Petition for Writ of Certiorari — Akunna Baiyina Ejiofor, Petitioner v. United States

APPENDIX

Appellate Case: 17-6211 Document: 010110072054 Date Filed: 10/23/2018 Page: 1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS Tenth Cireuit

FOR THE TENTH CIRCUIT October 23, 2018

Elisabeth A. Shumaker

UNITED STATES OF AMERICA, Clerk of Court

Plaintiff - Appellee,

v. No. 17-6211

(D.C. No. 5:16-CR-00029-D-2)

AKUNNA BAIYINA EJIOFOR, (W.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT*

Before BRISCOE, KELLY, and McHUGH, Circuit Judges.

Defendant-Appellant Akunna Baiyina Ejiofor was convicted by a jury of

conspiracy to commit wire fraud, aggravated identity theft, and multiple counts of wire

fraud. 18 U.S.C. §§ 1349, 1028A(a)(1) & 1343. She was sentenced to a total term of

imprisonment of 84 months, three years’ supervised release, and ordered to pay

restitution of $4,678,302.79. See 2 R. 288-94. She now appeals, challenging the denial

of her motion to suppress and arguing that a search of her apartment was not supported

by probable cause, that the good faith exception to the exclusionary rule does not apply,

and that all derivative evidence including her incriminating statements ought to be

* This order and judgment is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive

value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

At

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suppressed. She maintains that the government will not be able to prove that the

evidence obtained was harmless beyond a reasonable doubt, and thus her convictions

must be vacated and the case remanded for a new trial. Our jurisdiction arises under 28

U.S.C. § 1291 and we affirm.

Background

The Federal Bureau of Investigation (FBI) searched Ms. Ejiofor’s apartment at

2255 Eldridge Parkway in Houston, Texas. See 1 Aplt. Supp. R. at 4. Previously, FBI

Special Agent Christine Beining sought a search warrant for two residences in Houston,

one of which was Ms. Ejiofor’s apartment. Id. According to the affidavit supporting the

application for the warrant, one Edward Peter Duffey preyed on various women on

various dating websites (“the scheme”). Id. at 7-22. After some weeks of corresponding

with several of the victims by telephone and text message, Mr. Duffey professed his love

for them. Id. at 7, 13-14. Some victims received a call, purportedly from Mr. Duffey’s

daughter, expressing happiness about the newfound relationships.’ Id, at 7, 19-20.

Perhaps believing that flowers are the fastest way to the heart, Mr. Duffey

purchased flowers for many of his victims. Id. at 7, 10-11, 16, 19. One of the credit card

numbers he used was connected to a prepaid debit card with no account holder

information. Id. at 26. However, an individual had used the card on April 30, 2015, just

1 One of the victims saved a voice-mail message from the “daughter” that was played at

trial and identified as Ms. Ejiofor’s voice. See 4 R. 180-81, 273-75, 356-57.

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several days after a flower purchase, to make a purchase from an iTunes account

registered to a Linda Poll. Id, at 11, 26-27. According to the affidavit:

On January 13, 2016, [FBI Special Agent Timothy J. Schmitz] conducted a

search of the CP Clear commercial database for Linda Poll and 3455

Wolton, Houston, Texas 77077. The search resulted in no information

leading SA Schmitz to believe the name and address associated with iTunes

account 389355873 to be fictitious.

Id, at 27. On July 1, 2015, someone made a purchase on that same iTunes account using

an Internet Protocol (IP) address belonging to Ms. Ejiofor at 2255 Eldridge Parkway. Id.

Soon after he began to communicate with his victims, Mr. Duffey invariably

inquired about their investments. Id. at 8-9, 13, 17, 19-21. Mr. Duffey told the victims

that he was friends with then-U.S. Securities and Exchange Commission (SEC)

Chairwoman Mary Jo White,” that the SEC was investigating the victim’s bank or asset

manager, and that the victim should therefore transfer her funds to Mr. Duffey for him to

invest. Id. at 8, 10, 13, 18. A woman purporting to be Mary Jo White called some of the

victims to confirm the investigation and to encourage them to invest their money with

Mr. Duffey. Id. Many of the victims wired money to Mr. Duffey, after which Mr.

Duffey ceased communications. Id. at 8-9, 14, 21-22.

Some victims reported that Mr. Duffey instructed them to wire money to April

Cummings, whom Mr. Duffey represented worked at his investment firm. Id. at 12-15,

22-23. Ms. Cummings claimed she had met a man named John Alex Cole, who

purported to be a teacher at an orphanage in Kuwait, on a dating website. Id. at 14. Mr.

2 In one instance, Mr. Duffey represented that he was a friend of “Mary Jo Weiss,” a

member of the SEC’s investigative committee. 1 Aplt. Supp. R. at 10.

