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United States v. Esimai

United States District Court, E.D. New York

November 17, 2017

FAITH ESIMAI, Defendant.


          I. Leo Glasser Senior United States District Judge.

         The defendant was indicted in the United States District Court for the Southern District of New York in October 2009 and pleaded guilty to the violation of 18 U.S.C. § 1349, conspiracy to commit wire fraud and bank fraud. She was sentenced on July 26, 2010 to imprisonment for a term of seventy months to be followed by a term of supervised release of three years and directed to pay restitution in the sum of $4, 952, 831.73 and forfeit to the Government criminal proceeds in the sum of $13, 517, 486.

         Having served her sentence and released from prison, in March 2016 she was again indicted in the Eastern District of New York, charged with conspiracy to obstruct and obstruction of a judicial proceeding, namely the Judgement and Forfeiture Order in the Southern District case. At her arraignment on April 24, 2016, questions concerning her competency were raised by her counsel, ECF 19, and on May 4, 2016 her application for authority to appoint an expert was granted. ECF 20. A competency hearing was held thereafter on February 8, 2017 and completed that day. The entire record of 120 pages contains the testimony of three witnesses, two of whom were the experts for the parties and the third was the defendant.

         Crucial to the ultimate determination of this case are the transcripts of two meetings on March 7 and March 8, 2016. (G. Ex. 3, 4). The first was between co-defendant Lydia Hills, an attorney, who is the defendant Esimai's niece, and the confidential informant (CI) who was wired to record their in person conversations, joined by the defendant, who participated briefly by telephone (G. Ex. 3). The meeting was held in the office of Ms. Hills. The second meeting, the next day, March 8th, was also recorded by the CI, the participants then being Lydia Hills, the CI and the defendant.

         A reading of the transcripts of the conversations between Ms. Hills and the CI on March 1, 2016, ECF 1 at pp. 7-11, of which the Court takes judicial notice, Rule 201(c)(d) F. R. E., and on March 7, 2016, and the interpretation of them by the Government and its witness, compels the inference that the subsequent events that spawned this indictment were foretold.

         I am aware that the issue before me is the competence of Ms. Esimai to stand trial and the relevance of that inference to that issue may be questioned. The serious consequence for the life of this 71-year-old defendant to be made by the determination of this issue upon a record of 120 pages of testimony of essentially two disagreeing experts, is disquieting. Repeated re-readings of the record of the hearing and the transcripts has ultimately driven me to conclude that it is that foretelling which casts a shadow over this sparse record and imperceptibly impacted upon the conclusions drawn from it.

         The following is a review of that record:

         Dr. Joel Morgan

         Joel Morgan, a clinical neuropsychologist, was the first and only witness called by the Government. His opinion as to the defendant's competence to stand trial was based upon his review of the transcripts of two recorded conversations of the March 7th and 8th meetings noted above; reports of examinations by her physician, Dr. Sandra Robinson, dated October 2, 2015 and April 16, 2016; his interview of the defendant and neuropsychological tests performed over a period of six hours.

         He related that he found the defendant to be a friendly, co-operative and pleasant woman, who repeatedly complained of memory difficulty throughout the examination. His testimony consisted almost entirely, on direct examination, of an explanation of the nature and purpose of the various neuropsychological tests he performed and the significance of the score earned by the defendant on each.

         He listed the tests he performed to be:

         Government Exhibit (G. Ex.) 2:

• The Wechsler Abbreviated Scale of Intelligence Scale - 2nd Edition, which is a test of general intellect;
• Letter Fluency, Category Fluency, and the Boston Naming Test, all tests of language functioning, including word retrieval and confrontation naming;
• Trail Making Parts A and B, psychomotor tests measuring attention and executive functioning;
• Grooved Pegboard Test, which measures fine motor skills;
• California Verbal Learning Test - 2nd Edition, measuring verbal learning and memory;
• Rey-Osterrieth Complex Figure Test (and memory trial), which captures perceptual visual-spatial functioning/construction and nonverbal memory; the
• Test of Memory Malingering, the Victoria Symptom Validity Test, the Reliable Digit Span, and the California Verbal Learning Test - 2nd Edition Forced-Choice Recognition Trial, all tests of effort and validity;
• Minnesota Multiphasic Personality Inventory, 2nd Edition, Restructured Form (MMPI-2-RF), a test of emotional adjustment and personality.

