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United States District Court, S.D. New York

August 10, 2005.


The opinion of the court was delivered by: DENNY CHIN, District Judge


Pro se petitioner Francis J. Olajide moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the grounds that (1) his conviction was obtained by a violation of his rights under the Double Jeopardy Clause, (2) he was convicted by an unconstitutionally selected jury, (3) he was denied the effective assistance of counsel, and (4) he was denied an evidentiary hearing and was illegally sentenced. For the reasons set forth below, the motion is denied.*fn1 BACKGROUND

  A. Facts

  On March 5, 1998, at a branch of Fleet Boston Financial Bank ("Fleet") located on Perry Avenue in the Bronx, New York, Francis Olajide ("Olajide") opened a commercial account in the name of FODJB Communications and Crude Oil ("FODJB"). (Trial Tr. at 23-26). Olajide was the sole authorized signatory on the account. (Id. at 29-30). That same day, Olajide made two deposits into the account. One was a check made payable to FODJB, from a First Union account held in the names of Lester Milewski and Linda Cocchiola, for $3,000. (Id. at 41). The second was a check made payable to FODJB, from a Bank of Tokyo account held by NPMM Realty, Inc. ("NPMM"), for $81,552. (Id. at 38-39).

  Olajide made two subsequent deposits during that month. On March 18, 1998, he deposited a $7,000 Discover credit card convenience check made payable to FODJB, drawn on the personal account of William C. Obermayer. (Id. at 44-45, 123-28). Olajide later deposited a second check from Obermayer's account on March 27, 1998, in the amount of $3,600, made payable to Olajide personally. (Id. at 45-47).

  Olajide also held a personal savings account with Fleet, which he opened on March 20, 1998. (Id. at 53-57). That day, he deposited a check drawn on FODJB's business account for $81,600. (Id. at 51-52, 55-56). Throughout March 1998, Olajide withdrew a total of more than $40,000 from the personal savings account. (Id. at 57).

  Though Fleet originally honored the checks Olajide deposited into the FODJB account, two of these checks were later returned. (Id. at 61). On March 23, 1998, Fleet returned the $7,000 check from Milewski and Cocchiola's First Union account. Neither individual had ever conducted any financial transactions with First Union or owned a First Union bank account or credit card, nor had they signed the check that Olajide deposited. (Id. at 138-43, 147-52). Moreover, neither individual was ever associated with FODJB or Olajide. (Id. at 142, 150). On April 6, 1998, Fleet returned the $81,552 check drawn on the NPMM account. (Id. at 61). William Tracy, the vice president of NPMM, affirmed that the check was a manual check believed to have been stolen from a regional office, but was not properly signed by the appropriate parties. (Id. at 120; Pre-Sentence Report at 2). He also noted that no one connected with NPMM had any association with either Olajide or FODJB. (Trial Tr. at 120). It was later discovered that the convenience checks purportedly signed by Obermayer were also forged. (Id. at 126-28; Pre-Sentence Report at 4).

  As a result of these returned checks, FODJB's account was overdrawn approximately $77,000 by April 7, 1998. (Trial Tr. at 62). On April 10, 1998, Fleet closed Olajide's personal account and transferred the remaining funds, $32,038.78, to the FODJB business account to cover the overdraft. (Id. at 60). Fleet covered the remaining portion of the overdraft with its own funds, taking a total loss of $45,422.62. (Id. at 65).

  B. The Investigation and Indictment

  On October 12, 2000, FBI Special Agents Mark Petruzzi and Joseph LaTorre interviewed Olajide at the New York State Office of Probation to inquire about some of the checks that had been deposited into his Fleet accounts. (Id. at 161-62). Olajide confirmed that he owned FODJB until it went out of business in 1999. (Id. at 163). The agents showed Olajide copies of four checks that had been deposited into the FODJB account, including the check from NPMM for $81,552. (Id. at 164-65). Olajide reported that he had received this check from a man named "Obie," who wanted him to install telephone and intercom services at his insurance company. (Id. at 164-67). Olajide stated that he never performed this work because the check never cleared. (Id. at 166). When the agents confirmed that the check had cleared, as evidenced by the fact that Olajide subsequently forwarded the proceeds from this check into his personal savings account, Olajide changed his story. (Id. at 168-69). He told the officers that he received this check from four men who visited his apartment and forced him, by threatening him with guns, to write the check and give them the deposit slip so they could take the money. (Id. at 166-71). Olajide told the agents that he feared that these men would take the money, and so he transferred the money from the FODJB account into his personal account. (Id. at 171). Olajide could not recall how the other three checks were deposited into his account. (Id. at 174).