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Cole had asked her to assist in collecting funds to aid the orphanage. Id. From 2014

through 2015, at Mr. Cole’s instruction, Ms. Cummings transferred money she received

from the victims communicating with Mr. Duffey into accounts designated by Mr. Cole.

Id. at 12, 14-15, 22. One such account had been opened on September 17, 2015, by

Anthony Benson and had received $50,000 in three installments from Ms. Cummings in

early October 2015. Id. at 23-24. FBI investigations revealed that Mr. Benson was a

Nigerian national who had arrived in Houston, Texas, by way of Zurich, Switzerland, on

September 4, 2015. Id. at 25. His intended address upon arrival was 3347 Chartreuse

Way in Houston, at which Ken E. Ezeah resided. Id, at 26.

The affidavit supporting the application for a search warrant also describes an

“employment scam.” Id, at 27. In June 2015, a Community First Federal Credit Union

(CFFCU) customer deposited a counterfeit check into her CFFCU account and

immediately withdrew the funds. Id, at 28. On June 22, 2015, that customer deposited

two payments totaling $5,500 into a Bank of America (BOA) account, which Mr. Ezeah

opened in October 2010 on behalf of Fabross Property Ventures, Inc., of which he was

the president. Id. That same day, Mr. Ezeah transferred $3,000 from that BOA account

to his personal BOA checking account. Id. On June 23, 2015, Mr. Ezeah transferred

$200 from his BOA checking account to Ms. Ejiofor. Id. He had also transferred $500

from that account to Ms. Ejiofor on June 15, 2015. Id.

Finally, the affidavit referenced cell tower data showing that the telephone number

Mr. Duffey used to communicate with two of the victims was used “in close proximity”

to 2255 Eldridge Parkway and to 3347 Chartreuse Way. Id. at 28-29,

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In light of the above facts, the agent sought authorization to seize, among other

items, computer hardware and associated peripherals, mobile telephones, and credit,

debit, and ATM cards located at 3347 Chartreuse Way and at 2255 Eldridge Parkway.

Id. at 29-32. On January 25, 2016, a magistrate judge in the Southern District of Texas

issued a search warrant for 2255 Eldridge Parkway, which FBI agents executed on

January 27, 2016. Id. at 4;4.R. 465. There, they discovered a notebook containing email

addresses, aliases, and passwords associated with dating websites. 4 R. 469-76. The

agents also discovered debit cards that were used to purchase many of the flowers and to

create or renew approximately 19 fake online dating profiles involved in the scheme. Id.

at 539, 546. During the search, Ms. Ejiofor admitted to an FBI agent her integral role in

the scheme with Mr. Ezeah. Id. at 45-49. FBI agents executed a search warrant for 3347

Chartreuse Way that same day, where they seized multiple mobile telephones, id. at 85—

90, and debit cards used in the scheme. Id. at 214-15.

On June 22, 2016, a federal grand jury in the Western District of Oklahoma

indicted Mr. Ezeah and Ms. Ejiofor on 20 counts of aggravated identity theft, wire fraud,

and conspiracy to commit wire fraud. 1 R. 40-52. Mr. Ezeah moved to suppress

evidence against him pursuant to Franks v. Delaware, arguing that the underlying

affidavit “recklessly create[d] a false impression that he was involved in the [employment

scam at CFFCU] and consequently was involved in the romance scheme at issue in this

case.” United States v. Ezeah, No. CR-16-29-D, 2016 WL 7410735, at *2 (W.D. Okla.

Dec. 22, 2016). The district court discussed the above facts from the affidavit and denied

Mr. Ezeah’s motion, holding, inter alia, that he failed to show that the agent knowingly or

AS

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recklessly omitted information that would have vitiated probable cause. Id. at *3-4. The

district court further held that the affidavit established a sufficient nexus between Mr.

Ezeah’s residence and the criminal activity, and that the magistrate judge had not erred in

concluding that there was probable cause to support issuing the search warrant. Id, at *3.

As noted, Ms. Ejiofor also moved to suppress evidence seized pursuant to the

search warrant and statements she made after the execution of those searches as

derivative evidence, arguing that the affidavit was insufficient. See 1 R. 115 (Motion to

Suppress); United States v. Ezeah, No. CR-16-29-D, 2016 WL 7429131, at *1 (W.D.

Okla. Dec. 22, 2016). In a separate order filed the same day as the denial of Mr. Ezeah’s

motion to suppress, the district court denied Ms. Ejiofor’s motion to suppress, holding

that “[fJor the same reasons set forth in the Court’s Franks Order,” there was sufficient

probable cause to search Ms. Ejiofor’s apartment, and that the magistrate judge did not

err in issuing the warrant. Ezeah, 2016 WL 7429131, at *1.

