Opinion
19 CR 291 (LAP)
06-24-2022
UNITED STATES OF AMERICA, Plaintiff, v. OLUWASEUN ADELEKAN, Defendant.
ORDER
LORETTA A. PRESKA, Senior United States District Judge:
Defendant moves to proceed in forma pauperis on his direct appeal of his conviction and sentence. (See Dkt. no. 522.) In support of that motion, and consistent with the requirements of Federal Rule of Appellate Procedure 24(a)(1), Defendant submitted an affidavit purporting to show his inability to pay, his claimed entitlement to redress, and the issues he intends to present on appeal. (See Dkt. no. 531.) To date, the Government takes no position on Defendant's motion.
By way of background, the initial affidavit filed in connection with Defendant's motion to proceed in forma pauperis was filed and signed by his former counsel. (See Dkt. no. 524.) In filing that affidavit, counsel explained that he “had been waiting for the financial affidavit from Mr. Adelekan, but he would not mail it back” and that, as a result, counsel “completed one for the court.” (Id. at 3.) By order dated June 10, 2022, the Court concluded that “[t]he affidavit filed by counsel is insufficient in that it does not provide all the required information. It is also unclear whether that affidavit is sworn to by Mr. Adelekan as opposed to his former counsel.” (Dkt. no. 531 at 2 (cleaned up).) The Court attached the necessary forms and requested that Mr. Adelekan complete them if he wished to proceed in forma pauperis on appeal. (Id.) Four days later, on June 14, 2022, Defendant submitted a signed financial affidavit. (Dkt. no. 541.)
The Court has examined Defendant's affidavit and concludes that Defendant's representations as to his finances conflict with existing records in this case. These discrepancies call into question the accuracy of Defendant's most recent financial affidavit and, as a result, his claimed inability to pay. Mr. Adelekan shall write to the Court explaining these discrepancies. Any representations of fact shall be made under oath. If appropriate, Mr. Adelekan shall file a revised affidavit. The following list of discrepancies is nonexhaustive.
First, the Court observes that the affidavit filed by Mr. Adelekan is a near carbon copy of the affidavit filed by counsel and rejected in part because it did “not provide all the required information.” Each entry calling for financial information has been “zeroed out” in similar fashion, and identical or nearly identical answers are given to prompts calling for narrative responses. (Compare dkt. no. 541 at 1-6, with dkt. no. 524 at 5-10.) And Mr. Adelekan was able to compile his affidavit within just four days of the Court's June 10 order, which includes the time it took for the order to reach him by U.S. mail.
Second, affidavit question 1 seeks information regarding Defendant's income received during the past 12 months from employment, interest, gifts, etc. Defendant filed his affidavit on June 14, 2022, so this question reaches back to June 2021. According to Defendant, his income from June 2021 through June 2022 was zero in all categories. (Dkt. no. 541 at 2.) According to the information provided to Probation in preparation of his presentence investigation report, however, Mr. Adelekan in fact earned approximately $9,200 per month from four jobs until October 2021, when he was remanded after being found guilty at trial. (See PSR ¶¶ 109-110, 112-114.) Moreover, according to the PSR, Adelekan told Probation during a presentence investigation interview that at least one of these jobs “continue[d] to generate income for him” even after he was remanded. (Id. ¶ 110 (“Adelekan stated that he has two employees that continue to generate income for him to date.”).)
At least some of this employment and income was verified at the time through copies of pay stubs. (Id. ¶¶ 110, 112.)
Third, affidavit question 2 seeks information about Defendant's employment history for the past two years, including the gross monthly pay associated with any such employment. Because Defendant filed his affidavit in June 2022, this question reaches back to June 2020. Again, Defendant reported that he had no employment history and zero gross monthly pay during the two-year period. (Dkt. no. 541 at 2.) As with question 1, however, this representation is contradicted by the PSR, which indicates that Defendant held at least four jobs with substantial income since June 2020. (PSR ¶¶ 109-110, 112-113; id. ¶ 110 (noting, as to just one of the four jobs, that Defendant “reported that in 2020, he earned approximately $125,000”).)
Fourth, affidavit question 4 seeks information about Defendant's current cash holdings. Again, Defendant reported current cash holdings of zero. (Dkt. no. 541 at 3.) Defendant's April 2019 CJA affidavit indicates cash on hand of $1,200. (See Dkt. no. 22.) His PSR indicates $950 of cash on hand. (PSR ¶ 114.) Although it is certainly possible that Defendant's current cash on hand is zero, Defendant is reminded that the affidavit constitutes a sworn oath under penalty of perjury. To ensure the accuracy of his answers, Defendant should undertake a good faith inquiry into any cash holdings he may have and truthfully report any such holdings in his affidavit.
Fifth, affidavit question 5 seeks information about Defendant's assets. Defendant indicates in his affidavit that he owns no vehicle and the value of his assets is zero. (Dkt. no. 541 at 3.) His PSR, however, indicates ownership of a truck worth approximately $12,000. (PSR ¶ 114.) Again, it is certainly possible that this asset was disposed of between the time the PSR was generated and when Defendant submitted his affidavit. But the Court would expect any proceeds still in Defendant's possession to be reflected in his cash holdings.
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The cumulative effect of these discrepancies does not give the Court confidence as to the accuracy of the information in Defendant's most recent affidavit. See United States v. Wright, 478 F.Supp. 1178 (S.D.N.Y. 1979) (Cooper, J.). While the discrepancies in questions 4 and 5 are potentially reconcilable, the discrepancies in question 1 and 2 are not. Either the Defendant's affidavit is correct or the PSR is correct. Mr. Adelekan shall write to the Court explaining these discrepancies, with any representation of fact made under oath. If appropriate, Mr. Adelekan shall submit a revised affidavit.
The Clerk of the Court shall mail a copy of this order to Mr. Adelekan.
SO ORDERED.