UNITED STATES OF AMERICA v. SEUN BANJO OJEDOKUN
No. 21-4127
United States Court of Appeals, Fourth Circuit
October 26, 2021
PUBLISHED
Appeal from
Argued: September 23, 2021
Decided: October 26, 2021
Affirmed by published opinion. Judge King wrote the opinion, in which Chief Judge Gregory and Judge Floyd joined.
ARGUED: Brent Evan Newton, Gaithersburg, Maryland, for Appellant. John Michael Pellettieri, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Jonathan F. Lenzner, Acting United States Attorney, Nicholas L. McQuaid, Acting Assistant Attorney General, Daniel S. Kahn, Acting Deputy Assistant Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Thomas P. Windom, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
KING, Circuit Judge:
Following a jury trial in the District of Maryland, defendant Seun Banjo Ojedokun was convicted of conspiracy to commit money laundering, in contravention of
Ojedokun has timely appealed his conviction and sentence to this Court, asserting the following: (1) the district court did not possess extraterritorial jurisdiction over the
I.
A.
The criminal proceedings against Ojedokun grew out of a complex international operation designed to obscure the proceeds of a U.S.-based fraud scheme. That scheme principally involved contacting elderly victims by way of internet dating websites, where coconspirators, posing as romantic partners facing financial difficulties, would persuade their targеts to surrender large sums of money. The fraud victims frequently paid the coconspirators tens or hundreds of thousands of dollars, only later to realize that their supposed newfound romantic connections were a sham.
Upon completion of the ploy, the fraud victims’ money would be deposited into bank accounts controlled by various members of the conspiracy, including Gbenga
Ojedokun lived and worked in Lagos, Nigeria, throughout the conspiracy. For his part, Ojedokun would send and receive by email information concerning the fraud victims’ payments, including electronic documents confirming bank account deposits. Deposit slips and other wire transfer documents forwarded to Ojedokun‘s two email accounts would oftentimes be altered to reflect an inflated sum of money. The documents would then be dispatched from the accounts to other members of the conspiracy, including Mukhtar “Mukky” Haruna in Nigeria and eventually Ogundele in Maryland. Those emails would pass through a lengthy series of coconspirators, usually without comment in the body of the messages, so as to aid in concealing the origin of the fraud proceeds. The government later alleged that the conspiracy continued between either 2011 and 2015 or 2013 and 2015.
Ojedokun first came to the United States in 2017, intending to pursue a doctoral degree in chemistry at the Illinois Institute of Technology. On April 25, 2019, shortly before 8:00 a.m., an FBI agent from the Baltimore, Maryland complex financial crimes division, along with a special FBI agent from Chicago, knocked at the door of Ojedokun‘s home in the South Side of Chicago. When Ojedokun emerged from the home, the agents identified themselves by name, displayed their FBI credentials, and asked Ojedokun if he would be willing to speak with them. More specifically, the agents asked Ojedokun if he “ha[d] a moment” to answer “a few questions ... a couple of questions about some people you may have known, uh, back in Nigeria.” See J.A. 1114.1 To that inquiry, Ojedokun replied, “Okay.” Id. at 1115. One agent then asked, “Can we talk? ... Inside? Or ... ,” to which Ojedokun replied, “Oh, either way.” Id. The agent asked, “Okay, can we go in?,” and Ojedokun again replied, “Okay.” Id. The agents and Ojedokun then went inside and were seated at Ojedokun‘s kitchen table.
Once inside, one of the agents informed Ojedokun that the interview was “completely voluntary” and further stated, “[I]f you don‘t want to answer my questions, you don‘t have to.” See J.A. 1116. Ojedokun again responded, “Okay,” and the agents proceeded to interview him for roughly one hour. Id. The interview primarily concerned Ojedokun‘s time spent in Nigeria and his use of the two email accounts utilized in distributing the wire transfer documents. During the interview, Ojedokun made incriminating statements pertaining to the email accounts and the conspiracy, confessing that he had sent and received the emails in question. Ojedokun also made repeated reference to a “friend” who he called his “brother,” and an agent asked Ojedokun to retrieve the friend‘s phone number from his cell phone. Id. at 1140-42. When Ojedokun could not locate the number, the agent requested to see the phone. Ojedokun replied, “Sure, that‘s fine,” and signed a consent form for a search of the device‘s contact information. Id. at 1142-44. At the conclusion of the interview, the agents arrested Ojedokun and seized the cell phone.
