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AJAYI v. U.S.

United States District Court, S.D. New York


August 31, 2005.

BAMIDELE AJAYI, a/k/a "TEMIDIRE AJAYI," a/k/a "DELE AJAYI," Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge

OPINION

Petitioner Bamidele Ajayi moves to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Ajayi alleges that his Sixth Amendment rights were violated because his counsel provided ineffective assistance at trial. The Government has answered the motion.

The motion is denied.

  FACTS

  On March 29, 2002 Ajayi was convicted by a jury of one count of mail fraud, in violation of 18 U.S.C. §§ 1341 and 1342, three counts of wire fraud, in violation of 18 U.S.C. §§ 1342 and 1343, and four counts of subscribing to a false income tax return, in violation of 26 U.S.C. § 7206(1). The Government produced evidence at trial that Ajayi was involved in a fraudulent scheme to obtain $500,000 in life insurance benefits from Prudential Insurance Companies of America by claiming to be the beneficiary of a policy on the life of a fictitious brother, Temidire, whom Ajayi claimed had died. Following his conviction, Ajayi was sentenced to 37 months imprisonment on each of the mail and wire fraud charges, and 36 months imprisonment on each of the tax charges, to be served concurrently, as well as a period of supervised release. Ajayi appealed his conviction, which was affirmed by summary order on June 13, 2003. United States v. Ajayi, 67 Fed.Appx. 63, 2003 WL 21369262 (2d Cir. 2003).

  Ajayi now makes four claims of ineffective assistance of counsel. Ajayi claims (1) that defense counsel's responsibilities in other trials distracted them from their duties in his case, thus creating a conflict of interest; (2) that defense counsel failed to properly submit the Fakouade Report to the Government; (3) that defense counsel failed to properly disclose to the Government airline tickets and an itinerary demonstrating when Ajayi traveled to Nigeria; and (4) that defense counsel failed to send its own investigators to Nigeria to collect information.

  DISCUSSION

  In order to make a case for ineffective assistance of counsel, petitioner must establish that counsel's conduct fell below an objective standard of reasonableness. In so doing, petitioner must overcome a strong presumption that counsel acted within the wide range of reasonable professional assistance. Petitioner must also affirmatively prove prejudice by showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been difficult. In evaluating potential prejudice, this court must consider the totality of the evidence before the jury. Petitioner is entitled to a reversal of his conviction only if both of these elements are satisfied. See Strickland v. Washington, 466 U.S. 668 (1984).

  Conflict of Interest

  Petitioner claims that defense counsel's responsibilities in other trials distracted them from their duties in his case, thus creating a conflict of interest. Though petitioner may believe that defense counsel should have devoted more time to his case, he has failed to allege a conflict of interest in the legal sense.

  Nor can this argument succeed as an ineffective assistance of counsel claim. Mere allegations that defense counsel did not spend enough time on the case are not sufficient to overcome the strong presumption that counsel acted within the wide range of reasonable professional assistance. Failure to Timely Produce the Fakouade Report

  Petitioner claims that defense counsel unreasonably failed to timely produce the Fakouade Report to the Government in violation of Fed.R.Crim.P. 16(b). Petitioner claims that, as a result of this failure, he was precluded from using the report at trial. The Fakouade Report was the report of an investigator hired by petitioner, and contained statements from witnesses in Nigeria confirming that the fictitious brother had indeed existed and died. These statements were inconsistent with statements given by those witnesses in documents known as the Seifert Letters, which were introduced into evidence by the Government. Leaving aside whether defense counsel acted reasonably, petitioner cannot affirmatively prove prejudice. Although the court did find a violation of Rule 16(b) as one reason to exclude the Fakouade Report, the court also held that the report should be excluded as provided for by Rule 403 of the Federal Rules of Evidence, since "it would be impossible for the jury to avoid forbidden hearsay use, and that hearsay use is very, very detrimental to the fair presentation of this case." Since defense counsel's failure to properly disclose the Fakouade Report did not prejudice petitioner, that failure does not constitute ineffective assistance of counsel.

  Failure to Timely Disclose the Airline Tickets or Itinerary

  Petitioner claims that defense counsel unreasonably failed to properly disclose plane tickets and an itinerary that demonstrated when petitioner departed for Nigeria, as required by Fed.R. Crim P. 16(b)(1)(A). Petitioner argues that, as a result of this violation, the evidence was excluded at trial. Defense counsel apparently did not become aware of the documents until after the Government had concluded its case, and thus was unable to disclose them pursuant to Rule 16. Petitioner alleges that defense counsel was not aware of the documents because counsel apparently did not ask petitioner about the existence of any evidence that would prove when he departed for Nigeria until the trial was already well underway. Petitioner argues that by failing to inquire about the existence of such evidence, defense counsel unreasonably failed to determine whether such documents existed. Petitioner urges the court to find that counsel's conduct fell below an objective standard of reasonableness. The court is not convinced that counsel's conduct was objectively unreasonable.

  However, even if the court were to so find, petitioner is not able to affirmatively prove that the exclusion of the plane tickets and itinerary prejudiced his case. The Government produced abundant evidence that (1) Ajayi participated in the preparation of Temidire's insurance policy application, (2) numerous federal agencies were unable to find any evidence of Temidire's existence, (3) Temidire's application for a social security number contained fraudulent information, and (4) Temidire's purported residence and his activities in the United States were completely unverifiable. See Ajayi, 67 Fed.Appx. at 66. Because of the overwhelming evidence against petitioner, it is not reasonably probable that proof that petitioner may have traveled to Nigeria at an earlier date would have made a difference in the outcome of the case. Therefore, any error by defense counsel in this regard was not unfairly prejudicial to petitioner.

  Failure to Send Defense Investigators to Nigeria

  Petitioner claims that defense counsel unreasonably declined to send their own investigators to Nigeria to collect information for petitioner's defense. Petitioner alleges that such investigators might have discovered unspecified information that could have been used to counter the testimony of the government agent who traveled to Nigeria during the course of the investigation. However, petitioner has failed to show that defense counsel's decision was unreasonable. The Fakouade Report, which contained the findings of defendant's investigator in Nigeria, was apparently available to and relied upon by defense counsel in preparing for trial. Therefore, it was reasonable for defense counsel to assume that a second investigative trip to Nigeria would have been repetitive and unnecessary. Since defense counsel's failure to send another investigator to Nigeria is not unreasonable, petitioner cannot make out an ineffective assistance of counsel claim. CONCLUSION

  Petitioner's motion under 28 U.S.C. § 2255 is denied.

  SO ORDERED.

20050831

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