United States of America v. LAWRENCE FAMAKINDE ADEDOYIN a/k/a LAWRENCE FAMAKINDE OMOADEDOYIN a/k/a LAWRENCE…

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 02-3042
UNITED STATES OF AMERICA,
v.
LAWRENCE FAMAKINDE
ADEDOYIN
a/k/a
LAWRENCE FAMAKINDE
OMOADEDOYIN
a/k/a
LAWRENCE FAMAKINDE
a/k/a
SIR LAWRENCE ADEDOYIN
a/k/a
LAWRENCE OMOADEDOYIN
a/k/a
FAMAKINDE LAWRENCE
ADEDOYIN
a/k/a
ADEDOYIN FAMAKINDE
Lawrence Adedoyin,
Appellant
On Appeal from the United States
District Court
for the District of New Jersey
(D.C. Crim. No. 99-cr-00239)
Honorable William H. W alls,
District Judge
Argued April 21, 2004
BEFORE: SCIRICA, Chief Judge,
ROSENN and GREENBERG,
Circuit Judges
(Filed May 28, 2004)
Christopher J. Christie
United States Attorney
George S. Leone
Chief, Appeals Division
Sabrina G. Comizzoli (argued)
Assistant United States Attorney
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Attorneys for Appellee
Paul B. Brickfield (argued)
Brickfield & Donahue
70 Grand Avenue
River Edge, NJ 07661
Attorneys for Appellant
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this
court on Lawrence Adedoyin’s appeal
from a judgment of conviction and

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sentence entered in this criminal case on
July 15, 2002.1 The district court
exercised jurisdiction under 18 U.S.C. §
3231 and we exercise jurisdiction
pursuant to 28 U.S.C. § 1291.
The background of the case is as
follows. Adedoyin is a Nigerian national
who has entered the United States on
several occasions. In August 1981,
Adedoyin, then using the name Lawrence
Omoadedoyin, pled nolo contendere in
the Superior Court of California to a
felony. As a result of his plea, Adedoyin
was convicted and sentenced to one year
in prison and three years on probation.
In 1985, an immigration judge in San
Francisco ordered Adedoyin, who was
using the name Lawrence Omoadedoyin,
deported. At that time the judge issued a
Warrant of Deportation and Adedoyin
left the country.
Adedoyin, however, returned to
the United States on November 27, 1994.
Prior to returning, Adedoyin obtained a
Nigerian passport under the name
Adedoyin Famakinde which he used
successfully in obtaining a United States
visa. At the time he applied for the visa,
Adedoyin, in responding to a question in
the application as to whether he had any
criminal convictions, answered
negatively and accordingly did not
disclose his 1981 California conviction.
After returning to the United
States Adedoyin, from 1997 through
1999, attempted to set up a television
network promoting African and African-
American heritage. While engaging in
this endeavor, Adedoyin failed to pay
several landlords, vendors and his own
employees. He also bounced a $180,000
check to a vendor who had agreed to
provide satellite access for the television
station.
Adedoyin’s conduct led to an
indictment in the proceedings
culminating in this appeal. After a
superseding indictment was filed, a
second superseding indictment was filed
on July 24, 2001. The second
superseding indictment charged
Adedoyin with two counts of improper
entry into the United States by an alien,
in violation of 8 U.S.C. § 1325(a) and 18
U.S.C. § 2; two counts of fraud and
misuse of visas, permits and other
documents, in violation of 18 U.S.C. §§
1546(a), 2; three counts of mail fraud, in
violation of 18 U.S.C. §§ 1341, 2; and
three counts of wire fraud, in violation of
18 U.S.C. §§ 1343, 2. Adedoyin entered
a plea of not guilty to all charges and
moved to sever the mail and wire fraud
charges from the entry and visa counts.
The court granted the motion and
determined that the mail and wire fraud
case would be tried first. After various
continuances and changes of counsel,
Adedoyin’s trial on the mail and wire
fraud counts was scheduled to start on
September 11, 2001, but the Islamic
terrorist attacks which, inter alia,
1The district court issued an amended
judgment on August 5, 2002.

