OBAYAGBONA v. UNITED STATES OF AMERICA
OPINION. Signed by Judge William J. Martini on 9/20/16. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 15-388 (WJM)
Crim. No. 11-299 (WJM)
UNITED STATES OF AMERICA,
This matter comes before the Court on pro se Petitioner Osarhieme
Obayagbona’s motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The
motion is decided without oral argument. Fed. R. Civ. P. 78. For the reasons
below, the petition is DISMISSED WITH PREJUDICE and the relief requested
Between August 2009 and July 2010, Petitioner along with several coconspirators accumulated the personal information of strangers in order to steal
their identity and gain access to their bank accounts for the purpose of fraudulently
withdrawing money. They started with online “phishing” attacks to gather the
identity theft victims’ information, such as login credentials and passwords for
online bank accounts. Petitioner and his co-conspirators then used that information
to access the accounts of the victims, either online or via telephone. The fraud was
culminated by Petitioner and the co-conspirators using “runners” (or “soldiers”) to
impersonate the victims at the bank with the stolen information to make fraudulent
withdrawals from the accounts.
While a grand jury returned a twenty-seven count Indictment against
Petitioner and his co-conspirators on April 28, 2011, upon the Government’s
motion, all but three of the conspiracy counts were dismissed against Petitioner.
(See United States v. Obaygbona (“Crim. Dkt.”), 2:11-cr-299, ECF No. 70.) A
trial was held commencing on June 18, 2012. The jury found Petitioner guilty on
all three counts on June 27, 2012. (Crim. Dkt., ECF No. 80.) The Court
subsequently sentenced Petitioner to a total of 70 months imprisonment on each of
Counts 1 and 2 and 30 months on Count 3. (Crim. Dkt., ECF No. 96.) Post-trial,
Petitioner appealed, challenging this Court’s instructions to the jury, the
Government’s argument at summation, and the calculation of his sentencing range
under the Guidelines. The Third Circuit affirmed Petitioner’s conviction and
sentence on February 27, 2014. See United States v. Obaygbona, 556 F. App'x 161
(3d Cir. 2014). Petitioner now brings the instant motion to vacate, set aside,
correct, amend, or modify his sentence.
Under 28 U.S.C. § 2255, a federal court may vacate, set aside or correct a
sentence “upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. §
2255(a). While a court may convene a hearing to assist it with deciding a § 2255
motion, such a hearing is not required where “the files and records of the case
conclusively show that the prisoner is entitled to no relief.” United States v.
Padilla–Castro, 426 F. App’x 60, 63 (3d Cir. 2011) (quoting 28 U.S.C. § 2255(b));
accord United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992).
Petitioner raises seven grounds for relief, which are all based in ineffective
assistance of counsel claims.
Ineffective Assistance of Counsel Standard
To demonstrate ineffective assistance of counsel, a petitioner must satisfy
the two-part test outlined in Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, he must show that his attorney’s representation was not “within the range of
competence demanded of attorneys in criminal cases.” Id. Second, he must show
“prejudice”—that there is a reasonable probability that, but for counsel’s error, the
result would have been different. Hill v. Lockhart, 474 U.S. 52, 56 (1985);
Strickland, 466 U.S. at 687; Rainey v. Varner, 603 F.3d 189, 197 (3d. Cir. 2010).
Though the two prongs may be addressed in either order, “[i]f it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.” Strickland, 466 U.S. at 697.
A counsel’s conduct is presumed to have sound strategy, and—where the
record does not explicitly disclose actual strategy—this can be rebutted only by a
showing that no sound strategy could have supported such conduct. United States
v. Martin, 262 F. App’x 392, 397 (3d Cir. 2008). “[C]ounsel cannot be deemed
ineffective for failing to raise a meritless claim.” Werts v. Vaughn, 228 F.3d 178,
203 (3d Cir. 2000). Alternatively, as to prejudice, a “reasonable probability” is “a
probability sufficient to undermine confidence in the outcome.” Strickland 466
U.S. at 694. The Third Circuit has noted that “it is only the rare claim of
ineffectiveness of counsel that should succeed under the properly deferential
standard to be applied in scrutinizing counsel’s performance.” Buehl v. Vaughn,
166 F.3d 163, 169 (3d Cir. 1999). The Strickland test applies equally to counsel’s
performance at the trial and appellate level. See Lusick v. Palakovich, 270 F.
App'x 108, 110 (3d Cir. 2008).
Ground One – Failure to Suppress Electronic Media
Petitioner’s electronic media—two laptops and one cellular phone—was
first seized by the Alpharetta Police Department (“APD”). Detective Jeffrey S.
Khan of the APD testified at trial that this seizure was pursuant to a search warrant.