On May 6, 2019, the grand jury in the District of Maryland returned an indictment charging Ojedokun with a single count of conspiracy to commit money laundering, in contravention of the Money Laundering Control Act (the “MLCA“),
Any person who conspires to commit any offense defined in this section or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
See
The Original Indictment alleged that the money laundering conspiracy lasted from January 2011 to March 2015. Notably, it identified the “specified unlawful activity” generating the proceeds to be laundered as “conspiracy to commit wire fraud in violation of
On August 10, 2020, the grand jury returned the operative superseding indictment, once again charging Ojedokun with a single count of conspiracy to commit money laundering in contravention of
C.
Prior to the return of the Superseding Indictment, Ojedokun filed three pre-trial motions to suppress. The first motion asserted that Ojedokun‘s statements made during the FBI interview should be excluded from trial because (1) he was in custody during the interview and was not given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and (2) the statements were involuntarily given. The remaining motions contended that Ojedokun had not given knowing or voluntary consent to the search of his cell phone and that a search warrant for the records of Ojedokun‘s email accounts was issued in the absence of probable cause, all in violation of the Fourth Amendment. Accordingly, those motions argued that the contact information and emails obtained from the cell phone should be suppressed. At an August 18, 2020 suppression hearing, the district court heard testimony from Ojedokun and the FBI agents and orally denied the motions. The court concluded that the 2019 interview did not amount to a custodiаl interrogation and that Ojedokun accordingly was not entitled to Miranda warnings. The court further ruled that Ojedokun‘s decision to answer the agents’ questions and to permit the search of his cell phone were fully voluntary, and that the contested search warrant was founded on probable cause. As relevant to this appeal, Ojedokun‘s trial counsel did not move to suppress the statements and cell phone data on grounds that the agents’ entry into Ojedokun‘s home violated the Fourth Amendment because he did not provide valid consent to do so.
Following the denial of his suppression motions, Ojedokun filed a motion to dismiss the Superseding Indictment, averring the indictment was time-barred because it could not relate back to the date of the Original Indictment. Because both indictments alleged the conspiracy terminated in March 2015, Ojedokun explained that the August 2020 Superseding Indictment was untimely under the applicable five-year statute of limitations unless it related back to the May 6, 2019 return date of the Original Indictment.2 Ojedokun
maintained that by substituting “wire fraud in violation of
At a hearing on August 26, 2020, the district court orаlly denied Ojedokun‘s motion to dismiss. The court explained that the inquiry as to whether a superseding indictment “materially broadens or substantially amends” an earlier indictment turns on whether the first indictment put the defendant on notice of the nature of the ultimate charges against him, thereby allowing him to prepare an adequate defense. The court emphasized that “the inquiry is not confined to the statutes under
earlier version. As such, the court ruled that the Superseding Indictment related back to the return date of the Original and was not time-barred.
Ojedokun‘s jury trial began on September 8, 2020. During trial, the government presented the testimony of multiple fraud victims and relied on bank records, telephone communications, messages sent to and from the email accounts, as well as Ojedokun‘s statements to the FBI agents to show that he joined with Ogundеle and other coconspirators in an effort to launder the proceeds of the fraud scheme. Ojedokun testified in his own behalf and denied any involvement, claiming that he worked at a “cyber cafe” in Nigeria during the alleged course of the conspiracy where he frequently shared his passwords and email accounts with customers. Ojedokun admitted to sending emails containing wire transfer documents but insisted that he sent them on behalf of cafe customers and denied knowing or otherwise conspiring with Haruna, Ogundele, or any other involved parties. The jury concluded to the contrary and, on the sixth day of trial, returned a guilty verdict.
D.
Following his conviction, on September 29, 2020, Ojedokun timely filed a post-verdict motion for a new trial pursuant to
Ojedokun thereafter obtained new counsel and filed with the district court a motion for reconsideration, again raising his statute of limitations argument as well as, for the first time, a claim that his
On the matter of extraterritorial jurisdiction, Ojedokun argued that the district court lacked subject matter jurisdiction to hear the charge against him because the extraterritorial jurisdiction provision of the
There is extraterritorial jurisdiction over the conduct prohibited by this section if —
- the conduct is by a United States citizen or, in the case of a non-United States Citizen, the conduct occurs in part in the United States; and
- the transaction or seriеs of related transactions involves funds or monetary instruments of a value exceeding $10,000.
