Mandate of USCA (Certified Copy) as to Adedayo Ilori — USA v. Ilori et al. (Dkt. 165, S.D.N.Y.)

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U.S. District Court for the Southern District of New York · No. 1:21-cr-00746-MKV · Doc. 165 · 2026-05-18 · Docket on CourtListener

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23-7563 
United States v. Ilori 
 
UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT 
SUMMARY ORDER 
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.  CITATION TO 
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS 
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S 
LOCAL RULE 32.1.1.  WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH 
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).  A PARTY 
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 
REPRESENTED BY COUNSEL.   
At a stated term of The United States Court of Appeals for the Second Circuit, 
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 
New York, on the 26th day of March, two thousand twenty-six. 
PRESENT: 
BETH ROBINSON, 
SARAH A. L. MERRIAM, 
Circuit Judges.* 
_________________________________________ 
UNITED STATES OF AMERICA, 
Appellee, 
v. 
No. 23-7563 
ADEDAYO ILORI, 
Defendant-Appellant, 
CHRIS RECAMIER, 
Defendant.
_____________________________________ 
* Circuit Judge Alison J. Nathan, originally a member of the panel, was temporarily unavailable
to hear this matter.  The appeal is being decided by the remaining members of the panel, who are
in agreement.  See 2d Cir. IOP E(b).
MANDATE
MANDATE ISSUED ON 05/18/2026
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FOR APPELLANT:    
ROBERT A. CULP, Law Office of Robert 
A. Culp, Garrison, NY. 
 
FOR APPELLEE:  
 
 
 
DAVID R. FELTON (Juliana N. Murray, 
Daniel G. Nessim, Jacob R. Fiddelman, 
Assistant United States Attorneys, on the 
brief), for Jay Clayton, United States 
Attorney for the Southern District of 
New York, New York, NY.
 
Appeal from a judgment of the United States District Court for the Southern 
District of New York (Vyskocil, J.). 
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 
ADJUDGED, AND DECREED that the judgment entered on October 24, 2023, is 
VACATED, and this matter is REMANDED for further proceedings consistent with this 
decision.  
I. 
BACKGROUND 
Appellant Adedayo Ilori was charged in a six-count Superseding Indictment with 
fraud and money laundering charges arising out of an alleged scheme relating to loans 
administered by the United States Small Business Administration (“SBA”).  The 
government alleged that in 2020 and 2021, Ilori and his co-defendant, Chris Recamier, 
“used the identities of dozens of individuals to submit online applications for a total of 
over $10 million dollars in government-guaranteed loans for at least four companies 
through the SBA’s” loan programs.  Pre-Sentence Report (“PSR”) at ¶19.  Through the 
fraudulent loan applications, Ilori and Recamier received over one million dollars in 
loans.  See PSR at ¶21.   
Recamier pled guilty.  Ilori proceeded to trial; he was convicted on all counts. 
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II. 
DISCUSSION 
Ilori appeals the judgment of conviction, contending that (1) the motion to 
suppress was wrongly denied, (2) the District Court erroneously admitted video 
recordings of Ilori without a proper foundation, and (3) the District Court violated his 
Fifth and Sixth Amendment rights by conducting certain proceedings outside of his 
presence.  Ilori also appeals the sentence imposed as substantively and procedurally 
unreasonable, and seeks remand to a different judge.  We address each issue in turn. 
A. 
Motion to Suppress 
Before trial, Ilori filed a motion to suppress evidence seized during a search of a 
vehicle he was occupying.  See App’x at 24-29.  The District Court found that Ilori 
lacked standing to challenge the search and that in any event, the automobile exception 
applied to the search.  See Spec. App’x at 1-13. 
“When reviewing a district court’s denial of a motion to suppress, we review 
findings of fact for clear error and legal findings de novo.”  United States v. Hines, 140 
F.4th 105, 111 (2d Cir. 2025) (citation modified).  Whether a defendant has a protected 
Fourth Amendment interest sufficient to permit him to bring a motion to suppress 
evidence is a question of law that we review de novo.  See United States v. Osorio, 949 
F.2d 38, 40 (2d Cir. 1991).  Ilori concedes that under our precedent, because he did not 
have a valid driver’s license, he “lacked a reasonable expectation of privacy” in a 
fraudulently leased vehicle of which he “did not have lawful possession or control,” and 
therefore he “does not have standing to challenge the search.”  United States v. Lyle, 919 
F.3d 716, 730 (2d Cir. 2019); see Ilori Br. at 59.  On de novo review, we agree that this 
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issue is controlled by Lyle, and we affirm the District Court’s denial of the motion to 
suppress. 
B. 
Admission of Video Recordings 
Ilori contends that the District Court erred in admitting video recordings depicting 
him at a coffee shop through the shop’s manager, arguing that the manager “claimed no 
expertise” and “did no more than describe how he conducted his searches and that the 
videos were the results.”  Ilori Br. at 42.  Ilori contends that because the manager could 
not confirm that the “time stamps” on the videos were accurate, his testimony was 
insufficient to authenticate the videos, and they should have been excluded. 
We review the District Court’s decision to admit the videos for abuse of 
discretion.  See United States v. Hendricks, 921 F.3d 320, 326 (2d Cir. 2019).  “A district 
court has considerable discretion in deciding whether an adequate foundation has been 
laid for the introduction of relevant” evidence and we “accord[] particular deference to 
the trial court’s rulings as to foundation and relevance.”  Id. (citation modified).  The 
shop manager testified that the time stamps on the video surveillance footage aligned 
with financial records indicating the dates and times of transactions depicted in the video.  
We find no abuse of discretion in the District Court’s decision to admit this evidence.  
Ilori was free to argue that the jury should discount the evidence – which, indeed, his 
counsel did – but the decision to admit it was not error.   
C. 
Conduct of Proceedings Outside of Ilori’s Presence and Potential  
 