(Answer to Compl. (“Ans.”) Ex. 3, ECF No. 10-3, at 76:20-77:4.) Petitioner does
not put forth any facts to contest the validity of this warrant. The electronic media
was later provided to the FBI upon request and the FBI conducted its own search
based on two federal search warrants. (Ans. Ex. 11 and 12, ECF No. 10-3.)
Petitioner argues that a judicial order or warrant was required prior to the FBI
obtaining the electronic media from the APD and that the FBI’s subsequent
possession of the media for six weeks before pursuing a search warrant was
unconstitutional. Trial counsel was thus ineffective for failing to challenge these
and appellate counsel failed to raise the issue on appeal.
Trial counsel was not deficient for declining to pursue suppression.
Petitioner cites no authority—and the Court has not found any binding precedent—
for his contention that a judicial order was required in order for the APD to transfer
the electronic media legally in their possession to the FBI, especially since the FBI
sought its own search warrants prior to conducting a search of the laptops and
phone. See United States v. Lackner, 535 F. App’x 175, 180 (3d Cir. 2013)
(concluding that search was valid where computer was seized by New Jersey
police officers pursuant to a search warrant, turned over to Pennsylvania police
officers, and the FBI later conducted a search of the laptop.) Moreover, the Third
Circuit had found in 2011 that a delay of up to three months between the seizure of
electronic media and the application for a search warrant may not be unreasonable.
United States v. Stabile, 633 F.3d 219, 236 (3d Cir. 2011). Nevertheless, even if
trial counsel was able to show that the delay was unreasonable and that the transfer
of evidence from the APD was unconstitutional, he would have had to establish
that the FBI failed to act in good faith in order to suppress the electronic media.
The Third Circuit has stated that “suppression of evidence is inappropriate
when an officer executes a search in objectively reasonable reliance on a warrant’s
authority.” Lackner, 535 F. App’x at 180 (quotations omitted). Consequently,
“evidence obtained by officers acting in reasonable reliance on a search warrant
issued by a detached and neutral magistrate” is not barred, unless “a reasonably
well trained officer would have known that the search was illegal despite the
magistrate judge’s authorization.” Id. Here, two different magistrate judges in
this District issued search warrants, based on affidavits denoting how and when the
Government came into possession of the electronic media.1 Since none of the
narrow situations set forth by the Third Circuit for unreasonable reliance were
present, it was sound strategy for trial counsel to conclude that the warrant was
unlikely to be found invalid and choose not to raise an infeasible argument. See
United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars &
Fifty-Seven Cents ($92,422.57), 307 F.3d 137, 146 (3d Cir. 2002). Accordingly,
because Petitioner is unable to rebut the presumption that his counsel’s conduct
was part of a sound strategy, the Court finds that trial counsel’s decision not to
challenge the Government’s search of the electronic media was not below an
objective standard of reasonableness. Similarly, appellate counsel had the
opportunity to appraise the merits of these arguments, as Petitioner states that he
asked counsel to raise them on appeal, and considering the above it was not
unsound for appellate counsel not to advance them.
Ground Two – Failure to Suppress Emails
Petitioner’s next argument is that his trial counsel was ineffective for failing
to suppress certain emails and his appellate counsel was deficient for failing to
raise this issue on appeal. Petitioner primarily argues that no proof or evidence
was presented that the Government obtained a search warrant for the
firstname.lastname@example.org (“Htown”) email address. However, at trial Special
Contrary to Petitioner’s spurious assertions, the Court finds no evidence on the record that
Special Agent Heather Hendershot deliberately or recklessly made falsehoods in her affidavits.
Agents Edgar Koby and Philip Frigim testified that these emails were produced by
Yahoo! Inc. (“Yahoo”) pursuant to a search warrant approved and signed by a
federal judge. (Ans. Ex. 2, ECF No. 10-3, at 19:21-20:14; 30:19-31:13.) In
addition, a custodian of records from Yahoo established the authenticity and
potential admissibility of these emails pre-trial. (See Crim. Dkt. Government’s
Mot. Limine Ex. A, ECF No. 64-1.) Since trial and appellate counsels’ attempts to
suppress the emails on these grounds would have proven fruitless and Petitioner
has not demonstrated prejudice—a reasonable probability that the outcome of the
trial or appeal would have resulted differently—the Court finds that he is not
entitled to relief on this ineffective assistance claim.
Ground Three – Failure to Raise Improper Venue
Petitioner argues that his trial and appellate counsel were ineffective when
they failed to raise the issue of improper venue. Petitioner argues that since the
actions and effects of his criminal conduct took place in Georgia, he should have
been indicted there and not in this district. Under 18 U.S.C. § 3237(a) “any
offense  begun in one district and completed in another, or committed in more
than one district, may be  prosecuted in any district in which such offense was
begun, continued, or completed.” Here, Petitioner was charged with three counts
of conspiracy, which were the basis for his subsequent trial. While Petitioner was
in Georgia, one of Petitioner’s co-conspirators, Karlis Karklins, committed a
number of the overt acts that gave rise to the conspiracy in this District, including
sending phishing emails to a company headquartered in New Jersey. It was thus
well within the grounds of reasonable trial and appellate strategy for Petitioner’s
counsels not to pursue this meritless argument and Petitioner has failed to establish
deficient performance or that he was prejudiced by a failure to raise this argument
at trial or on appeal.