See
For reasons explained its memorandum opinion of February 4, 2021, the district court rejected both arguments set forth in the motion. See United States v. Ojedokun, No. 8:19-cr-00228 (D. Md. Feb. 4, 2021), ECF No. 167 (the “Reconsideration Opinion“).4 Regarding the statute of limitations argument, the court determined that Ojedokun misread our opinion in Smith and that a
confusion on Ojedokun‘s part was “feigned.” Id. at 14-17. Accordingly, the court ruled that the Superseding Indictment related back and was not untimely.
As to the extraterritoriality claim, the district court explained that
Following its denial of the reconsideration motion, the district court convened for sentencing on March 11, 2021. The court sentenced Ojedokun to a term of 108 months of imprisonment. Ojedokun timely noted this appeal on that same date, and we possess jurisdiction pursuant to
Ojedokun presents four issues to this Court for consideration on appeal, some based on arguments presented to the district court, and others for the first time. Specifically, Ojedokun has asked us to determine (1) whether the
A.
Ojedokun‘s principal argument in this proceeding is that
We review de novo the district court‘s determination that it possessed extraterritorial jurisdiction over the conspiracy charge against Ojedokun. See New Horizon of N.Y. LLC v. Jacobs, 231 F.3d 143, 150 (4th Cir. 2000). The government contends that extraterritoriality presents a merits question under the Supreme Court‘s decision in Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), and that because Ojedokun raised his extraterritoriality argument for the first time in a post-verdict reconsideration motion, he forfeited the claim and it is reviewable only for plain error. Morrison, however, considered whether
1.
Ojedokun did not argue in the district court, nor does he here, that
(f) There is extraterritorial jurisdiction over the conduct prohibited by this section if —
- the conduct is by a United States citizen or, in the case of a non-United States Citizen, the conduct occurs in part in the United States; and
- the transaction or series of related transactions involves funds or monetary instruments of a value exceeding $10,000.
* * *
(h) Any person who conspires to commit any offense defined in this section or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
See
Ojedokun is certainly correct that courts impose a presumption against the extraterritorial application of federal statutes absent a clear indication of contrary congressional intent. See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804); EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991); Morrison, 561 U.S. at 255. The presumption against extraterritoriаlity is rooted in “the commonsense notion that Congress generally legislates with domestic concerns in mind.” See Smith v. United States, 507 U.S. 197, 204 n.5 (1993). It is well established, however, that Congress may apply its laws beyond the shores of the United States, and the Supreme Court has said that the presumption against extraterritoriality may be overcome by an “affirmative and unmistakabl[e]” instruction that the statute at hand does in fact apply to foreign conduct. See RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016) (citing Morrison, 561 U.S. at 261). In RJR Nabisco, the Court provided us with a two-step framework for assessing questions of extraterritoriality. First, we must determine whether the presumption has been rebutted — “that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially.” Id. at 2101. If the presumption stands, the second step inquires “whether the case involves a domestic application of the statute,” which will occur where the conduct relevant to the “focus” of the statute occurred within the United States. Id.
At bottom, whether a statute should be given extraterritorial effect is a question of congressional intent, and in searching for such intent, courts may consider “all available evidence,” to include “the text of the statute, the overall statutory scheme, and legislative history.” See In re French, 440 F.3d 145, 151 (4th Cir. 2006) (citing Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 177 (1993); Smith, 507 U.S. at 201-03 & n.4).5 Put differently, the
Ojedokun is likewise correct that the presumption is not defeated simply by virtue of a statute‘s expressly addressing its extraterritorial application; rather, courts must closely consider “the extent of the statutory exception.” See Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 455-56 (2007) (citing Smith, 507 U.S. at 204). As stated, there is no question here that
extraterritorially.” See RJR Nabisco, 136 S. Ct. at 2101. Ojedokun‘s particular assertion is that
a.
In seeking to show that
That Congress added
Turning to the statute‘s text, Ojedokun next asserts that because a
Ojedokun goes on to insist that even if the term “conduct” as it appears in
Any agreement between two or more parties will, of course, require more than just a thought — some manner of concurrence with the proposal is needed. In these circumstances, as
Because a conspiratorial agreement to launder money in contravention of
b.
As an argument of last resort, Ojedokun points out that
2.