Discussion

On appeal from the denial of a motion to suppress, we view the evidence in the

light most favorable to the government. United States v. Roach, 582 F.3d 1192, 1200

(10th Cir. 2009), If the validity of a search warrant is questioned, we review de novo.

United States v. Pulliam, 748 F.3d 967, 970-71 (10th Cir. 2014). Our review is limited

to the facts presented in the affidavit. Roach, 582 F.3d at 1200. We do not engage in

“after-the-fact scrutiny” of the affidavit’s sufficiency. Illinois v. Gates, 462 U.S. 213,

236 (1983). Instead, our review affords deference to the probable cause determination of

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the magistrate judge while ensuring that the affidavit provides a substantial basis for

issuing the warrant. Pulliam, 748 F.3d at 971. Only where no substantial basis exists for

probable cause do we disturb that determination. Roach, 582 F.3d at 1200.

A. The Affidavit Supporting the Search Warrant Alleged Facts Sufficient to

Establish Probable Cause

Ms. Ejiofor argues that the affidavit showed at most that she knew individuals who

may have been involved in criminal activity. Aplt. Br. at 31. In particular, she focuses

on three facts connecting her to the scheme — (1) the iTunes account registered to Linda

Poll that was associated with both the flower purchases and Ms. Ejiofor’s IP address; (2)

the transfer of funds from Mr. Ezeah’s bank account to Ms. Ejiofor; and (3) the cell tower

records showing that a telephone number connected to the scheme was used in close

proximity to both Mr. Ezeah’s and Ms. Hjiofor’s residences. Id. She maintains that none

of these facts establish a sufficient nexus between the scheme and her apartment. She

offers ready alternative explanations. For example, Mr. Ezeah’s payment of $200 to Ms.

Ejiofor the day after he received funds from the employment scam could have been

unrelated to either that scam or the scheme, a point further bolstered by his $500 payment

to Ms. Ejiofor prior to that scam. Aplt. Reply Br. at 5. Or, because there was no

information indicating “Linda Poll” was a fictitious alias, Ms. Poll could have been Ms.

Ejiofor’s friend, acquaintance, visitor, or even a stranger who used her WiFi from nearby.

Aplt. Br. at 36. Ms. Ejiofor also challenges the significance of the cell tower data by

arguing that many residences could have been said to be in “close proximity” to the

telephone number associated with the scheme. Id. at 37.

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We should be reluctant to disturb a magistrate judge’s probable cause

determination merely because facts supporting a search warrant are susceptible to

alternative, innocent explanations. Cf. United States v. Arvizu, 534 U.S. 266, 274 (2002)

(holding that innocent explanations of a suspect’s conduct do not vitiate reasonable

suspicion). Probable cause exists if there is “a fair probability that contraband or

evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238. An

affidavit submitted in support of a warrant must show a “minimal nexus between the

place to be searched and the suspected criminal activity.” United States v. Gonzales, 399

F.3d 1225, 1231 (10th Cir. 2005) (emphasis added). Importantly, a judge issuing a

warrant may go beyond the facts contained in the affidavit to make common sense,

reasonable inferences from those facts. United States v. Grimmett, 439 F.3d 1263, 1270

(10th Cir. 2006). Of course, an affidavit containing “wholly conclusory statement[s]”

cannot give rise to probable cause, Gates, 462 U.S. at 239, nor can an issuing judge

“arrive at probable cause simply by piling hunch upon hunch.” United States v.

Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004).

Here the factual basis connecting Ms. Ejiofor’s apartment to the scheme is

adequate when judged by these standards — the affidavit contained more than mere

“supposition and hunches,” as Ms. Ejiofor contends. Apit. Br. at 32. Its account of the

payments to Mr. Benson, who at one time intended to reside at Mr. Ezeah’s house, and of

Mr. Ezeah’s apparent connection to an employment scam, created an inference of Mr.

Ezeah’s fraudulent conduct. It further connected Mr. Ezeah to Ms. Ejiofor by describing

payments to her, at least one of which appeared to have been tainted by fraud. And, as

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the government argues, investigators knew that at least one woman was connected to the

scheme because some of the victims received a phone call from a woman purporting to

be either Mary Jo White or Mr. Duffey’s daughter. Aplee. Br. at 14.

The affidavit also connected multiple flower purchases (a recurring and integral

part of the scheme) to a prepaid debit card associated with an iTunes account that

someone used while on Ms. Ejiofor’s internet connection. Ms. Ejiofor places substantial

weight on the affidavits account of Linda Poll, arguing that the affidavit indicated that

Linda Poll’s name and address were not fictitious. See Aplt. Reply Br. at 4-5. But an

equally plausible reading of the affidavit suggests that the agent believed the name and

address were fictitious because the agent’s search revealed no information about Ms.

