US v. Olusola Idowu

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00298-MJG-1 Copies to all parties and the district court/agency. [998662031].. [10-4954]

Appeal: 10-4954

Document: 46

Date Filed: 08/24/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4954

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OLUSOLA IDOWU,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Marvin J. Garbis, Senior District
Judge. (1:09-cr-00298-MJG-1)

Submitted:

August 4, 2011

Decided:

August 24, 2011

Before WILKINSON, DAVIS, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Susan A. Hensler, Staff
Attorney, Baltimore, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, Peter M. Nothstein, Bonnie S. Greenberg,
Assistant United States Attorneys, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 08/24/2011

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PER CURIAM:
Olusola Idowu appeals from her wire fraud convictions,
asserting that the district court improperly instructed the jury
on the materiality of the false statements transmitted by wire.
The charged wire fraud concerned loan applications transmitted
in

2004

and

2005

and

income and assets.

containing

false

information

regarding

Idowu’s defense at trial was that the false

statements at issue were not material because, in 2004 and 2005,
mortgage funders did not rely on these statements as lenders
were just hoping to make a quick profit and sell the mortgages.
Finding the jury instructions were proper, we affirm.
Idowu claims the district court erred by not using the
materiality

instruction

she

provided

to

the

court,

which

specified that the false statements must have been material to a
reasonable person approving mortgage loans in 2004 and 2005.
Idowu asserts that the failure to give this instruction impaired
her ability to mount an effective defense because the jury was
not

directed

to

consider

the

relevant

time

frame.

Idowu

contends that her defense rested on the drastic difference in
underwriting

standards

compared

today,

to

and

during
that

the
the

relevant
court’s

time

period,

instruction

was

when
not

specific enough to alert the jury to the issue.
The Government notes that Iduwo did not object to the
district court’s jury instructions when given the opportunity
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and thus review is for plain error.

Iduwo claims that her

request for a different instruction was sufficient to preserve
her objection.

Iduwo is incorrect.

In United States v. Nicolaou, 180 F.3d 565, 569 (4th
Cir. 1999), we reviewed for plain error the Appellant’s claim
that the jury instruction was improper.

Like in this case, the

Appellant submitted a proposed instruction but did not object
when the court gave different instructions to the jury.

Under

Rule 30 of the Federal Rules of Criminal Procedure, objections
to the jury instructions or to the failure to give a requested
instruction must be specific and the court must be informed of
the grounds for objection before the jury retires to deliberate.
Under Rule 30, “[f]ailure to object in accordance with this rule
precludes appellate review” except for plain error.
By virtue of not objecting to the district court’s
materiality

instruction,

Idowu

failed

Thus, our review is for plain error.

to

preserve

her

claim.

See also United States v.

Arthurs, 73 F.3d 444, 447-48 (1st Cir. 1996) (requiring strict
compliance with Rule 30 and holding that pre-charge colloquy or
written objections will not suffice; an objection is required
after the jury is charged and before the jury retires).

Under

the plain error standard, Idowu must show: (1) there was error;
(2)

the

error

substantial

was

rights.

plain;
United

and

(3)

States
3

the
v.

error

Olano,

affected
507

U.S.

her
725,

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732-34

Document: 46

(1993).

Date Filed: 08/24/2011

When

these

Page: 4 of 5

conditions

are

satisfied,

we

may

exercise our discretion to notice the error only if the error
“seriously

affect[s]

reputation

of

the

judicial

proceedings.”

quotation marks omitted).
on the defendant.

fairness,

integrity
Id.

at

or

736

public

(internal

The burden of showing plain error is

United States v. Strickland, 245 F.3d 368,

379-80 (4th Cir. 2001).
Initially, we note that Idowu does not address the
plain

error

review

standard

in

her

brief

and

support her burden of establishing plain error.

thus

fails

to

In fact, in her

reply brief, Idowu does not dispute that she cannot show plain
error.

She rests solely on her contention that plain error

review does not apply.
In any event, Idowu has failed to show any error, much
less plain error.

The district court gave a legally correct

instruction on materiality which was the functional equivalent
of Idowu’s requested instruction.
rests

on

her

conclusion

that

Idowu’s assertion of error
the

jury

was

not

properly

instructed that materiality should be viewed in light of what a
reasonable and prudent lender would have relied upon in 2004 and
2005.

However, the instruction given informed the jurors that

they were to consider a reasonable and prudent lender in the
circumstances of those who decided whether to make the loans at
issue.

As the loans at issue were made in 2004 and 2005, the
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Appeal: 10-4954

jury

Document: 46

was

Date Filed: 08/24/2011

requested.

instructed,

albeit

in

Page: 5 of 5

different

words,

as

Idowu

See United States v. Lighty, 616 F.3d 321, 366 (4th

Cir. 2010) (holding that this court will reverse for failure to
give requested instruction only if requested instruction was not
substantially covered by the court’s charge).
Moreover,

even

had

the

instruction

been

improper,

Idowu has failed to make any showing as to the remaining prongs
of the plain error test.
fraud convictions.
facts

and

materials

legal
before

Accordingly, we affirm Idowu’s wire

We dispense with oral argument because the

contentions

are

adequately

the

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

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