Section 1956(f)(1) requires that “in the case of a non-United States citizen,” the conduct over which extraterritorial jurisdiction is to be exerted must have “occur[ed] in part in the United States.” Ojedokun, who was not a United States citizen when he engaged in the conduct at issue, contends that even if entering into a conspiratorial agreement constitutes “conduct” under
It is uncontested that Ojedokun resided and worked exclusively in Nigeria for the duration of the money laundering conspiracy, whether it began in 2011 or 2013. Ojedokun makes much of that fact and returns once more to his reliance on Whitfield, declaring that because overt acts in the United States are not relevant to the charge against him and as his “mere agreement” with Ogundele, Haruna, and other coconspirators was entered into — if at all — from Nigeria, his pertinent “conduct” did not occur “in part in the United States.” To bolster his argument, Ojedokun invokes what he terms “[t]he primary source of legislative history” accompanying the enactment of the MLCA, a Senate
Ojedokun brings to our attention no cases demonstrating that the making of an agreement between coconspirators in the United States and their counterparts abroad does not occur, at least “in part,” in the United States. In assessing where such a meeting of the minds “occurs,” it is instructive to consider cases evaluating proper venue in a conspiracy prosecution. Although Ojedokun has correctly reminded us that venue is not the same as jurisdiction, venue rules endeavor to permit the prosecution of a crime only in the place where it occurred and can consequently shed light on where the intangible conduct of an “agreement” happens.
Venue in a criminal case “is proper only in a district in which an essential conduct element of the offense took place.” See United States v. Smith, 452 F.3d 323, 334 (4th Cir. 2006). As to where the “conduct element” of a conspiracy offense “takes place,” we have explained that conspiracies operate “wherever the agreement was made or wherever any overt act in furtherance of the conspiracy transpires,” which may include a place where “the defendant has never set foot.” See United States v. Bowens, 224 F.3d 302, 309, 311 n.4 (4th Cir. 2000) (citing Hyde v. United States, 225 U.S. 347, 356-67 (1912)); see also United States v. Levy Auto Parts of Can., 787 F.2d 946, 952 (4th Cir. 1986); accord Firtash, 392 F. Supp. 3d at 886-87 (concluding that defendants charged under
At bottom, conspiracies operate in a sweeping geographic sense, wherever the conspiratorial agreement is made as well as anywhere an overt act in furtherance takes place — even if a particular coconspirator never travels to such places. Such
Ojedokun‘s claim that his conspiratorial conduct did not occur “in part in the United States” is as such without merit. By making an agreement with at least one resident of the United States and engaging in a conspiracy extensively carried out in this country, he took part in a course of conduct relevant to the
B.
The second issue presented by Ojedokun in this appeal is whether the district court erred in determining — multiple times — that the Superseding Indictment was timely returned. Ojedokun contends that the Superseding Indictment was untimely under the five-year limitations period set out at
1.
The Original Indictment, returned on May 6, 2019, charged Ojedokun with a single count of conspiracy to launder money in contravention of
The return of an indictment tolls the statute of limitations on the charges contained in the indictment, and “a superseding indictment which supplants a timely-filed indictment, still pending, is itself to be regarded as timely . . . so long as it neither materially broadens nor substantially amends the charges against the defendant.” See United States v. O‘Bryant, 998 F.2d 21, 23 (1st Cir. 1993). That is, such an indictment relates back to the date of the original indictment “so long as a strong chain of continuity links the earlier and later charges.” See id. at 24; see also United States v. Snowden, 770 F.2d 393, 398 (4th Cir. 1985). Ojedokun advocates that the “key question” in assessing whether a superseding indictment “materially broadens or substantially amends” its predecessor is whether an element of the charged offense is modified in the later indictment. See Br. of Appellant 26. Our sister circuit courts of appeals, however, have aptly explained that a broader consideration of whether the defendant is put on sufficient notice of the charges against him is central to the inquiry. See, e.g., United States v. Grady, 544 F.2d 598, 601-02 (2d Cir. 1976); United States v. McMillan, 600 F.3d 434, 444 (5th Cir. 2010); United States v. Farias, 836 F.3d 1315, 1324 (11th Cir. 2016).9
In determining whether a superseding indictment may relate back to the time of an earlier indictment, courts consider whether the new charges “allege violations of a different statute, contain different elements, rely on different evidence, or expose the defendant to a potentially greater sentence.” See United States v. Salmonese, 352 F.3d 608, 622 (2d Cir. 2003). No factor alone is dispositive, however, as the “touchstone” of the analysis is “whether the original indictment fairly alerted the defendant to the subsequent charges against him.” See id. That is, the relation-back inquiry focuses not strictly on “the statutes under which the defendant was charged,” see United States v. Ratcliff, 245 F.3d 1246, 1253 (11th Cir. 2001), but primarily on “whether approximately the same facts were used as the basis of both indictments,” see United States v. Italiano, 894 F.2d 1280, 1285 (11th Cir. 1990). Those principles are
2.