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destroyed the World Trade Center
prevented the case from going forward.
Consequently, the court rescheduled the
trial for September 19, 2001.
Prior to the commencement of
trial on September 19, 2001, Adedoyin
moved for a 90-day postponement. He
argued that he could not receive a fair
trial in the wake of the attack on the
World Trade Center because he was a
foreign national alleged to have
perpetrated a fraud against, among other
individuals and entities, the World Trade
Center. The court denied Adedoyin’s
motion, stating that inasmuch as he was a
Nigerian national and was not of Middle
Eastern descent, there was little risk that
the jury unfairly would link him to the
events of September 11th. The court also
cited the long delay in bringing the case
to trial. Nevertheless, to address
Adedoyin’s concerns, the court
questioned the jurors individually to
determine if each could be fair and
impartial even though there were
allegations that he had defrauded the
World Trade Center. Each of the
impaneled jurors informed the court that
he or she could be fair and impartial.
At trial, the government presented
various witnesses to prove the mail and
wire fraud alleged against Adedoyin.
Former landlords, vendors and former
employees of the television network
testified against Adedoyin, detailing his
failure to make payments. In addition,
persons Adedoyin had solicited testified
that he sent out letters offering to provide
major corporations with one-hour
promotional videos to be aired on the
television network for $150,000. In an
attempt to counter the government’s
evidence, Adedoyin offered two
witnesses. The first, Wilfred Warrick,
was involved with Adedoyin at the time
of trial in setting up another television
station seeking to promote Africa and
African culture. The court asked
Warrick several questions in an attempt
to obtain information about the new
venture.
Adedoyin concluded his defense
with his own testimony. He testified that
a form which he presented to a
representative from U.S. Media to show
that his business was economically viable
was a projection of his future income
rather than a reflection of money he
actually had earned. The court
questioned Adedoyin on this point. At
the conclusion of the trial, on October 5,
2001, the jury returned a verdict of guilty
on the three mail fraud counts and not
guilty on the three wire fraud counts.
The trial on the four entry and
visa charges began on November 27,
2001. At trial, the district court, over
Adedoyin’s objection, admitted a
certified copy of his 1981 California
felony conviction. As we have set forth,
Adedoyin had pled nolo contendere to
the charges which led to that conviction.
Adedoyin attempted to prevent evidence
of the conviction from being admitted,
pointing out that Rule 410 of the Federal
Rules of Evidence, except in certain

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circumstances not relevant here,
prohibits the admissibility of “a plea of
nolo contendere.” Fed. R. Evid. 410(2).
The district court overruled his objection
and admitted the certified copy of the
1981 conviction. At the conclusion of
the trial, the jury found Adedoyin guilty
of two counts of improper entry into the
United States by an alien but not guilty
of two counts of fraud and misuse of
visas, permits and other documents.
After the court sentenced Adedoyin on
both sets of convictions he timely
appealed.
II. DISCUSSION
Adedoyin raises three separate
issues on this appeal. First, he maintains
that the district court abused its
discretion in denying his motion for a 90-
day continuance in the wake of the
September 11, 2001 terrorist attacks.
Second, Adedoyin argues that the district
court further abused its discretion in
asking questions of both him and defense
witness Wilfred Warrick. Finally,
Adedoyin claims that the district court
erred in admitting evidence that he
previously had been convicted of a
felony on the basis of a plea of nolo
contendere. We will address each claim
in turn.
A. Denial of a further continuance
We review the district court’s
denial of Adedoyin’s motion for a 90-day
continuance for abuse of discretion. See
United States v. Lattany, 982 F.2d 866,
870 (3d Cir. 1993). Under 18 U.S.C. §
3161(h)(8)(A), a district court is
empowered to grant a continuance in a
criminal trial under the Speedy Trial Act
if it makes findings “that the ends of
justice” would be served best by such a
delay. Prior to trial on the mail and wire
fraud charges, Adedoyin sought a 90-day
postponement of the proceedings due to
the September 11, 2001 terrorist attacks.
As we have indicated, Adedoyin argued
that because he was a Nigerian national
and one of the alleged victims of his
fraudulent activities was the World Trade
Center, he would be unable to receive a
fair trial. The court denied the motion
for continuance and the mail and wire
fraud case proceeded to trial on
September 19, 2001, eight days after the
terrorist attacks. The court reasoned that
the case had been delayed on several
occasions because Adedoyin frequently
had changed attorneys and the court
stated that inasmuch as Adedoyin was of
Nigerian origin and not of Middle
Eastern descent and the allegations
involved charges of fraud rather than
violent action, starting the trial so soon
after September 11, 2001, would not
prejudice him.
We reiterate that to ascertain if the
terrorist attacks would prejudice
Adedoyin, the court conducted an
individual voir dire of each juror to
determine whether the events of
September 11, 2001, would affect his or

