Opinion
No. 03 Cr. 581 (JGK).
February 17, 2005
OPINION AND ORDER
The defendants, Daniel A. Ojeikere ("Mr. Ojeikere"), a/k/a "David R. Jordan" and his wife, Idongesit Ojeikere ("Mrs. Ojeikere"), a/k/a "Barbara Smith," were charged in a four-count superseding indictment filed on December 20, 2004 (the "S4 Indictment"). Count One charges both defendants with a conspiracy, in violation of 18 U.S.C. § 371, to commit wire fraud in violation of 18 U.S.C. § 1343. Count Two charges both defendants with the substantive offense of wire fraud in violation of 18 U.S.C. §§ 1343 and 2. Count Three charges Mr. Ojeikere with making false statements on an application for United States citizenship filed with the Immigration and Naturalization Service ("INS") in violation of 18 U.S.C. § 1001. Count Four charges Mr. Ojeikere with the procurement of citizenship unlawfully in violation of 18 U.S.C. § 1425(b). The S4 Indictment also contains a forfeiture allegation pursuant to 18 U.S.C. § 981(a) (1) (C), 28 U.S.C. § 2461, and § 18 U.S.C. § 1343, along with supplemental allegations with respect to Counts One and Two.
The Court previously denied in part motions made by Mr. Ojeikere directed to an earlier indictment. Both defendants have now made additional pre-trial motions. These pre-trial motions were originally directed to the S3 Indictment filed on June 15, 2004. After the defendants' pre-trial motions were fully briefed and the Court heard oral argument on the motions, the Grand Jury returned the S4 Indictment and the Government filed a letter application requesting that the Court bifurcate the presentation of evidence for Counts Three and Four of the superseding indictment from the trial of Counts One and Two of the superseding indictment. (See letter from Maria Douvas dated Nov. 24, 2004.) Mr. Ojeikere also advised the Court that he does not intend to make any additional pre-trial motions with respect to the S4 Indictment, but would join an anticipated motion by Mrs. Ojeikere to dismiss the supplemental allegations as surplusage. (See letter from Stephen Turano dated Jan. 13, 2005.) No motion to dismiss the supplemental allegations was forthcoming. Mr. Ojeikere also advised the Court that he would withdraw his severance motion if the trial of Counts One and Two is bifurcated from the portion of the trial with respect to Counts Three and Four. (Id.)
I.
The S4 Indictment alleges that, from in or about 1997 up to and including on or about February 26, 2003, Mr. and Mrs. Ojeikere and other co-conspirators carried out a conspiracy in the course of which co-conspirators purported to be Nigerian citizens who were entitled to an inheritance worth approximately $17 million. Co-conspirators allegedly communicated with individuals in the United States by phone and fax. Mr. Ojeikere allegedly induced the individuals to wire money from Boston, Massachusetts to bank accounts held by First Union National Bank and CitiBank, N.A., both in New York, New York. Co-conspirators allegedly told individuals to make wire transfers by promising that the individuals would receive, in return, 20% of the purported $17 million inheritance.See also United States v. Ojeikere, 299 F. Supp. 2d 254, 256-57 (S.D.N.Y. 2004).
Mrs. Ojeikere has filed a pre-trial motion seeking the following relief: (1) exclusion of the Government's handwriting analysis report and expert testimony on the subject; (2) exclusion of the testimony of Postal Inspector Jean Wright ("Inspector Wright") regarding "Nigerian advance fee fraud" or "419 fraud" schemes; (3) production of all Brady andGiglio materials, including any materials relating to witnesses that the Government has interviewed but does not intend to call at trial; (4) notice of all evidence that the Government intends to use pursuant to Federal Rule of Criminal Procedure 12(d) (2), as well as notice of any intent to use evidence pursuant to Federal Rules of Evidence 404(b) and 609; (5) notice of the Government's intent to use any other expert witness testimony; (6) identification of all video or audio tapes intended for use at trial; (7) early production of § 3500 material; and (8) joinder in her co-defendant's motions.
