Case 1:16-cr-00587-SHS Document 130 Filed 06/12/18 Page 1 of 11
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`16-cr-587 (SHS)
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`OPINION
`
`UNITED STA TES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`UNITED STA TES OF AMERICA
`
`-against-
`
`RACHELL ODIASE
`a/k/ a "Rachel Odiase"
`
`Defendant.
`
`SIDNEY H. STEIN, U.S. District Judge.
`
`On March 8, 2018, a jury convicted Rachell Odiase of the felonies of
`money laundering, conspiracy to commit money laundering, and engaging in
`a monetary transaction in property derived from specified unlawful activity
`pursuant to 18 U.S.C. §§ 1956(a)(l)(B)(i), 1956(h), and 1957, respectively; she
`was acquitted of identity theft and conspiracy to commit wire fraud. During
`the trial, the jury heard evidence that Odiase was involved in a fraud
`whereby someone posed as a law enforcement official and repeatedly pressed
`an elderly victim to transfer large sums of cash by presenting a wholly
`fabricated story about her grandchild being in serious legal peril having been
`discovered with drugs in his apartment. (Trial Tr. ("Tr.") 28-30.) The victim
`transferred $300,000; $50,000 of that sum was deposited into Odiase' s bank
`account by a participant in the scheme; and Odiase transferred that $50,000
`out of her account and into an account at a different bank which was also in
`her name. According to Odiase, she believed at all relevant times that the
`$50,000 was proceeds from the sale of her inventory of goods to a foreign
`buyer.
`
`Odiase has now moved for a new trial pursuant to Federal Rule of
`Criminal Procedure 33. (ECF No. 119.) She contends that she is entitled to a
`new trial because (1) the evidence presented at trial was insufficient to
`convict her; (2) the Court erred by allowing the jury to watch only
`government-selected excerpts of a video recording of Odiase' s police
`
`

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`interview, rather than allowing Odiase to play the entire video to the jury;
`and (3) the government improperly shifted onto Odiase the burden to prove
`her own innocence.
`
`The grant of a new trial is within the "broad discretion" of the Court and
`is reserved for only "the most extraordinary circumstances." United States v.
`Ferguson, 246 F.3d 129, 133-34 (2d Cir. 2001) (quoting United States v. Sanchez,
`969 F.2d 1409, 1413 (2d Cir. 1992)); United States v. White, No. 10-Cr-516, 2011
`WL 2207566, at *4 (S.D.N.Y. May 31, 2011). In order to succeed on her
`motion, Odiase must demonstrate that it would be "manifest injustice" to let
`the guilty verdict stand. Ferguson, 246 F.3d at 134; White, 2011 WL 2207566, at
`*4. Because the Court perceives no error, let alone one amounting to manifest
`injustice, Odiase's motion for a new trial is denied. 1
`
`I. THERE Is No LACK OF SUFFICIENT EVIDENCE TO SUPPORT THE COUNTS
`OF CONVICTION
`
`Odiase first contends she is entitled to a new trial because the evidence
`was insufficient to find her guilty of any of the three counts on which she was
`convicted. Odiase' s motion seeking a new trial is expressly grounded in
`Federal Rule of Criminal Procedure 33, although her papers cite language
`and authorities applicable to a Rule 29 motion for judgment of acquittal. See
`Fed. R. Crim. P. 29(a). In its opposition brief, the government treats the
`portion of Odiase' s motion that contends the evidence was insufficient as
`pursuant to Rule 29. Like Odiase, the Court will treat her motion as pursuant
`to Rule 33, but look to Rule 29 law to decide whether the evidence was in fact
`sufficient to convict Odiase. The Court finds that the evidence was sufficient,
`and it would not be manifest injustice to let the guilty verdict stand. Indeed,
`there was more than adequate evidence supporting each count of conviction.
`
`In considering a challenge to the sufficiency of the evidence to sustain a
`conviction, the Court "review[s] all of the evidence presented at trial 'in the
`light most favorable to the government, crediting every inference that the
`jury might have drawn in favor of the government."' United States v. Walker,
`
`1 The Court denied Odiase's motion from the bench on June 1, 2018, and memorializes
`the reasons for that decision in this written Opinion.
