By Abdallah El-Kurebe
Parts one and two of this investigation.
The Initial Indictment
The initial indictment charged Abegunde and Ojo with the same exact Counts of Wire Fraud Conspiracy, Money Laundering Conspiracy and Aggravated Identity Theft.
The background of the initial indictment alleged that “Ayodeji Olumide Ojo is a Nigerian citizen residing in Nigeria, but also lives with Abegunde in Atlanta, Georgia, when he is in the United States.” (See Document 3: Initial Indictment, Filed August 24, 2017, PageID 7, Paragraph 22).
But Abegunde, in a court document he filed titled “The Government lied to secure Grand Jury indictment,” raised salient questions regarding the veracity, accuracy as well as the intent of this, and other allegations on the initial indictment. Abegunde also questioned whether any supporting evidence existed regarding the allegations on the initial indictment.
With respect to the allegations that Ojo lives with Abegunde when in the United States, Abegunde stated that ‘‘prior to Ojo’s visit in August 2016, Ojo had never visited nor seen me anywhere in the United States even though Ojo had been to the United States on several occasions before he visited me in August 2016. Ojo even visited the United States in or around February 2017 and stayed in El-Paso Texas. The notion that Ojo lives with me when he is in the United States, is blatantly false,” because Ojo confirmed in an interview that “my visit to Abegunde in August 2016 was the first and only time I stayed with Abegunde. During my next visit to U.S, I resided in El-Paso, Texas where my second child was born.”
Ojo’s I-94 document, a U.S. Immigration document that reflects the travel history of individuals that travel to and out of U.S shows that though he had been to the U.S. on several occasions, the only time Ojo resided with Abegunde was he arrived in Atlanta, Georgia on August 26, 2016 from Lagos, Nigeria and departed Atlanta, Georgia for Lagos, Nigeria on September 16, 2016.
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Contrary to the charges in Count One of the initial indictment – that Abegunde and Ojo conspired with others to devise and intend to devise a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses…as postulated in (See Document 3: Initial Indictment, Filed August 24, 2017, PageID 9, Paragraph 35(b)) and (See Document 3: Initial Indictment, Filed August 24, 2017, PageID 9, Paragraph 36), the allegations in the indictment were false. Although Abegunde was not mentioned in the manner and means through which the object of the conspiracy was to be accomplished, the initial indictment still alleged that “Ojo and others, would open bank accounts for the purpose of receiving fraudulently obtained funds and sending fraudulently obtained funds to other accounts under control of the defendants.” (See Document 3: Initial Indictment, Filed August 24, 2017, PageID 11, Paragraph 41). However, Ojo in an interview said, “my Wells Fargo bank account statement clearly shows that this allegation is false. The first transaction on the account was the deposit of the Bank of America check on August 29, 2016. That was the reason for opening the account with Wells Fargo bank – to deposit the Bank of America check.” Ojo went on to say that “if you look at the date of the alleged fraud on the initial indictment, it says the fraud was committed on July 25, 2016. My Wells Fargo account was opened more than one month after the fraud. Also the Bank of America check that was deposited into my Wells Fargo account was a completely legitimate check that is not connected to any form of fraud whatsoever. In short, I don’t know how they came up with this false allegation.”
A review of court proceedings shows no evidence that Ojo’s purpose for opening the account was to receive the proceeds of the July 25, 2016 fraud. Also, FBI agent Marcus Vance’s testimony suggested that Ojo’s account was opened August 29, 2016 with a legitimate check of $26,900 and that the check was not associated with the July 25, 2016 fraud.
Under cross examination, Abegunde’s attorney asked Vance “At the time that this account was opened, do you know what amount of money was in that account?” In response, Vance said “There was nothing when it was opened. The first deposit was a roughly $26,000-dollar check.” Abegunde’s attorney then asked Vance “Do you remember approximately what time that would have taken place?” Vance responded by saying “I can check. I believe it was the first day. Flipping forward a few pages, it’s August 29th. So the day of, when he set up the account, he deposited his first check.” Pressing Vance, Abegunde’s attorney asked “That check had nothing to do with any sort of data breach or any sort of business e-mail compromise that’s related to this case, did it?” Vance answered “Not that I’m aware of.” Further pressing Vance, Abegunde’s attorney asked “In fact, it had nothing to do with anything that you have investigated in this case, correct?” Vance responded by conceding that “I know it was money made out to Mr. Ojo who is affiliated with this case, but I don’t know of any other business e-mail compromises or anything like that affiliated with that money.” (See Document 353: Special Agent Marcus Vance Testimony, March 12, 2019, PageID 3121).
