The opinion of the court was delivered by: JOHN GLEESON, District Judge
Emy David Okagbue-Ojekwe ("Ojekwe") moves pursuant to
28 U.S.C. § 2255 to vacate his convictions and 87-month sentence on five
counts of mail fraud, arising out of his fraudulent scheme to
collect on policies insuring the life of a nonexistent twin
brother. For the reasons set forth below, the motion is denied.
The evidence at trial established that five different insurance
companies issued life and accidental death insurance policies to
"Harris Davis," between March 1998 and October 1998, in amounts totaling approximately $4,700,000. The
beneficiary on each policy was Ojekwe. In June 1999, Ojekwe
attempted to collect the benefits from these policies, claiming
that Harris Davis had died in a car accident in Nigeria on June
3, 1999. The principal issue at trial was whether "Harris Davis"
was, as Ojekwe claimed, his twin brother, or a fictional person
created to further Ojekwe's fraud.
Joanne Cruz testified at trial that she married Ojekwe on March
27, 1996. Although Ojekwe told her that he had two brothers,
Phillip Ojekwe and Peter Ojekwe, he never mentioned having a twin
brother named Harris Davis. Herbert Norfolk, a Maryland State
Trooper assigned to the airport division at BWI Airport in
Maryland, took the fingerprints of someone named "Harris Davis"
on August 11, 1990. Those fingerprints were Ojekwe's. Even
identical twins do not share the same fingerprints, however.
On some of the insurance policies, Harris Davis's address was
listed as 241 South Dean Street in Englewood, New Jersey. The
government called several witnesses whose testimony established
that Harris Davis did not live at that address. Among them was
Robert Lee Horton, who testified that he had resided at 241 So.
Dean Street in Englewood, New Jersey for approximately 42 years.
Although Horton testified that neither a Harris Davis nor Ojekwe
had ever lived at that address, Ojekwe had asked Horton in 1996
to let him use the address to receive mail. Horton agreed, and he
received mail for Ojekwe for almost one year. The names to whom
the mail was addressed included Harris Davis, Prince Ojekwe, and
Prince Okagbue-Ojekwe. When Horton asked the defendant to stop
having his mail sent to that address, the defendant asked if he
could continue to do so at least through June or July of 1999,
the time period in which he attempted to defraud the insurance
Even after Harris Davis supposedly died on June 3, 1999, Ojekwe
continued to use that name. On June 19, 1999, a person who identified himself as
Harris Davis rented a car at the Westchester County Airport using
a Nigerian driver's license. The same renter, who listed his name
as Prince Davis, reported a car accident on June 21, 1999. The
driver was Ojekwe. In addition, on January 6, 2000, Dr. Todd
Sofir of the Kings Highway Orthopedic Associates examined a
patient who identified himself as Prince Harris Davis.
Finally, Rita Aghadiuno testified that she first met Ojekwe
around May 1999. She knew him as Emy Ojekwe, but he also used the
names Prince and Prince H. Davis. At the end of July 1999, Ojekwe
asked Aghadiuno to claim that she knew Harris Davis if anyone
asked. On another occasion, Ojekwe asked Aghadiuno to say that
she had dated Harris Davis.
In sum, the evidence that Ojekwe had concocted a fraudulent
scheme to defraud insurance companies by first fabricating the
existence of a twin brother and then fabricating that brother's
death was suffocating.
On appeal, Ojekwe challenged three aspects of his sentence: (1)
the obstruction of justice enhancement; (2) the upward adjustment
based on a substantial portion of the offense being committed
outside of the United States; and (3) the upward departure in the
criminal history category. In an unpublished opinion dated May
15, 2002, the Second Circuit affirmed. United States v.
Okagbue-Ojekwe, No. 00-1737, 2002 WL 992138 (2d Cir. May 15,
2002) (Summary Order). On October 7, 2002, Ojekwe's petition for
writ of certiorari was denied. Ojekwe v. United States,
537 U.S. 935 (2002).
In his petition, Ojekwe asserts that (1) in light of a
typographical error in the judgment, he was illegally sentenced; (2) his attorneys provided
him with ineffective assistance of counsel; (3) the indictment
was defective because it failed to allege that he used the mails
for the purpose of executing the scheme to defraud; (4) the
indictment was impermissibly amended by a jury instruction; and
(5) the government failed to provide him with exculpatory
evidence that it had in its possession.
Ojekwe's first argument is that the judgment, which states the
sentences imposed on all five counts of conviction, also mentions
that he was found guilty of "counts 1 & 5."*fn1 From this,
Ojekwe contends that the sentences on the other counts must be
illegal. Ojekwe does not dispute that the jury found him guilty
of all five counts, that he was sentenced on all five counts, and
that the judgment of conviction containing those sentences was
affirmed on appeal. It is true that the judgment mentions that
Ojekwe was found guilty of "counts 1 & 5," rather than ...