United States District Court, S.D. New York
August 10, 2005.
FRANCIS J. OLAJIDE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
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
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).
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
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
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,
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
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.