 
Conflict of Ilori’s Trial Counsel  
 
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We turn now to the most significant arguments raised by Ilori.1  Ilori contends that 
(1) his counsel was conflicted, thus depriving him of the benefit of counsel as guaranteed 
by the Sixth Amendment, and that (2) the District Court conducted certain proceedings 
relevant to the trial with that conflicted counsel, and outside Ilori’s presence, in violation 
of his “due process right to be present . . . at any stage of the criminal proceeding that is 
critical to its outcome if his presence would contribute to the fairness of the procedure.”  
Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (citation modified).  
On October 28, 2022, the fourth day of trial, the District Court advised all parties 
that she had become aware that there had been media coverage of the trial, and that an 
article “reference[d] the fact that we have Marshals here.”  App’x at 163.  The District 
Court indicated that it would remind the jurors, in light of the coverage, not to read or 
research anything about the case.  Ilori then informed the Judge that he wanted new 
counsel to be appointed.  In response, the District Court conducted a brief ex parte 
hearing with Ilori and his defense counsel, Peter Brill, in the robing room.  See App’x at 
166-68.  During that proceeding, Ilori asserted that he did “not have confidence in Mr. 
Brill’s counsel any longer,” App’x at 170, and identified a number of concerns he had 
with Mr. Brill’s representation, see App’x at 171-76.  The District Court denied Ilori’s 
request for new counsel, indicating that he could continue to be represented by Mr. Brill 
 
1 We note that the government contends we should review these issues for plain error, because 
Ilori did not object at trial.  But Ilori had no way to know that the events now challenged had 
occurred, because he was excluded from the proceedings at which his own counsel argued 
against his interests.  He therefore had no “meaningful opportunity to object,” and plain error 
review does not apply.  United States v. McAdam, 165 F.4th 688, 696 (2d Cir. 2026).   
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or he could represent himself.  See App’x at 174.   
Following the ex parte hearing, Brill approached the bench while Ilori was still in 
a “holding cell,” App’x at 180, and advised the District Court (and counsel for the 
government): “Mr. Ilori, unhappily, has determined that he wants to move forward with 
counsel – me, that is.”  App’x at 179.  Brill then proceeded to have the following 
exchange with the District Court: 
MR. BRILL: . . . [B]ased upon the Court’s own observations and mine 
and the government’s, the delay to the July trial, from my opinion, as I 
previously told the Court, I believe was unwarranted because I believe I was 
fully prepared to move forward at that time, as I said to the Court at that time.  
This is not based upon any privileged conversation, but my belief is that this 
may -- this situation may be a delaying tactic. 
 
THE COURT: That’s painfully obvious. 
 
MR. BRILL: Yes.  I have expressed to the Marshals my concern that 
the additional delay tactics are fairly limited, and I don't know if I am 
fantasizing here, but could include hauling off and punching me in the head 
in the middle of the trial, because obviously that would lead to a delay.  So I 
don't particularly have a physical fear of Mr. Ilori, but given that his options 
may be limited—and I’m sorry to have to say this at all — if he feels that he 
really wants this trial not to move forward with me as his attorney, given his 
limited options, he might try something more dramatic.  I have no basis in 
fact to say that this actually will happen, but in narrowing down the 
possibilities, if delay is his tactic, then there aren’t that many left.  I don't 
want to prejudice Mr. Ilori in front of the jury by noticeably increasing 
security or handcuffing him or something like that.  I don’t even know if 
moving him a chair over would be obvious to the jury and prejudicial.  And 
we obviously want to protect the record and make sure that this trial is fair to 
Mr. Ilori.  But in good conscience, as I was thinking about it and given, again, 
not based upon any privileged conversation but just on my observation of his 
emotional state, I don’t know if it’s a realistic concern or not, your Honor, 
but I just want to raise it with the Court. 
 
