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
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
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
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 ...