Opinion
02 Cr. 1455-02 (RWS)
October 7, 2003
SENTENCING OPINION
On April 4, 2003, Hilary Okehi ("Okehi") was convicted of one count of wire fraud in violation of 18 U.S.C. § 371 after a jury trial.
The Offense Conduct
The instant offense was uncovered by special agents of the United States Secret Service during the investigation of an advance fee payment scheme. These schemes typically involve a promise of a large payment in return for payments of smaller fees that must be paid by a victim in advance of receiving the large payment. Advance fee payment schemes often involve the exchange between the perpetrator and the victim of numerous business documents prior to the delivery of the advance payment. The exchange of business documents is intended to create the false impression that the transaction will be executed as promised.
On October 5, 2002, an attorney for an individual later identified as the victim of such an advance fee scheme (the "Victim"), contacted the U.S. Secret Service regarding certain transactions that the lawyer believed to be fraudulent, in which the Victim had wired about $18,000 to a Taiwanese bank account at the direction of "Dr. Usman Bello," a purported member of the "Federal Ministry of Finance" of the Republic of Nigeria. The Victim had been promised that in return for the $18,000 plus an additional cash payment of $8,000, she would receive $21.5 million from the Nigerian government to invest in oil concerns in the United States. The Victim never received the money. The Victim provided agents investigating the matter with paperwork concerning these transactions which was evidence of it being an advance payment scheme.
In mid-June 2002, the Victim, who was then located in Sante Fe, New Mexico, received a letter from a purported official of the Nigerian government purportedly named "Dr. Usman Bello" ("Dr. Bello"). Dr. Bello was seeking to invest a fund of approximately $21.5 million in ventures in the United States on behalf of the Nigerian Federal Ministry of Finance. The letter premised that in exchange for a modest investment, the recipient would receive $21.5 million to invest in ventures in the United States.
Beginning on June 18, 2002, the Victim and Dr. Bello engaged in multiple phone conversations and exchanged faxed correspondence concerning payments that Dr. Bello wanted the Victim to make. From the period of mid-June 2002 to October 3, 2002, the Victim wired payments totaling approximately $18,000 into bank accounts in Nigeria and Taiwan at the direction of Dr. Bello. In late September 2002, an individual calling himself Dr. Grey Amu ("Dr. Amu") called the Victim on behalf of Dr. Bello. Dr. Amu was allegedly in charge of the Nigerian fund to be distributed. Dr. Amu asked the Victim for a final cash payment of $8,000, which he said was required to be exchanged in person at a meeting in New York during the week of October 7, 2002.
After receiving the request for the final $8,000 payment, the Victim approached her attorney in Sante Fe, New Mexico, for legal advice and a loan of travel expenses and $8,000 for the final payment. She also requested that her attorney accompany her on the trip to New York.
On October 5, 2002, the Victim's attorney became suspicious of the proposed transaction and contacted the U.S. Secret Service in New York.
On October 7, 2002, the agent arranged for the Victim and the Victim's attorney to place a phone call from the attorney's office in Sante Fe, New Mexico to Dr. Amu and to record that call. During the call, the Victim and the Victim's attorney initially established with Dr. Amu that a meeting would take place between the Victim's attorney and Dr. Amu in New York. Later in the conversation, Dr. Amu raised the amount of the final payment from $8,000 to $8,950 and ended the call by canceling the meeting in New York.
On October 8, 2002, the agent placed three calls to Dr. Amu, posing as the Victim's attorney. During the calls, the agent persuaded Dr. Amu to reschedule the meeting for October 10, 2002 in New York.
On October 9, 2002, an undercover Secret Service agent posing as the Victim's attorney ("UC-1") called Dr. Amu to confirm the meeting on October 10, 2002.
On October 10, 2002, at about 1:15 p.m., co-defendant Michael Uzor met with UC-1 at a McDonald's restaurant in the vicinity of 34th Street and 8th Avenue in Manhattan. He identified himself to UC-1 as Dr. Amu. Prior to the meeting, UC-1 was equipped with a concealed audio transmitter. In addition, he had in his possession $8,950 in counterfeit U.S. currency provided for the meeting by the Secret Service. Law enforcement-officers conducted surveillance of the meeting between UC-1 and Uzor.
During the course of the meeting between UC-1 and Uzor, Uzor apologized to UC-1 that Dr. Bello would not be able to meet him in New York on the following day as planned because Dr. Bello was purportedly detained in Nigeria. Uzor also called another individual from a cell phone and asked him to come to the McDonald' s where he was meeting with UC-1. Shortly thereafter, that individual, later identified as Okehi, came into the restaurant carrying a black briefcase. Okehi approached the table where Uzor and UC-1 were sitting and sat down next to UC-1.
Okehi was introduced to UC-1 as "the accreditation officer." Uzor then opened the `black briefcase and removed documents for UC-1 to sign relating to the purported transfer of $21.5 million to the Victim. The documents included a purported Customs form and a schedule of payment showing when the money would be transferred to the Victim's account. UC-1 gave Uzor a power of attorney form executed by the Victim and routing information for her bank account. Uzor told UC-1 that it was necessary to obtain a government official's signature before the transfer of funds could take place and that obtaining this signature would take approximately one hour. Uzor then gave the documents to Okehi and told him to take care of the paperwork. After Okehi exited the restaurant, he was arrested by Secret Service agents. A New York driver's license found on his person identified him as Hilary Okehi.
