United States v. Oyewumi, No. 10-3427(L) (2d Cir. March 29, 2012) (Wesley, Carney, CJJ, Cedarbaum, DJ)
Defendant-appellant Saeed went through the entire district court process – arrest, trial, safety-valve proffer and sentence – under the name Reginald Davis, a stolen identity. He also, according to a footnote in this opinion,tried to continue using that identity in the circuit, but the court would not permit it. It is his use of that identity that generated the most action on his appeal.
Saeed was arrested in 2009 after law enforcement agents seized a package at Newark Airport that contained 787 grams of heroin. A controlled delivery, followed by some monitored telephone calls, ultimately implicated Saeed. Saeed’s attorney told the government that Saeed might be eligible for safety-valve relief. Warning that Saeed would have to reveal his true identity, the government invited him to a proffer. Saeed attended, and continued to insist that he was Reginald Davis, although he also appeared to give a truthful account of his involvement in the drug conspiracy.
Saeed was subsequently charged with four additional crimes, all resulting from his use of a false identity during the safety-valve proffer, although two of the four were dismissed before trial. He was convicted by a jury of the narcotics conspiracy, one count of violating 18 U.S.C. § 1001, and one aggravated identity theft count. At sentencing, the government opposed safety-valve treatment because Saeed had lied about his identity in the proffer. The court agreed that this disentitled him to the safety-valve, and sentenced him to 110 months’ imprisonment.
On appeal, Saeed argued that his § 1001 conviction – which was the predicate for the aggravated identity theft count – was based on legally insufficient evidence because his false statements about his identity were not material. The circuit disagreed. “As a matter of common sense, providing a false identity to officials conducting a safety-valve proffer has both a ‘natural tendency to influence’ and is ‘capable of distracting’ those officials.” This type of deception affects the government’s ability to develop information about the crime, the defendant’s participation in it, and any relevant criminal history. The government was not required to prove that the lies actually affected those inquiries.
Saeed also argued that the government should not have been permitted to introduce his safety-valve proffer statements at trial, on the theory that the government acted in “bad faith” in continuing the proffer after it realized that he would not meet the pre-condition of disclosing his true identity. The circuit again disagreed. Saeed was informed of the government’s pre-condition for recommending safety-valve relief but nevertheless lied about his identity. The government was “under no obligation to save Saeed from himself once he failed to reveal his true identity.”