Opinion
CR 19-115-JJM-PAS
11-14-2022
UNITED STATES OF AMERICA v. WISDOM ONYOBENO
REPORT AND RECOMMENDATION REGARDING DETENTION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is the Appeal to the District Court Judge (Chief Judge John J. McConnell, Jr) for Bail pending Trial, ECF No. 117 (“Bail Motion”), filed pro se by Defendant Wisdom Onyobeno. The Bail Motion was referred to me for determination. I have interpreted it as filed pursuant to 18 U.S.C. § 3145(b), seeking revocation of the Order of Detention entered by Magistrate Judge Almond on January 9, 2020, (ECF No. 43), and Magistrate Judge Almond's subsequent Text Order of August 18, 2021, denying Defendant's motion for bond (ECF No. 64). Based on this interpretation and following colloquy with the parties at the hearing, I am treating the matter as requiring a de novo detention hearing and am addressing the Bail Motion in this report and recommendation.
Defendant is pro se and assisted by standby counsel. Therefore, the Court has considered his filings with the leniency due to any pro se litigant. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Silva v. Farrell, C. A. No. 18-650JJM, 2019 WL 2501887, at *1 n.1 (D.R.I. Jan. 15, 2019), adopted, 2019 WL 2500668 (D.R.I. Jan. 30, 2019).
At the hearing, Defendant argued that, because the government previously asked for review of the release order of a Magistrate Judge in Georgia pursuant to 18 U.S.C. § 3145(a), this somehow precludes him from asking for District Court review of Magistrate Judge Almond's detention order pursuant to § 3145(b). He contends that his only remedy now is an appeal to the First Circuit pursuant to 18 U.S.C. § 3145(c). This argument clashes with a foundational finding made by the District Court in another case brought by Defendant, Onyobeno v. Garland, Ca. No. 22-148-JJM-LDA, 2022 WL 2124921, at *2 (D.R.I. May 9, 2022): “Although Mr. Onyobeno eventually filed a motion for bond under 18 U.S.C. § 3145 (ECF No. 64), which the Court denied, he did not exhaust the remedies available under that statute.” Having looked in vain for support for Defendant's argument that this Bail Motion, despite being captioned as directed to the District Court, should be heard in the first instance by the Court of Appeals, I reject it.
I. APPLICABLE LAW
“Under 18 U.S.C. § 3142(b), a court, in making a determination regarding detention, must evaluate the risk of the defendant's flight, the risk to the safety of any other person, and the risk to the safety of the community,” United States v. Nunez-Guerrero, 28 F.Supp.3d 118, 119 (D.P.R. 2014), mindful that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). A challenge to a detention order pursuant to § 3142(b) requires the District Court to engage in a de novo review of the challenged order. United States v. Khalil, No. 13-62-01 S, 2013 WL 5571747, at *1 (D.R.I. Oct. 9, 2013) (denying motion to revoke a detention order). “[T]he Court may reject the magistrate judge's fact finding and start the hearing anew or may accept the findings of fact made by the magistrate and hear additional facts and argument.” United States v. Diaz, 456 F.Supp.3d 320, 322 (D. Mass. 2020) (without a hearing, denying motion to revoke pretrial detention order).
Pursuant to the Bail Reform Act, a Court may conduct a detention hearing only in specified circumstances, as relevant here, pursuant to § 3142(f)(2) based on the finding of “a serious risk that such person will flee.” 18 U.S.C. § 3142(f)(2)(A). “[O]nce there is a basis to hold a detention hearing,” the court is required to consider if any conditions of release would reasonably assure the safety of the community and the appearance of the defendant pursuant to 18 U.S.C. § 3142(e). United States v. Castellanos-Almendares, Case No. 19-CR-80144 Smith/Metthewman, 2019 WL 3937862, at *2 (S.D. Fla. Aug. 20, 2019). The detention analysis is based on the factors listed in § 3142(g): (1) the nature and circumstances of the offense; (2) the weight of the evidence; (3) the defendant's history and characteristics; and (4) “the nature and seriousness of the danger to any person or the community” that would be posed by the defendant's release. 18 U.S.C. § 3142(g); see United States v. Aleman-Duarte, No. 3:19-CR-149-PLR-DCP, 2020 WL 236870, at *5 (E.D. Tenn. Jan. 15, 2020).