         He explained in broad strokes the methodology of the tests and how Ms. Esimai performed on each. Tr. at 15-27. Throughout that recitation, there was no explanation of the relationship between the test scores and her competence to stand trial, with one exception. The scores assigned to her memory-tests were attributed to “inadequate effort, ” a euphemism for malingering.

         Dr. Morgan was then asked to answer the four questions he was retained as an expert to answer and which were specifically addressed to her competence to stand trial. Those questions were:

         1. Does Ms. Esimai understand the charges against her? His response was that:

throughout my examination of her, she stated that she did not understand the charges against her; that she did not know why she was in trouble. She claimed to have no understanding of it. However, . . .particularly in the recorded conversations on March 8th and March 7th with the confidential informant and Ms. Hills, Ms. Esimai is heard speaking coherently, clearly without any evidence of confusion. She is with the conversation, tracking the conversation. She provides input to the conversation in the discussion of the plan.
She offers advice that is relevant to the conversation. Not once during either of those conversations does she claim to have any memory loss or evidence any instance of forgetting or word finding or anything that would be consistent with having mental problems such as dementia.
On interview with me, the examinee, Ms. Esimai, repeatedly claimed to have difficulty remembering basic facts of her life and claimed not to understand the charges against her. Tr. at 29.

         His assessment that she showed no evidence of forgetting or word-finding or anything that would be consistent with having mental problems, such as Dementia, is at odds with his Report, Gov. Ex. 2 at p. 2, in which he refers to the April 16, 2016 letter of Dr. Robinson, her primary care physician, which describes her as being unable to recall objects, dates or the name of the president. In that Report, he also alludes to the wiretap recordings as evidencing no cognitive impairment, G. Ex. 2 at p. 5, which is at odds with Dr. Robinson's letter which notes that Ms. Esimai's memory continues to be problematic and her cognitive skills are not improving. D. Ex. A.

         An objective line by line reading of those recorded conversations would not support the conclusion that she understood the charges against her. There is not a line in the entire transcript of those conversations on which the charges are mentioned or insinuated, even obliquely, since she was not indicted until a month later. His assessment of her participation in them as providing input in the discussion of the plan and offering advice that is relevant to the conversation is an exaggeration suggesting a predisposed interpretation. The most relevant and instructive transcript is of the conversation Dr. Morgan had with the defendant at the time he conducted his psychological tests. The importance of that dialogue for the disposition of this life-defining issue requires that it be reprinted at length.

         Government Exhibit (G. Ex.) 5:

DR. MORGAN: So let me tell you that um I have been retained um, by um the ah government to exam you, to examine your mental abilities today as part of the legal issues um that you are facing and I will be writing a report ah of my findings which will go to the attorneys.
FAITH: No problem. What legal issues am I facing?
DR. MORGAN: Tell me, why, what do you know about that?
FAITH: I, ... I'm not too sure all I know is that in my (UI) broker and ah the bank, I just did what the bank asked me to do (UI) we needed people with good credit they don't care about their income once their credit is good (coughs) and I did what they asked us to do. They're the people with excellent credit but they're just nature off so, (UI) what they asked me for, other than that I don't what (UI) crime committed.
DR. MORGAN: You're not, you're not sure what crime you're been charged with is that right.
FAITH: That's what I think (UI)
DR. MORGAN: Alright
FAITH: Other than that I don't know.
DR. MORGAN: What, well we'll talk about that a little later. I just wanna get some basic information

G. Ex. 5 at 1-2:

DR. MORGAN: When, when did you get out of prison?
FAITH: Um, I think late, sometime last year.

G. Ex. 5 at 29:

DR. MORGAN: What was the terms of your release do you know?
FAITH: What do you mean?
DR. MORGAN: Were there, were there any rules when you were released when you were released, rules that you had to follow.
FAITH: I can't remember.
DR. MORGAN: Well alright,
FAITH: Tell me what are these rules?
DR. MORGAN: The rules might be that you have, you have to be ah you can't use drugs, or you have to see a parole officer or something like that.
FAITH: Yeah, ., I see the parole officer but I never used drugs and I have never, ..
FAITH: ...used one of them, I would never.
DR. MORGAN: Alright, before 2009 were you, were you ever sued by anybody?
FAITH: Not that I know of, for what
DR. MORGAN: For anything
FAITH: I can't remember
DR. MORGAN: Alright, before 2009 were you ever investigated?
FAITH: I don't know.
DR. MORGAN: You're not sure. Were you in any legal trouble in your home country, Nigeria?
DR. MORGAN: Are you in any current legal trouble right now?
FAITH: No, just for what they sent me to prison for (UI) ...

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