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CONTEH v. U.S.

October 7, 2002

JOHN CONTEH, MOVANT,
V.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.

MEMORANDUM OPINION

John Conteh was convicted in 1999 of conspiracy, in violation of 18 U.S.C. § 371, to commit bank fraud and to possess a counterfeit security and of making false statements to a federal law enforcement agent, in violation of 18 U.S.C. § 1001, and sentenced principally to a term of imprisonment of one year and one day followed by three years of supervised release.*fn1 His conviction was affirmed by the Court of Appeals.*fn2 Conteh's motion for a new trial on the ground of allegedly newly discovered evidence was denied by this Court, and the Court of Appeals recently dismissed his appeal from that order on the ground of untimeliness.

Now before the Court is Conteh's pro se motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. Conteh assigns six grounds for relief:

1. The conviction was obtained in violation of Conteh's privilege against self-incrimination.

2. The conviction was obtained pursuant to an unlawful arrest and/or an unconstitutional search and seizure.

3. The Court erred in receiving evidence of conversations between Ebou (Ibrahima Koita) and Jean-Jacques because the conspiracy of which plaintiff allegedly was a member had terminated by the time of the conversation.

4. The conviction was obtained as a result of false testimony submitted by the government.

5. The government violated Conteh's Brady rights by failing to disclose evidence favorable to him.

6. Plaintiff was deprived of the effective assistance of counsel because his attorney at trial (a) was "acting in the capacity for Kings County" and thus had a conflict of interest, (b) failed to investigate information about alleged meetings and conversations between Conteh and an FBI agent before July 10, 1997, and (c) failed to argue the venue issue.

These contentions are disposed of as follows:

I. Self Incrimination

A. The Pertinent Evidence at Trial

In order to discern precisely what movant is complaining about, some background is necessary. The first of the counts of conviction was Count One of the Indictment, which charged a conspiracy among Conteh, Ibrahima Koita a/k/a Ebou, and others to commit bank fraud in violation of 18 U.S.C. § 513 (a) and 1344. The overt acts alleged included deposits of counterfeit checks to accounts at a Dime Savings Bank ("Dime") branch in Brooklyn and a Chase Manhattan Bank branch in Manhattan and subsequent withdrawals of the proceeds.*fn3 Count Four, the other count on which Conteh was convicted, charged Conteh with falsely stating to an FBI agent, on or about July 16, 1997, that Conteh never had seen a counterfeit check deposited into a bank account in his name.

Perhaps the critical evidence on the false statement count was the fact that the check bore a fingerprint or fingerprints belonging to Conteh, which was determined by a comparison between the print or prints on the check and a set of Conteh's prints which, the government asserted, were obtained by the FBI on July 16, 1997. The thrust of Conteh's position on this point is that the prints the government obtained from him were secured in violation of his privilege against self-incrimination and his Miranda rights.

The government's proof at trial showed that FBI agent Rothe learned of Conteh's possible involvement with a counterfeit check in the amount of $25,200 deposited to Conteh's account at Dime, the original of which was received in evidence as Government Exhibit (GX) 15. On July 10, 1997, Rothe interviewed Conteh in the agent's car about the deposit to his account. Conteh said he first learned of such a check when he saw an unexpectedly large balance in his account and that he suspected his girlfriend of having made the deposit. Rothe then showed him a photocopy of GX 15 and asked him, among other things, ...


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