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OKAGBUE-OJEKWE v. U.S.

United States District Court, E.D. New York


May 3, 2004.

EMY DAVID OKAGBUE-OJEKWE, Petitioner,
v.
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 companies.

  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 shall issue.*fn3

  So Ordered.


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