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Case 4:23-cr-00136-ALM-BD Document 578 Filed 01/27/25 Page 1 of 9 PageID #:
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United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
UNITED STATES OF AMERICA §
§
V. § Case Number 4:23-CR-136
§ Judge Mazzant
OLAMIDE OLATAYO BELLO (1) §
OLABODE THOMAS AJIBOLA (2) §
DUMBOR JOSEPHINE BARIBE (11) §
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Ajibola and Defendant Baribe’s Joint Motion to
Dismiss Count Two of the First Superseding Indictment (Dkt. #487). Also pending before the
Court is Defendant Bello’s Motion to Dismiss Count Two Conspiracy to Commit Money
Laundering in Violation of 18 U.S.C. § 1956(h) on the Ground of Merger of the Crime (Dkt. #430).
Having considered the Motions, the relevant pleadings, and the applicable law, the Court finds
that both Motions should be DENIED.
BACKGROUND
The First Superseding Indictment charged Defendant Ajibola and Defendant Baribe (the
“Joint Defendants”), as well as Defendant Bello (“Bello”) (collectively, the “Defendants”) with
one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 (Count One) and
one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) (Count
Two). The case proceeded to a jury trial on January 13, 2025. Three days later, on January 16, 2025,
a jury found each Defendant guilty on both Counts (Dkt. #541).
Prior to trial, the Joint Defendants filed the instant Motion (Dkt. #487). Through it, the
Joint Defendants seek dismissal of Count Two of the First Superseding Indictment. Specifically,
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the Joint Defendants argue that the offense of conspiracy to commit money laundering merges with
conspiracy to commit wire fraud. Therefore, they argue that the merger doctrine bars the Joint
Defendants from being punished for both offenses. Bello’s Motion argues the same (Dkt. #430).
The Court entertained some argument on the issue at the pretrial conference held on
January 8, 2025. There, the Government submitted that the Court should delay ruling on the
Motions until the jury returned a verdict because the so-called “merger question” could be
clarified by the evidence introduced at trial. The Court agreed and ordered the Government to
respond to the Motions. The Government responded on January 10, 2025 (Dkt. #522). Now that
a jury has determined the guilt of each Defendant as to the charges alleged in the First Superseding
Indictment, the Court takes up the issue of whether the offenses merge, as argued by Defendants.
As explained below, they do not.
LEGAL STANDARD
“The concept of merger is implicated when a defendant is convicted under two criminal
statutes for what is actually a single crime . . . .” United States v. Kennedy, 707 F.3d 558, 563 (5th
Cir. 2013). To the extent that merger bars a defendant from two convictions for the same conduct,
merger is akin to double jeopardy. Id. (citing United States v. Santos, 553 U.S. 507, 527 (2008)
(Stevens, J., concurring)). Here, Defendants seek to dismiss Count Two of the First Superseding
Indictment, which charges the Defendants with conspiracy to commit money laundering. As the
Fifth Circuit has stated, “[i]n the money laundering context, the salient ‘merger’ question is
‘whether the money laundering crime is based upon the same or continuing conduct of the
underlying predicate crime, or whether the crimes are separate and based upon separate
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conduct.’” United States v. Gibson, 875 F.3d 179, 191 (5th Cir. 2017) (quoting United States v.
Kennedy, 707 F.3d 558, 565 (5th Cir. 2013)). Accordingly,
[m]erger . . . may be proved in two ways: (1) a defendant may demonstrate the
underlying unlawful activity was not complete at the time the alleged money
laundering occurred; or (2) a defendant may show the transaction upon which the
money laundering count is based was not a payment from profits of the underlying
crime made in support of new crimes, but, instead, was a payment from gross
receipts of the previously committed crime made to cover the costs of that same
crime.
Id. (quoting Kennedy, 707 F.3d at 565).
ANALYSIS
This case concerns the Defendants’ conspiracy to commit wire fraud and conspiracy to
commit money laundering with funds derived from the Paycheck Protection Program (“PPP”) and
Economic Injury Disaster Loan (“EIDL”) economic relief plans the Government instituted during
the COVID-19 pandemic. Under Kennedy’s first prong, the Joint Defendants argue that the
“money laundering charge should be dismissed since the offense was not complete at the time the
alleged money laundering occurred” (Dkt. #487 at p. 2). Ostensibly, “the offense” to which the
Joint Defendants refer is conspiracy to commit wire fraud (Count One) (See Dkt. #487 at p. 2).
According to the Joint Defendants, “the government loans that were provided for during COVID
had rules on who could apply and how the money should be used and what it could be used for.
Therefore, the offense was not complete until the money was improperly used” (Dkt. #487 at p. 2).
Separately, Bello appears to argue under Kennedy’s second prong that Count Two should be
dismissed “because the allegedly laundered funds were in fact the same funds constituting the basis
of Count One, conspiracy to commit wire fraud” (Dkt. #430 at p. 1) (cleaned up).