Mr. Ojeikere has filed a similar motion seeking: (1) the disclosure of the identity of all confidential informants and any unindicted co-conspirators; (2) the exclusion of expert testimony regarding handwriting analysis; (3) the exclusion of expert testimony regarding "Nigerian advance fee fraud" or "419 fraud" schemes; (4) the severance of Counts One and Two from Counts Three and Four in the superseding indictment; (5) joinder in his co-defendant's motions; and (6) the permission to file any necessary additional motions.
In making their motions, both defendants renew a number of requests that were either withdrawn or denied by the Court with respect to identical motions made by Mr. Ojeikere at an earlier stage of this case. At oral argument on previous pre-trial motions by Mr. Ojeikere, for example, Mr. Ojeikere withdrew his request for the early production of any impeachment material and § 3500 material. See Ojeikere, 299 F. Supp. 2d at 257. Mrs. Ojeikere now raises a request for the early production of § 3500 material and Mr. Ojeikere joins in the motions of his co-defendant.
To the extent that there are any outstanding motions that are different from those already decided by the Court, the Court will discuss them below. To the extent that Mr. and Mrs. Ojeikere now repeat any motions that the Court has decided, there is no basis for reconsideration. Therefore, as the Court previously held, Mr. Ojeikere: (1) is not entitled to the immediate disclosure of prior bad acts evidence; (2) has not made a showing to support the disclosure of the Government's witness list; (3) is not entitled to the disclosure of the identities of other Government interviewees; (4) is not entitled to the immediate disclosure of expert witnesses; (5) is not entitled to a bill of particulars disclosing the identities of unnamed co-conspirators or additional information about alleged or additional overt acts; and (6) is not entitled to the disclosure of the identity of any confidential informant. Id. at 258-61. To the extent that the defendants raise motions that were already decided by the Court, such motions are denied.
II.
Both Mr. and Mrs. Ojeikere move to exclude the handwriting testimony of Mr. Gus Lesnevich, the Government's proposed handwriting expert on the grounds that it would not satisfy the requirements of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The defendants ask the Court to prohibit Mr. Lesnevich from rendering an ultimate conclusion as to the authorship of the questioned documents contained in the Reports of Examination submitted by the Government. In the alternative, Mr. Ojeikere argues that Mr. Lesnevich's testimony should be limited to an analysis of the purported similarities and differences between questioned documents and the exemplars that Mr. Ojeikere provided to the Government.In Daubert, the Supreme Court explained that the trial court must perform a gatekeeping function with respect to expert scientific evidence. Daubert, 509 U.S. at 597. Before admitting proffered expert scientific testimony, the trial court must first determine that it is both reliable or trustworthy and relevant. Id. at 589-92 n. 9; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (applyingDaubert to all expert testimony). The Federal Rules of Evidence were amended in 2002 in response to Daubert. Federal Rule of Evidence 702 now provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The proponent of the evidence, in this case the Government, must establish admissibility under Rule 104(a) by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987);see also Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 69 (S.D.N.Y. 2001).
The defendants do not challenge Mr. Lesnevich's qualifications, but argue that his methodologies are unreliable and irrelevant to the issues in this case. The defendants have raised several questions regarding Mr. Lesnevich's proffered testimony. These questions concern the degree of reliability attained in the Reports of Examination, wherein Mr. Lesnevich concluded, among other opinions: (1) that Mr. Ojeikere probably authored the text of certain questioned documents; (2) that Mr. Ojeikere failed to use his true handwriting when he provided the Government with exemplars after his indictment and; (3) that Mrs. Ojeikere had probably signed the name "Barbara Smith" on a questioned document.
