US v. Valentina Elebesunu

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:13-cr-00008-GJH-2. Copies to all parties and the district court. [1000018496]. [15-4544]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4544

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
VALENTINA ELEBESUNU,
Defendant – Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
George J. Hazel, District Judge.
(8:13-cr-00008-GJH-2)

Submitted:

November 21, 2016

Decided:

February 7, 2017

Before SHEDD, AGEE, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joseph Murtha, MURTHA PSORAS &
Maryland, for Appellant.
Rod J.
Attorney, Baltimore, Maryland, Menaka
States
Attorney,
OFFICE
OF
THE
Greenbelt, Maryland, for Appellee.

LANASA LLC, Lutherville,
Rosenstein, United States
Kalaskar, Assistant United
UNITED
STATES
ATTORNEY,

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
After

a

five-day

jury

trial,

Valentina

Elebesunu

(“Elebesunu”) was convicted of Hobbs Act robbery and conspiracy
to

commit

Hobbs

§ 1951(a).

Act

robbery,

both

violations

of

18

U.S.C.

On appeal she challenges the admission of a portion

of a co-conspirator’s testimony as improper character evidence
prohibited by Federal Rule of Evidence 404(b).

As Elebesunu

failed to object to the challenged evidence, its admission is
reviewed only for plain error.

We conclude the admission of the

testimony was not plain error and affirm Elebesunu’s conviction.

I.
A.
On November 21, 2012, three masked gunmen robbed an armored
truck outside a Bank of America branch in Bladensburg, Maryland
(the “bank”).

All told, they took about $275,000.

gunmen did not act alone.
robbery,

a

larger

But the

As the authorities investigated the

conspiracy

became

apparent,

one

that

eventually included two bank insiders.
The first insider was Damione Lewis (“Lewis”), a contract
security guard hired to protect the bank.
December

6,

2012.

After

his

arrest,

Lewis was arrested on
Lewis

confessed

to

organizing the robbery and told investigators he had enlisted
several associates to carry out the crime.
2

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Lewis also named a second insider, Elebesunu, who, at the
time, was a Bank of America assistant vice president.

Lewis

described Elebesunu as a principal in planning and facilitating
the robbery.

Later, Elebesunu was arrested and charged with

Hobbs Act robbery and conspiracy to commit that crime.

She

pleaded not guilty and went to trial on both counts. 1
B.
Lewis testified against Elebesunu at trial as required by
his

written

plea

agreement.

According

to

Lewis,

he

and

Elebesunu were close outside work; she had been invited to his
wedding, and he had picked her children up from after school
activities on numerous occasions.
the

robbery

the

two

bank’s break room.
significant

began

One afternoon shortly before

discussing

their

finances

in

the

In particular, the two talked over some

upcoming

expenses:

Elebesunu

was

having

trouble

paying her daughter’s private school tuition and Lewis had a
newborn on the way.
Their
when

conversation

Elebesunu

get the money.”

“said

took
she

J.A. 92.

a

turn

knew

a

into

uncharted

way

that

territory

[they]

could

At first Elebesunu proposed robbing

1

Elebesunu also was charged with using, carrying, and
brandishing a firearm in furtherance of a crime of violence, a
violation of 18 U.S.C. § 924(c). The Government dismissed that
charge before trial.

3

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the bank.

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And although Lewis thought she was not serious, the

topic “kept coming up, and [Elebesunu was] trying to figure out
how

we

c[ould]

do

it[.]”

J.A.

68.

Eventually

Lewis

and

Elebesunu settled on a plan to rob an armored truck when it
arrived to pick up the bank’s excess funds.

Because the amount

of money leaving the bank fluctuated every day, and Elebesunu
knew the amount ahead of time, she was to select a lucrative day
for the robbery and tell Lewis.
those

who

were

to

commit

the

Lewis, in turn, would alert
robbery.

After

the

robbery,

Elebesunu was to collect her share of the proceeds from Lewis.
C.
The

testimony

Elebesunu

challenges

on

another aspect of their break room conversation.

appeal

concerns

In particular,

Lewis testified that when Elebesunu first discussed robbing the
bank she also told him that she had taken $50,000 in 2007 while
employed as a Bank of America teller:
[A.]

And we just both started talking and just
one conversation led to another.
We talked about robbing [the bank].
She
said she had done it [in 2007] when she was
a teller, and it just went on from there.
We had numerous conversations.
It went on
from there.

Q.

You said
that?

there

were

A.

Yes.

Q.

And when you said the defendant said she had
done it before, did she ever give any more
4

conversations

after

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details about doing it before, how it was
done?
A.

She said she slid it out through the drivethru window.

Q.

And was there an amount that was discussed?

A.

I believe it was 50.

Q.

Fifty what?