To the extent that the Court's § 3142(e) determination is based on the finding that no condition will reasonably assure Defendant's appearance, the government must sustain its burden by a preponderance of the evidence. United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991). However, to the extent that the Court's § 3142(e) determination is based on the finding that no condition will reasonably protect the community from economic or other danger, the government's evidence must be clear and convincing. 18 U.S.C. § 3142(f); United States v. DeSimone, CR No. 09-024S, 2009 WL 904688 at *2 (D.R.I. Apr. 1, 2009). That is, “[i]f the Court, at a detention hearing properly sought by the Government under the Bail Reform Act on serious risk of flight grounds, determines that, based on the facts, proffer, testimony, and argument presented, the release of the defendant would constitute a danger to the community or a person in the community, the Court cannot simply turn a blind eye to those facts.” Castellanos-Almendares, 2019 WL 3937862, at *3. Danger to the community may include pecuniary or economic harm. DeSimone, 2009 WL 904688, at *2.
II. PROPOSED FINDINGS OF FACTS AND CONCLUSIONS OF LAW
A. Foundation for Detention Hearing
Based on (1) the finding of “substantial risk of flight” reflected in the Court's Text Order of August 18, 2021, (2) the finding of the Northern District of Georgia that a detention hearing was warranted there, ECF No. 7, and (3) the government's factual proffer of Defendant's significant ties to Nigeria, use of an alias, lack of a stable residence or employment not intertwined with the alleged scheme in the United States, and relatively minimal family ties in the United States, as well as his motivation and means to flee, as described below, I find that the government has sustained its burden under § 3142(f)(2)(A) of establishing serious risk of flight by a preponderance of the evidence. See Patriarca, 948 F.2d at 793; see also United States v. Giordano, 370 F.Supp.2d 1256, 1264 (S.D. Fla. 2005) (“Relevant factors that support a serious risk finding include the use of a number of aliases, unstable residential ties to a community, efforts to avoid arrest, or hidden assets.”). Therefore, the Court may conduct a detention hearing, with the analysis focused on whether there are conditions that “will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e); United States v. Villatoro-Ventura, 330 F.Supp.3d 1118, 1125 (N.D. Iowa 2018). This analysis is informed by the factors listed in § 3142(g).
B. Nature and Circumstances of Offense and Weight of Government's Evidence
The first two § 3142(g) factors are the nature and circumstances of the offense and the weight of the government's evidence. 18 U.S.C. § 3142(g)(1-2). In that regard, pursuant to a Superseding Indictment (ECF No. 23), Defendant is charged with participating in a conspiracy to commit mail fraud, mail fraud and three counts of wire fraud based on the contention that he was actively involved in a sophisticated romance fraud scheme perpetrated by a network of individuals in the United States and Nigeria that targeted elderly victims, generally women, who were conned into sending substantial sums of money to Defendant and others.
The government represents that it has evidence from victims, evidence of the many bank accounts through which the proceeds of the scheme moved (including the closing of accounts, for example due to bank suspicion of fraudulent activity, and opening of new ones), and Georgia incorporation records for the entities used in connection with the scheme. The government's evidence includes Defendant's post-Mirandized interview, during which he admitted to having knowledge of the fraud scheme, including the admissions that he was aware that the money he was receiving was fraud proceeds but he did not “do the real fraud,” that others (in Africa) found the victims, that the men in Nigeria were using him, that he took a 10% cut and transmitted the funds to Africa by buying and shipping cars to Nigeria but claimed that he had ceased to participate. ECF No. 120-2 at 14-15, 17. Also establishing that the evidence is strong is the fact that one alleged coconspirator, co-Defendant Dominique Golden (“Golden”), has pled guilty to the scheme; Golden (and others) have made significant admissions linking Defendant to the conspiracy. ECF No. 119 at 17. The government contends, and I so find, that this evidence is strong and establishes that Defendant was a United States-based leader and organizer of the scheme who recruited participants, directly and indirectly manipulated victims and directed others to take actions in furtherance of the scheme.