Ground Four – Failure to Raise Variance Issue
Petitioner also argues that his trial and appellate counsel were ineffective for
failing to raise the issue of variance at either the close of the Government’s case or
on appeal. A variance ensues when “the charging terms are unchanged, but the
evidence at trial proves facts materially different from those alleged in the
indictment.” United States v. Castro, 776 F.2d 1118, 1121 (3d Cir. 1985). “To
prevail . . . [the petitioner] must show (1) that there was a variance between the
indictment and the proof adduced at trial and (2) that the variance prejudiced some
substantial right.” United States v. Scott, 607 F. App’x 191, 195 (3d Cir. 2015).
Petitioner contends that, while only one conspiracy was presented in the
Indictment, at trial the Government introduced three different conspiracies that
amounted to a fatal variance from the Indictment. See id. (“Where a single
conspiracy is alleged in the indictment, there is a variance if the evidence at trial
proves only the existence of multiple conspiracies.”) However, “a finding of a
master conspiracy with sub-schemes does not constitute a finding of multiple,
unrelated conspiracies and, therefore, would not create an impermissible variance.”
United States v. Smith, 789 F.2d 196, 200 (3d Cir. 1986). The Third Circuit has
enunciated three factors to consider when determining whether there is a single or
multiple conspiracies: “(1) whether there was a common goal among the
conspirators; (2) whether the agreement contemplated bringing to pass a
continuous result that will not continue without the continuous cooperation of the
conspirators; and (3) the extent to which the participants overlap in the various
dealings.” Scott, 607 F. App’x at 196.
A number of Petitioner’s arguments are directly contradicted by the
testimony at trial. The Government adduced at trial evidence demonstrating that
the co-conspirator Waya Nwaki worked to obtain login credentials and personal
information from Karklins and then used that information with the help of
Petitioner to fraudulently withdraw money—a common goal. (Ex. 3 at 142:10143:9 & 148:22-153:8.) Moreover, Nwaki testified that the personal information
collected was sent to Petitioner, regardless of his own sources for information or
his argument that he had never met Karklins—overlap in the dealings. (Id. at
153:17-155:16.) Similarly, Nwaki and Petitioner supplied personal information to
Marvin Hill and it was Hill who provided the soldiers that made the fraudulent
withdrawals for Nwaki and Petitioner. (Id. at 153:1-8; Ex. 5 at 117:11-128:11.)
Petitioner and Nwaki paid Hill for these services and Hill paid the soldiers in turn.
(Id.) Thus, what Petitioner argues as three different conspiracies, the Court finds is
in fact a single conspiracy with various cogs that led to a result that would not have
come to bear without such continuous cooperation—the second prong.
In light of this, it was well within the range of “reasonable professional
assistance” for trial and appellate counsel to not advance this argument and
Petitioner has not overcome “the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S.
Ground Five – BB&T Restitution
As to solely his appellate counsel, Petitioner argues that the failure to
challenge the restitution provided to BB&T by this Court at the appellate level
amounts to ineffective assistance. In response, the Government points to case law
holding that § 2255 may not be used to attack only the restitution portion of a
sentence. See Blaik v. United States, 161 F.3d 1341, 1343 (11th Cir. 1998) (cited
with approval in Trader v. United States, 281 F. App’x 87, 88 (3d Cir. 2008)).
With this avenue unavailable, Petitioner changes his argument in his reply brief to
contend that this restitution amount, which was allegedly not proven at either trial
or sentencing, resulted in an increased sentence. Contrary to Petitioner’s assertion,
appellate counsel raised an identical argument on appeal. The Third Circuit found
that the “District Court had before it evidence showing the identity theft conspiracy
caused actual or intended losses in excess of $120,874” and that, “[h]aving
provided fake identities to his co-conspirators for the purpose that they use them to
make unauthorized bank withdrawals, however, Obaygbona cannot disclaim
responsibility when his collaborators used the same tactics at other banks.”
Obaygbona, 556 F. App’x at 164. As such, Petitioner’s argument is prohibited, as
“[s]ection 2255 generally may not be employed to relitigate questions which were
raised and considered on direct appeal.” United States v. DeRawal, 10 F.3d 100,
105 n.4 (3d Cir. 1993) (quotation omitted). Accordingly, since the crux of his
argument is barred, Petitioner’s claim must fail.