On appeal, Ojedokun‘s relation-back argument functions as follows: the matter of whether a superseding indictment “substantially amends” an earlier indictment principally turns on whether an element of the charged offense is modified. In the context of a money laundering conspiracy charge, Ojedokun contends that the government must identify the particular predicate offense qualifying as the “specified unlawful activity” required for the commission of
We reject that line of reasoning on a number of grоunds. First, as noted, Ojedokun misstates the relevant legal standards controlling the relation-back inquiry, giving short shrift to the broader due process and notice concerns while focusing instead on “elements.” Second, in support for his claim that identifying the offense constituting “specified unlawful activity” is an essential element of a
Smith concerned a challenge to a substantive money laundering charge under
Just because the statute requires that funds be obtained from “specified” unlawful activity does not mean that the government is required to detail the circumstances of the unlawful activity. . . . Count 9 of Smith‘s indictment alleged not only that proceeds werе derived from specified unlawful activity, but that the activity violated
18 U.S.C § 1343 , which penalizes wire fraud. Nothing more need be alleged.
Ojedokun focuses on Smith‘s use of “nothing more need be alleged,” insisting that “‘nothing more’ . . . necessarily implies ‘but nothing less.‘” See Br. of Appellant 28. That is, he reads Smith to require a statutory citation for a properly stated money laundering charge, whether substantive or conspiratorial, without which the charge will be defective. Smith, however, held only that a direct citation is sufficient
Ojedokun‘s reliance on Bolden is likewise misplaced. There, we determined a
For its part, the district court capably dispensed with Ojedokun‘s arguments, looking to our decisions in United States v. Singh, 518 F.3d 236, 248 (4th Cir. 2008), and United States v. Green, 599 F.3d 360, 371 (4th Cir. 2010), both of which spelled out the elements the government is obliged to prove in a
3.
Ultimately, we need not decide whether an indictment must allege, as an element of a
Our conclusion is supported by assessing what appears on the face of the
Consequently, thе only material differences between the two indictments were the modified statutory citations and the narrowed allegation of the conspiracy‘s timeline. Those changes did not “materially broaden or substantially amend” the scope of the Original Indictment. Altering the predicate offense of “conspiracy to commit wire fraud” to the closely related crime of “wire fraud” was, at worst, only a “trivial or innocuous” change, which we have said will not bar a superseding indictment from relating back to an earlier version. See Snowden, 770 F.2d at 398. In his arguments before the district court and this Court, Ojedokun appears to allege that he was not adequately advised of the Superseding Indictment‘s charges before the date of its return, and that the modifications in that document prejudiced his ability to prepare a robust defense. We cannot agree, and we adopt the district court‘s conclusion that Ojedokun‘s supposed confusion was feigned. See Reconsideration Opinion 16. The Original Indictment afforded Ojedokun notice of the ultimate charges against him, and because such notice is the “touchstone” of the relation-back inquiry, see Salmonese, 352 F.3d at 622, we affirm the district court‘s determination that the Superseding Indictment related back to the date of the Original and was not barred by the statute of limitations.
C.
The remaining two contentions put forward by Ojedokun were not presented to the district court, and both grow out of his interview by the FBI in April 2019. First, Ojedokun asserts that the FBI agents violated the Fourth Amendment when they entered his home in Chicago — either by reason of involuntary consent to enter or because the agents exceeded the scope of Ojedokun‘s consent — and that the district court‘s admission of the resultant evidence was accordingly reversible plain error. Second, Ojedokun alleges his trial counsel
1.