Poll. Viewing the evidence and its inferences in a light most favorable to the

government, as we must on appeal, we cannot agree with Ms. Ejiofor’s characterization

of the affidavit.

Based upon the facts discussed above, the district court did not err in upholding

the search warrant. Entirely reasonable inferences of probable cause could have been

drawn from the totality of the circumstances as described in the affidavit.*

3 Alternatively, under Ms. Ejiofor’s reading, the affidavit still states that Ms. Poll’s

iTunes account was linked to Ms. Ejiofor’s apartment and a flower purchase in

furtherance of the scheme.

4 Insofar as the district court did not clearly explain its reasoning for affirming the

magistrate judge’s probable cause determination as to Ms. Ejiofor’s apartment, it

nevertheless mentioned in its Franks order all of the facts discussed above. Ezeah, 2016

WL 7410735, at *1-2. But even if the district court did not adequately consider the facts

as they related to Ms. Ejiofor, this court is not tethered to the reasoning of the district

court, as the determination of the sufficiency of a search warrant is a conclusion of law

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B. The Agents Relied in Good Faith on the Sufficiency of the Warrant

Ms. Ejiofor also argues not only that each of the three facts discussed above have

innocent explanations, but that the defects with respect to each of them were “glaringly

obvious” from the face of the affidavit. Aplt. Br. at 45. Because, she reiterates, the

affidavit failed to provide a minimal nexus between the scheme and her apartment, the

agents could not possibly have relied on the validity of the warrant in good faith. Id. at

47-48. However, even if this court were persuaded by her argument that the search

lacked probable cause, the magistrate judge’s determination was grounded in a sufficient

factual basis such that the agents relied on the search warrant in good faith.

The exclusionary rule serves to protect defendants by deeming inadmissible any

derivative evidence, often called “fruit of the poisonous tree,” obtained as a result of an

unlawful search. See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). The rule

is based upon its deterrent effect. United States v. Leon, 468 U.S. 897, 916 (1984).

However, the exclusionary rule has no deterrent effect on law enforcement officers who

rely in good faith on a subsequently invalidated warrant. Id. at 918. When determining

whether officers acted in good faith, a reviewing court presumes reasonable knowledge

of the law, and assesses objectively whether a “reasonably well trained officer would

have known that the search was illegal despite the magistrate’s authorization.” Gonzales,

399 F.3d at 1230 (quoting Leon, 468 U.S. at 922 n.23). An officer cannot be said to have

that we review de novo. United States vy. Danhauer, 229 F.3d 1002, 1005 (10th Cir.

2000).

10

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acted in good faith if the warrant and underlying documents are “so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable.” Id. at

1229 (quoting Leon, 468 U.S. at 923).

There is a presumption that an executing officer acts in good-faith reliance on a

warrant’s validity. United States v. Augustine, 742 F.3d 1258, 1262 (10th Cir. 2014).

“This presumption, though not absolute, ‘must carry some weight.’” United States v.

Harrison, 566 F.3d 1254, 1256 (10th Cir. 2009) (quoting United States v. Cardall, 773

F.2d 1128, 1133 (10th Cir. 1985)). When an affidavit “describes circumstances which

would warrant a person of reasonable caution in the belief that the articles sought are at a

particular place,” we have found objectively reasonable reliance on an affidavit’s

establishment of a nexus. Augustine, 742 F.3d at 1263 (quoting United States v.

Campbell, 603 F.3d 1218, 1231 (10th Cir. 2010)); see also United States v. Chambers,

882 F.3d 1305, 1312-13 (10th Cir. 2018). Because the affidavit included facts that

connected Ms. Ejiofor and her apartment to the scheme, and because it is reasonable to

believe that mobile telephones, computers, and credit cards could be found in Ms.

Ejiofor’s apartment, this also supports our conclusion that the FBI agents acted in goodfaith reliance on the sufficiency of the search warrant.

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA.

UNITED STATES OF AMERICA, )

Plaintiff,

Vv. Case No. CR-16-29-D

KEN EJIMOFOR EZEAH and

AKUNNA BATYINA EJIOFOR, )

Defendants.

ORDER

Before the Court are Motions to Suppress by Defendants Ken Ezeah [Doc.

No. 70] and Akunna Ejiofor [Doc. No. 79]. The government has filed its responses

in opposition [Doc. Nos. 78, 85] and the matters are now at issue.

