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OLAJIDE v. U.S.

August 10, 2005.

FRANCIS J. OLAJIDE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



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

MEMORANDUM DECISION

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 ...


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