See 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.
Under the heading – background – of the initial indictment, it was 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).
In a court filing titled “The Government lied to secure Grand Jury indictment,” Abegunde 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.”
Ojo buttressed Abegunde’s assertions. In an interview, Ojo said “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.”
The author reviewed Ojo’s I-94 document, a U.S. Immigration document that reflects the travel history of individuals that travel to the U.S. and out of U.S. It was found that Ojo had indeed been to the U.S. on several occasions and the only time Ojo resided in the same location as Abegunde was the period when Ojo arrived in Atlanta, Georgia on August 26, 2016 via flight from Lagos, Nigeria; and departed Atlanta, Georgia for Lagos, Nigeria on September 16, 2016. Regarding Ojo's subsequent visit to the U.S. in February 2017; the author viewed Ojo’s travel itinerary and found that Ojo indeed resided in El-Paso, Texas in the course of Ojo’s February 2017 trip to the United States. Transcripts of court hearings further corroborate this point.
Hence, the question arises, why was it falsely alleged on the initial indictment that Ojo lives with Abegunde in Atlanta Georgia when he is in the United States? The author contacted Assistant United States Attorney (AUSA) Debra Ireland, the lead prosecuting attorney for a response; the author also contacted the FBI Agents – Special Agents David Palmer and Marcus Vance – who according to court records were in charge of the investigation. None of them responded to requests for comment.
Regarding the actual charges on the initial indictment, in Count One, it was alleged that Abegunde, Ojo and other individuals knowingly and wilfully conspired and agreed, together and with each other, and with other persons known and unknown to the grand jury, to commit the offense of Wire Fraud. That is, 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, representations and promises and for the purpose of executing and attempting to execute such a scheme and artifice, transmitted and caused to be transmitted certain wire communications in violation of the law criminalizing Wire Fraud. (See Document 3: Initial Indictment, Filed August 24, 2017, PageID 9, Paragraph 35(b)).
The initial indictment further alleged that the object of the Conspiracy to Commit Wire Fraud was that Abegunde, Ojo, and other individuals would unjustly enrich themselves and each other by conducting multiple complex financial fraud schemes via the internet. (See Document 3: Initial Indictment, Filed August 24, 2017, PageID 9, Paragraph 36).
Regarding the manner and means through which the object of the conspiracy was to be accomplished, it is worthy of note that Abegunde’s name is not mentioned. That is, according to the initial indictment, Abegunde did not play any role with regards to the method utilized in accomplishing the object of the Wire Fraud Conspiracy.
However, regarding the manner and means through which the object of the conspiracy was to be accomplished, the initial indictment 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).
Reacting to the allegation, Ojo 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.”
The author reviewed Ojo’s Wells Fargo Bank account statement and found Ojo’s assertions to be corroborated by the statement. The author also found after reviewing court records that there is no evidence that the purpose for Ojo opening the account was to receive the proceeds of the July 25, 2016 fraud.
At Abegunde’s trial, the testimony of one of the FBI agents that investigated the case – Special Agent Marcus Vance – corroborates the facts that Ojo’s account was opened August 29, 2016; a wholly legitimate check of $26,900 was deposited into the account on the same day; and that there was no evidence that the check was associated with the July 25, 2016 fraud in particular, or any form of fraud in general.
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).
With all these exculpatory evidence, again the vital question arises, why did the FBI agents and prosecutor respectively in charge of investigating and prosecuting the case against Abegunde, and Ojo, include a clearly false allegation – regarding the manner and means of accomplishing the object of the Wire Fraud Conspiracy – on the initial indictment? The author reached out to FBI Special Agents Palmer, Vance; and Assistant United States Attorney Debra Ireland for a response to the question. None of them responded to requests for comment.
Returning to the allegations utilized in supporting the Wire Fraud Conspiracy charge. The indictment further alleged that in order to accomplish the object of the conspiracy, Abegunde and Ojo engaged in two acts in furtherance of the conspiracy. First, the indictment alleged 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)).
That in August 2016, Ojo utilized Abegunde’s address and phone number to open a new bank account at Wells Fargo, so as to deposit a Bank of America issued check, is neither in dispute by Abegunde and Ojo on the one hand; nor is the allegation disputed by the investigators and prosecutor that instituted the initial indictment.
However, the key question that arises is does granting a long time friend permission to utilize an address and phone number for the purpose of opening an account – for the reasons that we have already seen – amount to being part of a Conspiracy to Commit Wire Fraud? At Abegunde’s bond hearing held on June 25, 2018; under cross examination by Abegunde’s attorney at the time, FBI Special Agent David Palmer – one of the lead case agents – was questioned regarding the bank “account that Mr. Ojo opened using the address of Mr. Abegunde…” Abegunde’s attorney asked “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).
The keyword in the testimonies of the FBI Agents that investigated the case is “PERMISSION.” In other words, by granting Ojo permission to utilize his address and phone number to open a bank account: according to the testimony of the Agents that investigated the case, Abegunde did not commit a crime.
