United States District Court, D. New Hampshire
MEMORANDUM ORDER Opinion No. 2015 DNH 039P.
JOSEPH N. LAPLANTE, District Judge.
This case raises a question as to the proof required to secure a conviction for bank fraud under 18 U.S.C. § 1344. The defendant, Olawaseun Adekoya, was among the targets of a sting operation conducted by the United States Secret Service. A Secret Service agent, impersonating as an associate of Adekoya's, wrote an e-mail to Adekoya inviting him to participate in an "ATM cashout, " a scheme using fraudulently manufactured ATM cards to make unauthorized withdrawals from actual bank accounts. Adekoya took the bait, and recruited four other people to assist him. Those four traveled from Georgia to New Hampshire, where they retrieved 200 plastic cards, which they had been led to believe were encoded to access ATMs, from a prearranged drop point. Unbeknownst to them-and to Adekoya-the cards, which had been supplied by the Secret Service, were blank and incapable of actually withdrawing any cash. All four were caught red-handed when they attempted to use the cards; Adekoya was arrested the next day.
Adekoya was tried in this court on charges of bank fraud, see 18 U.S.C. § 1344, and conspiracy to commit bank fraud, see id. §§ 371 & 1344. After the prosecution closed its evidence, Adekoya orally moved for a judgment of acquittal on both counts. See Fed. R. Crim. P. 29(a). He argued, among other things, that a bank fraud conviction requires proof by the prosecution that a bank was actually victimized or exposed to a risk of loss. Because the cashout had been devised by the Secret Service and the plastic cards were incapable of actually withdrawing funds, Adekoya asserted, the prosecution had failed to prove that any bank was victimized, or that such a risk existed. The court denied the motion in part, but reserved decision on Adekoya's "actual victimization or risk of loss" argument on the bank fraud count. See Fed. R. Crim. P. 29(b). After the jury returned a verdict finding Adekoya guilty on both counts, the court received supplemental written briefing from the parties regarding that argument. Having reviewed that briefing, the court now denies Adekoya's motion.
As explained below, although Adekoya relies on cases stating that the prosecution must prove that a bank "was victimized or exposed to a risk of loss" in order to secure a conviction under § 1344, see, e.g., United States v. Brandon, 17 F.3d 409, 427 (1st Cir. 1994), he misinterprets those cases. They do not mean, as Adekoya argues, that a defendant cannot be convicted of bank fraud where, as here, his scheme to defraud has no hope of succeeding, and thus does not put a bank at actual risk of loss. To the contrary, those cases stand for the proposition that a bank fraud conviction requires proof of a scheme-whether or not it is actually capable of success-that would, if realized, victimize a bank (as opposed to a third party) or put it at risk of loss. Because the evidence presented at trial proved as much, Adekoya's motion is denied.
The case against Adekoya resulted from a United States Secret Service investigation into a wholly different person, Hieu Minh Ngo. The Secret Service arrested Ngo for selling personally identifiable information ("PII") belonging to other individuals, and Ngo, facing a lengthy term of imprisonment, agreed to assist in further investigations into the people who had purchased PII from him. To that end, Ngo authorized the Secret Service to both access and use the e-mail account he had used to correspond with his "customers." In the account, the Secret Service discovered correspondence between Ngo and Adekoya, in which Adekoya sought to purchase the Social Security numbers of numerous individuals. Using this information, the government obtained an indictment against, and an arrest warrant for, Adekoya in this court.
The Secret Service was faced with something of a quandary, however. In his dealings with Ngo, Adekoya did not use his real name; the Secret Service had been able to identify him by tracing the IP address from which the correspondence with Ngo originated to Adekoya's residence in New Jersey. Suspecting that Adekoya might, in light of this state of affairs, attempt to claim that someone else had employed his IP address to correspond with Ngo, the Secret Service formulated a plan to prove beyond any doubt that it was, in fact, Adekoya on the other end of Ngo's e-mails.
A Secret Service agent, impersonating Ngo, wrote an e-mail from Ngo's account to one of the accounts that originated from Adekoya's IP address, inviting the recipient to participate in an ATM cashout in New Hampshire. (As already mentioned, that type of scheme involves using fraudulently manufactured ATM cards to make withdrawals from legitimate bank accounts belonging to other people.) In extending this invitation, the agent hoped to lure Adekoya from his home in New Jersey to New Hampshire, where he would be arrested-and his ability to disclaim responsibility for the correspondence with Ngo would be eliminated.
Adekoya readily accepted the invitation, and he and the agent masquerading as Ngo proceeded to hammer out the specifics of the plan through e-mails and instant messages. Adekoya would assemble a group of people and travel with them to Manchester, New Hampshire on the evening of October 1, 2013. There, they would proceed to the front desk of a local hotel and retrieve a box left for them by "Ngo." That box would contain a list of twelve ATMs to be targeted, 200 plastic cards that would enable them to make withdrawals from those ATMs, and the PIN numbers to be used in conjunction with those cards. They would then make withdrawals totaling about $900, 000-a portion of which they would keep, the other portion of which would go to "Ngo"-before returning home.
As planned, four individuals traveled from Atlanta, Georgia to Manchester, New Hampshire on the evening of October 1, 2013, and picked up the box containing the lists of ATMs, cards, and PIN numbers. In a departure from the plan discussed by "Ngo" and Adekoya, Adekoya was not among them. And, in a further departure from that plan, the 200 plastic cards that "Ngo" had provided could not be used to withdraw cash from the ATMs. That was, of course, the Secret Service's plan all along, but it was not apparent to Adekoya's co-conspirators, who continued on their way to the specified ATMs. All four were arrested in the early morning hours of October 2, 2013, while unsuccessfully attempting to make withdrawals using the cards.
Adekoya was arrested at his home the next day, after his coconspirators implicated him in the scheme. Based upon the events of October 1-2, 2013, he was charged with bank fraud, in violation of 18 U.S.C. § 1344, and conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 371 & 1344.
Adekoya asserts that the foregoing facts are insufficient to prove his guilt on the charge of bank fraud under 18 U.S.C. § 1344. That ...