The Court assumes the parties familiarity with the facts underlying this

action. For a more comprehensive statement of those facts, reference should be

made to the Court’s Order denying Defendant Ezeah’s Motion to Suppress for

Violation of Franks v. Delaware. Here, Defendant Ezeah contends that (1) the

affidavit used to obtain the search warrant of his home failed to establish a nexus

between his property and the alleged scheme at issue in this action; (2) in certain

respects, the warrant was an unlawful “general warrant”; and (3) the information

provided to the issuing magistrate judge was stale. Defendant Ejiofor contends the

affidavit was defective on its face and could not support a determination of

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probable cause. Defendants request that all evidence obtained pursuant to the

warrants be suppressed.

In the Court’s Order addressing Ezeah’s Franks motion, the Court

determined that the subject affidavit reflected no misrepresentation or material

omission and, under the totality of circumstances, established a sufficient nexus

between the alleged online dating scheme and Ezeah’s home, Accordingly, the

Court found there was no error in the magistrate judge’s determination that

probable cause existed at the time of issuance. For the same reasons set forth in the

Court’s Franks Order, the Court finds sufficient probable cause existed to support

the search of Ejiofor’s residence and the magistrate judge did not commit error in

issuing the warrant.

Next, Defendant Ezeah contends that the warrant was overbroad in certain

areas with respect to its issuance, and consequently, resulted in a general search in

violation of the Fourth Amendment, which requires that warrants “particularly

describ[e] ... the persons or things to be seized.” U.S. CoNsT. AMEND. IV. The

Court finds this contention is without merit. “The requirement that warrants shall

particularly describe the things to be seized makes general searches under them

impossible and prevents the seizure of one thing under a warrant describing

another. As to what is to be taken, nothing is left to the discretion of the officer

executing the warrant.” Stanford v. Texas, 379 U.S. 476, 485 (1965) (quoting

2

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Marron y. United States, 275 U.S. 192, 196 (1927)). The search should be

“confined in scope to particularly described evidence relating to a specific crime

for which there is demonstrated probable cause.” United States v. Villanueva, 821

F.3d 1226, 1238 (10th Cir. 2016) (quoting Voss v. Bergsgaard, 774 F.2d 402, 404

(10th Cir. 1985)). “A warrant describing ‘items to be seized in broad and generic

terms may be valid if the description is as specific as circumstances and [the]

nature of the activity under investigation permit.’” Jd. (quoting United States v.

Wicks, 995 F.2d 964, 973 (10th Cir. 1993) (paraphrasing added; further citations

omitted)).

Attachment B of the search warrant set forth an extensive list of items to be

seized. Defendant objects to the following categories specified in the warrant:

Any and all cellular and/or voice over internet telephones;

Any United States currency;

Any and all debit, credit or ATM cards;

Any and all forms of identification, issued by whatever

government or private entity, including any names and/or visual

likeness found therein;

Any and all travel records, including but not limited to airline

receipts and itineraries and hotel receipts;

Any and all telephone records; and

Any and all Internet Service Provider records.

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The Tenth Circuit has upheld search warrants cast in comparably broad

terms where the circumstances permitted only a more general listing of the items to

be seized, See United States v. Wicks, 995 F.2d 964, 973 (10th Cir. 1993). As

noted, Defendants are charged with conducting a complex scheme to commit

identity theft and wire fraud wherein various fake online dating profiles were set

up and used to persuade women to wire money under the promise of -

managing/investing said funds. Given the nature of the, alleged scheme, the

government had no obligation to restrict the search to specific items where the

evidence, detailed fully in the accompanying affidavit, demonstrated a widespread

effort to defraud women online. In sum, the Court finds the warrant was neither

impermissibly broad nor insufficiently particular.

Lastly, Defendant Ezeah contends the information contained in the affidavit

was stale. Warrants cannot be issued based on stale information that no longer

suggests the items sought are to be found in the place to be searched. United States

y. Snow, 919 F.2d 1458, 1459 (10th Cir, 1990), The Tenth Circuit has found that

this determination depends on several factors, such as the nature of the criminal

activity, the length of the activity, and the nature of the property to be seized. Id. at

1460. For ongoing criminal activity, the “passage of time is not of critical

importance.” United States v. Thao Dinh Le, 173 F.3d 1258, 1266 (10th Cir. 1999)

(quoting United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992)).

4

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Defendant states that the warrant was issued in January 2016, but the only

temporal reference to his property was on September 4, 2015. Defendant's

argument ignores the law of the Tenth Circuit, which, as noted above, has

established that whether information is too stale depends on the nature and length

of the suspected criminal activity. The affidavit cited continuous and ongoing

fraudulent activity which implicated Defendant’s residence. Such conduct began as

early as March 2015 and continued through the fall of 2015. Such ongoing and

continuous activity makes the passage of time less critical when judging the

staleness of information upon which a search warrant is based. Defendant’s

reliance upon the mete passage of time alone to demonstrate the staleness of the

information is unavailing.