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For its part, the Governmemt disputes the Defendants’ arguments by clarifying that the
First Superseding Indictment exclusively charged the Defendants with conspiracy offenses—not
substantive ones (Dkt. #522 at p. 1). Therefore, according to the Government, the offenses do not
merge because each individual offense was complete at the moment an agreement was entered
(Dkt. #522 at pp. 2–3). The Government is correct. There is no merger here.
The outcome of the present dispute is controlled by the Fifth Circuit’s holding in Gibson,
as the Government suggests (See Dkt. #522 at pp. 2–3) (citing Gibson, 875 F.3d 179). In Gibson, a
jury convicted the defendants of conspiracy to defraud Medicare, conspiracy to pay unlawful
kickbacks, and conspiracy to launder money, as well as several counts of substantive violations of
the anti-kickback statute (“AKS”). 875 F.3d at 183. On appeal, the defendants argued that the
conspiracy to commit money laundering conviction merged with the healthcare fraud conspiracy
conviction. Id. at 192. Applying the Kennedy standard articulated above, the Fifth Circuit squarely
rejected that argument, noting that the jury convicted the defendants of “conceptually and
temporally distinct agreements.” Id. While one count “targeted a conspiracy to submit false bills
to Medicare,” the other count “alleged a conspiracy to sue fraudulently obtained money with the
goal of submitting false subsequent bills.” Id. (emphasis in original). The Fifth Circuit also noted
that “neither crime needed an overt act” to be rendered complete. Id. Thus, by charging the
defendants with “two inchoate crimes, the government did not need to show that ‘money
laundering occurred’ or that [the defendants] made any actual ‘transaction’ or ‘payment.’” Id.
Because neither conviction rested upon “any actual money laundering,” the Fifth Circuit saw no
“risk that ‘the underlying unlawful activity was not complete at the time the alleged money
laundering occurred’ or that ‘the transaction upon which the money laundering count [was] based
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. . . was a payment from gross receipts of the previously committed crime made to cover the costs
of that same crime.’”1 Id. (quoting Kennedy, 707 F.3d at 565).
The exact same reasoning is applicable here and undermines the Joint Defendants’
position. As a preliminary matter, neither Count One (conspiracy to commit wire fraud) nor Count
Two (conspiracy to commit money laundering) requires proof of an overt act. See, e.g., United
States v. Kuhrt, 788 F.3d 403, 414 (5th Cir. 2015) (omitting an overt act requirement from the
elements of a conspiracy to commit wire fraud); United States v. Trejo, 610 F.3d 308, 313 n.6 (5th
Cir. 2010) (citing Whitfield v. United States, 543 U.S. 209, 214 (2005)) (“The Supreme Court has
held that there is no overt act requirement for a money laundering conspiracy”). Just as the Fifth
Circuit in Gibson suggested that because the inchoate offenses at issue in that case did not require
proof of an act there was no merger concern, the same is true here. See Gibson, 875 F.3d at 192.
Here, there is no doubt that both offenses were complete when the agreements were made.
As to Count One, all that the Government needed to prove was that: (1) two or more persons made
an agreement to commit wire fraud; (2) the defendant knew the unlawful purpose of the
agreement; and (3) that the defendant joined in the agreement with the specific intent to further
the agreement’s unlawful purpose. 18 U.S.C. § 1349; Kuhrt, 788 F.3d at 414 (citing United States
v. Grant, 683 F.3d 639, 643 (5th Cir. 2012)). The same basic elements apply to Count Two,
conspiracy to commit money laundering, which required the Government to prove that: (1) two or
more persons made an agreement to commit money laundering; (2) that the defendant knew the
unlawful purpose of the agreement; and (3) that the defendant joined in the agreement with the
1
In Gibson, the Fifth Circuit assessed the merger issue under a plain error standard of review. 875 F.3d at 192.
Naturally, the Court does not apply a plain error standard in analyzing Defendants’ arguments here, but Gibson’s
reasoning and holding still control and compel the Court to deny Defendants’ Motions.
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specific intent to further the agreement’s unlawful purpose. 18 U.S.C. § 1956(h); United States v.
Alaniz, 726 F.3d 586, 601 (5th Cir. 2013). By each statute’s plain text, each conspiracy is complete
when an agreement is made such that the offense’s elements are satisfied—not when, as the Joint
Defendants say, “the money [(illicitly derived from the Government programs)] was improperly
used” (Dkt. #487 at p. 2). The Joint Defendants’ argument ignores that the Government elected
to charge each Defendant with conspiracy offenses rather than substantive counts. And while the
Joint Defendants’ arguments protest, they have not identified how two independent
conspiracies—both of which are complete without an overt act—merge.