`
`2
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`

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`191 F.3d 326, 333 (2d Cir. 1999) (quoting United States v. Hernandez, 85 F.3d
`1023, 1030 (2d Cir. 1996)); see United States v. Espaillet, 380 F.3d 713, 718 (2d
`Cir. 2004). Mindful that "courts must be careful to avoid usurping the role of
`the jury," Espaillet, 380 F.3d at 718 (quoting United States v. Jackson, 335 F.3d
`170, 180 (2d Cir. 2003)), the Court will not disturb the conviction "so long as
`'any rational trier of fact could have found the essential elements of the crime
`beyond a reasonable doubt."' Walker, 191 F.3d at 333 (internal quotation
`marks omitted) (quoting United States v. Tocco, 135 F.3d 116, 123 (2d Cir.
`1998)).
`
`To convict Odiase of the three counts of conviction, the Court instructed
`the jury as to the essential elements that it needed to find beyond a
`reasonable doubt. Those elements included (1) that Odiase "knew that the
`property involved in the financial transaction" - the $50,000 - "represented
`the proceeds of some form of unlawful activity," and (2) that Odiase "knew
`that the financial transaction" - the transfer of the $50,000 from one bank
`account into another - "was designed in whole or in part to conceal or
`disguise the nature, location, source, ownership, or control of those
`proceeds." (Trial Tr. ("Tr.") 495-96, 502-03.) The latter element "requires
`proof that the purpose or intended aim of the transaction was to conceal or
`disguise a specified attribute of the funds." United States v. Huezo, 546 F.3d
`174, 179 (2d Cir. 2008).
`
`Odiase contends that the evidence presented to the jury was insufficient
`as a matter of law to establish either of those two elements.
`
`With respect to the first challenged element - knowledge - Odiase offers
`a two-part argument. Relying on the jury's not-guilty verdict on the
`conspiracy to commit wire fraud count, Odiase first argues that the jury must
`have found that, as of the time the $50,000 was deposited into her account,
`Odiase lacked knowledge that the funds were the proceeds of the fraud; and
`to the extent that the jury found otherwise, such a finding was inconsistent
`with its not-guilty verdict on the conspiracy to commit wire fraud count.
`From there, Odiase infers that the jury must have found that she acquired the
`requisite knowledge at some point between the deposit and her transfer of
`the funds into a different bank account, and she contends that the evidence
`presented at trial was insufficient to support such a finding.
`
`3
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`As an initial matter, even if Odiase were correct that the jury's verdicts
`were inconsistent, that generally would not by itself be a basis for granting
`her motion. See United States v. Acosta, 17 F.3d 538, 544-45 (2d Cir. 1994).
`Here, however, the Court agrees with the government that the verdicts can be
`harmonized, and therefore a new trial is not warranted on that basis. See Ali
`v. Kipp, No. 16-4225-cv, 2018 WL 2305810, at *6 (2d Cir. May 22, 2018).
`"Consistent with [the Court's] instruction[s]" on the counts of conviction, "a
`reasonable juror could conclude that, at the time [the $50,000 was deposited],
`the defendant knew that the money came from some form of criminal activity,
`even if there was not sufficient evidence to conclude, beyond a reasonable
`doubt, that the defendant participated in a conspiracy to commit wire fraud."
`(Gov't's Mem. of Law in Opp'n to Def.'s Mot. at 16, ECF No. 125 (emphasis
`added).)
`
`More fundamentally, the Court finds that there was ample circumstantial
`evidence from which the jury could infer that Odiase knew the $50,000
`represented the proceeds of some form of unlawful activity, at least as of the
`date she transferred the funds to a different account, and quite likely earlier.
`The same circumstantial evidence was sufficient to enable a jury to infer that
`Odiase knew that the transfer of the funds between bank accounts "was
`designed in whole or in part to conceal or disguise the nature, location,
`source, ownership, or control of those proceeds." (Tr. 495-96, 502-03.)
`
`The circumstantial evidence included evidence of what the government
`contended were extended and repeated false exculpatory statements that
`Odiase made during her police interview. The interview, which was
`videotaped, lasted one hour and forty minutes. (Tr. 110.) During that
`interview, Odiase repeatedly offered an improbable explanation regarding
`the source of the $50,000, contending that it was proceeds from the sale of her
`goods to "Frank" - a foreign buyer about whom she otherwise knew
`essentially nothing except his name and his willingness to pay her $50,000.