  Based on these facts, on December 13, 2000, an indictment was filed in this case in this Court, charging Olajide with one count of bank fraud, in violation of 18 U.S.C. § 1344, and one count of possession of counterfeit securities, in violation of 18 U.S.C. § 513(a). Count One alleged a scheme to defraud Fleet of approximately $91,552 through the deposit of forged checks. Count Two alleged the possession of three forged checks, totaling approximately $91,552.

  C. Procedural History

  1. In Limine Motion

  On August 7, 2001, the Government submitted a letter brief requesting an in limine ruling on the admissibility of evidence of Olajide's two New York State convictions for third-degree grand larceny, pursuant to Fed.R. Evid. 404(b).*fn2 Defense counsel objected, arguing that the evidence was unduly prejudicial. (8/16/01 Tr. at 2-4). On August 16, 2001, this Court heard the motion and held that the evidence was "highly probative" of Olajide's knowledge and intent, as well as his participation in a common plan or scheme. (Id. at 2-3).

  2. Trial

  On November 19, 2001, Olajide was convicted, after a jury trial, of one count of bank fraud, in violation of 18 U.S.C. § 1344, and one count of possession of counterfeit securities, in violation of 18 U.S.C. § 513(a). At trial, Olajide's defense counsel continued to object to the 404(b) evidence. I overruled counsel's objections, but granted counsel's request to give the jury an in limine instruction about why the evidence was offered and what it could be used for. (Trial Tr. at 155, 197-200, 204-07, 306-12).*fn3 3. Sentencing

  Following Olajide's conviction, the Probation Department prepared a pre-sentence report containing a calculation of the appropriate sentence under the sentencing guidelines. The Probation Department determined that the appropriate sentencing range was 18 to 24 months and recommended a sentence of 24 months. The total offense level of 15 was based on a base offense level of 6, with upward adjustments for losses exceeding $120,000 but less than $200,000 (7 levels), and for an offense involving a scheme to defraud more than one victim (2 levels). (See Pre-Sentence Report ¶¶ 27-29). The Probation Department determined the total loss to be approximately $183,097, based on the losses sustained by the victims in both this case and the state case. (See Pre-Sentence Report ¶ 28). In addition, the Probation Department recommended that restitution be set in the amount of $87,572.62, of which $45,422.62 was to be paid to Fleet for Olajide's conduct in this case and $42,150 was to be paid to Smith Barney for Olajide's conduct in the prior state case. (See Pre-Sentence Report at 22).

  On February 22, 2002, Olajide appeared for sentencing. Neither Olajide nor the government made any objections to the pre-sentence report. (See 2/22/02 at 2-3). I adopted the Probation Department's calculation of an offense level of 15, a criminal history category of I, and a guidelines range of 18 to 24 months. I sentenced Olajide to concurrent terms of imprisonment of 24 months on each count, to be followed by a three-year period of supervised release. (Id. at 6). I also imposed the mandatory special assessment of $200 and set restitution in the amount of $87,572.62, to be paid to Fleet and Smith Barney, as recommended in the pre-sentence report. (Id. (citing Pre-Sentence Report at 22)).

  Olajide filed a notice of appeal on February 25, 2002. On September 20, 2002, Olajide's counsel filed an Anders brief with the Second Circuit. See Anders v. California, 386 U.S. 738 (1967). The Government moved for summary affirmance, and on February 23, 2004, the Second Circuit affirmed Olajide's conviction, finding no non-frivolous issues to warrant appellate review. On January 7, 2005, Olajide filed the instant motion pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence, alleging (1) his conviction was obtained by a violation of the protection against double jeopardy, (2) he was convicted by a jury that was unconstitutionally selected and impaneled, (3) he was denied the effective assistance of counsel, and (4) he was denied an evidentiary hearing and illegally sentenced.*fn4 DISCUSSION

  A. Double Jeopardy Claim

  Olajide claims that his conviction violates the Double Jeopardy Clause of the Fifth Amendment because evidence of his prior New York State conviction was used to convict him in this case. The claim is rejected, for Olajide's rights under the Fifth Amendment against double jeopardy have not been violated. He was not charged in the instant case based on events stemming from his state conviction, and the instant case involved wholly different victims, dates, and documents. North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989); see also Heath v. Alabama, 474 U.S. 82, 87 (1983) (Double Jeopardy Clause bars multiple prosecutions "only if the two offenses for which the defendant is prosecuted are the `same'").