Recently, co-Defendant Golden pled guilty in this case and is awaiting sentencing; she has also been convicted and sentenced to more than fifty months of incarceration in the Northern District of Georgia for similar conduct in a different romance fraud scheme. See ECF No. 119 at 18-19 (“She's received a sentence of 56 months.”). I find that these developments strengthen the weight of the government's evidence against Defendant. The Court does not accept Defendant's argument that Golden's adjudication in Rhode Island and conviction in Georgia is a changed circumstance amounting to a reason why he can now be released on conditions.
The government represents that the scheme has harmed over seventy victims who collectively lost more than $3 million. ECF No. 120 at 1. The total identified by the government for the period of Defendant's participation in the scheme is $3.4 million of which little has been recovered. Id. at 1, 8. The amount that moved through the sixteen bank accounts associated with Defendant between September 2017 and June 2019 is $1.8 million. Id. at 8. During her recent plea colloquy, Golden admitted that the loss caused by the conspiracy was at least $2.6 million and involved more than ten victims and sophisticated means. ECF No. 119 at 12-13, 17. Only a small amount has been recovered; the government believes that most of the proceeds of the scheme has ended up in Nigeria. ECF No. 120 at 1.
I find that the strength of the government's evidence establishes that Defendant has significant motivation to flee. In the event of conviction, in addition to the risk of deportation, the government contends that Defendant faces a guidelines range of between 108 and 135 months of incarceration; the government further represents that, with acceptance of responsibility, the range might drop to 78 to 97 months. The co-Defendant in this case (Golden) was sentenced for similar conduct in Georgia to fifty-six months of incarceration following a guilty plea. ECF No. 119 at 18-19. In considering the motivation to flee, Defendant appropriately points out that he has been detained since November 25, 2019; the period of pretrial detention is now approaching three years of incarceration. Defendant is correct that his risk of a lengthy period of incarceration is mitigated by the time that he has already served. Nevertheless, what remains are the risk of deportation and the residual risk of incarceration, which, at the extremes, ranges from between twenty and one hundred more months in jail in the event of conviction. Based on this analysis, I find that, even when Defendant's ongoing incarceration is considered, the strength of the government's evidence still gives rise to a significant motivation to flee.
Based on this evidence pertaining to the nature and circumstances of the offense and the weight of the government's evidence, I also find that the government has established that there is strong evidence of Defendant's participation in a conspiracy that has inflicted (and will continue to inflict if it continues) serious economic injury on vulnerable victims. I find that this evidence clearly and convincingly establishes that Defendant is an economic danger to the community if he is released without conditions sufficient to prevent the fraud from continuing, which is a significant risk particularly in light of Defendant's lack of work history untainted by fraud during the short period when he was present in the United States before he was arrested. Put differently, with no established work history unrelated to the fraud scheme, the risk that Defendant will revert to fraud to support himself upon release is significant.
C. Defendant's History and Characteristics
The third factor, 18 U.S.C. § 3142(g)(3), requires the Court to examine Defendant's history and characteristics.
Section 3142(g)(3) requires the Court to consider:
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law.
Defendant is a 42-year-old Nigerian national with an expired Nigerian passport that has been seized; while Defendant represents that he will not apply for a new Nigerian passport if released, the government cannot prevent one from issuing should Defendant apply. ECF No. 120 at 11. Now in his early forties, Defendant was born and lived most of his life in Nigeria. Id. In total (excluding the period of detention), Defendant had lived in the United States for only thirty-four months before he was arrested and detained. Id. Defendant claims he was present in the United States with a Green Card and that there is no immigration detainer. The government represents that Defendant entered the United States on a tourist visa in 2017 and that there is a pending petition to adjust his immigration status, but that Defendant faces the risk of deportation if he is convicted in this case. Id. at 10-11. Although Defendant has no criminal history, the impact of his lack of criminal history is significantly mitigated by the relatively brief period he spent in the United States before being arrested. Id. at 11.