`(See GX-501.) As the Court instructed at the end of the trial, the jury was
`entitled to find that Odiase "gave a false statement in order to avert suspicion
`from herself," and, if it did, the jury could, but was not required to, infer that
`Odiase believed that she was guilty. (Tr. 474.)
`
`4
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`The circumstantial evidence also included bank records reflecting that
`the $50,000 transaction into Odiase' s account and the $50,000 transaction
`between Odiase' s two accounts were exponentially larger than any other
`single transaction in either account, which otherwise had sparse activity. (GX
`301-03, 312, 401-03, 406.) From this - crediting every inference in the
`government's favor - the jury could reasonably have inferred that the
`accounts were used to house proceeds from unlawful activity.
`
`Naturally, Odiase' s transfer of the funds between her two accounts was
`also evidence supporting the jury's verdict. Odiase now contends (and
`counsel argued to the jury) that, because both accounts were in her own
`name, the transfer could not have been effected with the intent to conceal or
`disguise the nature, location, source, ownership, or control of those proceeds.
`
`The jury was entitled to find otherwise. Specifically, it was entitled to
`find - especially in light of the other circumstantial evidence - that Odiase
`transferred the funds in order to elongate the trail from, and thereby help
`conceal, "a specified attribute of the funds" - their source. Huezo, 546 F.3d at
`179. That inference would have been an especially logical one given that the
`jury was not presented with evidence of any other purpose for the transfer. 2
`That Odiase might have been more cunning in her efforts to conceal the
`source of the funds - perhaps by putting the funds into an account with
`someone else's name - does not preclude such a finding.
`
`Reviewing "all of the evidence presented at trial 'in the light most
`favorable to the government,"' and "crediting every inference that the jury
`might have drawn in favor of the government," the Court comfortably finds
`that a "rational trier of fact could have found [all of] the essential elements of
`the [three counts of conviction] beyond a reasonable doubt." Walker, 191 F.3d
`at 333 (quoting Hernandez, 85 F.3d at 1030, and Tocco, 135 F.3d at 123).
`
`2 In this respect, Odiase' s case is different from one where ill-gotten gains are used to
`make "an ordinary purchase," United States v. Stephenson, 183 F.3d 110, 121 (2d Cir. 1999),
`and from the circumstances present in United States v. Rodriguez, a case that Odiase relies
`heavily upon, see No. 16-4177, 2018 WL 1836236 (2d Cir. Apr. 18, 2018).
`
`5
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`Accordingly, the Court finds that it is not manifest injustice to let the
`guilty verdicts stand. There is no lack of sufficient evidence supporting
`conviction.
`
`II. DEFENDANT WAS PROPERLY NOT PERMITTED TO PLAY THE VIDEO OF
`THE ENTIRE INTERVIEW TO THE JURY
`
`Odiase next contends it was manifest injustice that she was not permitted
`to show the jury the complete one-hour-and-forty-minute video of her
`interview with detectives from the Harrison Police Department once the
`government showed excerpts of that video. Odiase contends this was error
`because it violated the rule of completeness, see Fed. R. Evid. 106, which
`provides:
`
`If a party introduces all or part of a writing or recorded
`statement, an adverse party may require the introduction, at that
`time, of any other part ... that in fairness ought to be considered
`at the same time.
`
`Id. Under the rule, "the omitted portion of a [recorded statement] must be
`placed in evidence if necessary to explain the admitted portion, to place the
`admitted portion in context, to avoid misleading the jury, or to ensure fair
`and impartial understanding of the admitted portion." United States v. Castro,
`813 F.2d 571, 575-76 (2d Cir. 1987).
`
`Odiase cites several omitted portions of the video that she contends
`implicate the rule of completeness; these portions generally fall into two sets.
`One set consists of statements relating to the alleged sale of her goods to
`"Frank," which she claimed during the interview was the source of the
`$50,000 deposit into her account. The second set of omitted portions
`exhibited her demeanor and emotional state during the interview.
`
`The omitted portions of the video cited by Odiase do not implicate the
`rule of completeness; even if they did, any omissions did not constitute
`manifest injustice warranting a new trial.