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her ability to be fair and impartial.2 Each juror informed the court that he or she
could be fair and impartial.
Adedoyin maintains that “[i]n
refusing to grant the stay, the defendant’s
right to a fair trial was severely
prejudiced.” Appellant’s br. at 9. While
he recognizes that each juror informed
the court, during individual questioning,
that he or she could be fair and impartial,
Adedoyin states in his brief that “one
questions whether jurors could truly
understand or acknowledge the depth of
their feelings so soon after this unique
national tragedy.” Appellant’s br. at 12.
The Supreme Court has “stressed
the wide discretion granted to the trial
court in conducting voir dire in the area
of pretrial publicity and in other areas of
inquiry that might tend to show juror
bias.” Mu’Min v. Virginia, 500 U.S.
415, 427, 111 S.Ct. 1899, 1906 (1991).
The trial court here exercised its
discretion with great care and determined
that Adedoyin could receive a fair trial in
the wake of the September 11th terrorist
2The judge individually asked each
juror the same question (although
varying the wording slightly with each
juror). For example, the court stated to
juror number three:
As I told you and
your colleagues at the
outset, this case involves
charges by the government
that the defendant, Mr.
Adedoyin, committed acts
of mail and wire fraud.
And, one of the victims,
one of the alleged victims
in this case, according to
the government, is the
World Trade Center. That
is because the government
claims that he allegedly
defrauded the World Trade
Center of rent due for
office space that had been
rented in one of the towers.
Now, in light of
what happened last
Tuesday, does that fact that
one of the alleged victims
in this case, there are about
ten alleged victims, does
that fact that one of them is
the World Trade Center
effect in any way your
ability to provide a fair trial
to Mr. Adedoyin?
Supp. app. at 7.
All 12 jurors answered this question no.
The court further asked if each juror
knew any victims of the terrorist attacks
and whether any relationships with
victims would affect the juror’s ability
“to be fair and impartial in this trial
involving Mr. Adedoyin?” Id. at 8.
Each juror who knew victims answered
no.

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attacks. As stated above, the criminal
activity of which he was charged at the
first trial, that is mail and wire fraud, had
no similarity to the terrorism of that
horrific day. Nor was Adedoyin’s
national origin similar to that of the
terrorist attackers and he hardly could be
confused with them. In this regard we
can take judicial notice of the fact that by
September 19, 2001, there had been
massive publicity in the United States as
to the Middle Eastern origin of the
terrorists. See Fed. R. Evid. 201(b).
The district court determined that
the allegation that Adedoyin defrauded
the World Trade Center of rent several
years prior to the terrorism on September
11, 2001, could be addressed fairly by
the jury. As a means of determining
whether the jury in fact could be fair, the
court conducted an individual voir dire
of each juror. In view of these cautious
procedures, we cannot say that the court
abused its discretion in denying
Adedoyin’s motion for a 90-day
postponement. See, generally, United
States v. Koubriti, 252 F. Supp. 2d 437
(E.D. Mich. 2003) (finding that
postponement until the end of the war
against Iraq was not warranted in case
where defendants of M iddle Eastern
descent were indicted on charges of,
among other things, conspiracy to
provide material support or resources to
terrorists) ; United States v. El-Jassem,
819 F. Supp. 166, 177-79 (E.D.N.Y.
1993) (holding that defendant of M iddle
Eastern descent convicted of attempting
to explode three car bombs was not
entitled to a new trial where trial took
place immediately after the first World
Trade Center terrorist attack in 1993);
see also United States v. Lampley, 127
F.3d 1231, 1235-39 (10th Cir. 1997)
(finding that it was not plain error for the
district court to conduct trial of
defendants on charges of, among other
things, conspiracy to make and possess a
destructive device, on the one-year
anniversary of the bombing of the Alfred
P. Murrah Federal Building in Oklahoma
City). We therefore will uphold the
district court’s decision not to postpone
the trial.
B. The court’s questioning
Our review of the district court’s
questioning of Adedoyin and Warrick
pursuant to Federal Rule of Evidence
614(b) is for abuse of discretion. If we
find that the court abused its discretion,
we must determine whether the
questioning was harmless or prejudiced
Adedoyin’s substantial rights. See
United States v. Beaty, 722 F.2d 1090,
1093 (3d Cir. 1983).
Federal Rule of Evidence 614(b)
provides that the district court may
interrogate witnesses. Inasmuch as a
trial is “a search for the truth” and the
court is more than a “mere umpire” of
the proceedings, it is certainly within its
province to question witnesses. Riley v.
Goodman, 315 F.2d 232, 234 (3d Cir.
1963) (citations omitted). However, as
we have recognized, a judge must not
“abandon his [or her] proper role and

