United States v. Bamdele

USCA1 Opinion [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 97-1580 UNITED STATES OF AMERICA, Appellee, v. WALLY BAMDELE, Defendant, Appellant. ____________________ No. 97-1581 UNITED STATES OF AMERICA, Appellee, v. EGHOSA OGBEMUDIA, Defendant, Appellant. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Mary M. Lisi, U.S. District Judge] ____________________ Before Boudin, Circuit Judge, Campbell and Bownes, Senior Circuit Judges. ____________________ Louis F. Robbio with whom Robbio & Nottie Ltd. was on brief for appellant Wally Bamdele. James M. Fox, by appointment of the court, for appellant Eghosa Ogbemudia. Edwin J. Gale, Assistant United States Attorney, with whom Sheldon Whitehouse, United States Attorney, was on consolidated brief for the United States. ____________________ March 9, 1998 ____________________ Per Curiam. Eghosa Ogbemudia and Wally Bamdele were convicted on June 20, 1996, of six counts of bank fraud, 18 U.S.C. 2, 1344, and one count of conspiracy to commit bank fraud, 18 U.S.C. 371. The evidence showed that Ogbemudia, with the assistance of Bamdele, gave fraudulent checks to others, instructing the recruits to deposit the checks into their own bank accounts and then to withdraw the money in cash a few days later and give most of the money to the appellants. The scheme was made possible because the banks allowed the money to be withdrawn before the validity of the checks could be determined. Ogbemudia was sentenced to 51 months in prison, and Bamdele to 46 months. Both were also sentenced to five years of supervised release (or, if deported after completing their terms, five years of exile from the United States). Appellants were also ordered to make restitution of $55,650.00 to the defrauded bank. On appeal, two points are worthy of brief discussion. 1. Bamdele argues that his sentence was wrongly increased for obstruction of justice . In part due to information from a recruit who agreed to cooperate with the Secret Service, Bamdele was arrested in November 1995. In December 1995, Bamdele, who had been released from jail, came to the witness's home while she was at work. That evening, he came to her home again, pounded on her door and yelled for her to come downstairs. The witness, fearing retribution for her cooperation, called the police. When the police arrived, the witness went outside to tell the story of the check scheme to the police in order to explain to them why Bamdele was at her home. Bamdele said that she was lying. As Bamdele was being arrested, his companion, who had been waiting in the car, told Bamdele--"within earshot of [the witness]"--that he would tell Bamdele's "people" about the witness. Bamdele said nothing in response. Based on this episode, the district court imposed on Bamdele a two-level increase for obstruction of justice, U.S.S.G. 3C1.1, raising the maximum sentence from 37 months to 46 months. In explaining this enhancement, the district judge referred to the companion's statement as "an additional threat, which is tacitly accepted by this defendant . . . ." Bamdele argues that he cannot be held responsible for a threat uttered by his companion, and that his own silence did not constitute an adoptive admission of the threat. We agree that Bamdele would not have been responsible for silence alone, but do not think that this is a fair reading of the evidence, which virtually compelled the enhancement. Bamdele twice visited the home of a cooperating witness, pounded on her door, screamed at her, and accused her of lying; this is ample to sustain the district court's finding, on a preponderance standard, that Bamdele was trying to intimidate the witness. The companion's remark simply confirmed what was implicit in these events. We also reject Bamdele's argument that the obstruction did not occur "during the investigation . . . of the instant offense," which is a requirement of U.S.S.G. 3C1.1. The witness that Bamdele tried to intimidate had provided an early lead in the investigation of the scheme for which Bamdele was ultimately convicted in the district court. It is irrelevant whether the particular check or checks connected to the witness happened to be the focus of the prosecution. 2. The more interesting issue in the case, which we need not decide on the merits, is appellants' claim that a downward departure was appropriate because of their status as aliens. 18 U.S.C. 3624(c) instructs the Bureau of Prisons, "to the extent practicable," to move prisoners from prisons into transitional detention, like halfway houses, during the last tenth of their sentences. Under Bureau of Prisons policy, this arrangement (we are told) is not available to convicted aliens. Therefore, the appellants reason, district courts should be allowed to reduce by ten percent the length of aliens' sentences. When the argument was made to the district court, it summarily denied the requested departure. At least two circuits have indicated that such a departure is permitted. See United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994); United States v. Farouil, 124 F.3d 838, 847 (7th Cir. 1997). Another district judge in this circuit has recently departed on the same basis. See United States v. Bakeas, ___ F. Supp. ___, 1997 WL 757860, *8 (D. Mass. Nov. 14, 1997). Bamdele cited Smith to the district court in his sentencing brief; nothing to the contrary was cited by the government. It is common practice that when a district court wants to depart but thinks that the law bars such a departure, the district court makes this clear at sentencing. Here, the only authority cited to the judge was Smith, affirming a similar departure. We are satisfied that the district court refused to exercise its discretion to depart, see, e.g., United States v. Rizzo, 121 F.3d 794, 799-800 (1st Cir. 1997); United States v. Morrison, 46 F.3d 127, 130-33 (1st Cir. 1995), and we reserve for another time the question whether such a departure would ever be permitted. Ogbemudia and Bamdele raise a number of other claims that are adequately answered in the government's brief. These include jury venire composition arguments and a number of sentencing arguments that, while legitimately raised, do not come close to showing an abuse of the district court's discretion or clear error. Bamdele also says that the evidence was insufficient to convict him on certain counts, but we hold that it was sufficient. Ogbemudia challenges the restitution order, which we also hold to have been proper. Affirmed.