  Though the Government introduced evidence regarding Olajide's state conviction in this case, it was used purely as Rule 404(b) evidence to establish intent, knowledge, absence of mistake, and use of a common plan or scheme. (Trial Tr. at 215-17; 306-12). See United States v. DeFillipo, 590 F.2d 1228, 1234 (2d Cir. 1979). The jury was instructed as to the nature and scope of this evidence. (Trial Tr. at 215-16, 306-08, 414-15). The evidence was offered simply to show Olajide's state of mind and to negate any defense of mistake or accident. The use of evidence in this manner does not violate the protection against double jeopardy. See United States v. Felix, 503 U.S. 378, 385-87 (1992) (holding that the introduction of relevant evidence of a defendant's similar prior misconduct is "not the same thing as prosecution for that conduct"); DeFillipo, 590 F.2d at 1234. Considering the discordant factual circumstances of the federal and state convictions and the limited purpose of the Government's 404(b) evidence, Olajide's subsequent conviction in this case was not obtained in violation of the Double Jeopardy Clause. Hence, Olajide's motion is denied in this respect.

  B. Sixth Amendment Claim

  Olajide claims that his Sixth Amendment right to a jury trial was violated because "the jury was unconstitutionally selected and impaneled," as he was "not present in the course of their [sic] selection." (Petitioner's Motion at 4). Though the thrust of his complaint is not entirely clear, it appears that he is arguing that he was not present during jury selection. The claim is rejected, for Olajide has not been denied his constitutional right to a jury trial.

  First, the record shows that Olajide was present during jury selection. Although Olajide was delayed by security and did not arrive in the courtroom at the scheduled time, I took a short recess before beginning the selection process to ensure that he would be present. (11/13/01 Tr. at 13). He did arrive, before jury selection started, and was introduced to the prospective jurors. (See 11/13/01 Tr. at 14-23). The record does not show that Olajide was absent for any of the subsequent proceedings following his arrival. Second, to the extent that Olajide refers to his absence immediately preceding jury selection, he has asserted no basis for relief. See Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002) (explaining that the defendant's "right to be present is not absolute . . . there is no constitutional right to be present when `presence would be useless, or the benefit but a shadow.'") (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07 (1934)). As Olajide was delayed by security, I conducted a conference with the lawyers, in open court and on the record, while awaiting his arrival. (11/13/01 Tr. at 2-13). The lawyers and I addressed the Government's 404(b) evidence relating to Olajide's plea allocution in the state court case and a potential issue as to how to introduce evidence stemming from one of Olajide's pre-arrest interviews. (Id. at 2-13). These discussions encompassed purely legal questions, of a preliminary nature. United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994); see also Fed.R.Crim.P. 43(b)(3) (stating that a defendant need not be present when "the proceeding involves only a conference or hearing on a question of law."). As Olajide was represented by competent counsel who could speak to these legal issues without the need to consult him on factual matters, his absence did not violate his constitutional right to defend himself against the charges.

  Third, it is possible that Olajide is contending that he was absent from robing room conferences during voir dire. I conducted brief, follow-up interviews of certain jurors who had raised certain issues, including scheduling conflicts, hardship claims, or possible bias. These interviews were conducted to permit me to decide whether to excuse certain jurors for cause. (11/13/01 Tr. at 15, 50-81; 86-90). Although I do not recall whether Olajide was present during these conferences, my usual practice is either to permit unincarcerated defendants to accompany counsel during the robing room interviews or to obtain a waiver from counsel on the record of the defendant's right to be present. Unfortunately, here the record does not indicate whether Olajide was present in the robing room for these conferences, nor does it reflect any discussion of a waiver.