Accordingly, Defendants Ken Ezeah and Akunna Ejiofor’s Motions to

Suppress [Doc, Nos. 70, 79] are DENIED as set forth herein.

IT IS SO ORDERED this 22"* day of December, 2016.

Tees

TIMOTHY D. DEGIUSTI _

UNITED STATES DISTRICT JUDGE

Volume 1 page 171

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IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,

Plaintiff,

)

)

)

)

v. ) Case No. CR-16-29-D

)

KEN EJIMOFOR EZEAH and )

AKUNNA BATYINA EJIOFOR, )

)

Defendants. )

ORDER

This matter comes before the Court on Defendant Ken Ezeah’s Motion to

Suppress Search Warrant for Franks v. Delaware Violation [Doc. No. 98], to

which the government has filed its response in opposition [Doc. No. 103]. A

hearing was held on December 9, 2016 during which the parties presented their

respective arguments and evidence.' The matter is fully briefed and at issue.

1 Franks held that a facially sufficient affidavit may be challenged on the ground

that it used deliberately or recklessly false statements to demonstrate probable

cause. Franks, 438 U.S. at 168-70. In the Tenth Circuit, the standards of

“deliberate falsehood” and “reckless disregard” set forth in Franks apply to

material omissions as well as affirmative falsehoods. United States v. Kennedy,

131 F.3d 1371, 1375 (10th Cir. 1997). To warrant a Franks hearing, a defendant

must make a strong threshold showing of deliberate falsehood or reckless disregard

for the truth, accompanied by an offer of proof. 438 U.S. at 171. The Court

expresses no opinion, however, on whether Defendant has made such a showing.

Rather, the Court, sua sponte, has determined an evidentiary hearing would be

useful in resolving the present motion, without any threshold determination. See

United States y. Herrera, 782 F.3d 571, 573-74 (10th Cir. 2015).

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BACKGROUND

On January 25, 2016, Special Agent Christine Beining of the Federal Bureau

of Investigation (FBI) sought a search warrant of two residences located,

respectively, at 2255 Eldridge Parkway, Apt. 1714, Houston, Texas and 3347

Chartreuse Way, Houston, Texas. Agent Beining stated the FBI was investigating

an individual using the name “Edward Peter Duffey” in an internet fraud scheme

and its investigation revealed probable cause to believe the subject properties

contained evidence, fruits, and instrumentalities used to perpetuate the crime.

Agent Beining’s affidavit chronicled the experiences of several women who

met an “Edward Duffey” at various online dating sites. According to the affidavit,

most of the women’s experiences were similar in that they established an online

relationship with Duffey, who would send flowers and profess his love for them.

Their conversations with Duffey eventually turned to financial matters, where

Duffey asked them about their retirement and/or investments. Several women told

Duffey that they did maintain a retirement/savings account and gave him the name

of the bank where it was kept. In response, Duffey would warn them that the bank

was under investigation and encouraged the women to transfer their funds to him

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so he could invest it and keep it safe.’ Several women agreed and wired money to

certain banks pursuant to Duffey’s instructions.

One of the women, a Nevada resident, transferred $60,000 to a woman

named April Cummings, who, in turn, transferred a majority of the funds to an

account belonging to a man named Anthony Benson. An investigation of Benson

revealed he was a Nigerian citizen whose most recent arrival in the United States

was at Houston from Zurich, Switzerland on September 4, 2015. Benson indicated

in arrival records that his intended address was 3347 Chartreuse Way, Houston,

TX 77082. Special Agent Tim Schmitz of the FBI subsequently identified Ezeah as

the resident of this address.

In addition, bank records linked the aforementioned flower purchases to a

pre-paid debit card, which was also used to make an iTunes purchase on April 30,

2015. The iTunes account was registered to a Linda Poll of Houston. On July 1,

2015, Poll’s account made another iTunes purchase using an IP address associated

with Defendant Akunna Ejiofor, whose address was listed as 2255 Eldridge

Parkway, Apt. 1717, Houston, TX 77077.

Of relevance to the instant motion, paragraph 29 of the affidavit stated:

* Duffey also said he was a friend of Mary Jo White, the current Chair of the

Securities and Exchange Commission (SEC). At least two women received a call

from a woman purporting to be White, who advised them that the SEC was

investigating the bank and encouraged them to withdraw their funds,

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Case 5:16-cr-00029-D Document 122 Filed 12/22/16 Page 4 of 9

On or about January 5, 2016, [Bank of America] advised SA Schmitz

that it was contacted by Community First Federal Credit Union

(CFFCU), regarding one of CFFCU’s customers being a victim of an

employment scam. In June 2015, the CFFCU customer deposited a

counterfeit check into her CFFCU account and immediately withdrew

the funds. On June 22, 2015, the CFFCU customer deposited $2,850

of the funds in BOA account number ********8870 and an additional

$2,650 to the same account, later that day.

