Last week the D.C. Circuit issued United States v. Otunyo, in which the panel (Rao, Walker, Ginsburg) affirmed the conviction of appellant Otunyo for bank fraud, aggravated identity theft, and conspiracy to launder money, for which he was sentenced to 90 months’ imprisonment.
Otunyo’s lead argument was that Kastigar v. United States precluded the government from using evidence obtained as a result of compelled testimony by Otunyo. In particular, he gave the government the password to his phone, where the government found a trove of incriminating information. The problem for Otunyo was that he voluntarily sat for the interview and signed an agreement allowing the government to “make derivative use of and . . . pursue any investigative leads” from it. Otunyo argued he did not “knowingly” agree to those terms. But the panel assumed without deciding that his agreement had to be “knowing” (though it expressed its doubt on this point), and it concluded that the record supported the district court’s conclusion that Otunyo knew and understood the terms of the agreement.
Otunyo also offered a series of objections to the sentence. The panel explained that it “considered Otunyo’s numerous objections” and “reject[ed] them all” even though it “discuss[ed] only three.” Op. 11. It rejected his arguments that the district court miscalculated the Guidelines because it used the wrong offense level for the money laundering counts; that the court double-counted his “sophisticated conduct” in applying two separate sentencing enhancements; and that the court erred in concluding that Otunyo was the “supervisor” of a criminal enterprise. Along the way, it sidestepped the question whether the failure to apply commentary to the Guidelines constitutes plain error. The panel seemed inclined to say “no,” though it recognized that four other circuits had said “yes.” Op. 17. The panel avoided weighing in by holding that any error, even if plain, did not affect substantial rights. The panel, finally, concluded that the sentence–which was within the Guidelines range–was reasonable.