US v. Valentina Elebesunu
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:13-cr-00008-GJH-2. Copies to all parties and the district court. . [15-4544]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
George J. Hazel, District Judge.
November 21, 2016
February 7, 2017
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph Murtha, MURTHA PSORAS &
Maryland, for Appellant.
Attorney, Baltimore, Maryland, Menaka
Greenbelt, Maryland, for Appellee.
LANASA LLC, Lutherville,
Rosenstein, United States
Kalaskar, Assistant United
Unpublished opinions are not binding precedent in this circuit.
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(“Elebesunu”) was convicted of Hobbs Act robbery and conspiracy
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).
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.
On November 21, 2012, three masked gunmen robbed an armored
truck outside a Bank of America branch in Bladensburg, Maryland
All told, they took about $275,000.
gunmen did not act alone.
As the authorities investigated the
eventually included two bank insiders.
The first insider was Damione Lewis (“Lewis”), a contract
security guard hired to protect the bank.
Lewis was arrested on
organizing the robbery and told investigators he had enlisted
several associates to carry out the crime.
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Lewis also named a second insider, Elebesunu, who, at the
time, was a Bank of America assistant vice president.
described Elebesunu as a principal in planning and facilitating
Later, Elebesunu was arrested and charged with
Hobbs Act robbery and conspiracy to commit that crime.
pleaded not guilty and went to trial on both counts. 1
Lewis testified against Elebesunu at trial as required by
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.
bank’s break room.
One afternoon shortly before
In particular, the two talked over some
paying her daughter’s private school tuition and Lewis had a
newborn on the way.
get the money.”
At first Elebesunu proposed robbing
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.
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And although Lewis thought she was not serious, the
topic “kept coming up, and [Elebesunu was] trying to figure out
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.
Lewis, in turn, would alert
Elebesunu was to collect her share of the proceeds from Lewis.
another aspect of their break room conversation.
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:
And we just both started talking and just
one conversation led to another.
We talked about robbing [the bank].
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
And when you said the defendant said she had
done it before, did she ever give any more
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details about doing it before, how it was
She said she slid it out through the drivethru window.
And was there an amount that was discussed?
I believe it was 50.
. . .
During this exchange, Elebesunu did not object to
Lewis continued on direct examination:
She didn’t want to tell me about it at
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.
When you say the situation before, what do
About the robbery she had done before, the
taking of the money at the bank when she was
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.
elicit additional testimony about the 2007 robbery.
did Elebesunu object, arguing that the Government’s question was
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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
J.A. 334. 2
The district court continued: “I think it
The jury convicted Elebesunu on both counts, and she was
U.S.C. § 1291.
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
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On appeal, Elebesunu contends Lewis’ testimony related to
admitted in violation of Federal Rule of Evidence 404(b).
usually would review the admission of Lewis’ testimony for abuse
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
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
United States v. Carthorne, 726 F.3d 503, 516
We have omitted internal alterations,
quotations throughout this opinion.
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ruling is subject to debate, it is not plain error.
States v. Robinson, 627 F.3d 941, 957 n.4 (4th Cir. 2010).
With the highly deferential plain-error standard in mind,
we turn to the substance of Elebesunu’s appeal.
character” and to suggest that the defendant is guilty because
she must have acted consistent with that character.
The rule permits such evidence, however, if
as . . . motive,
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).
First, the evidence must be
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.”
Third, the prior-act
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confusion or unfair prejudice in the sense that it tends to
subordinate reason to emotion in the factfinding process.”
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
United States v. Van Metre, 150 F.3d 339, 349 (4th
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.
Our cases reflect a degree of flexibility when evaluating
charged offense in a temporal sense.
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
conviction that was nearly six years old).
The evidence at
issue here was five-and-one-half years old, more recent than the
evidence at issue in either Queen or McLean.
And although the
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Queen court mentioned that “the defendant ha[d] spent many of
intervening . . . years
Elebesunu does not direct us to any case that suggests the Queen
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,
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.
defendant took illegal contributions for different purposes, we
“involved the acceptance of money for the use of his political
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.
events show much more than the moral flexibility of a recidivist
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position of trust, held within the same company, for her own
similarity argument, and with it her attempt to characterize the
Government’s evidence of the 2007 robbery as irrelevant.
We next assess whether the evidence at issue was probative
available to the [G]overnment, it is an essential part of the
crimes on trial, or where it furnishes part of the context of
submits that it used the evidence to prove an essential part of
the crime on trial: Elebesunu’s knowledge of and intent to enter
necessary for the Government to prove either knowledge or intent
conspiracy with Lewis, but categorically denied that she and
She pleaded not guilty to both the Hobbs Act robbery and
By doing so, Elebesunu placed her intent,
an element of the conspiracy charge, squarely at issue.
Queen, 132 F.3d at 997.
See generally United States v. Clark,
928 F.2d 639, 641-42 (4th Cir. 1991) (listing the elements of a
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intended to enter into the conspiracy.
And it used the 2007
information demonstrates the seriousness of her discussions with
Lewis -- that their break room conversations were more than an
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
United States v. Rooks, 596 F.3d 204, 211-12 (4th
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.
In examining the third Queen factor, we ask whether the
evidence was clearly unreliable.
Evidence is reliable “unless
Siegel, 536 F.3d 306, 319 (4th Cir. 2008).
Lewis’ testimony about the 2007 robbery as unreliable on two
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
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.
And credibility issues are properly reserved
United States v. Wilson, 118 F.3d 228, 234 (4th
Elebesunu offered testimony to contradict Lewis’ in
We cannot substitute the jury’s judgment with our
Elebesunu’s attempt to conflate reliability with bias, by
arguing Lewis stood to benefit from her conviction under the
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.”
to defeat Elebesunu’s contention.
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
Finally, we ask whether the evidence was so harmful, in
See Queen, 132 F.3d at 997.
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.”
Elebesunu contends that evidence
of the 2007 robbery was unfairly prejudicial because, in the
Although Lewis’ testimony formed part of the Government’s
substantially outweighed its probative value.
But even if the
evidence at issue was unfairly prejudicial, that prejudice was
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).
district court gave a limiting instruction, telling the jury
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that Lewis’ testimony about the 2007 robbery was not evidence of
The Government has offered evidence tending to
show that on a different occasion, the defendant
engaged in conduct similar to the charges in the
In that connection, let me remind you
that the defendant is not on trial for committing this
act not alleged in the indictment.
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.
And any prejudice caused by the challenged evidence
Even without any evidence of the 2007 robbery,
Lewis offered compelling evidence of Elebesunu’s guilt.
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.
plain error standard of review.
She has not demonstrated that
the district court made any obviously incorrect ruling on any
element of the Queen test.
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For that reason, the district court’s judgment is
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