  Even assuming, for the purposes of this motion, that Olajide was not present during these robing room conferences, no relief is warranted. First, the record does not indicate that any request was made for him to be present; there simply was no discussion. Second, in any event, surely his presence would not have materially altered the course of the trial. See United States v. Greer, 285 F.3d 158, 168 (2d Cir. 2002) ("Hardship questioning is not a part of voir dire — and thus not a critical stage of the trial during which the parties and counsel must be present."). Defense counsel was present during each of these proceedings and adequately addressed her client's needs. Moreover, Olajide had the opportunity to consult with counsel before the peremptory challenges were exercised to discuss any concerns he may have had, as the Court gave the parties some time to discuss peremptory challenges before proceeding. (11/13/01 Tr. at 130). As Olajide's absence (assuming he was absent) did not violate his constitutional rights, his motion is denied in this respect.

  C. Ineffective Assistance of Counsel

  Olajide claims that he was denied the effective assistance of counsel because his trial counsel failed to oppose the Government's 404(b) motion to admit evidence of his prior state convictions. Olajide is plainly incorrect, for the record shows that counsel vigorously opposed the Government's 404(b) motion and the introduction of the evidence numerous times during the proceedings. (See 8/16/01 Tr. at 2-3, 13-14; Trial Tr. at 155, 197-200, 204-07, 306-12).

  To the extent that Olajide argues that counsel poorly or ineffectively opposed admission of the Government's 404(b) evidence, he is also wrong. First, counsel filed a detailed letter brief stating specific factual and legal grounds opposing the evidence. (See 8/16/01 Tr. at 2-3). She also presented oral argument on this matter and made several objections. (See id. at 2-14; Trial Tr. at 155, 197-200, 204-07, 306-312). I was not persuaded by her objections, and I exercised my discretion to allow the evidence. See United States v. Rubin, 37 F.3d 49, 52 (2d Cir. 1994). Counsel also proposed a limiting instruction, which I accepted and gave to the jury before the admission of the evidence. (See id. at 157-58, 197-200, 215-16, 306-312, 414-15).

  Taken together, these facts indicate that counsel's performance fell well within the realm of reasonable, competent representation. Strickland v. Washington, 466 U.S. 668, 686-88 (1984). Whatever prejudice Olajide might have sustained as a result of this evidence was far outweighed by its probative value. See Fed.R. Evid. 403; United States v. Garcia, 291 F.3d 127, 136-38 (2d Cir. 2002); DeFillipo, 590 F.2d at 1240. Accordingly, as Olajide was not denied the effective assistance of counsel, his motion is denied in this respect. See Strickland, 466 U.S. at 699-701.

  D. Evidentiary Hearing and Illegal Sentence

  Finally, Olajide claims that this Court improperly considered factors not proven at trial to illegally enhance his sentence, relying on Blakely v. Washington, 542 U.S. 296 (2004). As there were no departures, Olajide apparently is challenging the Court's determination that the base offense level of 6 should be increased by 7 levels for loss amount (more than $120,000 but less than $200,000) and 2 levels because the offense involved a scheme to defraud more than one victim.

  The claim is without merit. First, Olajide cannot attack the guidelines calculation on collateral review because he did not object to the Probation Department's calculation at sentencing. Indeed, Olajide did not object to the Pre-Sentence Report or the Probation Department's determination of the offense level. Nor did he object to the Probation Department's recommendations as to the loss amount for purposes of calculating the offense level or to the amount imposed for restitution. To the extent that he is now trying to revisit these issues, he has waived that right.*fn5

  Second, even assuming Olajide did not waive his objections, this motion was filed before the Supreme Court decided United States v. Booker, 125 S. Ct. 738, 764 (2005). Booker, of course, held that the federal guidelines are not unconstitutional because they are advisory and not mandatory. Blakely, which involved a state guidelines system, is no longer of any help to Olajide.

  Third, even assuming Olajide is seeking to rely on Booker, he cannot do so, for the Second Circuit has held that Booker does not apply to cases like this on collateral review. See Green v. United States, 397 F.3d 101, 103 (2d Cir. 2005). Hence, Booker is of no help to Olajide. Booker does not apply to cases like this on collateral review. See Green v. United States, 397 F.3d 101, 103 (2d Cir. 2005). Hence, Booker is of no help to Olajide.


  Petitioner has demonstrated no basis for relief under 28 U.S.C. § 2255. Accordingly, the motion is denied. Because petitioner has not made a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253 (1996) (as amended by the Antiterrorism and Effective Death Penalty Act). I certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal taken from this decision would not be taken in good faith.

  The Clerk of the Court shall close this case.


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