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assume that of an advocate.” United
States v. Green, 544 F.2d 138, 147 (3d
Cir. 1976).
We find that the district court did
not abuse its discretion in asking
questions of Adedoyin and Warrick,
though we acknowledge that the court
approached close to the limit of what
would be appropriate questioning.
Moreover, we point out that the jury
found Adedoyin guilty on the mail fraud
counts but not guilty on the wire fraud
counts. This mixed verdict tends to
demonstrate that the jury did not simply
take the court’s questioning as a signal to
find Adedoyin guilty and that the court’s
questioning did not prejudice Adedoyin.
C. The prior conviction
We review the court’s ruling
admitting the 1981 conviction on an
abuse of discretion standard.
Nevertheless to the extent that it based its
determination on an interpretation of the
Federal Rules of Evidence our review is
plenary. United States v. Furst, 886 F.2d
558, 571 (3d Cir. 1989).
Count II of the second
superseding indictment charged
Adedoyin with attempting to enter the
United States on November 27, 1994, in
violation of 8 U.S.C. § 1325(a) and 18
U.S.C. § 2, by willfully concealing that
he had been convicted in the United
States of having committed a felony.3
The jury convicted him on this count.
Therefore, it found him guilty of
attempting to enter or obtain “entry to the
United States by a willfully false or
misleading representation or the willful
concealment of a material fact.” 8
U.S.C. § 1325(a).
Prior to trial on the four entry and
visa counts, Adedoyin brought a motion
in limine seeking to prevent the
prosecution from introducing evidence of
his 1981 felony conviction in California,
arguing that under Federal Rule of
Evidence 410 that conviction, which was
pursuant to a plea of nolo contendere,
was not admissible. Rule 410 provides,
in relevant part, “[e]xcept as otherwise
provided in this rule, evidence of the
following is not, in any civil or criminal
proceeding, admissible against the
defendant who made the plea or was a
participant in the plea discussions: . . .
(2) a plea of nolo contendere.”
Surprisingly, we seem not to have
controlling precedent on the admissibility
of a conviction predicated on a plea of
nolo contendere as distinguished from
3Count I charged that Adedoyin had
violated that same statute when he
attempted to enter the United States
using the alias of Adedoyin Famakinde.
This count did not implicate his felony
conviction. Defendant was convicted on
Counts I and II, but acquitted on Counts
III and IV for fraud and misuse of visas,
permits and other documents.

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the admissibility of the plea itself.
The Advisory Committee Notes to
Rule 410 recognize that the exclusion of
nolo contendere pleas as admissible
evidence promotes the disposition of
criminal cases. As several other courts
of appeals have recognized there is,
however, a clear distinction between
pleas of nolo contendere and convictions
entered on the basis of such pleas. See
Brewer v. City of Napa, 210 F.3d 1093,
1096 (9th Cir. 2000) (“Rule 410 by its
terms prohibits only evidence of pleas
(including no contest pleas), insofar as
pleas constitute statements or
admissions.”); Olsen v. Correiro, 189
F.3d 52, 58 (1st Cir. 1999) (“The
evidentiary rules that exclude evidence
of nolo pleas do not directly apply to the
convictions and sentences that result
from such pleas.”); Myers v. Sec’y of
HHS, 893 F.2d 840, 843 (6th Cir. 1990)
(stating that Federal Rule of Evidence
410 and Federal Rule of Criminal
Procedure 11(e)(6) “prohibit use of ‘a
plea of nolo contendere,’ not a
conviction pursuant to a nolo plea”)
(citation omitted); United States v.
Williams, 642 F.2d 136, 138 (5th Cir.
1981) (“A judgment entered on a plea of
nolo contendere adjudicates guilt with
the same finality and force as a judgment
entered pursuant to a guilty plea or
conviction following trial.”).
We agree with the persuasive
reasoning of the court in Olsen v.
Correiro, 189 F.3d at 58-62, that
convictions based on pleas of nolo
contendere are admissible to prove the
fact of conviction. It is true that a plea of
nolo contendere is not an admission of
guilt and thus the fact that a defendant
made such a plea cannot be used to
demonstrate that he was guilty of the
crime in question. See id. at 60.
Nevertheless, a plea of nolo contendere
has the same legal consequences as a
plea of guilty and results in a conviction.
See Brewer, 210 F.3d at 1096; Myers,
893 F.2d at 844; Williams, 642 F.2d at
138 (“It is well settled that a plea of nolo
contendere admits ‘every essential
element of the offense (that is) well
pleaded in the charge.’”) (citations
omitted).
At trial, the prosecution did not
seek the admission of a certified copy of
Adedoyin’s conviction for the purpose of
proving that he was in fact guilty of a
felony in 1981. The prosecution put
forth the evidence in order to show that
he previously had been convicted of a
felony which he failed to disclose when
he sought entry into the United States.4
4During the charge to the jury, the
district court stated:
Evidence that the
defendant Adedoyin was
convicted of having
committed a crime in
California in 1981 has been
admitted into evidence.
But you may consider that
evidence only in