. . .
[A.]

$50,000.

J.A. 67-68.

During this exchange, Elebesunu did not object to

Lewis’ testimony.

Lewis continued on direct examination:

[A.]

She didn’t want to tell me about it at
first.
She mentioned something, but then
she said I don’t know if I can trust you,
and then she didn’t say anything else after
that for about five minutes.
And then she
told me about the whole situation, about her
doing it before.

Q.

When you say the situation before, what do
you mean?

A.

About the robbery she had done before, the
taking of the money at the bank when she was
a teller.

J.A. 93.

Again, Elebesunu did not object.

Instead, she took

the witness stand in her defense and denied proposing a robbery
to -- or discussing any such matters with -- Lewis.
While

cross-examining

Elebesunu,

the

Government

elicit additional testimony about the 2007 robbery.

tried

to

Only then

did Elebesunu object, arguing that the Government’s question was
“a

back-door

way

to

try

to

get
5

in

some

[improper]

404(b)”

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character evidence.

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J.A. 333.

The district court, however,

concluded Elebesunu had waived her Rule 404(b) objection and
that the question was otherwise proper: “So in . . . terms of
the 404(b) issue or the other bad acts issue, the testimony from
Mr. Lewis came in without objection. . . . It sounds like the[]
[Government] ha[s] a good-faith basis to ask” about the 2007
robbery.

J.A. 334. 2

probably

would

Nonetheless,
[Government]

The district court continued: “I think it

have

again,
ha[s]

been

appropriate

my

a

ruling

good-faith

is
basis

[under
at
to

this
ask

Rule]

404(b).

point
the

the[]

question.”

J.A. 335.
The jury convicted Elebesunu on both counts, and she was
sentenced
appealed

to
her

105

months’

conviction,

imprisonment.

and

we

have

Elebesunu

jurisdiction

timely

under

28

U.S.C. § 1291.

2

Elebesunu disputes the characterization of the 2007 event
as a “robbery.”
She contends instead that the 2007 event more
properly is characterized as a “larceny.” For consistency, and
because we do not believe the characterization of the event
affects the outcome of this appeal, we refer to the event as a
robbery throughout.

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II.
A.
On appeal, Elebesunu contends Lewis’ testimony related to
the

2007

robbery

was

improper

character

evidence,

which

was

admitted in violation of Federal Rule of Evidence 404(b).

We

usually would review the admission of Lewis’ testimony for abuse
of discretion.
Cir. 2006). 3

United States v. Perkins, 470 F.3d 150, 155 (4th
But because Elebesunu failed to make a “specific

and timely objection at trial,” we review the admission of the
challenged evidence for plain error.
742 F.3d 184, 189 (4th Cir. 2014).

United States v. Keita,
To prevail under the plain

error standard of review, Elebesunu must show (1) that there was
an error; (2) that error was plain; and (3) the error affected
her substantial rights.

See Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731-32 (1993).

Even then, the

Court will only recognize plain error that “seriously affects
the

fairness,

proceedings.”

integrity

or

public

reputation

of

[the]

Id. at 732.

A “plain” error is “clear” or “obvious” in the sense that
it runs contrary to “the settled law of the Supreme Court or
this circuit.”

United States v. Carthorne, 726 F.3d 503, 516

3

We have omitted internal alterations,
quotations throughout this opinion.

7

citations,

and

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2013).

Put

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another

way,

if

the

district

ruling is subject to debate, it is not plain error.

court’s

See United

States v. Robinson, 627 F.3d 941, 957 n.4 (4th Cir. 2010).
B.
With the highly deferential plain-error standard in mind,
we turn to the substance of Elebesunu’s appeal.
prohibits
other

admission

act”

when

of
it

evidence
is

used

of
“to

a

past
prove

Rule 404(b)

“crime,
[the

wrong,

or

defendant’s]

character” and to suggest that the defendant is guilty because
she must have acted consistent with that character.

Fed. R.

Evid. 404(b)(1).

The rule permits such evidence, however, if

the

aimed

evidence

is

as . . . motive,

at

proving

opportunity,

“another

intent,

purpose,

preparation,

such
plan,

knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2).
We have distilled the test for admissibility under Rule
404(b) into four inquiries.

See United States v. Queen, 132

F.3d 991, 997 (4th Cir. 1997).
relevant

to

some

fact

general character.

Id.

in

issue

First, the evidence must be
other

than

the

defendant’s

Second, evidence of the prior act must

be “necessary in the sense that it is probative of an essential
claim or an element of the offense.”
evidence
probative

must

be

value

“reliable.”
“must

not

Id.
be
8

Id.

Third, the prior-act

Fourth,

substantially

the

evidence’s

outweighed

by

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confusion or unfair prejudice in the sense that it tends to
subordinate reason to emotion in the factfinding process.”

