two webcam photos from bank records (over Okulaja’s authentication objection) and excluded a larger photo of a fake driver’s license found on a third party’s phone (defense exhibit).
- The jury convicted Okulaja on both counts; at sentencing the PSR attributed intended loss of $341,463 (including a $263,975 Schnur check) and applied a 12‑level enhancement under U.S.S.G. § 2B1.1(b)(1)(G).
- The district court later sustained some sentencing objections (removed an obstruction enhancement), but kept the Schnur check as relevant conduct under § 1B1.3(a)(2) and sentenced Okulaja to 33 months; Okulaja appealed.
- The Fifth Circuit affirmed the convictions but held the district court erred in applying § 1B1.3(a)(2) (because § 2L2.2 is non‑groupable), vacated the sentence, and remanded for resentencing.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether webcam photos were properly authenticated | Bank witness explained how photos were captured, stored, and located in business records; authentication satisfied Rule 901 | Photos should be excluded because witness did not take them, did not personally observe them taken, and did not identify them as "fair and accurate" depictions | Admitted: authentication met a low threshold; any defects go to weight not admissibility; no abuse of discretion |
| Whether district court abused discretion excluding larger fake‑ID photo (Def. Ex. 2c) | The exhibit was irrelevant and unduly distracting; no link between that fake ID or its possessor and the charged accounts | Exhibit would support misidentification theory—photo could "pass for" Okulaja and undermine identity evidence | Exclusion affirmed: court acted within Rule 403 discretion; even if erroneous, exclusion was harmless given strong identity evidence |
| Whether the Schnur check and other uncharged conduct were properly counted as relevant conduct under U.S.S.G. § 1B1.3(a)(2) | Govt: cross‑reference to § 2B1.1 (a groupable guideline) and § 1B1.5 justify using (a)(2) to include Schnur check | Okulaja: (a)(2) does not apply because § 2L2.2 (offense guideline for § 1543) is non‑groupable; Schnur deposit did not occur during or in preparation for charged offenses | Reversed for sentencing error: (a)(2) applies only when the offense of conviction is groupable; § 2L2.2 is excluded from grouping, so Schnur check was not relevant conduct; remand for resentencing |
Key Cases Cited
- United States v. Clayton, 643 F.2d 1071 (5th Cir. 1981) (photograph authentication: witness need not be photographer if he recognizes object depicted)
- United States v. Barlow, 568 F.3d 215 (5th Cir. 2009) (Rule 901 authentication is not a burdensome standard)
- United States v. Deckert, 993 F.3d 399 (5th Cir. 2021) (§ 1B1.3(a)(2) applies only when the offense of conviction is groupable)
- United States v. Barfield, 941 F.3d 757 (5th Cir. 2019) (standards of review for guideline interpretation and relevant‑conduct factual findings)
- United States v. Randall, 924 F.3d 790 (5th Cir. 2019) (emphasizing "offense of conviction" limitation in applying § 1B1.3)