United States District Court, E.D. New York
May 3, 2004.
EMY DAVID OKAGBUE-OJEKWE, Petitioner,
UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
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.
A. The Facts
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.
B. The Appeal
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).
C. The Petition
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 "counts
1-5," and that minor error shall be corrected in an amended
judgment. The relief sought, however, is absurd, and thus the
claim is denied.
Ojekwe's second claim is that his trial attorneys (Douglas
Morris, who was relieved before trial, and his successor Gary
Sunden) failed to convey a plea offer to him. In a detailed
affirmation dated April 8, 2004, Sunden has refuted this claim.
Sunden had a lengthy conference with the assigned Assistant
United States Attorney ("AUSA") on March 13, 2000. Sunden's notes
reveal that the AUSA offered a plea agreement containing a charge
bargain (i.e., the witness tampering charge would be dropped)
and an estimated sentencing range of 27-33 months if Ojekwe pled
guilty. In a lengthy conference with Ojekwe the same day, Sunden
conveyed and discussed the plea offer with Ojekwe, who clearly
and unambiguously rejected it. Ojekwe provided two reasons: (a) he claimed to be innocent and
(b) a fraud conviction would impede his goal of becoming a local
king in Nigeria.
I reject this claim, without the need for a hearing, for two
reasons. First, Ojekwe, an incorrigible fraudster whose
credibility hit rock bottom long ago,*fn2 should not be permitted
to consume the scarce resources of the Court or the government by
making the bald and unsworn assertion that he was not informed of
a plea offer when his trial counsel, in a careful and detailed
affirmation, asserts otherwise in circumstances that do not raise
even the slightest doubt that counsel is correct. See Nunez v.
United States, 892 F. Supp. 528, 532 (E.D.N.Y. 1995) ("a district
court may deny a petitioner's § 2255 motion without a hearing
`where the allegations are insufficient in law, undisputed,
immaterial, vague, conclusory, palpably false, or patently
frivolous.'") (quoting United States v. Malcolm, 432 F.2d 809, 812
(2d Cir. 1970) (citations omitted)).
Second, relief would be available to Ojekwe only if he
established a reasonable probability that he would have accepted
the plea agreement that he alleges was not conveyed to him. See
United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998). I
find, based on my ample contact with the defendant, including his
numerous (if frivolous) protestations of innocence that persist
to this day, that it is inconceivable that he would have accepted
a plea offer and pled guilty. Accordingly, the claim is rejected. The claim that Sunden was ineffective by failing to perform the
numerous tasks listed in Ojekwe's motion is likewise frivolous, a
hollow rant from a defendant whose guilt was overwhelmingly
proved at trial. Indeed, the litany of innocence-establishing
tasks places in even clearer relief the fact that Ojekwe would
never have pled guilty, no matter what plea bargain he was
offered. Finally, the allegations also have been meticulously
refuted by Sunden.
The claim that the lawyer who replaced Sunden was ineffective
at sentencing is too frivolous to discuss, as is the claim that
the lawyer who replaced her was ineffective on appeal.
Ojekwe claims that the indictment was constructively amended
when the jury was instructed that it could return a guilty
verdict on the mail fraud counts if it found that Ojekwe had used
the mails for the purpose of executing his fraudulent scheme.
This contention makes no sense. The nexus between the mailings
and the fraudulent scheme is both the essence of mail fraud and
plainly alleged in the indictment.
Ojekwe's claimed violation of the government's disclosure
obligations is frivolous. The tape recording he complains about
was provided to him. As for the bank records he asserts were
withheld, the government has established that it disclosed all
such records to him.
In sum, I have reviewed all of Ojekwe's numerous claims, most
of which have been procedurally defaulted by his failure to raise
them on direct appeal. However, I need not address the procedural
default issue, as all of his claims are patently without merit.
Thus, the motion is denied. No certificate of appealability