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United States of America v. Kay Oyewumi

March 29, 2012

UNITED STATES OF AMERICA, APPELLEE,
v.
KAY OYEWUMI, TAIWO ADEKANBI, AKA TAIYE, ADEMILOLA OGUNMOKUN, AKA JIMMY, AKA ABURO, AKA OLASUPO OGUNMOKUN, DEFENDANTS, FNU LNU, AKA TONY MCKINNON, AKA REGINAL DAVIS, AKA SAEED, AND TUNDE OGUNRINKA, AKA BABA TOLANI, DEFENDANTS-APPELLANTS.



Appeal from an order of the United States District Court for the Southern District of New York (Sullivan, J.), sentencing Defendant Appellant Saeed*fn2 to 110 months' imprisonment pursuant to Saeed's conviction, after a jury trial, for violations of 18 U.S.C. § 1001, 18 U.S.C. § 1028A(a)(1), (c)(4), and 21 U.S.C. § 846.

The opinion of the court was delivered by: Wesley, Circuit Judge:

10-3427(L)

USA v. OYEWUMI, ET AL.

Argued February 6, 2012

Before: WESLEY, CARNEY, Circuit Judges, CEDARBAUM, District Judge.*fn1

AFFIRMED.

Appellant Saeed appeals his convictions for aggravated 26 identity theft and false statements, the district court's 27 pre-trial denials of his motions to suppress statements made 28 during a safety-valve proffer and for severance of Count One from Counts Four and Six of the indictment, and his 110- 2 month sentence. We hold that (1) Saeed's conviction was 3 supported by sufficient evidence; (2) the court's pre-trial 4 decisions on Saeed's motions were not erroneous; and (3) 5 Saeed's 110-month sentence is both procedurally and 6 substantively reasonable. Concluding that Saeed's claims on 7 appeal have no merit, we affirm both his convictions and 8 sentence.

9 Background

10 Following a jury trial, Saeed was convicted of 11 conspiring to distribute heroin in violation of 21 U.S.C. 12 § 846, aggravated identity theft in violation of 18 U.S.C. 13 § 1028A(a)(1) & (c)(4), and making false statements on a 14 matter within the jurisdiction of a federal agency in 15 violation of 18 U.S.C. § 1001.

16 Saeed's criminal activity came to light after Customs 17 and Border Patrol at Newark International Airport seized a 18 FedEx package from India containing 787 grams of heroin. 19 Immigration and Customs Enforcement ("ICE") agents executed 20 a controlled delivery of the package to its intended 21 Brooklyn address, which resulted in the arrest of two of 22 Saeed's co-conspirators, Temitope Mohammed and Bolaji 1 Olaiye. Subsequently, ICE received authorization to 2 intercept calls over a cell phone belonging to Kay Oyewumi,*fn3 3 a leader of the heroin trafficking organization. The 4 intercepted calls implicated Saeed in the conspiracy and led 5 to his arrest on April 30, 2009.

6 Saeed was initially charged with participating in a 7 conspiracy to distribute, and to possess with intent to 8 distribute, one kilogram or more of heroin in violation of 9 21 U.S.C. §§ 812, 841(a), 841(b)(1)(A), and 846. During a 10 post-arrest interview Saeed identified himself as Reginald 11 Davis and admitted to some of his criminal activity. 12 On December 10, 2009, Saeed's counsel advised the 13 government that his review of his client's record indicated 14 that Saeed might be eligible for safety-valve relief 15 pursuant to 18 U.S.C. § 3553(f). The government responded 16 that it would not agree to recommend safety-valve relief 17 unless defendant revealed his true identity. Despite the 18 government's position regarding the safety valve, Saeed and 19 his attorney met with the government on December 21, 2009, 1 to provide the government with information proving he was 2 safety-valve eligible.

3 The meeting was held pursuant to a safety-valve proffer 4 agreement signed by Saeed, Saeed's counsel, the Assistant 5 United States Attorney, and a witness. During the 6 safety-valve proffer, the government questioned Saeed about 7 his identity. He identified himself (again) as Reginald 8 Davis; claimed he was born in Houston, Texas in 1984; and 9 provided what he asserted were the final four digits of his 10 social security number. During the meeting, the government 11 also asked Saeed questions about the narcotics conspiracy, 12 his involvement with Oyewumi and Olaiye, the length of his 13 participation in the conspiracy, and the amounts of heroin 14 he distributed.

15 After the safety-valve proffer, the government further 16 investigated Saeed's identity and informed the court that it 17 might seek additional charges against Saeed for false 18 statements and identity theft.

19 On March 4, 2010, the grand jury returned a superseding 20 indictment charging Saeed with four new counts related to 21 his false statements to the government about his identity 22 during ...


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