Vance’s testimony is contrary to the allegation in the indictment that “In or about August 2016, Ojo opened a new bank account at Wells Fargo after a previous account at Bank of America had been shut down on suspicion of fraud, and used Abegunde’s address for the new account, into which proceeds from the closed account were deposited.” (See Document 3: Initial Indictment, Filed August 24, 2017, PageID 15, Paragraph 50(p)).
SIGN THIS PETITION TO DEMAND JUSTICE FOR ABEGUNDE
Abegunde’s Attorney at his bond hearing on June 25, 2018; cross examined FBI Special Agent David Palmer by asking, “Was there anything illegal about that? Is there anything illegal about using an address, you know, as a point of reference to a bank to open an account?” Agent Palmer responded by saying “No.” (See Document 125: Special Agent David Palmer Testimony, June 25, 2018, PageID 412-413).
Additionally, at Abegunde’s trial, Abegunde’s attorney tested this position further by expanding the scope of his questioning beyond the legality of granting an individual permission to utilize one’s address to open a bank account. Under cross examination, FBI Special Agent Marcus Vance – the other case agent that investigated the case – was asked “Now, based on a person with specialized knowledge it’s not illegal for me to have the pin number of my brother’s bank account, is it?” Agent Vance responded by saying “If he shared that with you, yes, I think that would be okay.” Vance further said “Again, as long as we’re assuming there’s permission, I don’t think it would be an offense to use someone else’s card with their permission.” (See Document 353: Special Agent Marcus Vance Testimony, March 12, 2019, PageID 3126).
Also against the allegation that Ojo’s previous account at Bank of America had been shut down on suspicion of fraud, trial documents revealed that “either the bank or customer can decide to close a bank account at any time without any prior notice, and without providing any reason.” After pressing the representative further, the representative insisted that the bank “is not under any legal obligation to reveal the exact reason why the bank account was closed.” This investigation also determined that it is not uncommon for U.S. banks to suddenly and peremptorily close the bank accounts of its U.S. customers in general; and bank accounts of Nigerians in particular, without the banks providing a reason for the bank account closures.
SIGN THIS PETITION TO DEMAND JUSTICE FOR ABEGUNDE
Reacting to the allegation on his Bank of America account closure on suspicion of fraud, Ojo said ”This allegation, like the other allegations on the initial indictment is absolutely false. When Bank of America notified me about closing my account, I was disappointed. But I was also curious about the reason for the closure. I repeatedly asked them ‘why?’ They told me that when I opened the account, I signed an agreement that I or they could close the account anytime without providing a reason. They never told me anything about suspicion of fraud. Also, they released the funds in the account to me via check.’’
When FBI Agent Vance was cross examined at trial regarding the reason why bank accounts associated with the case were closed, he testified that “Typically, the bank does not provide us the reason for closure — it’s a two way relationship. Essentially, the customer or the bank can close or shut down the account at any point. So they don’t necessarily say it was shut down for A and the next time it was B etcetera. They typically just shut it down. The bank has the power to shut down an account, yes. It’s a two way relationship.” (See Document 346: Marcus Vance Testimony, March 15, 2019, PageID 2736-2737) and also testified further that “I am not privy to the bank’s conversations and how they come to their conclusions.” (See Document 346: Marcus Vance Testimony, March 15, 2019, PageID 2807).
According to the initial indictment, the second and last act allegedly committed by Abegunde and Ojo in furtherance of the Wire Fraud Conspiracy is that. ”In or about October 2016, Abegunde and Ojo agreed that Ojo would use Abegunde’s address in the United States for the purpose of opening a Wells Fargo bank account, knowing that Ojo needed a United States address to associate with the account, as Ojo was a resident of Nigeria and did not reside in the United States.” (See Document 3: Initial Indictment, Filed August 24, 2017, PageID 15, Paragraph 50(q)).
Again, that Abegunde granted Ojo permission, and therefore agreed that Ojo would utilize Abegunde’s address in the U.S. for the purpose of opening a Wells Fargo bank account is also not in dispute. However, court records contradict the allegation that the supposed agreement between Abegunde and Ojo was reached in October 2016. This is because Ojo arrived in the United States on Friday August 26, 2016; the first transaction with his Wells Fargo bank account occurred on August 29, 2016 and he departed the U.S. on September 16, 2016.
These records confirm that there was never any agreement between Abegunde and Ojo in October 2016. Yes, Abegunde granted Ojo permission to open the Wells Fargo bank account with his address in August 2016 when the account was opened and not October 2016.