Additionally, the investigation determined that the allegation – that Ojo’s previous account at Bank of America had been shut down on suspicion of fraud – was speculative at best. At worst, the allegation amounts to deliberate misinformation. The author contacted Bank of America regarding the exact reason why Ojo’s account was closed by the bank. A representative of Bank of America said “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.”
The 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.
In response to the allegation that his Bank of America account was shut down 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.’’
Of the highest importance regarding the allegation that Ojo’s Bank Of America Account was shut down on suspicion of fraud; according to court transcripts reviewed by the author, at Abegunde’s trial years after the initial indictment was returned, under cross examination, FBI Special agent Marcus Vance testified – regarding the reason why bank accounts associated with the case were closed – that he did not know for sure the exact reason why the bank accounts were closed. FBI special agent Vance said — under cross-examination — 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). Pressed further under cross examination, Special Agent Vance further said “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).
Again, the question arises, why was what amounts to speculation at best and what amounts to outright deliberate misinformation at worst, included in the initial indictment? The author contacted FBI Special agents David Palmer and Marcus Vance; as well as Assistant United States Attorney Debra Ireland for a response regarding this key question. None of them responded to the request for comment.
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.
Furthermore, as we have seen, Ojo’s I-94 document, as well as Ojo’s travel itinerary – that were reviewed by the author – unequivocally demonstrate that Ojo arrived in the United States on Friday August 26, 2016. The statement of Ojo’s Wells Fargo bank account – that was also reviewed by the author – further establishes that the first transaction on the said account occurred on August 29, 2016. As we have also seen, Ojo's I-94 document attests to the fact that Ojo departed the U.S. on September 16, 2016.
These pieces of evidence categorically confirm that in October 2016, Ojo had already departed the U.S. and was in Nigeria for at least two weeks. The evidence also confirms that in October 2016 the Wells Fargo bank account had been operational for around two months.
Hence, it is abundantly clear that there was neither an agreement between Abegunde and Ojo – in October 2016 – that Ojo would utilize Abegunde’s address to open the Wells Fargo bank account; nor was any bank account opened in October 2016. Rather all the evidence points to the fact that Abegunde granted Ojo permission to open the Wells Fargo bank account with Abegunde’s address in August 2016; and the Wells Fargo bank account was actually opened in August 2016 and not October 2016.
Again, for the fourth instance on the initial indictment, another key question arises, why was what amounts to misinformation – that the Well Fargo Bank Account was opened in October 2016, when in reality the bank account was opened in August 2016 – included in the allegation that Abegunde and Ojo engaged in a Wire Fraud Conspiracy, an offense punishable by up to 20 years in prison? The author reached out to AUSA Debra Ireland, FBI Special Agents David Palmer and Marcus Vance for a response to this key question. None of them responded to requests for comment.
By far the most consequential allegation on the initial indictment that had far reaching implications for Abegunde and Ojo is the allegation on Count Five of the initial indictment. While neither Abegunde nor Ojo were charged in Count Five of the initial indictment; in Count Five, 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).
As we have seen, Ojo had not arrived in the U.S. as of July 25 2016. As a matter of fact, Ojo did not arrive in the U.S. until August 26, 2016. Additionally, Ojo did not open the Wells Fargo Bank Account until more than one month after July 25, 2016. The account was actually opened on August 29, 2016 so as to enable Ojo to deposit the bank of America check. 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 court documents; Ojo’s Wells Fargo Bank Account did not receive the proceeds of BEC of ‘company A’ in Memphis TN on or around July 25, 2016. Rather, the evidence confirms that Ojo’s Wells Fargo bank account received the proceeds of a separate and totally different BEC that did not occur until October 3, 2016 when Ojo had already departed the U.S. This fact is of consequential importance, as it implies that the funds that Ojo received in his Wells Fargo bank account in October 2016 did not originate from, terminate at, or move through the Western District of Tennessee; that is, Memphis Tennessee. (As an aside, according to court records reviewed by the author, from the inception of Abegunde and Ojo’s prosecution till the superseding indictment was returned in August 2018, the prosecutor, AUSA Debra Ireland, and FBI special Agent David Palmer who investigated the case, 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).
Again, for the fifth instance on the initial indictment another key question arises, why was what amounts to a false misrepresentation of a very vital and material fact – that Ojo received the proceeds of the Memphis, TN fraud that occurred on July 25, 2016 in his Wells Fargo bank account – included on the initial indictment? The author contacted AUSA Debra Ireland, FBI Special Agents David Palmer and Marcus Vance for a response to this key question. None of them responded to requests for comment.
Based on all the misinformation on the initial indictment – especially the false allegation that Ojo’s Wells Fargo bank account received the proceeds of a BEC of ‘Company A’ in Memphis, Tennessee – it would not be unreasonable to conclude that there was a method to the misinformation vis-à-vis the issue of venue in Wire Fraud prosecutions in particular; and with regards other issues in general.
