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United States v. Ojimba

United States District Court, W.D. Oklahoma

August 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
NNAMDI FRANKLIN OJIMBA, Defendant.

          ORDER

          TIMOTHY D. DeGIUSTI CHIEF UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant's Motion in Limine Re: Akunna Ejiofor/Hill Feinberg [Doc. No. 92]. The government has responded [Doc. No. 94]. The matter is fully briefed and at issue.

         BACKGROUND

         This matter stems from a prior criminal case in which the government alleged Ken Ezeah and Akunna Ejiofor created a scheme to commit identity theft and wire fraud. In sum, the defendants were alleged to have set up various online dating profiles using false information, formed online relationships with several women, and then persuaded those women to wire money by promising to manage their money and investments. Ezeah subsequently pleaded guilty to conspiracy to commit wire fraud. Ejiofor opted to go to trial, where a jury found her guilty on all counts. Here, Defendant was similarly indicted and tried for conspiracy to commit wire fraud (Count 1), aggravated identity theft (Count 2), and wire fraud (Counts 3-4) in October 2018. On October 11, 2018, the jury acquitted Mr. Ojimba on Counts 2-4 and a mistrial was declared as to Count 1. The government filed an Advisement to the Court [Doc. No. 67] on November 16, 2018, of its intent to retry Mr. Ojimba on Count 1, conspiracy to commit wire fraud.

         Defendant filed a Motion to Exclude the Testimony of Hill Feinberg and Pamela Bale [Doc. No. 70] on November 23, 2018. Defendant moved to exclude their testimony on the grounds it should be barred: (1) by the doctrine of collateral estoppel as incorporated in the Fifth Amendment prohibition on double jeopardy; and, (2) because the testimony is unduly prejudicial in that it would mislead the jury into thinking Defendant had something to do with the crimes committed against them, when in fact he has been acquitted of those charges.

         On November 23, 2018, Defendant filed his Motion to Admit Evidence of Acquittals [Doc. No. 71] asserting that:

the acquittals are admissible: (1) under the doctrine of “curative admissibility”; (2) pursuant to Fed.R.Evid. 803(6) as a record of regularly conducted activity; (3) pursuant to Fed.R.Evid. 803(8) as a public record; (4) to demonstrate the existence of reasonable doubt; and, (5) pursuant to Fed.R.Evid. 807 as residual hearsay. Defendant further argues that the acquittals would not be prejudicial to the government under Fed.R.Evid. 403.

         Order [Doc. No. 81] at 8.

         On April 23, 2019, the Court denied both Motions [Doc. Nos. 70 and 71]. Order [Doc. No. 81]. Relevant to the instant Motion, the Court determined that:

Defendant's acquittal of each of the substantive crimes of identity theft and wire fraud do not necessarily preclude charges of conspiracy to commit those crimes. The Government need not prove beyond a reasonable doubt that Defendant committed identity theft or wire fraud with respect to Ms. Bale in order to prove beyond a reasonable doubt that he is guilty of a conspiracy to commit wire fraud.

         Order [Doc. No. 81] at 6 (emphasis in original). The Court also found that: (1) such evidence would not “cause unfair prejudice, confuse the issues or mislead the jury”; (2) there is no exception to the hearsay rule for judgments of acquittal; (3) evidence regarding a substantive count is admissible to prove the conspiracy charge; and, (4) curative admissibility is applicable only when other evidence has been improperly admitted and, therefore, is not appropriate regarding this evidence. Order at 7, 8, 9, 10-11. Finally, the Court concluded that a “‘conspiracy count [] describes a much wider ranging fraudulent scheme' than the underlying substantive crime.” Order at 7 (quoting United States v. Wittig, 575 F.3d 1085, 1099 (10th Cir. 2009)).

         On August 7, 2019, the government provided Defendant with additional discovery indicating that Ms. Ejiofor will testify that she saw a photograph of government witness Hill Feinberg “on an online dating service profile that Ejiofor observed Franklin using at his apartment in relation to the Edward Duffey scheme.” Motion at 1.

         Defendant moves to preclude the government from introducing this testimony, arguing that it: (1) contradicts Ms. Ejiofor's testimony at her own trial and, therefore, lacks relevance and would be more prejudicial than probative; and, (2) admitting the testimony would subject Defendant to double jeopardy in violation of the Fifth Amendment given his acquittal on the substantive charge of identity theft relating to Mr. Feinberg. Motion at 2.

         Defendant asserts that if the testimony is admitted, he should be permitted to inform the jury of his acquittal of the charge relating to Mr. Feinberg. Defendant re-urges the arguments and authority in his previous Motion to Admit Evidence of Acquittals [Doc. No. 71] and contends that denial of the opportunity to inform the jury of his acquittal on the substantive charge will: (1) mislead the jury; (2) deny Defendant his Sixth ...


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