`
`With respect to the first set, Odiase contends that the omitted portions
`explained her apparent lack of knowledge about "Frank" and other details of
`
`6
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`the sale,3 and demonstrated the knowledge she did have about different
`details relating to the sale. 4 However, the video excerpts that were viewed by
`the jury reflected a rambling, shifting explanation that would not have been
`clarified, contextualized, or explained by the additional portions that Odiase
`cites, and therefore do not implicate Rule 106. See Castro, 813 F.2d at 575-76.
`
`As for the second set, Odiase contends that the omitted portions would
`have shown her "intense emotional state," her "frustration with the
`detectives' failure to believe her," and her "anguish when she realized ...
`that she was now going to lose the [goods] and the money she thought she
`had been paid for [them]." 5 (Mem. of Law in Supp. of Def.'s Mot. for New
`Trial ("Def.'s Mem.") at 17, 20, ECF No. 120.) These depictions would not
`have explained or contextualized any of the excerpts that were played, and
`therefore do not implicate Rule 106. See Castro, 813 F.2d at 575-76. In the
`extended portions that the jury did hear and see, Odiase's "intense emotional
`state," her "anguish," and her "frustration," were patently clear to any
`rational observer, of which we can presume there were twelve in the jury box.
`
`Odiase' s claim of manifest injustice is undercut for two additional
`reasons. First, the Court has an obligation to "exercise reasonable control
`over the mode and order of . . . presenting evidence so as to: (1) make those
`procedures effective for determining the truth; [and] (2) avoid wasting time."
`Fed. R. Evid. 611(a). Here, Odiase's request to show the entire video to the
`
`3 In these statements, according to Odiase's memorandum of law, she explained that "her
`family in Nigeria were involved and in charge of disposing of the inventory and
`arranging payment," that "[t]he goods were shipped a year or so before because business
`was bad and she was being evicted from the store and would lose her merchandise," that
`"Frank was referred to [her] by others in Nigeria," and that "she was relying on her
`family to arrange for the sale and send her the money." (Mem. of Law in Supp. of Def.' s
`Mot. for New Trial ("Def.'s Mem.") at 17, 19, ECF No. 120.)
`
`4 In this statement, according to Odiase' s brief, she "name[ d] and describe[ d] others who
`were also involved with Frank as potential purchasers." (Def.'s Mem. at 17.)
`
`5 Odiase specifically cites instances showing her "screeching and pulling on her hair,"
`and "get[ting] on her knees and virtually beg[ging] the detectives to believe her." (Def.'s
`Mem. at 17.)
`
`7
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`jury would have added an hour or more to the short, two-day trial, yet
`rendered the video no more "effective for determining the truth." Id.
`
`Second, Odiase' s request to show the video was essentially an effort to
`lard the trial with statements that were impermissible hearsay when offered
`by her; they were out-of-court statements proffered for their truth. See Fed. R.
`Evid. 801(d)(2).
`
`Accordingly, because the omitted portions of the video do not implicate
`Rule 106, as well as the Court's discretion and ruling pursuant to Rule 611(a)
`and the fact that the omitted portions were impermissible hearsay by
`defendant, the Court finds that it was proper to not permit Odiase to show
`the jury the entire interview video.
`
`III. THE BURDEN OF PROOF WAS NOT SHIFTED ONTO ODIASE WHEN THE
`GOVERNMENT CALLED THE JURY'S ATTENTION TO DEFICIENCIES IN
`DEFENDANT'S CASE
`
`Finally, Odiase contends that the government improperly shifted the
`burden of proof onto her when the government showed the jury excerpts of
`the interview containing Odiase' s pledges to provide the Harrison Police
`Department detectives with receipts and other documents to corroborate her
`explanation about the sale of goods to "Frank," and then elicited testimony
`from one of the detectives, appearing as a trial witness, that such
`corroborating proof was never provided by Odiase. Odiase also points to the
`government's summation calling the jury's attention to these deficiencies.
`
`According to Odiase, this could have caused the jury to believe that
`Odiase had a burden to come forward with evidence of her innocence.
`However, the Court gave express and repeated instructions to the jury that
`the burden remains on the government at all times to prove Odiase' s guilt
`beyond a reasonable doubt. That instruction was given twice in the middle
`of the government's examination of the Harrison Police Department detective
`- that is, when the issue arose - and also at the conclusion of each party's
`case, and again in the Court's charge to the jury at the end of the trial. (See Tr.