For a clearer picture, and a better understanding of the issue of venue in Wire Fraud cases; the author contacted the American Bar Association (ABA), who referred the author to an expert attorney on fraud related matters — Mr. Bruce Zagaris, a partner in the Washington D.C. Law firm of Berliner, Corcoran & Rowe LLP. In clarifying and elucidating the issue of venue in Wire Fraud cases, Mr. Zagaris stated that “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.” Mr. Zagaris went on to state that “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.” Mr. Zagaris further explained that “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.”
According to court records reviewed by the author, the $9,000 being the funds that was deposited in Ojo’s Well Fargo bank account in October 2016 did not originate, terminate, or move through the Western District of Tennessee. Rather, all the evidence reviewed by the author indisputably points to the fact that 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.
The implication of these established facts is that according to the U.S. Constitution, extant U.S. statutory Laws, and the Federal Rules of Criminal Procedure, the charges against Abegunde and Ojo ought not to have been inquired of or prosecuted in the Western District of Tennessee. Rather, if indeed actions alleged against Abegunde and Ojo actually rise to the level of the crimes they were charged with; then such a prosecution ought to occur in districts where the $9,000 that was deposited into Ojo’s bank account originated from, terminated at, or moved through.
This point is of vital importance because as we have seen, U.S. District Judge John T. Fowlkes Jr. of the Western District of Tennessee – around the time of Abegunde’s prosecution – sounded alarm bells about 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.
The lead prosecutor as well as the lead FBI case agents in Abegunde and Ojo’s case may have taken a cue from Judge Fowlkes’ alarm bells. This is because shortly after Judge Fowlkes raised his concerns, according to court records reviewed by the author, AUSA Debra 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.
The author reached out to AUSA Debra Ireland for comments regarding the impropriety of venue vis-à-vis the prosecution of Abegunde and Ojo in the Western District of Tennessee. The author also asked if there was a connection between Judge Fowlkes concerns about the role race plays in prosecutions in the Western District of Tennessee; and her decision to dismiss charges against Ademola Adeoti and Gbemisola Akinsoya. AUSA Debra Ireland did not respond to the request for comment.
Besides the issue of the impropriety of venue in the Western District of Tennessee regarding the Wire Fraud Conspiracy, and other charges Abegunde and Ojo faced; according to court records as well as a large cache of all the discovery documents that were meticulously reviewed by the author, there is absolutely no evidence that Abegunde and Ojo had advanced knowledge of the schemes alleged on the indictment. As we have seen, Agent Carrasquillo – the officer that arrested Abegunde – confirmed this. Additionally, the fact that the indictment was filed under seal also confirms that the plan all along was for Abegunde and Ojo not to be aware that they have been indicted. Also, the investigation did not find any evidence that Abegunde and Ojo knew, had contact with, or coordinated with any of the defendants on the indictment.
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. The transaction was consummated and Ojo received $9,000 in his Wells Fargo bank account that Ojo had provided Leke Adenuga. The investigation found that it was, and still is, common practice in Nigeria for individuals in need of foreign exchange to consummate foreign exchange transactions via informal channels. The investigation also found that resorting to informal channels is precipitated by bureaucratic bottlenecks, as well as a general unavailability of foreign exchange through the official channels sanctioned by the Central Bank of Nigeria (CBN). The author further confirmed that in Nigeria, informal currency exchange services are a de facto part of the market place for exchanging currencies, such that there is no legal requirement for buyers to know the sources of the funds the seller is exchanging.
As we have also seen, as soon as Ojo became aware that the $9,000 had been inadvertently deposited into his Wells Fargo bank account by a certain Javier Luis Ramos Alonso, Ojo agreed to the immediate reversal of the funds. This simply implies that Ojo was not financially enriched as a result of the inadvertent $9,000 deposit. This point is significant because according to a U.S. legal expert interviewed by the author, knowingly benefiting financially or knowingly attempting to benefit financially from a fraudulent scheme is an element of Wire Fraud Conspiracy. In Ojo’s case, rather than knowingly benefit or knowingly attempting to benefit financially from the alleged fraudulent scheme; all the evidence points to the fact that Ojo simply engaged in a foreign exchange transaction where he gave up the Nigerian Naira equivalent of $9,000 for the actual $9,000 which Ojo neither accessed nor spent.
As has also been established, Ojo offered the FBI his full cooperation when Abegunde notified Ojo that the FBI came looking for Ojo at Abegunde’s residence in March, 2017.
As for Abegunde, all Abegunde was accused of doing – regarding the crimes he was charged with on the initial indictment – is that Abegunde granted Ojo permission to utilize Abegunde’s address and phone number to open a bank account for genuine reasons. As we have seen, according to the testimony of the case agents that investigated the case, this does not rise to the level of criminality.
Furthermore, according to legal experts in the U.S. that were interviewed in the course of the investigation, these benign actions by Abegunde and Ojo – without any further corroboration of wrongdoing – do not constitute a Conspiracy to Commit Wire Fraud according to extant U.S. legal provisions.