Account number ********887Q belongs to Fabross Property

Ventures, Inc. (Fabross). Account number **#*****8870 was opened

by Ken Ezeah (Ezeah) in October 2010. Ezeah is identified as the

President of Fabross and is a signatory on the account,

In July 2010, Ezeah opened BOA regular checking account number

Heke TS 73. Ezeah indicated in opening account documents that

his permanent residence was located in Zurich, Switzerland.

On June 22, 2015, Ezeah transferred $3,000 from the account number

AHA TGKRERE TO to BHR TOTS On June 15, 2015 and June 23,

2015, Ezeah transferred $500.00 and $200.00, respectively, from

account number ********7573 to Ejiofor.

premises.

4

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(Emphasis and redactions added),’ Lastly, the affidavit stated that cell tower data

showed that one of Duffey’s telephone numbers was used in close proximity to the

Chartreuse Way and Eldridge Parkway addresses. Based on the foregoing, Agent

Beining sought permission to seize computer hardware (and related devices),

identity documents, financial records, and similar documents from the subject

3 The Court ordered an in camera production of the documents that aided Agent

Beining in her recitation of the scheme described in paragraph 29. Upon its review

of the documents, the Court finds they do not affect its determination as to whether

sufficient probable cause existed to issue the subject search warrant.

Case 5:16-cr-00029-D Document 122 Filed 12/22/16 Page 5 of 9

According to Ezeah, paragraph 29 of the affidavit recklessly creates a false

impression that he was involved in the employment scam referenced therein and

consequently was involved in the romance scheme at issue in this case. Mot. at 7,

9-10 [Doc. No. 98]. Ezeah contends that if the magistrate judge had been informed

that Fabross and Ezeah were victims of the referenced employment scam, or if

paragraph 29 was omitted in its entirety, “the tenor of the [alffidavit would

change.” Mot. at 10. The government, in response, states that paragraph 29 was

included to show a financial connection between the defendants in that an account

belonging to Ezeah (or within his control) was used to transfer money to Ejiofor.

STANDARD

“A search warrant can issue only upon a showing of probable cause.” United

States v. Long, 774 F.3d 653, 658 (10th Cir. 2014) (citing United States v. Biglow,

562 F.3d 1272, 1275 (10th Cir. 2009)). “The supporting affidavit must provide a

substantial basis to conclude that there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” Id. (quoting United States

vy. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999) (internal quotations omitted)).

Stated another way, the affidavit must show a “nexus between ... suspected

criminal activity and the place to be searched.” United States v. Gonzales, 399 F.3d.

1225, 1228 (10th Cir. 2005) (citation omitted). Courts examine the “totality of the

circumstances” in the affidavit provided to determine whether it established a

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Case 5:16-cr-00029-D Document122 Filed 12/22/16 Page 6 of 9

substantial basis for finding a fair probability that contraband or other evidence of

a crime would be found at the searched premises. United States v. Myers, 106 F.3d

936, 939 (10th Cir. 1997). “[Mlagistrate judges are vested with substantial

discretion to draw all ‘reasonable inferences’ from the Government’s evidence.”

Biglow, 562 F.3d at 1281 (citing Illinois v. Gates, 462 U.S. 213, 240 (1983)).*

Accordingly, “the Court must show deference to the magistrate’s finding of

probable cause and must interpret the affidavit in a ‘common sense and realistic

fashion.’ ” United States v. Taylor, No. 13-CR-0003-001-CVE, 2013 WL 2149644

at *8 (ND. Okla. May 16, 2013) (quoting United States v. Grimmett, 439 F.3d

1263, 1270 (10th Cir. 2006).

Under Franks, a Fourth Amendment violation occurs if (1) an officer’s

affidavit supporting a search warrant application contains a reckless misstatement

or omission that (2) is material because, but for it, the warrant could not have

lawfully issued. United States v. Herrera, 782 F.3d 571, 573 (10th Cir. 2015)

(citing Franks, 438 U.S. at 155-56, Kennedy, 131 F.3d at 1376). Accordingly, a

search warrant must be voided where a court: (1) finds that the affiant knowingly

* In utilizing this standard, the Supreme Court has cautioned district courts against

adopting a “grudging or negative” attitude toward search warrants, regardless of

whether the magistrate judge’s probable cause determination rests on such

inferences, Biglow, 562 F.3d at 1281 (citing Massachusetts v. Upton, 466 U.S. 727,

733 (1984)), and it has expressly disallowed resorting to “hypertechnical”

constructions of the government’s evidence to invalidate a warrant. Jd. (citing

Gates, 462 U.S. at 236).