Although neither Abegunde nor Ojo were charged in Count Five of the initial indictment, it was alleged that on July 25, 2016; “Javier Luis Ramos Alonso accepted a $154,371 wire, representing the proceeds of BEC of ‘company A’ in Memphis, TN into his Wells Fargo account ending 7688, and then subsequently deposited the proceeds of this and/or subsequent BECs electronically into account controlled by Ayodeji Olumide Ojo in Atlanta, GA.” (See Document 3: Initial Indictment, Filed August 24, 2017, PageID 17, Count 5). This is even when on July 25 2016, Ojo had not arrived in the U.S. He arrived in August 26, 2016 and opened the Wells Fargo Bank Account on August 29, 2016. Therefore, it is logically impossible for a bank account – that did not become operational until August 29, 2016 – to have received the proceeds of a fraud that occurred on July 25, 2016; and for which the proceeds of the fraud had been fully disbursed in July 2016.
According to trial documents, no proceeds of BEC of ‘company A’ in Memphis TN was deposited into Ojo’s Wells Fargo Bank Account on or around July 25, 2016 except the proceeds of a separate and totally different BEC that did not occur until October 3, 2016 after Ojo had already departed the U.S. And, the October 2016 proceeds did not originate from, terminate at, or move through the Western District of Tennessee; that is, Memphis Tennessee. However, court records show that up till the time when the superseding indictment was returned in August 2018, the prosecutor, AUSA Debra Ireland, and FBI special Agent David Palmer have continued to insist that the proceeds of the Memphis, TN fraud that occurred on July 25, 2016 was received in Ojo’s Wells Fargo bank account).
For insight into issues of venue in Wire Fraud cases, when contacted through email, the American Bar Association (ABA), referred me to Bruce Zagaris, an expert attorney on fraud related matters and a partner in the Washington D.C. Law firm of Berliner, Corcoran & Rowe LLP. According to Zagaris, “The United States Constitution, and the Federal Rules of Criminal Procedure require that criminal defendants be tried in the district where they committed their alleged crimes. It is standard procedure in United States law that offenses involving the use of wire transmissions can be prosecuted only in the districts from, through, or into which such wire transmission moves. Courts, including the U.S. Court of Appeals for the Sixth Circuit – which sets legal precedents in the U.S. District Court for the Western District of Tennessee – have held that a plain reading of the law regarding proper venue in Wire Fraud cases shows that venue in Wire Fraud cases is limited to districts where the wire transmission is initiated, terminated, or moves through.”
The evidences reveal that the $9,000 deposited in Ojo’s Well Fargo bank account in October 2016 did not originate, terminate, or move through the Western District of Tennessee but the the proceeds of the Wire Fraud that originated in the Western District of Tennessee did not terminate at, or move through Ojo’s bank account in Atlanta, Georgia. According to the U.S. Constitution, extant U.S. statutory Laws, and the Federal Rules of Criminal Procedure therefore, the charges against Abegunde and Ojo ought not to have been inquired of or prosecuted in the Western District of Tennessee.
It is not a surprise therefore that U..S. District Judge John T. Fowlkes Jr. of the Western District of Tennessee – around the time of Abegunde’s prosecution, raised concerns that race plays an unfair role that negatively affects blacks in prosecutions in the Western District of Tennessee. In other words, according to a serving district judge in the same district where Abegunde and Ojo were charged; Abegunde and Ojo were unlikely to get a fair trial in the Western District of Tennessee. It was after Judge Fowlkes raised his concerns that Ireland moved to dismiss charges in a separate case – involving two other Nigerians that are Black, Ademola Adeoti and Gbemisola Akinsanya – that was assigned to Judge Fowlkes’s Court. Click here to view the Motion to Dismiss the case against Ademola Adeoti and Gbemisola Akinsanya
As we have also seen, the reason why Ojo opened the Wells Fargo bank account in August 2016 was to deposit the wholly legitimate Bank of America check that was issued to Ojo by Bank of America. As has also been established, after Ojo had returned to Nigeria in October 2016; because Ojo needed United States Dollars, Ojo contacted a certain Leke Adenuga – an informal foreign exchange vendor – to convert the Nigeria Naira equivalent of $9,000.
Ojo therefore did not enrich himself with the $9,000 inadvertently deposited into his account by a certain Javier Luis Ramos Alonso because he authorized its reversal.
Read also Part One: Investigation Exposes Deceptive Misinformation By U.S Prosecutors And FBI Agents In The Indictment And Prosecution Of Nigerians and Part Two: Investigation Exposes Deceptive Misinformation By U.S Prosecutors And FBI Agents In The Indictment And Prosecution Of Nigerians
