Submitted: November 13, 2014.
Appeal from United States District Court for the District of Minnesota - St. Paul.
For United States of America, Plaintiff - Appellee: Ann Anaya, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Saint Paul, MN; Jeffrey S. Paulsen, Assistant U.S. Attorney, Lolita A. Velazquez-Aguilu, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN.
Adetokunbo Olubunmi Adejumo, Defendant - Appellant, Pro se, Rochester, MN.
For Adetokunbo Olubunmi Adejumo, Defendant - Appellant: Jordan S. Kushner, Minneapolis, MN.
Before MURPHY, MELLOY, and BENTON, Circuit Judges.
MURPHY, Circuit Judge.
Adetokunbo Adejumo pled guilty to bank fraud and aggravated identity theft and was sentenced to 124 months in prison. A year after he was sentenced, the United States moved to amend the judgment. It sought to add a restitution obligation of $1.1 million; in support it provided a single page exhibit containing the names of four asserted victim banks and amounts owed to each. Although Adejumo's trial counsel received electronic court filing (ECF) notice of this motion, he did not respond to the motion nor inform Adejumo of it. The district court entered the requested restitution order. Two months later it denied Adejumo's motion to reopen or for reconsideration. Adejumo appeals, and we reverse.
Adejumo pled guilty to one count of bank fraud and one count of aggravated identify theft. The plea agreement did not set a mandatory restitution amount; instead it stated that the district court would determine the amount at sentencing. In the agreement Adejumo did not waive his ability to present argument on the amount of the loss to the victims. When the court sentenced Adejumo on August 15, 2012, it did not specify any restitution amount or payees.
On September 4, 2012, Kenneth Udoibok, Adejumo's counsel in the district court, filed his own motion to withdraw. Udoibok later filed a notice of withdrawal of his earlier motion on September 10, stating he was withdrawing his motion because Adejumo had filed a pro se appeal in the Court of Appeals and jurisdiction had been transferred to the Eighth Circuit where Adejumo would be represented by substitute counsel.
We granted Udoibok's motion to withdraw as appellate counsel on September 18. On the same day we appointed Jordan Kushner under the Criminal Justice Act to serve as Adejumo's counsel. Notice of the change in counsel was served on both the government and the district court. The district court's electronic court filing system retained Udoibok as the counsel of record, however. In July 2013 Kushner filed Adejumo's appellate brief and provided a copy to the government.
On August 15, 2013, the government filed a motion in the district court to amend its judgment to order restitution for victims in the amount of $1,106,931. Notice of that motion was provided only to Udoibok, however, not to Kushner. Attached to the motion was a single page document which listed four banks and the sums purportedly owed to each by the defendants; Adejumo was listed as jointly and severally liable. Adejumo did not respond to the motion, and on August 29, 2013 the district court entered an amended judgment ordering Adejumo to pay $1.1 million in restitution.
Two months later, Adejumo learned about the restitution order entered against him from his prison counselor. Adejumo then informed Kushner, who filed a notice of appearance in the district court on October 30, 2013. Also on the same date, Kushner filed Adejumo's motion to reopen and for reconsideration of the restitution order. Kushner attached a declaration in which he acknowledged that Udoibok had until that time been listed in the district court as Adejumo's ...