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Case 5:16-cr-00029-D Document 122 Filed 12/22/16 Page 7 of 9

or recklessly included false statements in or omitted material information from an

affidavit in support of a search warrant; and (2) concludes, after excising such false

statements and considering such material omissions, that the corrected affidavit

does not support a finding of probable cause. United States v. Garcia-Zambrano,

530 F.3d 1249, 1254 (10th Cir. 2008).

Defendant bears the burden to demonstrate the affidavit’s invalidity or that

the search warrants were not supported by probable cause. See United States v.

Esser, 451 F.3d 1109, 1112 (10th Cir. 2006) (defendant has burden of showing

constitutional infirmity in search warrant). As noted above, “[f]o win an

evidentiary hearing to prove a Franks violation, a defendant must do more than

allege a problem with the warrant. The Supreme Court has directed that a

defendant’s allegations ‘must be accompanied by an offer of proof. ... Affidavits or

sworn or otherwise reliable statements of witnesses should be furnished, or their

absence satisfactorily explained.’” Herrera, 782 F.3d at 573 (citing Franks, 438

USS. at 171; Kennedy, 131 F.3d at 1376).

DISCUSSION

Pursuant to the above standard, the Court finds Ezeah’s motion should be

denied, Ezeah has not made the threshold showing that Agent Beining either knew

of, or recklessly disregarded, false information, or knowingly or recklessly omitted

information that would have vitiated probable cause. Other than his conclusory

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Case 5:16-cr-00029-D Document 122 Filed 12/22/16 Page 8 of 9

assertions, Ezeah has come forth with no persuasive evidence that he was the

victim of any employment scheme. Nevertheless, even if paragraph 29 were

omitted altogether, the Court finds probable cause would still exist. At this stage of

the proceedings, the Court’s inquiry is to simply determine whether the affidavit on

its face established a sufficient nexus between suspected criminal activity and the

subject premises. As detailed above, Ezeah’s residence was sufficiently linked to

suspected criminal activity involving the online dating scheme, and the Court finds

there was no error in the magistrate judge’s determination that probable cause

existed at the time of issuance. Accordingly, Ezeah has not made the requisite

showing under Franks and his motion is denied.’

CONCLUSION

Defendant Ken Ezeah’s Motion to Suppress Search Warrant for Franks v.

Delaware Violation [Doc. No. 98] is DENIED as set forth herein.

IT IS SO ORDERED this 22" day of-December, 2016.

Tab, 0. bit

TIMOTHY D: DEGIUSTI

UNITED STATES. DISTRICT FUDGE

° Defendant’s Franks motion focused specifically on paragraph 29 of the affidavit.

See Mot. at 10 (“This motion is based on the omission of facts from { 29 of the

Search Warrant Affidavit[.]”). At the December 9 hearing, however, counsel for

Ezeah raised for the first time objections to paragraphs 25, 26, and 30 of the

affidavit as well. These new arguments, having been raised for the first time at the

hearing, need not be considered here. Nevertheless, the testimony and argument

submitted regarding these paragraphs fall short of sustaining a challenge under

Franks.

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Case 5:16-cr-00029-D Document 122 Filed 12/22/16 Page 9 of 9

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Appellate Case: 17-6211 Document: 010110097801 Date Filed: 12/13/2018 Page:1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 13, 2018

Elisabeth A. Shumaker

lerk

UNITED STATES OF AMERICA, Clerk of Court

Plaintiff - Appellee,

v. No. 17-6211

AKUNNA BATYINA EJIOFOR,

Defendant - Appellant.

ORDER

Before BRISCOE, KELLY, and McHUGH, Circuit Judges.

This matter is before the court on Appellant’s Motion to file the Petition for

Rehearing out of Time and the Petition for Rehearing. The Motion to file the Petition out

of time is granted. The Appellant's petition for rehearing is denied.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

Scott S. Harris

Clerk of the Court

March 4, 2019 (202) 479-3011

Mr. Howard A. Pincus

Fed Pub. Def. for Dist. CO &WY

633 17th Street

Suite 1000

Denver, CO 80202

Re: Akunna Baiyina Ejiofor

v. United States

Application No. 18A894

Dear Mr. Pincus:

The application for an extension of time within which to file a petition

for a writ of certiorari in the above-entitled case has been presented to

Justice Sotomayor, who on March 4, 2019, extended the time to and including

May 7, 2019.

This letter has been sent to those designated on the attached

notification list.

Sincerely,

Scott S. Harris, Clerk

by Iota bs L-

Melissa Blalock

Case Analyst

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