A disguise of one's handwriting is evidence of consciousness of guilt. See, e.g., L. Sand, et al., Modern Federal Jury Instruction, Instr. 6-13 (Consciousness of Guilt From Disguised Handwriting). See also United States v. Wolfish, 525 F.2d 457, 461 (2d Cir. 1975); United States v. Stembridge, 477 F.2d 874 (5th Cir. 1973); United States v. Izzi, 427 F.2d 293 (2d Cir. 1970).
The Advisory Committee notes to the 2000 Amendments to the Federal Rules of Evidence specifically contemplate the admissibility of expert handwriting analysis based on the experience of a proposed examiner:
In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony. See, e.g., United States v. Jones, 107 F.3d 1147 (6th Cir. 1997) (no abuse of discretion in admitting the testimony of a handwriting examiner who had years of practical experience and extensive training, and who explained his methodology in detail). . . .
Various courts of appeals have uniformly affirmed the admissibility of expert handwriting analysis over Daubert objections. See, e.g., United States v. Crisp, 324 F.3d 261, 270 (4th Cir. 2003) (collecting cases). Some district courts have, however, excluded or limited such testimony.See, e.g., United States v. Brewer, No. 01 Cr. 892, 2002 WL 596365, at *6-8 (N.D. Ill. April 16, 2002) (excluding testimony and collecting cases); United States v. Oskowitz, 294 F. Supp. 2d 379, 383-84 (E.D.N.Y. 2003) (admitting but limiting expert handwriting analysis testimony).
The Government conceded at oral argument that there are good reasons to hold a pre-trial hearing in this case pursuant to Federal Rules of Evidence 104(a) and 702, at least with respect to Mr. Lesnevich's final opinions. (See Tr. of Oral Argument dated Dec. 10, 2004 at 37-40.) A pre-trial evidentiary hearing will allow the parties to present expert evidence and conduct cross-examination of the proposed expert. See Borawick v. Shay, 68 F.3d 597, 608 (2d Cir. 1995). Accordingly, the Court will conduct a pre-trial hearing to allow Mr. Lesnevich to explain his methodology and the bases for his specific opinions, particularly the basis for his conclusions that the defendants were probably the authors of certain questioned documents and his opinion that Mr. Ojeikere purposely concealed his handwriting when furnishing handwriting exemplars to the Government. Such a hearing will be held on March 21, 2005, the day before the trial is now scheduled to begin on March 22, 2005.
Mr. Ojeikere submitted handwriting exemplars on March 25, 2004, after challenging the Government's use of a trial subpoena to compel handwriting exemplars before the trial. Mr. Ojeikere argues that he has preserved his right to contest the use of a trial subpoena to obtain the exemplars prior to trial but has never briefed his legal basis for any opposition to providing the exemplars.
Federal Rule of Criminal Procedure 17(c) expressly allows production of physical objects "before trial or before they are to be offered in evidence," and this rule has been applied to require the production of handwriting exemplars. See United States v. Miranda, No. 93 Cr. 0108, 1993 WL 410507, at *7 (S.D.N.Y. Oct. 13, 1993) (noting Supreme Court's observation in Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951), that "Rule 17(c)'s chief innovation was to expedite the trial by providing a time and a place before trial for the inspection of subpoenaed materials"); United States v. Vanegas, 112 F.R.D. 235, 236-39 (D.N.J. 1986) (government's motion for order to compel production of handwriting exemplars pursuant to pre-trial Rule 17(c) subpoena granted); United States v. McKeon, 558 F. Supp. 1243, 1246-47 (E.D.N.Y. 1983) (motion of defendant's wife to quash pre-trial Rule 17(c) government subpoena of handwriting exemplar denied).
In order for the subpoena to issue, the moving party must meet the test outlined by the Supreme Court in United States v. Nixon, 418 U.S. 683 (1974):
Under the test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general `fishing expedition.'Id. at 699-700 (footnote omitted).