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See Pearce v. United States Dep’t of
Justice, 836 F.2d 1028, 1029 (6th Cir.
1988) (“Notwithstanding Rule 410, a
conviction pursuant to a nolo contendere
plea is a conviction within the meaning
of [21 U.S.C. § 824] and gives rise to a
variety of collateral consequences in
subsequent proceedings.”); Qureshi v.
INS, 519 F.2d 1174, 1176 (5th Cir. 1975)
(“[I]t is the fact of conviction that is of
moment here, not the collateral
evidentiary uses of whatever plea may
have resulted in it.”).
Indeed, it did not even matter in
this case whether Adedoyin was guilty of
the California crime. The material
question at trial was whether his
representation that he did not have a
criminal conviction was willfully false or
misleading and the conviction, though
based on a plea of nolo contendere,
established that his representation was
false, though not necessarily willfully so.
Thus, evidence of it was admissible.
For the first time on appeal,
Adedoyin challenges the admissibility of
the certified copy of the conviction as
hearsay that falls outside of the ambit of
Federal Rule of Evidence 803(22). That
rule states, in pertinent part, that
“[e]vidence of a final judgment, entered
after a trial or upon a plea of guilty (but
not upon a plea of nolo contendere),
adjudging a person guilty of a crime
punishable by death or imprisonment in
excess of one year, to prove any fact
essential to sustain the judgment, but not
including, when offered by the
Government in a criminal prosecution for
purposes other than impeachment” is not
hearsay. Adedoyin argues that the
exception for judgments based on pleas
of nolo contendere prevents the
admission of the certified copy of the
judgment. Even assuming that we
should address this issue in the first
instance, Adedoyin’s argument is without
merit. The district court admitted the
certified copy of the conviction pursuant
to Federal Rule of Evidence 803(8) as a
public record and not under Rule
803(22). App. at 808-09. Furthermore,
Rule 803(22) deals with evidence
introduced “to prove any fact essential to
sustain the judgment.” As explained
above, the certified copy of Adedoyin’s
conviction was not introduced for the
purpose of establishing any of the facts
related to the underlying conviction. It
was admitted to prove the fact of the
conviction itself.
The Advisory Committee’s Note
to Rule 803(22) states, “[j]udgments of
connection with whether or
not the government has
established beyond a
reasonable doubt that Mr.
Adedoyin concealed that
prior conviction in regard
to his application to obtain
a United States visa for
purposes of attempting to
enter the United States.
App. at 858.

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conviction based upon pleas of nolo
contendere are not included. This
position is consistent with the treatment
of nolo pleas in Rule 410 and the
authorities cited in the Advisory
Committee’s Note in support thereof.”
Therefore, the same reasoning animates
Rule 803(22) as Rule 410, that is, that
pleas of nolo contendere and convictions
on the basis of such pleas are not
admissible for purposes of proving that
the defendant is guilty of the crime in
question. However, the government did
not introduce the certified copy of the
conviction for purposes of proving that
Adedoyin committed the California
crime. It offered the evidence solely for
the purpose of showing that Adedoyin
had a prior felony conviction.
Accordingly, the district court correctly
admitted the certified copy of the 1981
California conviction.
III. CONCLUSION
For the foregoing reasons the
judgment of conviction and sentence
entered July 15, 2002, will be affirmed.

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