Id.

1.
With regard to the first inquiry under Queen, “[e]vidence
is relevant if it has any tendency to make the existence of any
determinative fact more probable than it would be absent the
evidence.”
Cir.

United States v. Van Metre, 150 F.3d 339, 349 (4th

1998).

In

addition,

“[t]o

be

relevant

under

Rule

404(b) . . . the evidence must [also] be sufficiently related to
the charged offense,” id., “in terms of physical similarity or
mental state,” Queen, 132 F.3d at 997.

Elebesunu contends that

evidence of the 2007 robbery was not “sufficiently related” to
the charged offense both temporally and factually.

We disagree.

Our cases reflect a degree of flexibility when evaluating
whether

a

prior

bad

act

was

“sufficiently

charged offense in a temporal sense.

related”

to

the

For example, in Queen we

affirmed the district court’s decision to allow evidence of a
prior bad act that was nearly ten years old under Rule 404(b).
See Queen, 132 F.3d at 997-98; see also United States v. McLean,
581 F. App’x 228, 234-35 (4th Cir. 2014) (per curiam) (affirming
the

district

court’s

decision

to

admit

evidence

conviction that was nearly six years old).

of

a

prior

The evidence at

issue here was five-and-one-half years old, more recent than the
evidence at issue in either Queen or McLean.
9

And although the

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Queen court mentioned that “the defendant ha[d] spent many of
th[e]

intervening . . . years

in

prison,”

132

F.3d

at

998,

Elebesunu does not direct us to any case that suggests the Queen
defendant’s
analysis.

prison

term

was

dispositive

of

the

temporal

We thus reject Elebesunu’s attempt to undermine the

challenged evidence based only on the passage of time.
In evaluating factual similarity, our test does not demand
that the prior bad act be “identical” to the conduct charged,
but only requires that it be “similar enough.”
F.3d at 350.

Van Metre, 150

An apt example is United States v. Bailey,

990

F.2d 119 (4th Cir. 1993), where we held that the Government
could use evidence that the defendant, a state legislator, had
accepted illegal campaign contributions in the past to prove he
intended to accept illegal campaign contributions in connection
with the charged offense.

See id. at 123-25.

Although the

defendant took illegal contributions for different purposes, we
connected

the

two

events

by

reasoning

that

the

evidence

“involved the acceptance of money for the use of his political
office.”

Id. at 124.

Both the 2007 robbery and the charged robbery are factually
similar as they illustrate Elebesunu’s willingness to leverage
her position as a bank insider for personal gain.

The two

events show much more than the moral flexibility of a recidivist
criminal,

as

Elebesunu

argues.
10

In

both

cases,

she

used

a

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position of trust, held within the same company, for her own
financial

gain.

We

therefore

reject

Elebesunu’s

factual-

similarity argument, and with it her attempt to characterize the
Government’s evidence of the 2007 robbery as irrelevant.
2.
We next assess whether the evidence at issue was probative
of

an

element

“necessary”

of

when

the

crime

“considered

--

in

that

the

is,

light

whether

of

other

it

was

evidence

available to the [G]overnment, it is an essential part of the
crimes on trial, or where it furnishes part of the context of
the

crime.”

Queen,

132

F.3d

at

998.

The

Government

here

submits that it used the evidence to prove an essential part of
the crime on trial: Elebesunu’s knowledge of and intent to enter
into

the

conspiracy.

Elebesunu

contends

that

it

was

not

necessary for the Government to prove either knowledge or intent
because

she

never

argued

she

mistakenly

entered

into

a

conspiracy with Lewis, but categorically denied that she and
Lewis

ever

discussed

robbing

anything.

Elebesunu’s

argument

fails.
She pleaded not guilty to both the Hobbs Act robbery and
conspiracy charges.

By doing so, Elebesunu placed her intent,

an element of the conspiracy charge, squarely at issue.
Queen, 132 F.3d at 997.

See

See generally United States v. Clark,

928 F.2d 639, 641-42 (4th Cir. 1991) (listing the elements of a
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conspiracy

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charge).

The

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Government

had

intended to enter into the conspiracy.
robbery

to

do

so

because

her

to

prove

Elebesunu

And it used the 2007

choice

to

volunteer

that

information demonstrates the seriousness of her discussions with
Lewis -- that their break room conversations were more than an
idle fantasy.

It is of no moment that the evidence was not

strictly necessary to the Government’s case, “as Queen’s second
prong focuses on whether the evidence is necessary in the sense
that it is probative of an essential claim or an element of the
offense.”

United States v. Rooks, 596 F.3d 204, 211-12 (4th

Cir. 2010).