The Government, "in order to carry its burden, must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity." Id. at 700. In this case, the Government meets this three-part test and the use of the trial subpoena to compel the production of the defendant's handwriting exemplars was proper.
III.
Both defendants move to exclude the testimony of Postal Inspector Wright of the Nigerian Organized Crime Inter-Agency Task Force, a sub-unit of the New York Division of Major Crimes. In this capacity, Inspector Wright investigates credit card fraud, identity theft, identity takeovers, bank fraud, insurance fraud, and advanced fee fraud involving Nigerian nationals. As a proposed Government expert, Inspector Wright is expected to testify to the structure of "advance payment schemes," particularly "advance fee fraud" schemes. Inspector Wright is expected explain the stages of these schemes and to discuss how victims are solicited and persuaded to participate in proposed transactions. (See letter from Tanya F. Miller dated Mar. 8, 2004.) The Government argues that the testimony of Inspector Wright would assist the jury to understand the type of sophisticated fraud alleged in this case. The Government notes that Inspector Wright will not testify to an ultimate issue of fact, but will be limited to describing the "hallmarks" and patterns of Nigerian advance fee fraud, without commenting on the defendants or specific documents presented in this case.
The alleged fraud scheme in this case is simple and easy to understand. The alleged scheme requires that a victim advance money in return for a promise of obtaining money after it is obtained from a foreign country, but the promised money is never produced. In view of the relatively simple fact pattern in this case, the expert testimony of Inspector Wright would not assist the jury to understand the alleged fraud in this case. The Advisory Committee Notes to Rule 702 indicate that:
"There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute."
Fed.R.Evid. 702 Advisory Committee Notes, 1972 Proposed Rules (quoting Ladd, Expert Testimony, 5 Vand. L.Rev. 414, 418 (1952)).
There is nothing about Inspector Wright's proposed testimony in this case that would assist the jury in understanding the evidence about the specific fraud alleged in this case or to determine a fact issue. Indeed, the Government represented that Inspector Wright would not testify about any of the specific documents in this case. There is nothing so sophisticated about the alleged advance fee fraud that expert testimony would be useful for the jury. The testimony proffered by Inspector Wright thereby fails the requirement of Rule 702, that it would be helpful to the jury in developing a clear understanding of the witness's testimony or the determination of a fact in issue. See United States v. Long, 917 F.2d 691, 702 (2d Cir. 1990) ("[T]here was no need to call an expert to explain the hierarchical structure of organized crime families, their jargon, the various unrelated criminal activities in which they engage, and so forth. . . . We do not believe that a New York jury needs expert testimony to understand that those who facilitate or broker kickback schemes may expect a commission from the proceeds.");accord United States v. Cruz, 981 F.2d 659, 663 (2d Cir. 1992) (". . . the operation in question must have esoteric aspects reasonably perceived as beyond the ken of the jury and that expert testimony cannot be used solely to bolster the credibility of the government's fact witnesses by mirroring their version of events."); United States v. Castillo, 924 F.2d 1227, 1233 (2d Cir. 1991).
The Government cites United States v. Robinson, No. 98 Cr. 167, 2000 WL 65239 (S.D.N.Y. Jan. 26, 2000), for the proposition that expert witnesses have been permitted to testify, in certain cases, to the workings of criminal organizations or transactions. See Robinson, 2000 WL 65239, at *1 (collecting cases). In that case, the prosecution sought to call an officer of the Federal Reserve System as an expert to describe, among other things, "the hallmarks of `prime bank' fraud schemes, including their distinctive claims and terminology, and explain how the defendants' scheme feature these hallmarks." Id. The Court limited the testimony of the proposed expert to the "hallmarks" of prime bank fraud schemes, noting that, "Without a more detailed proffer from the Government . . . testimony that conveys a conclusion that `the defendants' scheme featured these hallmarks' is inadmissible because it might usurp the role of the jury in applying the law to the facts." Id. at *2. Moreover, the Robinson court advised that "expert testimony is properly excludable where `persons of common understanding are capable of comprehending the primary facts and of drawing correct conclusions from them.'" Id. at *2 (quoting Castillo, 924 F.2d at 1232).