In connection with his immigration petition, Defendant claims to have married a woman named Bernadeth Robinson (“Robinson”) in September 2017. Id. at 11. However, at a post-arrest interview in 2019, Defendant claimed that he was briefly married to Robinson and left her after only four months upon learning that she was a felon, was pregnant by another and suffered from disease. ECF Nos. 120 at 3; 120-2 at 5-6, 10, 22. During this interview with law enforcement and during his pretrial services interview, Defendant stated that co-Defendant Scherer is his girlfriend with whom he had been living in Georgia. ECF No. 120-2 at 8. In addition to the putative wife and the co-Defendant girlfriend, Defendant also claims to have one brother and a cousin in Georgia. Rhode Island Pretrial Services Report (Aug. 17, 2021) (“Rhode Island Report”) at 2; Georgia Pretrial Services Report (Nov. 22, 2019) (“Georgia Report”) at 1.As of the time of his arrest and again in 2021, Defendant told pretrial services that all of his children were living in Nigeria. Rhode Island Report at 2; Georgia Report at 2. Their current whereabouts is not known to the Court. Otherwise, all family contacts are in Nigeria.
Defendant now represents that Robinson is part of his “family support.” ECF No. 117 at 3. Mindful of what he told agents during his transcribed interview, I do not find this representation to be credible.
In his Bail Motion, Defendant claims that he has more than one cousin in the United States. However, in his first interview with pretrial services, he mentioned only one brother, while in his second, he mentioned one brother and one cousin. Rhode Island Report at 2; Georgia Report at 1.
Defendant told pretrial services in Georgia (in 2019) and in Rhode Island (in 2021) that he has two children who live in Nigeria with their mother. Rhode Island Report at 2; Georgia Report at 2. In the Bail Motion, he represented that he has three children. ECF No. 117 at 3.
Defendant appears to be a highly intelligent individual who obtained his high school diploma and bachelor's degree in Nigeria. Georgia Report at 2. He has traveled to Italy and Dubai for vacation. Id. As reported to pretrial services, Defendant's only pre-arrest employment in the United States was ownership of a business engaged in buying and selling automobiles in 2018 and 2019. Id. This was an entity he formed with his putative wife in Georgia called Ben and Kai Global Auto Trade; it is referenced in the Superseding Indictment as one that was used to perpetuate the scheme by accepting deposits from alleged victims that moved through four bank accounts in the name of this entity. ECF Nos. 3-1 at 3; 23 at 16-17. These allegations are confirmed by Defendant's post-Miranda admission that he transmitted the proceeds of the fraud scheme to Africa by buying and shipping cars to Nigeria. ECF No. 120-2 at 17-18. The record contains no evidence that Ben and Kai Global Auto Trade was otherwise a legitimate business.
Defendant stated in his postMiranda interview that Robinson did not know what was going on. ECF No. 120-2 at 21.
The government's evidence includes a “to whom it may concern” letter submitted by Defendant as employment verification in connection with a lease application. ECF No. 120-8 at 2. This letter purports to be signed by Robinson who is represented to be the “CEO” of Ben Kai Global Auto Trade LLC; it represents that Defendant is an employee who supervised four employees, was subject to sales goals and was paid a salary amounting to more than $ 110,000 per year. Id. The letter does not mention that Defendant himself formed this entity or that Robinson is his putative wife. Id. The content of this letter is also contradicted by statements made by Defendant during his pretrial services interview in Georgia, when he represented that his net income from Ben and Kai Global Auto Trade is $36,000 per year. Georgia Report at 2.
Defendant's true residence prior to arrest has been a moving target. During immigration proceedings, Defendant reported that he was living with Robinson, whom he claimed to have married in September 2017. ECF No. 120 at 12-13. To pretrial services, he reported that he was living with his girlfriend (a co-Defendant) in Georgia but represented that he would be willing to live with his wife. The government has submitted lease applications reflecting other inconsistent information supplied by Defendant regarding his true address. ECF Nos. 120-3; 120-4; 120-5.
The government's proffered evidence includes an interview of P.D., a woman to whom Defendant provided false information regarding his identity and who sent him approximately $20,000. ECF Nos. 120 at 14; 120-6. This evidence also establishes Defendant's use of the alias “Michael Greco” in connection with the scheme, including the use of social media to perpetuate this deception. ECF No. 120 at 14. Defendant argues that P.D. continued to communicate with him after he was arrested and his true identity was revealed to her, as well as that their relationship is now romantic. In assessing the evidence regarding P.D., I accept Defendant's representation about the current character of his relationship with her. However, I have considered the content of P.D.'s interview and the government's other evidence regarding P.D., which reflects Defendant's facility in persuasively making false statements regarding his identity and using an alias.