Relative to the Fourth Amendment claim, the government maintains that Ojedokun has waived his theory by failing to raise it before the district court and that we may not consider it. Ojedokun filed three pre-trial motions to suppress, all denied by the district court, submitting that his statements during the FBI interview and the evidence from his cell phone should be excluded because (1) he was in custody and not properly Mirandized; (2) his statements were involuntarily given; (3) hе had not given voluntary consent to the search of the cell phone; and (4) a search warrant for his email accounts was issued in the absence of probable cause. Ojedokun now contends that the same evidence should have been suppressed as fruit of the poisonous tree because (1) the consent he gave to the FBI agents to enter his home was invalid and (2) even if the consent was valid, the agents exceeded the scope of the consent, all in contravention of the Fourth Amendment.10
A defendant must generally raise a motion to suppress before trial. See
The Fourth Amendment bars police from making a “warrantless and nonconsensual entry” into an individual‘s home in order to effect a “routine felony arrest.” See Payton v. New York, 445 U.S. 573, 576 (1980). Consent to a search or for entry into one‘s home must be “knowing and voluntary.” See United States v. Buckner, 473 F.3d 551, 554 (4th Cir. 2007). The question of “whether consent to a search is voluntary — as distinct from being the
The district court made no direct factual determination as to the voluntariness of Ojedokun‘s consent for the agents to enter his home, but it did find that the agents “were invited in” and “were given permission to come in,” that they explained the nature of their questioning, and that Ojedokun was sufficiently intelligent to understand their requests. See J.A. 157-59. Indeed, the agents asked Ojedokun, “[C]an we go in?,” to which Ojedokun replied — not for the first time — “[O]kay.” Id. at 1114. The record does not reveal that the agents made any misrepresentations, operated under false pretenses, or otherwise obtained Ojedokun‘s consent to go inside the home under “duress or coercion.” Ojedokun makes repeated reference to the fact that he was “a Nigerian citizen present in the United States for only two years” and that the agents arrived at his home at 8:00 a.m., see Br. of Appellant 14, 33, 36, but those circumstances do not obviate his voluntary grant of consent (and further, the evident attempt to call into question Ojedokun‘s intelligence brushes over the fact that he was then a Ph.D. student in chemistry). Ojedokun surely realized the agents intended to ask him more than “a couple” of questions by asking to come inside, and they assured him once there that the interview was “completely voluntary.” See J.A. 1114, 1116. All told, an insufficient basis exists for finding Ojedokun‘s consent was involuntary.
When there is “no question that consent was voluntary,” the scope of that consent is assessed by considering what “the typical reasonable person [would] have understood by the exchange between the officer and the suspect.” See United States v. Coleman, 588 F.3d 816, 819 (4th Cir. 2009) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)). Here, the agents requested Ojedokun‘s permission to enter his home to ask him questions about his time in Nigeria. Ojedokun focuses on the agents’ request to ask “a few” questions, claiming they “vastly exceeded the scope of the limited consent” given by asking more than two or three questions. See Br. of Appellant 37. Again, Ojedokun, like any reasonable person under the circumstances presented, surely understood the officers did not want to come into his home and sit down to ask “two or three” questions. The agents cannot be said to have gone beyond the confines of Ojedokun‘s consent.
Ojedokun spends ample time explaining how the government‘s evidence of his incriminating statements and the information seized from his cell phone were central to its case, such that the district court‘s supposed error in admitting that evidence prejudiced him. The government disputes Ojedokun‘s prejudice characterization, but the disagreement is of no moment because Ojedokun cannot demonstrate plain error on the district court‘s part. It may well be the case that the evidence in question prejudiced Ojedokun at trial, but there is no demonstrated error in the Fourth Amendment context with respect to the court‘s decision to admit the evidence. The record suggests that Ojedokun‘s consent for the agents to enter his home was fully voluntary and that the agents remained within the scope of that consent. As such, the district court did not commit plain error by admitting the evidence obtained from the 2019 interview.
Finally, we declinе to consider Ojedokun‘s ineffective assistance of counsel claim, which avers that his trial counsel “inexplicably failed” to move to suppress the evidence from the FBI interview on the above-considered Fourth Amendment theory. See Br. of Appellant 48. In this Circuit, a defendant may raise an ineffective assistance claim for the first time on direct appeal “only where the ineffectiveness ‘conclusively appears’ from the record.” See United States v. Russell, 221 F.3d 615, 619 n.5 (4th Cir. 2000) (quoting United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995)). Otherwise, the claim should be raised in a collateral proceeding by way of a
III.
Pursuant to the foregoing, we reject Ojedokun‘s appellate contentions and affirm the judgment of the district court.
AFFIRMED