The alleged fraud in this case is substantially different from the fraud alleged in Robinson. The alleged fraud in Robinson required some familiarity with sophisticated financial arrangements and Federal Reserve regulations, and the jurors in that case may have lacked a sufficient understanding of financial transactions to understand and evaluate the evidence. Id. at *3. Here, in contrast, the advance fee fraud alleged is not complex: victims were allegedly persuaded to transfer money in the hopes of huge profits; instead, they lost their investments entirely. These concepts are plainly not "beyond the ken of the jury." See Cruz, 981 F.2d at 664.
In addition to failing the requirements established by Rule 702, Inspector Wright's testimony should also be excluded under Federal Rule of Evidence 403 because any probative value is outweighed by the danger of unfair prejudice, namely, that the jury would generalize from her testimony that these defendants were involved in such a scheme. There is a danger that Inspector Wright's testimony is offered largely to suggest that "because criminals of a certain type classically engage in a certain kind of behavior, the defendant engaged in that kind of behavior." United States v. Mulder, 273 F.3d 91, 102 (2d Cir. 2001); see also Cruz, 981 F.2d at 661-63;Castillo, 924 F.2d at 1234.
As the Court noted at oral argument on December 10, 2004, Inspector Wright would be permitted to testify to the extent that the Government can proffer that she indeed possesses specialized knowledge that would be helpful to the jury in understanding the evidence or determining a fact in issue. (See Tr. of Oral Argument dated Dec. 10, 2004 at 50.) For example, if the evidence in this case included technical elements of currency restrictions or specialized jargon, an expert may be useful to assist the jury in understanding that evidence. Thus far, however, the Government has made no such proffer. Therefore, the testimony proffered from Inspector Wright thus far is excluded.
IV.
Before the Grand Jury returned the S4 Indictment on December 20, 2004, Mr. Ojeikere moved to sever Counts Three and Four, relating to false statements allegedly made in connection with his application for United States citizenship, from Counts One and Two, relating to the existence of the alleged advance fee scheme. At the recent conference on February 14, 2005, and consistent with prior correspondence from the parties as explained above, the parties agreed that the trial of Counts One and Two should be bifurcated from the trial of Counts Three and Four. The jury would not be informed about Counts Three and Four until after they had reached a verdict with respect to Counts One and Two. No evidence would be admissible with respect to the trial of Counts One and Two solely because it related to Counts Three and Four, although such evidence could be admitted during the trial of Counts One and Two if it were otherwise admissible, for example, as evidence pursuant to Federal Rule of Evidence 404(b) or as impeachment evidence. Any such evidence could be the subject of an appropriate motion in limine. Given the parties' agreement to bifurcation, defendant Ojeikere withdrew his motion for severance of Counts Three and Four.
Therefore, the trial of Counts One and Two is severed from the trial of Counts Three and Four, as explained above. Defendant Ojeikere's motion for a severance is withdrawn.
V.
Mr. Ojeikere's motion for the disclosure of the identities of co-conspirators is without merit. The Court previously denied the request for the identities of any conspirators and the confidential informant and there is no greater showing now. See Ojeikere, 299 F. Supp. 2d at 261-62.Similarly, the additional motions by Mrs. Ojeikere are denied. Mrs. Ojeikere moves pursuant to Federal Rule of Criminal Procedure 16, Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Giglio, 405 U.S. 150 (1972), for an order that the Government immediately provide all evidence that would exculpate the defendant or which could be used for impeachment. There is no requirement that the Court order the production of Brady and Giglio materials. The Government has indicated that it is unaware of any Brady materials but will produce Brady materials when the Government becomes aware of them. The Government also indicates that Giglio materials will be provided along with all § 3500 materials. These representations are sufficient. See United States v. Szur, No. S5 97 Cr. 108, 1998 WL 132942, at *15 (S.D.N.Y. Mar. 20, 1998); United States v. Velasquez, No. 96 Cr. 126, 1997 WL 414132, at *6 (S.D.N.Y. July 23, 1997); United States v. Aguirre-Parra, 763 F. Supp. 1208, 1216 (S.D.N.Y. 1991); see also Ojeikere, 299 F. Supp. 2d at 258; United States v. Viertel, No. S2 01 Cr. 571, 2002 WL 1560805, at *10 (S.D.N.Y. July 15, 2002).