Thus, we cannot say it was plain error for the

district court to conclude that the Government’s evidence of the
2007 robbery was necessary to the Government’s case.
3.
In examining the third Queen factor, we ask whether the
evidence was clearly unreliable.
it

is

so

rational

preposterous
and

properly

that

it

instructed

Evidence is reliable “unless
could

not

juror.”

Siegel, 536 F.3d 306, 319 (4th Cir. 2008).

be

believed

United

by

States

a
v.

Elebesunu attacks

Lewis’ testimony about the 2007 robbery as unreliable on two
grounds.

First, she argues that his testimony was so vague that

the jury could not have believed him.

Second, she argues that

Lewis’ testimony was unreliable because he was testifying under

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a plea agreement and stood to benefit if she were convicted.
Again, we disagree.
Elebesunu offers no convincing reason why Lewis’ testimony
was

so

vague

that

it

was

plainly

unreliable.

In

effect,

Elebesunu asks us to make a credibility determination and, thus,
discount Lewis’ testimony.

But “[r]eliability is not synonymous

with credibility when dealing with 404(b) evidence.”
990 F.2d at 123.
for the jury.
Cir. 1997).
all

And credibility issues are properly reserved

United States v. Wilson, 118 F.3d 228, 234 (4th

Elebesunu offered testimony to contradict Lewis’ in

material

credible.

Bailey,

respects,

and

the

jury

found

Lewis

to

be

more

We cannot substitute the jury’s judgment with our

own.
Elebesunu’s attempt to conflate reliability with bias, by
arguing Lewis stood to benefit from her conviction under the
terms

of

previously

his

plea

rejected

agreement,
a

fares

defendant’s

no

attempt

better.
to

use

We
the

have

fact

a

witness was testifying under a written plea agreement to show
that witness’ unreliability.

See United States v. Hadaway, 681

F.2d 214, 218 (4th Cir. 1982).

In Hadaway we reasoned that

“[t]he plea bargainer’s position frequently makes him extremely
reluctant to commit another crime or crimes and thus lay himself
open to greater punishment.”

Id.

to defeat Elebesunu’s contention.
13

The same logic applies here
Thus, it was not plain error

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for the district court to conclude that Lewis’ testimony was
reliable.
4.
Finally, we ask whether the evidence was so harmful, in
proportion

to

its

probative

value,

that

excluded.

it

See Queen, 132 F.3d at 997.

should

have

been

Evidence is unfairly

prejudicial if it harms the defendant’s case “for reasons other
than its probative value[.]”
613, 620 (4th Cir. 2003).

United States v. Mohr, 318 F.3d
And even then, evidence should be

excluded only if its prejudicial effect “substantially outweighs
[its] probative value.”

Id.

Elebesunu contends that evidence

of the 2007 robbery was unfairly prejudicial because, in the
absence

of

Lewis’

testimony,

she

likely

would

not

have

been

convicted.
Although Lewis’ testimony formed part of the Government’s
case,

it

is

not

clear

that

evidence’s

prejudicial

substantially outweighed its probative value.

effect

But even if the

evidence at issue was unfairly prejudicial, that prejudice was
cured

by

the

“[C]autionary

district
or

court’s

limiting

thorough

limiting

instructions

instruction.

generally

obviate

any . . . prejudice, particularly if the danger of prejudice is
slight in view of the overwhelming evidence of guilt.”
States v. Powers, 59 F.3d 1460, 1468 (4th Cir. 1995).

United

Here, the

district court gave a limiting instruction, telling the jury
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that Lewis’ testimony about the 2007 robbery was not evidence of
Elebesunu’s guilt:
The Government has offered evidence tending to
show that on a different occasion, the defendant
engaged in conduct similar to the charges in the
indictment.
In that connection, let me remind you
that the defendant is not on trial for committing this
act not alleged in the indictment.
Accordingly, you
may not consider this evidence of the similar act as a
substitute for proof that the defendant committed the
crime charged, nor may you consider this evidence as
proof that the defendant has a criminal personality or
bad character. The evidence of the other similar act
was admitted for a much more limited purpose, and you
may consider it only for that limited purpose.
J.A. 404.

And any prejudice caused by the challenged evidence

was slight.

Even without any evidence of the 2007 robbery,

Lewis offered compelling evidence of Elebesunu’s guilt.

Thus,

because

other

of

the

limiting

instruction

and

substantial

evidence of Elebesunu’s guilt, we cannot say that the probative
value of the evidence at issue was clearly and substantially
outweighed by its prejudicial effect.
****
In

sum,

Elebesunu

has

not

plain error standard of review.

carried

her

burden

under

the

She has not demonstrated that

the district court made any obviously incorrect ruling on any
element of the Queen test.

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III.
For that reason, the district court’s judgment is
AFFIRMED.

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