App’x at 179-80.  The District Court stated: “I’m not going to say much, but I will 
observe for the record that it is absolutely my view that this is a tactic by Mr. Ilori, 
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completely unfounded and strategic on his part, and he is, to my observation, somewhat 
manipulative.  So I understand your concern, Mr. Brill.”  App’x at 181.  The District 
Court proceeded to discuss with the Deputy U.S. Marshal adding additional Courtroom 
Security Officers (“CSOs”) to the courtroom; Brill suggested that they should, as a 
“minimum step . . . put a chair in between” Ilori and himself at counsel table, and the 
Deputy agreed to do so.  App’x at 181.  
The District Court then mentioned – again, without Ilori present – that a juror had 
made an inquiry about security: “But I did mention to you yesterday -- I mentioned 
earlier this morning, actually; just seems like yesterday -- that one of the jurors did 
inquire who were the people in the suits sitting behind Mr. Ilori, and [the courtroom 
deputy] just said they’re part of the team and left it at that.”  App’x at 183.  It does not 
appear that the District Court inquired any further of any juror about this issue, and the 
record does not reflect that Ilori was made aware of the inquiry, or the District Court’s 
comments about it. 
“A defendant in a criminal case has the right to be present at ‘every trial stage.’”  
United States v. Collins, 665 F.3d 454, 459 (2d Cir. 2012) (quoting Fed. R. Crim. P. 
43(a)(2)).  “The right to be present has been extended to require that messages from a 
jury should be disclosed to counsel and that counsel should be afforded an opportunity to 
be heard before the trial judge responds.”  Collins, 665 F.3d at 459.  A defendant also has 
a “Sixth Amendment right to the effective assistance of counsel,” which “includes the 
right to be represented by an attorney who is free from conflicts of interest.”  United 
States v. Blount, 291 F.3d 201, 210 (2d Cir. 2002).   
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Brill had at least a potential conflict of interest, and quite possibly an actual 
conflict of interest, with Ilori.  See United States v. Jones, 381 F.3d 114, 119 (2d Cir. 
2004) (“An actual conflict of interest exists when the attorney’s and the defendant’s 
interests diverge with respect to a material factual or legal issue or to a course of action . . 
. .  An attorney has a potential conflict of interest if the interests of the defendant could 
place the attorney under inconsistent duties in the future.” (citation modified)).  Brill told 
the District Court and government counsel, outside of Ilori’s hearing, that he believed 
Ilori was engaging in delay tactics.  He told the District Court and government counsel 
that he believed Ilori might try to assault him.  Vacatur where counsel has a potential 
conflict is not automatic.  Rather, “to overturn his conviction on the basis of his 
attorney’s conflict of interest resulting in ineffective assistance of counsel, [a defendant] 
must at the very least show some possibility of prejudice he suffered by reason of the 
conflict.”  United States v. Matera, 489 F.3d 115, 125 (2d Cir. 2007).  Here, Ilori has 
established that his own appointed counsel asserted – though counsel admitted to having 
“no basis” for it – that Ilori might assault him; as a result of this assertion, security 
measures were increased at his counsel’s own request, during trial, in a way that might 
well have been noticed by the jury; at least one juror had already inquired about security 
measures at trial; and media reports had already mentioned the security measures being 
taken during the trial.  In sum, the record reflects that Brill “altered his conduct of the 
trial in response” to his view of Ilori and the possibility that Ilori might assault him.  
LoCascio v. United States, 395 F.3d 51, 55 (2d Cir. 2005).  And in light of the fuller 
context, including the juror inquiry, we cannot conclude that the change in security 
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measures did not affect the fairness of the trial.  
Had Ilori been aware of the security issues raised by Brill, and of the juror inquiry, 
and of the other matters discussed outside of his presence, he might have been able to 
address them.  He would at least have had the ability to be heard.  But the record reflects 
that Ilori was not aware of any of these issues during the trial.  Given the circumstances, 
we cannot “say with fair assurance that the judgment was not substantially swayed by the 
error” committed in excluding Ilori from these proceedings.  Collins, 665 F.3d at 461 
(citation modified).   
We conclude that, in this unusual case, the confluence of Brill’s potential conflict 
– which the record reflects resulted in counsel altering his conduct during the trial in a 
way that may well have been apparent to the jury – and the fact that Ilori was excluded 
from all discussion of these issues, requires vacatur of the conviction.   
D. 
Remand to a Different Judge 
Ilori contends that “[t]his case is the rare one where a remand to a different judge 
is appropriate.  The court’s handling of the jury note and defense counsel’s bizarre claim 
to be in physical fear of appellant creates an appearance of unfairness.”  Ilori Br. at 57.  
In evaluating a request for remand to a new judge, we bear in mind that such requests are 
to be granted only “where we are persuaded that the original judge would have 
substantial difficulty in putting out of her mind her previously expressed views, or where 
reassignment is advisable to preserve the appearance of justice.”  United States v. 
Awadallah, 436 F.3d 125, 135 (2d Cir. 2006) (citation modified).  We do not find such 
circumstances presented here.  Although the District Court erred, the errors do not 
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present the sort of “special circumstances” required for reassignment.  Id. (citation 
modified).    
E. 
Reasonableness of Sentence 
Because we conclude that the judgment of conviction must be vacated, we do not 
reach Ilori’s sentencing arguments.   
*  *  * 
 
For the reasons set forth herein, the judgment of the District Court is VACATED 
and this matter is REMANDED for further proceedings consistent with this order. 
 
 
 
 
 
 
FOR THE COURT:  
 
Catherine O’Hagan Wolfe, Clerk of Court 
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