Mrs. Ojeikere's motion for the production of Brady and Giglio materials repeats the earlier request raised by Mr. Ojeikere but withdrawn at oral argument before the Court. See Ojeikere, 299 F. Supp. 2d at 257.
The Government will also issue its Notice of Intent to use 404(b) materials ten days before trial. This is sufficient. See Ojeikere, 299 F. Supp. 2d at 257 ("Courts in this Circuit have routinely found that at least ten business days provides reasonable notice to a defendant under Rule 404(b).") (citations omitted)). The defendant has indicated no special circumstances, other than the time needed to prepare motions to preclude such evidence, which would warrant earlier disclosure of any Rule 404(b) material.
There is no representation by the Government, however, of when it intends to provide any 609(b) materials. Rule 609 requires notice only where a party intends to introduce evidence of a witness's conviction that is more than ten years old. United States v. Livoti, 8 F. Supp. 2d 246, 250 (S.D.N.Y. 1998). Use of such evidence requires "sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence." Fed.R.Evid. 609(b). The Government treats the request for Rule 609(b) evidence together with the request for Rule 404(b) evidence and it is reasonable for the Government to disclose Rule 609(b) evidence, if any, at the same time it discloses Rule 404(b) evidence, namely ten days before trial.
Mrs. Ojeikere also moves pursuant to Federal Rule of Criminal Procedure 16(a)(1)(G) for "a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial." Fed.R.Crim.P. 16(a)(1)(G). The Advisory Committee Notes to the 1993 Amendment to Rule 16 state: "Although no specific timing requirements are included [in the expert disclosure provisions], it is expected that the parties will make their requests and disclosures in a timely fashion." In response to the defendant's request, the Government represents that it has not yet determined whether it will call any additional expert witnesses in this case. If the Government does intend to call any other expert witnesses in addition to proposed experts Mr. Lesnevich and Inspector Wright, the Government must provide the information required by Rule 16(a)(1)(G) no later than one month before trial — that is, by February 22, 2005, unless the trial set for March 22, 2005, is adjourned before that date. See Ojeikere, 299 F. Supp. 2d at 259; United States v. Lino, No. 00 Cr. 632, 2001 WL 8356, at *21 (S.D.N.Y. Dec. 29, 2000) (requiring expert witness disclosure thirty days before trial).
In addition, the Government had represented that the defendant's request for the disclosure of all audio and videotaped evidence has already been fulfilled pursuant to Federal Rule of Criminal Procedure 16 and the Government will supplement that disclosure as necessary. The Government has previously offered to make all physical evidence in its possession available for inspection. Various prison recordings have recently been the subject of further production. The Government is in the process of disclosing and translating these recordings. At the last conference, the Government represented that this disclosure would be completed during the week of March 7, 2005. No order requiring the Government to produce the recordings is required.
CONCLUSION
For the reasons stated above, each of the defendants' motions is denied, except as explained above. The trial of Counts One and Two will be bifurcated from the trial of Counts Three and Four. The motion to exclude the testimony of Inspector Wright is granted. With respect to the testimony proffered by handwriting analysis expert Mr. Gus Lesnevich, the Court will hold a pre-trial hearing on March 21, 2005 to determine the proper scope of any such expert testimony.
SO ORDERED.