Defendant correctly argues that the government's evidence does not include the allegation that he was found in possession of fake documents or identification. My focus is on what the government did proffer, which, for example, includes the troubling images of the fake persona presented to P.D. via social media. See ECF No. 120-6.
Based on the foregoing, I find that the government has established that Defendant has not only the motivation but also the means to flee, in that there is a network of individuals in Nigeria, there is a substantial amount of money that has never been recovered and Defendant has a demonstrated facility in the use of an alias and in making false statements and duping others, not only potential victims like P.D., but also prospective landlords. In support of the latter finding, I further find that Defendant has evinced a propensity to make whatever statement he believes will get what he wants without regard to its truth based on the many inconsistencies among the statements Defendant has made to landlords, to United States Immigration staff, to law enforcement, to pretrial services in Rhode Island and Georgia, and to the Court in connection with this Bail Motion. I further find that Defendant's ties to Nigeria are significant and that Defendant has weak ties holding him in the United States, in that he did not have a stable residence or past meaningful employment (apart from the entity involved in the scheme) nor does he have many significant family members living in the United States. At bottom, judicial conditions of release rely on trust and on the individual's motivation to stay, defend the case and face what consequences may accrue. Even the Court's most powerful condition - home incarceration with GPS monitoring - is effective only with a trustworthy defendant committed to remaining and appearing, characteristics that I find that the government has sustained its burden of demonstrating Defendant lacks.
Based on the foregoing analysis, I find that there is significant motivation to flee, little to hold Defendant in the United States and the Court cannot trust that Defendant will follow conditions. Therefore, I find that there are no conditions or combination of conditions that will reasonably assure Defendant's appearance as required.
D. Danger
The last § 3142(g) factor is “the nature and seriousness of the danger to any person or the community that would be posed by the person's release.” 18 U.S.C. § 3142(g)(4). Because my conclusion regarding flight makes it unnecessary to assess whether danger independently compels an order of detention, I consider the safety prong only briefly. Having found that Defendant poses a significant risk of economic danger, I nevertheless also find that it is possible that this danger could be addressed by conditions such as home detention and limitations on his access to internet-based devices, bank accounts and the mail. However, such a combination of conditions would leave Defendant isolated and so limited in his ability to work that I find that they would not reduce the motivation to flee, but rather would increase it, enhancing the risk of flight. Therefore, I find that there are no conditions adequate to address the economic danger that Defendant poses to the community.
E. Other Considerations
Defendant argues that the length of his pretrial detention itself amounts to an injustice that now mandates his release; he claims that pretrial detention has adversely impacted his health and his relationship with his family. ECF No. 117 at 3. This is not a factor that the Bail Reform Act directs the Court independently to consider except as it relates to the § 3142(g) analysis. United States v. Mubarak, No. 20-cr-10300-ADB, 2021 WL 242049, at *5 (D. Mass. Jan. 25, 2021) (“anticipated length of any pretrial detention is an issue best adjudicated in the context of the Speedy Trial Act, 18 U.S.C. § 3161-74, not in the context of a motion for revocation of a detention order under 18 U.S.C. § 3145(b)”). In that regard, I have considered it as a reason why Defendant's risk of a significant period of incarceration has dropped as his pretrial detention period lengthens but have nevertheless found that enough remains, coupled with the risk of deportation, to give rise to a serious motivation to flee.
III. CONCLUSION
I find that Defendant poses a serious risk of flight and that no condition or set of conditions can reasonably assure Defendant's appearance. I also find that Defendant's release would pose economic danger to the community that cannot be addressed by the setting of conditions because the evidence clearly and convincingly establishes that Defendant is unlikely to abide by any trust-based conditions and because the draconian conditions required to address this danger adequately would exacerbate the risk of flight. Based on these findings, I recommend that the Bail Motion be denied and that he remain detained.
Any objection to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen (14) days of its receipt. See Fed.R.Civ.P. 72(b)(2); DRI LR Cv 72(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district judge and the right to appeal the Court's decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).