`159, 163, 383, 385, 462.)
`
`8
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`Odiase does not contend that the government ever commented on
`Odiase's failure to testify at trial. See United States v. McDermott, 918 F.2d 319,
`327 (2d Cir. 1990). Her contention is that the government commented on the
`fact that she failed to give the detectives certain corroborating evidence she
`said she would during the course of the investigation. The government was
`entitled to call this to the jury's attention in support of its contention that the
`sale-of-goods explanation Odiase gave to the investigators constituted false
`exculpatory statements. See United States v. Salameh, 152 F.3d 88, 136 (2d Cir.
`1998) (concluding that such comments by the government were not error
`even where they remarked on a defendant's failure to provide evidence at
`trial); McDermott, 918 F.2d at 327 (same).
`
`Furthermore, even had the jury misunderstood the government's
`arguments as remarking on Odiase' s failure to present the promised evidence
`at trial - and there is no evidence of that - the result would be no different.
`According to the U.S. Court of Appeals for the Second Circuit,
`
`a prosecutor is entitled to comment on [a] defendant's failure to
`call witnesses to contradict the factual character of the
`Government's case, as well as on defendant's failure to support
`[her] own factual theories with witnesses. It is only when the
`evidence that the defendant has not adduced is in the control of
`the defendant alone or where the jury would naturally and
`necessarily
`interpret
`the Government's summation as a
`comment on the defendant's failure
`to
`testify that the
`Government's comments run afoul of the Fifth Amendment.
`
`McDermott, 918 F.2d at 327 (citations omitted); see Salameh, 152 F.3d at 136.
`
`Here, the evidence that Odiase "ha[d] not adduced" was not "in the
`control of [Odiase] alone," McDermott, 918 F.2d at 327, but could have been
`offered through other witnesses or documentary evidence. The evidence she
`promised was in the nature of shipping receipts, invoices, business income
`records, tax records, photographs of her merchandise, and a phone number
`for individuals allegedly involved in the sale of her goods. (See Tr. 153-56,
`162-63.) Indeed, Odiase showed the jury two shipping receipts and called a
`shipper to testify in her defense, and her attorney argued in summation that
`those documents and the shipper's testimony corroborated her sale-of-goods
`
`9
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`explanation. (Tr. 309-336; DX B, C.) Given the verdict, the jury was not
`persuaded by that evidence.
`
`Finally, to the extent there was any lingering error regarding a shifting of
`the burden of proof, it was harmless in view of the Court's instructions to the
`jury. See Peakes v. Spitzer, No. 04-Cv-1342, 2004 WL 1366056, at *18-19
`(S.D.N.Y. June 16, 2004), R. & R. adopted, 2004 WL 1656568 (S.D.N.Y. July 23,
`2004); see also Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir. 1996) ("We
`assume that a jury applies the instructions it is given."); McDermott, 918 F.2d
`at 327. The Court does not believe there was any error, but if error it be, it be
`harmless.
`
`Accordingly, because the government was entitled to call the jury's
`attention to deficiencies in Odiase' s case, and because any risk of burden
`shifting was obviated by the Court in its repeated and clear instructions to the
`jury, the Court finds that there was no error in the government referring to
`Odiase's failure to follow up on statements she made to the Harrison Police
`Department detectives pledging to give them documents that corroborated
`her story that the $50,000 constituted proceeds from the sale of her business
`inventory.
`
`IV. CONCLUSION
`
`For the reasons set forth above, the Court finds that Odiase has not
`demonstrated that it would be "manifest injustice" to let the guilty verdict
`stand. Ferguson, 246 F.3d at 134; White, 2011 WL 2207566, at *4. Indeed, the
`Court finds no error in its rulings. This case does not present "extraordinary
`circumstances" such that it would be appropriate for the Court to exercise its
`"broad discretion" to grant a new trial. Ferguson, 246 F .3d at 134 ( quoting
`
`10
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`Case 1:16-cr-00587-SHS Document 130 Filed 06/12/18 Page 11 of 11
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`Sanchez, 969 F.2d at 1413); White, 2011 WL 2207566, at *4. Accordingly,
`Odiase' s motion is denied.
`
`Dated: New York, New York
`
`June 12, 2018
`
`11
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`