Ground Six – Failure to Appeal 404(b) Ruling
Petitioner argues that appellate counsel’s performance was constitutionally
deficient when he failed to raise a claim on appeal regarding this Court’s ruling on
the evidence admitted under Rule 404(b) of the Federal Rules of Evidence—
Petitioner’s Htown emails (obtained from Yahoo and allegedly his electronic
media) and his December 2010 arrest. Petitioner states in his papers that he
communicated these arguments to his appellate counsel, who then chose not to
include them in the appeal.
The Court will set aside Petitioner’s continued arguments regarding how the
Government obtained the evidence—the search warrant and authentication—since
these have been tackled under Grounds 1 and 2. To be admissible under Rule
404(b), evidence must be “(1) offered for a proper non-propensity purpose that is
at issue in the case; (2) relevant to that identified purpose; (3) sufficiently probative
under Rule 403 such that its probative value is not outweighed by any inherent
danger of unfair prejudice; and (4) accompanied by a limiting instruction, if
requested.” United States v. Caldwell, 760 F.3d 267, 278-79 (3d Cir. 2014). On
appeal, counsel would have had to demonstrate that this Court’s ruling resulted in
an abuse of discretion. Id. at 274. From his papers, the Court discerns that
Petitioner is contesting the first and third factors as to the Htown emails and the
second factor for the December 2010 arrest.
First, Petitioner’s argument that the emails were used to impermissibly
identify him is undermined by the text of Rule 404(b), which permits the
admission of evidence for limited purposes “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Subsequently, the Court provided an appropriate limiting instruction
when the evidence was introduced. (See Ex. 3 at 7:15-8:15). Further, Petitioner’s
assertion that any limiting instruction was insufficient due to the prejudicial nature
of the emails—specifically, the possibility to confuse the jury—are mere
conclusory statements that hinge on the Government’s alleged use of these emails
for the above improper purpose. Second, Petitioner unpersuasively argues that the
December 2010 arrest was unrelated and irrelevant, since it occurred after the
charged conduct. As the Government noted in its Rule 404(b) motion, the Third
Circuit has held that post-offense 404(b) evidence may be properly admitted to
prove, for example, intent. See United States v. Singleton, 458 F. App’x 169, 173
(3d Cir. 2012). In addition, as the Government put forth in its letter brief, the
December 2010 arrest was in connection with an identity theft/bank fraud scheme
bearing resemblance to the charged conduct. (See Crim. Dkt. Government’s Mot.
Limine, ECF No. 62, at 5-6.) Petitioner fails to present any factual support or case
law to rebut this. Again, the Court provided a limiting instruction to the jury prior
to the introduction of this evidence. (See Ex. 3 at 60:14-61:2.)
Consequently, counsel’s decision to not take up these arguments on appeal
appears to the Court to be the result of sound strategy—in light of their unavailing
nature—and Petitioner has not demonstrated that there is a reasonable probability
that they would have changed the outcome of his appeal. See Jones v. Barnes, 463
U.S. 745, 751 (1983) (noting that appellate counsel does not have a constitutional
duty to raise every nonfrivolous issue).
Ground Seven – Failure to Raise Petitioner’s Absence
Lastly, Petitioner claims that appellate counsel was ineffective when he
failed to raise the issue that Petitioner was not present when the Court considered
the jury communication during deliberations. First, contrary to the Government’s
passing argument, the transcript shows that Petitioner was not present. (See Crim.
Dkt. July 27, 2012 Tr., ECF No. 108, at 2:8.) However, it appears from the
transcript that Petitioner’s counsel was present and consulted by the Court, and that
the attorneys had conferred in advance and prepared a joint response to the jury.
(See id. at 2:19-22.) The questions were themselves noncontroversial and factbased and the answers provided were reflected in the already put forth testimony.
(See id. at 2:23-3:12.) The Third Circuit has previously found that any error
resulting from similar facts is “harmless” and that a defendant is “not prejudiced by
his absence from this stage of the proceedings.” United States v. Velez, 427 F.
App’x 121, 124 (3d Cir. 2011) (finding harmless any error by the district court
where defendant was not present when answering jury query, but counsel was
present, participated fully, and consented to the court’s responses, and where jury
asked a factual question regarding testimony.) Based on such case law, it was
reasonable strategy for appellate counsel to not raise an unviable issue and, since
this would not have altered the outcome of the appeal, Petitioner has not
established prejudice resulting from such a choice.
Certificate of Appealability
No certificate of appealability will issue because Petitioner has not made a
substantial showing of the denial of a constitutional right, see 28 U.S.C. §
2253(c)(1)(B), and no hearing is required because “the files and records of the
case conclusively show that the prisoner is entitled to no relief,” see Padilla–
Castro, 426 F. App’x at 63.
For the reasons set forth above, Petitioner’s 28 U.S.C. § 2255 motion is
DENIED and DISMISSED WITH PREJUDICE. An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: September 19, 2016
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