Defendants may suggest that the offenses here are not as attenuated from each other as
they were in Gibson such that the two offenses are not temporally and conceptually distinct. See
Gibson, 875 F.3d at 192 (“Count 1 targeted a conspiracy to submit false bills to Medicare, while
Count 13 alleged a conspiracy to use fraudulently obtained money with the goal of submitting
subsequent false bills.”) (emphasis in original); see also United States v. Mayfield, No. CR 17-241,
2019 WL 485959, at *5 (E.D. La. Feb. 7, 2019) (addressing a similar argument). But that argument
holds no water. The District Court for the Eastern District of Louisiana, when faced with the same
argument against a conspiracy to commit wire fraud and conspiracy to commit money laundering
conviction, rejected that argument. See id. In so doing, it held that there was no merger problem
between the two conspiracies “because even though they overlap[ped] in time, they [were] based
on distinct agreements to commit different substantive crimes that do not have identical
elements.” Id. at *6.
While the proof adduced at trial could be viewed to suggest that these conspiracies may
have shared some temporal similarities, they remain distinct inchoate offenses that contemplate
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different agreements that required the Government to prove different elements. See Kuhrt, 788
F.3d at 414; Alaniz, 726 F.3d at 601. In keeping with the Government’s decision to charge the
Defendants with those separate, inchoate offenses, and parallel to the special nature of
conspiracies, the convictions should not merge. See Gibson, 875 F.3d at 192 (citing Iannelli v. United
States, 420 U.S. 770, 777–78 (1975) (noting that because “a conspiracy poses distinct dangers quite
apart from those of the substantive offense,” a “conspiracy to commit an offense and the
subsequent commission of that crime normally do not merge into a single punishable act.”)).
The available authority on the issue—with which Defendants do not meaningfully
grapple—suggests that two independent conspiracies do not merge simply because, when viewed
from a particular angle, they might appear to be generally similar in some respects. See Gibson, 875
F.3d at 192 (holding that a conspiracy to commit Medicare fraud and a conspiracy to commit
money laundering did not merge) (citing United States v. Sanjar, 853 F.3d 190, 202 (5th Cir. 2017),
opinion withdrawn and superseded on reh’g in part, 876 F.3d 725 (5th Cir. 2017), cert. denied, 583 U.S.
893 (2017) (finding no Double Jeopardy problem where an indictment charged defendants with
both a Medicare fraud conspiracy under 18 U.S.C. §§ 1347, 1349 and a conspiracy to violate the
AKS under 18 U.S.C. § 371); United States v. Cloud, 680 F.3d 396, 408 (4th Cir. 2012) (finding no
merger problem between money laundering conspiracy conviction and a mortgage fraud
conspiracy conviction because the former “was not tied to any specific payment to a recruiter,
buyer, or coconspirator”)).
Bello’s argument under the second prong of Kennedy also fails for similar reasons. Once
more, to prove merger in the money laundering context,
a defendant may show the transaction upon which the money laundering count is
based was not a payment from profits of the underlying crime made in support of
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new crimes, but, instead, was a payment from gross receipts of the previously
committed crime made to cover the costs of that same crime.
Kennedy, 707 F.3d at 565. Bello’s invocation of this part of Kennedy is misplaced because it is
incorrectly premised on the idea that the Government had to prove that a transaction took place.
The second prong of Kennedy appears to contemplate the receipt of some funds as an element of the
underlying offense (money laundering). But in a case such as this one, involving only a conspiracy
to commit wire fraud and a conspiracy to commit money laundering, the Government did not need
to put on any proof, whatsoever, as to the substantive elements of money laundering or wire fraud.
See Kuhrt, 788 F.3d at 414; Alaniz, 726 F.3d at 601. The Government did not charge any Defendant
with substantive counts of wire fraud or money laundering. Thus, any post-hoc inquiry into a
potential transaction that did occur is irrelevant to the merger inquiry, as proof of such a
transaction is not an element of either offense. See Gibson, 875 F.3d at 192; Mayfield, 2019 WL
485959, at *6. Each conspiracy was consummated when the respective agreements were formed,
with no overt act—be it a transaction or otherwise—taken by any of the Defendants. Accordingly,
because each agreement is a distinct offense with different elements, complete without regard to
each other, there is no merger issue here. See Gibson, 875 F.3d at 192.
This is not to say that no two conspiracy offenses can ever merge. Indeed, it is not this
Court’s task to lay down a rule with such wide breadth; the Fifth Circuit’s jurisprudence on the
issue of merger has not decided that question. But today, it is enough to decide that, on these facts,
given Fifth Circuit precedent, these two conspiracies do not merge. Accordingly, there is no reason
to dismiss Count Two of the First Superseding Indictment, nor is there any reason to alter the
determination of the jury that the Defendants are guilty on both Counts.
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CONCLUSION
It is therefore ORDERED that Defendant Ajibola and Defendant Baribe’s Joint Motion to
. Dismiss Count Two of the First Superseding Indictment (Dkt. #487) and Defendant Bello’s
Motion to Dismiss Count Two Conspiracy to Commit Money Laundering in Violation of 18 U.S.C.
§ 1956(h) on the Ground of Merger of the Crime (Dkt. #430) are hereby DENIED.
IT IS SO ORDERED.
SIGNED this 27th day of January, 2025.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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