As the arrest of Okehi was occurring on the street, the meeting between UC-1 and Uzor continued inside the restaurant. UC-1 gave Uzor the Victim's bank account information and tendered the $8,950 in counterfeit U.S. currency. Uzor gave UC-1 documents purporting to relate to the release of the promised funds into the Victim's account. At the conclusion of the meeting and upon a prearranged verbal cue, law enforcement officers arrested Uzor.
While preparing for the trial of Okehi, the government obtained Western Union records that revealed that in June 2002, Okehi received a payment of $1,000 from a woman in Bainbridge, Georgia. The Secret Service contacted this woman and learned that she received an e-mail in May 2002 from a person claiming to be a Barrister Idris Momoh of Lagos, Nigeria. Momoh claimed that this victim was entitled to an unclaimed estate of $9 million, allegedly left by a relative of her husband's, who had died while traveling in Nigeria. In order to retrieve the money, the victim was instructed to send fees to New York and to contact "Sam Ndu," the "chief coordinator of payment" of the "International Payment Commission." A phone number was provided. That phone number belongs to Uzor and is the same number the Victim and Secret Service agents used to contact Uzor in October 2002 to arrange the meeting that led to Uzor's arrest. In addition, Uzor wrote a handwritten letter to this victim, using the alias Sam Ndu, instructing her to send money to Okehi. In the letter, Uzor referred to Okehi as the "accreditation officer," the same title he had used to refer to Okehi in the scheme to defraud the Victim. Victim Impact
The Victim, an 80-year-old woman, sustained a total loss of $23,100, which included four watches she sent as gifts to Nigeria valued at $150 each and $22,500 that was wired to Nigeria between June 14, 2002 and October 3, 2002.
The second victim sent a total of $3,000 before realizing she was the victim of a scam.
The Guidelines Offense Level
The April 30, 2003 edition of the Guidelines Manual has been used in this case.
The guideline for violation of 18 U.S.C. § 371 is found in § 2X1.1. Section 2X1.1 indicates that the base offense level is derived from the substantive offense, which is 18 U.S.C. § 1343, for which § 2B1.1 is the applicable Guideline and calls-for a base offense of 6 pursuant to § 2B1.1(a).
As the loss of about § 35,050 was more than $30,000 but not more than $70,000, 6 levels are added, pursuant to $2F1.1(b)-(1)(D), to 12.
The amount includes losses related to the count of conviction as well as additional losses as permitted by § lB1.3(a)(2) — Relevant Conduct.
Because the offense involved a misrepresentation that the defendant was acting on behalf of a government agency, the level is increased by two to 14 pursuant to § 2B1.1(b)(7).
Because a substantial part of the fraudulent scheme was committed from outside the United States, the offense level is increased by two to 16 pursuant to § 2B1.1(b)(8)(B).
The government's request for an enhancement for obstruction of justice pursuant to § 3C1.1, based on their contention that Okehi perjured himself at trial, is denied.
Total Offense Level
Okehi's total offense level is 16 under the Guidelines. Criminal History Category
The defendant has no known criminal convictions. Therefore, he has zero criminal history points and a Criminal History Category of I.
Applicable Guidelines Range
The statute under which Okehi was convicted provides for a maximum sentence of five years' imprisonment, pursuant to 18 U.S.C. § 371. The Guidelines range for an offender with a base offense level of 16 and a Criminal History Category of I is 21 to 27 months' imprisonment.
The Sentence
In light of the foregoing, Okehi shall be sentenced to 24 months imprisonment, to be followed by two years' supervised release. Okehi is sentenced in the middle of the Guidelines range because his testimony at trial, in which he denied his involvement in the offense, is found not to be credible.
As mandatory conditions of supervised release, Okehi shall abide by the standard terms of supervised release (1-13). In addition, the following special conditions will be imposed. Okehi shall provide the probation officer with access to any requested financial information. Further, Okehi shall not incur new credit charges or open additional lines of credit without the approval of the probation officer unless the defendant is in compliance with the installment payment schedule. The defendant shall report to the nearest Probation Office within 72 hours of release from custody and is to be supervised by the district of residence.
A special assessment fee of $100 is due immediately. It is further ordered that Okehi make restitution payable to the Clerk, U.S. District Court, for disbursement to the victims in the amount of $26,100.
If the defendant is engaged in a BOP non-UNICOR work program, the defendant shall pay $25 per quarter toward the criminal financial penalties. However, if the defendant participates in the BOP's UNICOR program as a grade one 1 through 4, the defendant shall pay 50 percent of his monthly UNICOR earnings toward the criminal financial penalties, consistent with BOP regulation 20 C.F.R. § 545.11.
Any balance of the restitution outstanding — upon his release from custody shall be paid in monthly installments of 10% of gross monthly income over a period of supervision.
In formulating the suggested schedule of payments for restitution, the provisions of 18 U.S.C. § 3664 (f)(2) were considered.
Okehi shall notify the United States Attorney for this district within 30 days of any change of mailing or residence address that occurs while any portion of the restitution remains unpaid.
This sentence is subject to modification at the sentencing hearing now set for October 10, 2003 at 9:30 AM.
It is so ordered.